Darker v Chief Constable of the West Midlands

Evidence Act 1995 LEGISLATION CITED : Civil Procedure Act 2005 Limitation Act 1969 Law Reform (Vicarious Liability) Act 1983

Darker v Chief Constable of the West Midlands (2000) 3 WLR 747 Cabassi v Vila (1940) 64 CLR 130 Behn v Bloom (1911) 132 LTR 87 Queensland v J L Holdings Pty Limited (1996-1997) 189 CLR 146 Cropper v Smith (1884) 26 Ch.D 700 Pringle v Everingham [2006] HCA 195 Sharp v Biggs (1932) 48 CLR 81 A v State of NSW (2005) 63 NSWLR 681 CASES CITED : Trobridge v Hardy (1955) 94 CLR 147 Brown v Hawkes (1891) 2 QB 718 Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343 Shum Kwok Sher v Hong Kong Special Administrative Region [2002] HKCFA 30 Regina v Bembridge (1783) 3 Doug 327 Pryor v State of NSW (CA 40614/96; BC 9805599) Knight v State of NSW [2004] NSWSC 791 State of NSW v Eade [2006] NSWSC 84 Caterbury Bankstown Rugby Leagues Club v Rogers (1993) ATR 62

PARTIES : LANDINI, Henry Charles v. STATE OF NSW & ORS

P: C. Steirn SC/P Barham/P Strain 1D: J Maconachie QC/D Mallon COUNSEL : 2D: A Katzmann SC/I Butcher 4D: P Strickland SC/M Gerace 5D: L Tyndall/G Pulsford

P: Burn & Swift 1D: I V Knight SOLICITORS : 2D: Australian Government Solicitor 4D: Dibbs Barker Gosling 5D: Duffield & Duffield

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HENRY CHARLES LANDINI v. STATE OF NEW SOUTH WALES & ORS

JUDGMENT (On application to further amend statement of claim)

1 HIS HONOUR: The plaintiff commenced proceedings in this Court by Statement of claim filed on 20 November 2002. He now wishes to amend the fourth further amended statement of claim against the first defendant, the State of New South Wales, the second defendant, the Commonwealth of Australia, the fourth defendant, Dennis Reginald Pattle, and the fifth defendant, Glen John Matinca, in terms of the Proposed Fifth Further Amended Statement of Claim. 2 The last two mentioned defendants were members of the Australian Federal Police (AFP) and served upon a joint taskforce established by the New South Wales Police and the AFP. 3 The hearing of the proceedings commenced on 29 March 2006 and has continued over 19 days, the last seven days (2 June, 29 August, 18, 26, 27 September and 4 and 5 October 2006) have been taken up hearing the plaintiff's notice of motion filed 27 April 2006 seeking an order permitting the amendments in question. 4 The notice of motion was supported by the affidavit of Diane Burn, solicitor, sworn 19 May 2006.

The primary facts to the proceedings 5 On 7 June 1984, the plaintiff entered a plea of guilty and was sentenced with respect to a charge of supply a prohibited drug, namely, heroin. He was sentenced to a term of 15 years imprisonment with a non-parole period of five years to commence on 19 July 1982. This is referred to as "the first charge matter". The plaintiff alleges that certain New South Wales police officers maliciously instituted and maintained the proceedings against him in respect of that charge. 6 The plaintiff relies upon the pleaded fact that the proceedings were terminated in his favour on 2 November 2001 by virtue of the judgment of the New South Wales Court of Criminal Appeal given on that date quashing his conviction. 7 The plaintiff also alleges that, as at 1 March 1982, a special joint taskforce was established by the first and second defendants staffed by officers from both the New South Wales and Australian Federal Police Forces. The officers are named in the proposed fifth further amended statement of claim (paragraph 11.1) and are referred to therein as "the second charge officers". 8 The plaintiff alleges that, whilst on bail in relation to the first charge, he was arrested, handcuffed and detained by the second charge officers, including officers Pattle and Donaldson in a carpark in Burwood. He claimed that thereafter he was charged by one or more of the second charge officers with conspiracy to supply a prohibited drug, namely, heroin and being in possession of an unlicensed pistol. This has been referred to as the "second charge matter". 9 The plaintiff entered a plea of not guilty but on 11 October 1983 he was found guilty of both the last mentioned charges and was sentenced on 15 December 1983 to a term if imprisonment of 16 years with a non-parole period of six years. 10 The plaintiff alleges that the second charge officers maliciously instituted and maintained the second charge proceedings against him. The convictions entered in those proceedings were also set aside by the Court of Criminal Appeal on the abovementioned date. 11 At the inception of the hearing, in his opening address, Mr. C. Steirn, SC., counsel for the plaintiff, stated:- "Moreover, that it is not to the point. In this particular cause we say both the defendants, either personally or vicariously as the case may be, have taken it upon themselves to deliberately and in a cold blooded way fabricate criminal charges against a citizen who they decided needed to be placed in gaol. They did this by wilfully fabricating evidence and committing perjury against the plaintiff, certainly in relation to the second charges. The plaintiff alleges, your Honour, two separate and distinct malicious prosecutions in relation to two separate and distinct and entirely unrelated sets of criminal charges. We submit there was a deliberate fabrication of the evidence to convict him knowing there was no other evidence available indicating his guilt and that we submit, and we will demonstrate, applies in relation to both sets of charges your Honour. We further submit there was an intention conceal (sic) the true facts in relation to both sets of charges right up until the jury verdicts and subsequently after the plaintiff was sentenced in relation to those charges." 12 There was no issue raised or application made by counsel for any of the defendants following and in relation to any of the matters raised in the opening address of senior counsel for the plaintiff as to such matters going beyond or outside the scope of the issues for trial.

Evidence in relation to the first charge matter 13 On 11 April 2006, the plaintiff called Trevor Dale Haken, formerly a detective attached to the New South Wales Drug Squad as at January 1980. He gave evidence that whilst working with that squad he was approached by certain detectives in relation to the plaintiff. On the last mentioned date, Mr. Haken gave evidence on a number of matters as follows:-

• Former Detective Senior Constable Glen Ross approached him and said that he was intending to "lock up Henry Landini with other police and asked me whether I was willing to be a party to locking Mr. Landini up or whether I'd rather not join in" .

• He was advised by Detective Ross that "he had a quantity of heroin and that Mr. Landini was going to be loaded up and charged" .

• He was shown a plastic bag containing heroin. He was advised by Detective Ross that the heroin had been located on the roof of a building in the eastern suburbs.

• Mr. Haken says he was given the task of "cutting" the heroin by diluting it and placing it into small plastic bags. The bag of heroin was given to him by Detective Ross.

• He had given evidence about the matter at the Police Royal Commission and on that occasion, to the best of his recollection, said that there were in the vicinity of 10 bags made up.

• When the heroin was placed in the bags, Messrs. Ross and Knox and others were present. He was assisted by Ross and Knox in the task.

• There was a discussion of the methodology which involved driving close to the plaintiff's home in Leonay, waiting for him to drive from his home, then stopping him on the expressway and "… he would be found to be in possession of the quantities of heroin" .

• There was discussion between the identified officers and himself that the drugs "were to be found in the boot of the car driven by Mr. Landini" .

• The next occasion on which he saw bagged heroin was when he saw it "… located in the running shoe which had been located in the boot of the Mercedes car driven by Mr. Landini" .

• He recalls that the plaintiff was stopped by police and that one of the officers said, "We've found it" . The packages seemed to be the same as those he had himself helped prepare. 14 Whilst a number of objections were taken during the course of Mr. Haken's evidence in chief, there was no objection to evidence being given on the above matters as evidence going to matters beyond the pleadings. The effect of the evidence, if it were ultimately to be accepted, is to the effect that:-

• The plaintiff was targeted by a number of then New South Wales Police Officers with a view to him being "loaded" with a quantity of heroin.

• That those officers agreed to "load" the plaintiff by placing the heroin in the boot of the plaintiff's motor vehicle.

• That pursuant to an agreement, certain former New South Wales Police Officers, including those specifically identified in evidence, would carry into effect a plan to detain the plaintiff whilst travelling along an expressway from his home.

• That bags of heroin were "planted" on the plaintiff by placing them in the boot of his motor vehicle.

• That one or more of the former police officers, pursuant to the plan, then "discovered" the heroin in the boot of the plaintiff's motor vehicle.

• That the plaintiff was charged in relation to the heroin, which charge formed the basis of the proceedings brought against him leading to his conviction.

Evidence in relation to the second charge matter 15 On 10 April 2006, evidence was called by the plaintiff from a former Federal Police Officer in respect of whom a pseudonym order was made pursuant to which he has been referred to during the proceedings as "Mr. X". His evidence on that date is recorded at transcript pp.590 to 594. 16 Objection was taken to certain evidence being given by Mr. X on the basis that it went beyond the scope of the pleading. The subsequent history of events leading to the making of a formal application to amend is set out below. Mr. X later returned to give evidence on the voir dire in the application to amend, inter alia, upon the following matters:-

(a) He had understood from former Officer Dent that the plaintiff had been "loaded … up" with a gun.

(b) That former Officer Dent had reported to him that two other officers had given the plaintiff a knife by which he stated he understood that they had fabricated evidence in respect of the plaintiff being in possession of a knife.

(c) That on 19 July there was a "scrum-down" at the joint drug taskforce office - a common procedure, he stated, following arrest where those involved in the arrest "sat down and discussed the brief, worked out where the holes were that needed to be filled" . Sixteen officers were said to be present (identified by name) at that meeting. Donaldson was in charge of the meeting.

(d) Donaldson told those present that there was not to be any mention of any assault in respect of the plaintiff or another person, Smittant.

(e) That Donaldson would need to speak to Officers Langford and Brewster concerning "… how changes needed to be made to their statements, so that if Landini suggested that he was assaulted … that those police women in the script weren't even present" .

(f) There was discussion, including laughter in the room with the remark made, "You're too good for me. Jesus Christ couldn't help me now" , being police parlance in respect to "… loading somebody up and false admissions made by that person …" .

(g) At the next meeting, Donaldson produced a statement that he had written and which he wanted Mr. X to sign.

(h) The statement had been produced by Mr. X.'s dictation "… with his added bits onto it" , the latter being a reference to Donaldson.

(i) There had been discussions on what was described as a "standing joke" - "that Landini had been bashed, loaded, verballed, evidence that had been fabricated against him, and that an officer had received a commendation for doing so" .

(j) In relation to the Landini matter, statements were "re-done" and his statement was "re-done" "… because it needed to be re-done because I had previous surveillance evidence in respect of a meeting with Mr. Landini at the La Rustica Restaurant where either Brewster or Langford was there with me, so that whole thing had to be changed to marry up with the further - the full statements that Donaldson had made" .

(k) Donaldson, in the "scrum-down" indicated that he needed to speak to Brewster and Langford separately as to "… what they were going to do about the assault that had taken place at the Kentucky Fried Chicken so therefore that meant everything had to be changed - running sheets had to be changed - everything" .

The events precipitating the question of amendment 17 Mr. J.E. Maconachie, QC., appearing on behalf of the first defendant, at p.592, objected to a question put by Mr. Steirn, SC. to Mr. X when Mr. X was called as a witness in the trial. The question related to a conversation that Mr. X had with another officer by the name of Dent. Mr. Steirn argued for the admissibility of the evidence as being evidence "… of an unlawful agreement to fabricate evidence against Mr. Landini". 18 Mr. Steirn argued that the evidence should be, at least provisionally, admitted, foreshadowing that there would be further evidence linking Mr. Pattle and Mr. Donaldson "in relation to the present proceedings with an unlawful agreement to fabricate against the plaintiff" (t.392). 19 It was at this point that Mr. Maconachie pressed his objection on the basis that:-

(a) No conspiracy had been pleaded and that if a case of that kind was to be pursued, the plaintiff would have to plead the same relying upon Part 14, Rule 14.4 of the Civil Procedure Rules .

(b) It was not open upon the pleading to base a case upon an agreement to fabricate for the reason that the statement of claim was limited to two counts of malicious prosecution. The evidence could only be relevant to the second of them (t.593, 15/20). Mr. Maconachie additionally proceeded to mount an argument as to immunity based on public policy which was protective of witnesses based upon the decision of the House of Lords in Darker v. Chief Constable of the West Midlands (2000) 3 WLR 747. 20 Ms. A. Katzmann, SC., appearing for the second defendant, stated that she joined in and supported Mr. Maconachie's submissions. Ms. Katzmann referred to the history of amendments following the original statement of claim. In particular, reference in this respect was made to paragraph 16 of the first statement of claim which alleged an agreement between a number of second charge officers including former officers Donaldson, Matinca and Pattle. After a letter of particulars dated 2 April 2002 was sent to the plaintiff's solicitors, the allegation of an unlawful agreement was omitted from later versions of the statement of claim. 21 Ms. Katzmann, accordingly, argued the evidence sought to be elicited from Mr. X was outside the scope of the pleadings. 22 Mr. P. Strickland, SC., on behalf of the fourth defendant, supported the submissions made by Mr. Maconachie and Ms. Katzmann. He also relied upon s.87 of the Evidence Act 1995, Admissions made without authority. 23 Mr. Steirn, in reply, stated that on his instructions the statement of claim was amended at various stages because the plaintiff's legal representatives could not be sure that there would be evidence from Mr. X and, accordingly, were not prepared to make the very serious allegations "of fraud". Mr. Steirn acknowledged (at t.597, 40/45) that now that the evidence was available it may well be that the plaintiff had to amend his pleadings. However, he qualified that statement by stating that it could not be suggested that the defendants were taken by surprise, emphasising that the second charges were "consistent with, at the very least, fabricated evidence". 24 On 11 April 2006, Mr. Steirn indicated that an application for leave to amend the fourth further amended statement of claim would be made. 25 In due course, the proposed fifth further amended statement of claim was formulated and a notice of motion for leave to amend dated 27 April 2006 was filed. Ms. Burn, solicitor for the plaintiff, swore an affidavit on 19 May 2006 in support of the application and which was filed on that date. She was cross-examined by Ms. Katzmann on 29 August 2006 and on 18 September 2006 and on the last two mentioned dates by Mr. Strickland, SC. In addition to her evidence, a statement of facts agreed upon between the plaintiff and the fourth defendant was tendered and marked Exhibit A6.

Amendments made to the statement of claim 26 The proceedings were instituted by statement of claim filed on 19 November 2002. It was subsequently amended on the following dates:-

(b) 12 December 2003 - further amended statement of claim.

(c) 12 August 2004 - further further amended statement of claim.

(d) 24 February 2005 - further further further amended statement of claim.

(e) 15 March 2005 - fourth further amended statement of claim. 27 The plaintiff's case through the above amendments pleaded varying causes of action. In that respect, the various causes of action relied upon by the plaintiff may be summarised as follows.

(A) The initial statement of claim: 19 November 2002 28 The following is a summary of specific aspects and allegations:-

(a) "The first charge" : 15 January 1980 - New South Wales police officers including Haken, Ross and Knox "agreed and conspired that they would falsely procure serious drug charges …" (paragraph 2).

(b) New South Wales Police officers alleged to include Haken, Ross and Knox conspiring to give false evidence.

(c) "The second charge" : Joint taskforce - New South Wales and Australian Federal Police officers:-

(i) New South Wales Police Officers:- • Donaldson • Paynter • Tracey • Meredith • Allen • Langford

(ii) Australian Federal Police Officers:- • Pattle • Taciack • Matinca

(d) The second charge officers agreed they would falsely procure serious charges against the plaintiff.

(e) On or about 20 July 1982, the second charge officers:- (i) Conspired to give false evidence against the plaintiff and knowingly and maliciously prepared false statements and fabricated other evidence for use in committal proceedings.

(ii) Gave false instructions to prosecuting authorities.

(iii) Gave false and fabricated evidence at committal. (iv) Gave false and fabricated evidence at trial.

(B) The amended statement of claim: 16 December 2002 29 The "first" and "second" charges - primary allegations unchanged.

(C) The further amended statement of claim: 12 December 2003

(a) The first charge was instituted and continued without probable cause and for an improper purpose.

(b) The second charge was instituted and continued without reasonable and probable cause and for an improper purpose.

(c) At the Royal Commission, evidence was given that Donaldson, Langford, Paynter, Pattle and Matinca had fabricated evidence in relation to the said charge against the plaintiff (paragraph 24). That fact has been disputed in these proceedings.

(D) The further further amended statement of claim: 12 August 2004

(a) "The first charge":- (i) The New South Wales Police officers did not honestly believe that the plaintiff participated in the supply of heroin.

(ii) The proceedings were without proper enquiry. (iii) Instituted proceedings in the knowledge that no evidence existed to support them.

(b) "The second charge":- (i) The particulars of malice were the same as for "the first charge" (ii) "Abuse of process" : (paragraph 30), introduced for the first time "attempting to pervert the course of justice" , "fraudulent concealment of the true facts" .

(E) Further further further amended statement of claim: 24 February 2005

(a) "The first charge" - particulars are the same as for third statement of claim.

(b) "The second charge" - "Abuse of Process" (paragraph 30). The same particulars as for the third statement of claim.

(F) The fourth further amended statement of claim: 15 March 2005

(a) 1980 - "First charge" - the New South Wales Police officers.

(b) 1982 - "Second charge" - Joint taskforce - New South Wales and Australian Federal Police officers including Donaldson/Pattle/Matinca (the "second charge officers" ).

(c) "Particulars" are the same as the third and fourth statement of claim.

Evidence as to delay 30 Ms. Burn's evidence was that she and Mr. Steirn, SC. endeavoured to confer with a former Federal police officer in relation to the "second charge" in order to obtain evidence from him directed essentially to corroborating the plaintiff's allegations. 31 Ms. Burn first attended a conference with Mr. Kenny, solicitor, who acted on behalf of Mr. X, on 9 September 2002. Mr. X was not present at the conference. She stated that Mr. Steirn, SC. had made several attempts to confer with Mr. X since 2002. 32 On 18 March 2003, Ms. Burn wrote to Mr. Kenny seeking information about Mr. X. On 25 April 2005, Mr. X's solicitors advised that Mr. X would not be interviewed by the plaintiff's legal representatives. 33 In June 2003, Mr. X provided a statement to a private inquiry agent engaged by Mr. Kenny in or about June 2003. It has been described in this application as an "unsigned" statement. Ms. Burn became aware of the existence of it on or about 20 March 2006. 34 Ms. Burn stated in her affidavit (paragraph 16) that by March 2006, in light of matters in the amended statement of claim and particulars supplied to the solicitors for the fourth defendant that, "it was obvious that if the plaintiff was telling the truth, that police officers must have conspired in order to obtain his convictions". 35 On 14 March 2006, Ms. Burn issued a subpoena to Mr. X, care of Mr. Kenny. That subpoena was not served. Ms. Burn was advised by Mr. Steirn that he was liaising with Mr. Kenny in attempts to secure Mr. X to give evidence. 36 On 23 March 2006, Mr. Steirn spoke to Mr. X by telephone. Mr. X expressed concern about giving evidence as it could be used against him in other proceedings then current. Mr. Steirn suggested that he obtain independent legal representation. 37 On 28 March 2006, Ms. Burn caused a further subpoena to be served on Mr. X. The subpoena was returnable on 5 April 2006. A conference subsequently arranged with Mr. X for 29 March 2006 was cancelled. 38 On 6 April 2006, Mr. Steirn met Mr. X in conference with Mr. Kenny and Mr. Strain and Mr. Barham of counsel. A second and third meeting took place on 9 and 10 April 2006 at which Mr. Steirn spoke to Mr. X. 39 Ms. Burn stated that it was not until after the conference on 10 April 2006 that she formed a definite view that Mr. X was in a position to give evidence that the officers from the joint taskforce conspired to fabricate evidence against the plaintiff. 40 In the written submissions made on behalf of the second defendant dated 25 September 2006 (in particular, paragraphs 49 to 52) and in oral submissions, senior counsel for the second defendant submitted that the failure to adduce evidence from Mr. Steirn or Mr. Kenny as to their communications enabled an inference to be drawn that evidence from them would not have been of assistance on this application. It was submitted that an inference could be drawn that Mr. Steirn had been provided with a copy of the unsigned statement of Mr. X at a time considerably earlier than it came to Ms. Burn's attention on 20 March 2006. The submission was further made that there was a requirement on an application of this kind for a full and frank explanation. 41 I have considered this submission and accept that evidence from Mr. Kenny as to his communications could well have been expected. However, I am not prepared to draw the inference that has been suggested. I was impressed with Ms. Burn and accept unreservedly her evidence that she had not seen the statement herself until March 2006 and it is difficult to imagine that Mr. Steirn would have obtained a copy of the unsigned statement some time perhaps years before and not informed Ms. Burn or shown it to her. I do not consider that Ms. Burn was being evasive in seeking to invoke legal professional privilege to the extent that she did and I do not consider that any adverse inference should be drawn from any claim for privilege in relation to the few questions put to her touching or concerning this aspect of the matter.

Evidence as to the effect of delay 42 The second defendant relied upon the affidavit of Leonie Amos, litigation/practice administrator, Australian Federal Police, Legal Section. 43 Ms. Amos referred to the proposed fifth further amended statement of claim and stated:-

(a) The proposed pleading alleges, inter alia, that each "Second Charge Officer" had conspired with one or more of such officers to alter their evidence in accordance with an "agreed script" prepared by Donaldson or some other officers.

(b) On 2 June 2006, Mr. X gave evidence of a "scrum down" between most of the above officers.

(c) "Accordingly, the second defendant has endeavoured to obtain information and materials that might be relevant to the Alleged Police Conspiracy" (paragraph 8).

(d) Ms. Amos also stated that at various times since the first statement of claim was filed, the Australian Federal Police has undertaken extensive searches to locate documents in relation to the allegations concerning the absence of reasonable and probable cause to bring "the second charges" .

(e) Ms. Amos was informed by Federal Agent Tunnicliff that the investigation that led to the arrest of the plaintiff was conducted by the joint taskforce and named Operation Snooker. There was a related operation named Operation Pickaxe. Ms. Amos sets out the various steps taken to locate documents in relation to those operations.

(f) In December 2003, Ms. Amos was allocated the task of locating all material "relating to the Commonwealth's involvement in the functions and operations of the joint taskforce".

(g) Ms. Amos and a Ms. Hayward spent three weeks in December 2003 reviewing joint taskforce documents. Forty boxes of potentially relevant material were located. 44 Ms. Amos' affidavit then refers to information given to her by Mr. George Curtis, solicitor, on or about 20 February 2006 (that is, two years and two months after she was allocated the task of locating materials and three years and three months after the initial statement of claim was filed). 45 Some time after March 2006, and following information received from the Police Integrity Commission, Ms. Amos located 43 boxes of documents, of which 10 were identified as of possible relevance. 46 Ms. Amos' evidence is that Mr. Matinca would have provided a statement for the original brief of evidence but it has not been located. 47 Diaries and duty books for persons allegedly involved in the conspiracy including Matinca and the fourth defendant having not been located. Surveillance running sheets for the dates 5 July, 12 July and 19 July 1982 only have been located. 48 Ms. Amos stated that Mr. Curtis had been unsuccessful in speaking to former officers Brewster and Langford and has been unable to locate Tracey and Matinca. Information suggests Messrs. Travers and Bendt are deceased. 49 The fourth defendant relied upon two affidavits sworn by Ms. Louise Vale both sworn 14 July 2006. In Ms. Vale's affidavit, a number of matters, including the following are referred to:-

(a) That the pleading whereby the fourth defendant was joined as a party to the proceedings in December 2003 did not contain "any allegations of conspiracy or of attempting to pervert the course of justice, nor was there any indication on this pleading that such allegations had been made in previous versions of the statement of claim …" (paragraph [9]).

(b) Particulars supplied by letter of 13 October 2004 did not contain allegations of conspiracy with other officers of the Joint Taskforce.

(c) The case was then prepared and conducted upon the basis of the fourth further amended statement of claim.

(d) No indication had been given that an allegation of conspiracy would be made against the fourth defendant nor any amendment foreshadowed prior to the commencement of the trial.

(e) Since the proposed fifth further amended statement of claim, work has been undertaken to secure evidence and a number of subpoenas have been issued.

(f) If the amendment were allowed, then a number of additional steps would be required to prepare the defence to the proposed amended statement of claim, including an attempt to locate all second charge officers.

(g) Mr. John Andrew Travers has died since the events in question.

(h) Following reasonable searches and enquiry, the fourth defendant's notebook is not available to the fourth defendant.

(i) It should be observed, however, that the fourth defendant was named as one of the "second charge officers" in the initial statement of claim filed in November 2001 and in the amended statement of claim filed on 16 December 2002 and that allegations including conspiracy allegations were made against him and other second charge officers in that statement of claim. The fourth defendant (then named 11th defendant) was added as a party by the further amended statement of claim filed on 12 December 2003. A statement was made in paragraph 24 of that pleading that "at the Royal Commission, evidence was given that the eighth to the twelfth defendants had fabricated evidence in relation to the said charge against the plaintiff" . The subsequent history of the pleadings, so far as it effected the second charge officers, including the fourth defendant, has been summarised earlier in this judgment noting the variation and change made to the allegations concerning the second charge.

A question of amendment to the pleadings 50 During the course of evidence of Mr. X on 10 April 2006, objections were taken to any evidence being given in relation to an unlawful agreement. Mr. Maconachie, QC. on behalf of the first defendant, raised the following matters in opposition to the evidence:-

(a) There was no conspiracy pleaded or foreshadowed would be pleaded.

(b) On the existing pleading, there were two counts of malicious prosecution and it was impermissible for the plaintiff to prove and make a case based upon an agreement to fabricate evidence.

(c) There is an immunity in favour of witnesses in civil suits from giving evidence that is said to be false. Reliance was placed, in this respect, upon the decisions in Cabassi v. Vila (1940) 64 CLR 130 at 140 to 141 and the decision of the House of Lords in Darker v. Chief Constable of The West Midlands Police (2001) 1 AC 435. 51 On the same date, Ms. Katzmann, SC., counsel on behalf of the second defendant, objected to the evidence upon the basis that an allegation of unlawful agreement that had been raised in earlier pleadings was omitted from the fourth further amended statement of claim. 52 The evidence, accordingly, it was submitted, fell outside the scope of the pleadings. It was also observed that it was not alleged to be a particular of malice on the part of the second charge officers. 53 Mr. Strickland, SC., counsel on behalf of the fourth defendant, endorsed the submissions of Mr. Maconachie and Ms. Katzmann and additionally relied upon the provisions of s.87 of the Evidence Act. Mr. Maconachie and Ms. Katzmann both subsequently also indicated reliance upon that provision. 54 Following further argument, Mr. Steirn, SC. indicated that one of the reasons at least for the allegation as to unlawful agreement not having been raised was that the plaintiff's advisers could not be sure as to whether or not they would be able to obtain evidence from Mr. X. Mr. Steirn (t.597) indicated "… it may well be, given what my friends say, we have to amend the pleadings in accordance with the new evidence …". At t.599, Mr. Steirn indicated that, at the appropriate time, leave to amend the fourth further amended statement of claim would be sought. 55 In reply, Mr. Maconachie stated that an allegation of fraud was a matter that had to be specifically pleaded. Secondly, he submitted that a party is not entitled to simply amend to allege fraud "on the run". Reliance, in this respect, was placed upon Behn v. Bloom (1911) 132 LTR 87. In the further submissions on behalf of the first defendant dated 3 October 2006 (paragraph 5), it was further submitted that the plaintiff was still seeking to amend "… to allege (in effect) fraud on the run after he has given evidence and been cross-examined contrary to established principle. Fraud must be clearly … pleaded. An application so made requires the court to be satisfied as to the truth and substantiality of the proposed amendment … such an application made at the hearing will rarely, if at all, be granted (ibid, Behn v. Bloom (1991) 132 LTR 87". 56 A reading of what was stated by Eave, J. in Behn (supra), however, does not support the very broad submission made on behalf of the first defendant. That was a case of a specific performance suit in which it appeared that, following a point raised by counsel for the defendant in reply, the plaintiff then sought to amend the pleadings. The difficulty at that stage of the case appeared to be that to do so would require evidence to be admitted. Eave, J. stated that it could not be allowed "at the present stage". 57 It was also submitted on behalf of the first defendant that there was a principle that operated in these proceedings that a party, in particular a plaintiff, must be kept to their pleadings. He stated (at t.600) that it was not a question of prejudice but "… a question of the plaintiff being kept to the pleadings that he has put forward and for the defendant(s) being permitted to meet the case that is pleaded". 58 Mr. Maconachie stated that if the plaintiff considered that he needed to re-plead his case, then it must be done by way of formal motion supported by evidence and providing the defendant(s) with the opportunity to obtain evidence.

Power to amend 59 The powers of the court to permit amendment of a document are contained within Division 3 - "Other powers of the court" - of Part 6 - case management and interlocutory matters. 60 By s.56(1), the overriding purpose of the Civil Procedure Act 2005 and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 61 The overriding purpose referred to in s.56(1) is to be read in light of s.57(1) which refers, inter alia, to:- "(a) The just determination of the proceedings." 62 Section 64(1) permits the court, at any stage of proceedings, to order that any document in proceedings be amended or leave be granted to a party to amend any document in proceedings. 63 Section 64(2) provides:- "Subject to s.58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings." 64 In Queensland v. J.L. Holdings Pty. Limited (1996-1997) 189 CLR 146 at 155, Kirby, J. stated that:- "… justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does, the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking the opposite view, the primary judge was, in our view, in error in the exercise of her discretion." 65 The joint judgment of Dawson, Gaudron and McHugh, JJ. in J.L. Holdings (supra) cited the well known passage in the judgment of Bowen, LJ. in Cropper v. Smith (1884) 26 Ch.D. 700 at 710, the principle therein stated being reflected in the above dicta of Kirby, J. 66 In Pringle v. Everingham [2006] NSWCA 195, Hunt, AJA. stated:- "48 Pleadings are intended to identify the real issues between the parties, and there can usually be no objection to an amendment of the pleadings in order to reflect the real issues between the parties where the other party is aware of those issues and either came prepared to meet his opponent's case or is able reasonably to meet it, if necessary, after an adjournment. It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights: Cropper v. Smith (1884) 26 Ch.D. 700 at 710; and that amendments should be allowed unless it appears that an injustice would thereby be occasioned to the other party which cannot be cured by costs: Clough v. Frog (1974) 4 ALR 615 at 618. These statements were reiterated and reinforced by the High Court in State of Queensland v. J.L. Holdings Pty. Limited …" 67 Hunt, AJA. in that case at [49] emphasised that an amendment to pleadings ordinarily should be made in order to reflect the factual matters being litigated in the trial. 68 In the application of relevant principles to the leave sought by the plaintiff to amend the fourth further amended statement of claim, it is necessary that consideration be given to the following matters:-

(a) The nature and extent of the amendments proposed.

(c) Any explanation for the delay in raising the matters the subject of the proposed amendments.

(d) Any unfairness or prejudice occasioned to the defendants in the event of an amendment being granted.

(e) Relevant matters that may affect the exercise of discretion according to principle relevant to application for leave to amend. 69 The history of the pleadings, which have been summarised above, indicates that, prior to the current version of the statement of claim (the fourth further amended statement of claim), the plaintiff had formulated in respect of both the "first charge" and the "second charge" that specified officers had:-

(b) maliciously prepared false statements to present to prosecuting authorities;

(c) given false evidence knowingly and maliciously in proceedings (committal proceedings and a trial). 70 The form and content of the third version of the amended statement of claim filed on 12 December 2003, the version filed on 12 August 2004 and the version filed on 24 February 2005 differed in several respects from the first two versions of the plaintiff's statement of claim. 71 In the third version, to which I have referred, the plaintiff alleged fabricated evidence in respect of both the first and the second charges and introduced a supposed cause of action entitled "Abuse of Process" in which the defendants are alleged to have utilised the criminal process for an improper object which included, inter alia:- " … (b) improper investigation … (d) attempted to pervert the course of justice. (e) fraudulent concealment of the true facts." 72 In the version filed on 12 August 2004, it was alleged against the relevant officers in relation to both the first charge and the second charge that proceedings had been instituted "... in the knowledge that no evidence existed to support an allegation that the Plaintiff had knowingly taken part in the supply of heroin". 73 The allegation of commencement of criminal proceedings against a citizen in the knowledge that no evidence existed bears the character of the misuse of public office, although it was not pleaded or referred to as a common law criminal offence in the pleading. 74 That version also contained similar particulars of "improper object in relation to charges 1 and 2" under the heading "Abuse of Process". 75 The next version of the pleading was, for all intents and purposes, similar in form in terms of the allegations raised as the previous version. 76 The current (fourth further amended statement of claim) pleading departed from earlier versions, although it retained the allegation that the relevant officers in respect of the first and second charges were "activated by malice in the institution of and the prosecution of … (the proceedings) against the plaintiff". The allegations that the respective proceedings were instituted in the knowledge that no evidence existed to support the allegations made against the plaintiff as to the supply of heroin was repeated and in similar terms to earlier pleadings. 77 The abuse of process allegations contained in the previous two versions of the statement of claim were not reproduced or relied upon in the fourth further (current) amended statement of claim. 78 On the above history of the pleadings, it can be seen that allegations of fabrication of evidence and the giving of false evidence were initially raised when the proceedings were commenced on 19 November 2002 and remained thereafter in amended pleadings until 12 August 2004. From that point forward until the current statement of claim, the plaintiff's case continued to raise serious allegations as to the institution of criminal proceedings in the knowledge that no evidence existed and alleging, inter alia, attempts to pervert the course of justice. 79 The proposed amendment (fifth further amended statement of claim) seeks to reinstate express allegations, in particular, the fabrication of evidence and the giving of false evidence in respect of the first and second charges and, additionally, to reinstate, in certain respects, allegations of unlawful conspiracy by personnel identified as the "second charge officers" (those officers are identified in paragraph 11.1 of the fifth further amended statement of claim). 80 The present application has been conducted in circumstances in which:-

(a) A period of five months has elapsed since the application to amend was formally made in April 2006.

(b) The evidence of Mr. Haken and the evidence of Mr. X taken on the application has operated so as to provide particulars of the matters said to be relevant to the proposed amendments.

(c) The defendants have been provided with an opportunity to provide evidence relevant to the application.

(d) The defendants have had access to a copy of Mr. X's March 2003 statement.

Context and background matters 81 The present application for leave to amend should be seen in context. The events alleged to have occurred in respect of the second charge on 20 July 1982 occurred approximately 20 years and four months prior to the filing date of the first statement of claim, namely, 19 November 2002. 82 The plaintiff did not have any cause of action to sue the defendants for malicious prosecution before the Court of Criminal Appeal quashed his convictions in respect of the offences alleged against him on 19 January 1980 and the alleged offence of 20 July 1982. 83 For a period of almost two years after the initial statement of claim was filed and prior to the further further amended statement of claim being filed on 12 August 2004, the plaintiff had, inter alia, expressly raised allegations of conspiracy to fabricate evidence and to give false evidence. Thereafter the pleading underwent the variations earlier summarised. 84 On 24 February 2005, the fourth further amended statement of claim was filed, that is, approximately 13 months before the trial commenced. In that last 13 months, no specific allegations of conspiracy to fabricate evidence or to give false evidence were made. It is against that background that the present application to amend is to be considered.

Whether the proposed amendments seek to raise new causes of action 85 The first and second defendants in their written submissions, assert that the proposed amended pleading endeavours to plead causes of action other than malicious prosecution. 86 In the first defendant's written submissions dated 17 July 2006, it is asserted that the proposed amendments are in reality claims for conspiracy or misfeasance in public office (paragraph 10), conspiracy to injure by unlawful means (paragraph 15) "… or some other form of abuse or misuse of legal process, in an un-particularised way". 87 In the written submissions for the second defendant, it is contended that the plaintiff, in effect, by the amendments is seeking to raise other causes of action, such as conspiracy to commit a tort simply as particulars of two elements of the cause of action of malicious prosecution, namely, malice and absence of reasonable and probable cause. It is submitted that such a course ought not be permitted (paragraph 43). 88 These submissions and others asserting that the facts sought to be relied upon in the proposed pleading are material facts of causes of action in conspiracy, in particular, conspiracy to prepare, give, adduce or procure evidence (second defendant's submissions, paragraph 43) require that, for this application, there be close analysis of the essential elements in a malicious prosecution action in order to determine whether or not the proposed amendments seek to raise or are capable of raising material facts relevant to such a cause of action or whether, as has been submitted, they are a "disguise" or a "Trojan horse" (first defendant's submissions, paragraph 8) for other causes of action.

The first charge - conspiratorial aspects 89 As noted earlier, the initial statement of claim alleged that the "first charge officers" identified by name accepted in concert to fabricate evidence and to provide false statements and thereafter it was alleged they gave false evidence. Those allegations were maintained until 12 August 2004 when they were replaced, inter alia, with an allegation maintained in the pleadings until 15 March 2005 that the "criminal processes … the arrest and prosecution …" in relation to both the first and second charges were employed to effect "… an object which was not properly within the scope of such processes". 90 The pleadings over that period of time, some two years and four months (November 2002 to March 2005), provided notice of serious allegations made against the members of the New South Wales Police Force allegedly involved, and thereby provided an opportunity for the first defendant to investigate the allegations. There is no evidence adduced by the first defendant on this application for leave to amend as to precisely what investigations it carried out. However, the fact that such opportunity to investigate existed is not irrelevant to the amendment application.

The second charge - conspiratorial agreement - relevance to facts in issue in malicious prosecution

(a) The element of reasonable and probable cause 91 The element of reasonable and probable cause involves two aspects. The first is the requisite belief held by the prosecutor. The second is the materials that are said to have existed and were utilised for the purpose of forming such belief. In the context of the present matter, it is the materials allegedly made available to the prosecuting authority and of which it was aware and which were utilised in the prosecution that is of central significance to the present application. 92 In Sharp v. Biggs (1932) 48 CLR 81, Dixon, J. stated (at 106):- "Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted. Such cause may be absent although this belief exists, if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment …" 93 See also A v. State of New South Wales (2005) 63 NSWLR 681 at 696 per Beazley, JA. 94 In the present proceedings, the plaintiff wishes to establish that the materials "used in the prosecution of him" included fabricated evidence and false evidence given at committal and at trial. 95 In this respect, the factual matters sought to be litigated and which are subjacent to the issue of reasonable and probable cause may be segmented into two areas. First, the alleged activities of former police officers in what might be referred to as the preparatory process or stage in which the plaintiff alleges that evidence concerning the first and second charges was manufactured or fabricated. The second includes the evidentiary process deployed for the purposes of both the committal and the trial in relation to the first and second charges. In this latter respect, material facts sought to be established by the amendments raise issue of allegedly fabricated evidence and alleged perjury. 96 The above segmentation between what I have referred to as the preparatory process and the evidentiary process is one reflected in the judgments in Darker (supra). Lord Hope of Craighead in this respect drew a distinction between the activities of police officers as investigator and those activities or functions performed by them in relation to the administration of justice (at 752):- "… this distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts …" 97 Lord Cooke of Thorndon in Darker took the matter a step further in the context of the immunity, which, as a matter of public policy, attaches to witnesses such as police officers in regard to evidence which they give in legal proceedings. The immunity is said to extend to anything said or done by them in the ordinary course of any proceeding in a court of justice. 98 Lord Clyde (at 764) was not prepared to accept that the scope of the immunity covered all conduct that could be said to arise in the investigatory or preparatory process:- "The planting of a brick or a drug by a police officer so that it can be found by another is not a matter which would be expected to form part of the prosecution case in court and there is no necessity for such activity to have the protection of an immunity." 99 Similarly, in the same case, Lord Hutton (at 772) stated:- "… there is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect …" 100 Importantly for the purposes of the present application, the fabrication of evidence upon which a prosecution has been based may have particular significance in a malicious prosecution action. If established, it would seem to carry the consequence that the necessary elements of a malicious prosecution action have been satisfied. 101 So much as been acknowledged by Lord Hutton in Darker when he stated in relation to malicious prosecution actions (at 774):- "… however, to establish the tort of malicious prosecution, the plaintiff must prove absence of reasonable and probable cause for a prosecution, and in my opinion notwithstanding that there is a reasonable and probable cause to prosecute a suspect should be entitled to sue the police for malicious and dishonest conduct in fabricating evidence against him. " (emphasis added) 102 Plainly, allegations or perjury or of fabricating evidence are relevant to the elements of a cause of action based on malicious prosecution. The fact that two or more police officers may conspire to that end does not lead to the conclusion that the plaintiff in a proceedings by "disguise" or in the nature of a "Trojan horse" is seeking to propound causes of action additional to a malicious prosecution action. Evidence that two or more persons, for example, fabricated evidence that was utilised in a criminal prosecution would, of course, be admissible simply because it is relevant and its admission into evidence does not thereby infringe the strictures and principles that apply to matters of pleading. 103 I, accordingly, am of the opinion that the allegations sought to be raised by the plaintiff in the proposed amended pleading in the nature of improper conduct (fabricating false evidence, creating false statements, knowingly giving false evidence and conspiracy to effect any or all of those matters) are, of their nature, relevant to establishing the absence of reasonable and probable cause in a malicious prosecution action. The inclusion of such allegations in a malicious prosecution pleading do not operate in any sense as a disguised cause of action of some other kind. I, accordingly, reject the arguments advanced on behalf of the first and second defendants to the contrary.

(b) Malice 104 It is relevant to the present application and indeed necessary to inquire whether the above matters which the plaintiff now seeks leave to rely upon are relevant to the element of malice. If so, is evidence of an alleged unlawful agreement to produce fabricated evidence or to knowingly give false evidence admissible as evidence proving malice? If it is, then it could be said to be simultaneously relevant to both that element and to the element of reasonable and probable cause. 105 The term "malice", both in the law of defamation and in the law as to malicious prosecution, carries the meaning that the defendant was actuated by an "improper purpose" other than bringing a wrong-doer to justice: Trobridge v. Hardy (1955) 94 CLR 147. 106 Evidence that two or more persons in advance unlawfully agree to produce fabricated evidence or to give false evidence in committal proceedings or at trial is capable of constituting circumstantial evidence that the charge and prosecution of the charge was motivated by an improper purpose. 107 In order to establish malice, it is necessary to establish the existence of the requisite state of mind of the person in question. That is more often than not achieved by the use of circumstantial evidence. Fullagar, J. in Trobridge (supra) at 155 quoted from the text, Wills on Evidence, as follows:- "In one class of cases circumstantial evidence must from the nature of the case be given. They are those where the state of mind of a particular person is in issue … In these circumstances, no-one, save the party charged, can, strictly speaking, give direct evidence of his mental state; and, when he denies the charge, it has to be proved by inference from his conduct." 108 In the present proceedings, the plaintiff, by the proposed amendment, seeks to raise and rely upon certain conduct of former State and Federal police officers. "Conduct", for this purpose, may consist of statements made by relevant persons or actions taken or both. The purpose behind an act will often be relevant to the state of mind that motivates or goes with the action. This is of particular importance in the context of criminal proceedings. A police officer is required to perform official functions with the right motive in undertaking investigations, and honestly putting the law in force and pursuant to a genuine desire to serve the ends of justice. Hence, in Trobridge, Fullagar, J. (at 157) stated that, not only must a police officer act with a belief that his act is authorised by law "… but that the purpose of the act done should be to vindicate and give effect to the law". 109 In Trobridge, Kitto, J. (at 163) quoted from Cave, J. in Brown v. Hawkes (1891) 2 QB 718 at 722 when he said in dealing with a case of malicious prosecution:- "Malice can be proved, either by shewing what the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor." 110 Kitto, J. there observed that evidence which points to a particular motive which is a wrong motive goes directly to the issue of malice. With this in mind, it is plain that if two or more persons combine to fabricate evidence or to give false evidence for the purposes of a criminal charge being laid against a citizen, a prosecution based on it and a conviction obtained, it may be said that they both have acted maliciously. 111 The entering into an unlawful agreement (or a conspiracy) to bring about such a result is plainly a potentially relevant material fact to the issue of malice alleged in a malicious prosecution case. It is also a matter about which evidence is plainly admissible in order to prove or establish such alleged malice. Accordingly, particularisation of a material fact that embraces an allegation of conspiracy in that context cannot be seen on any basis to be an attempt to indirectly raise a different cause of action such as has been suggested in the submissions of the first and second defendant. 112 Finally, in this respect, the further observations of Kitto, J. in Trobridge (at 163) are, in my opinion, pertinent in the present case:- "It is true that such evidence (pointing to a particular motive) may only establish immediately certain primary facts from which the step of drawing an inference has to be drawn before the conclusion can be reached that the particular form of malice existed; but the route to that conclusion is a direct one, nonetheless … That is a method which follows the route - I see no difficulty in calling it the indirect route - of proving that the defendant's conduct is not to be explained by the existence of a right motive. Evidence which tells against the probability that a right motive was the sole or predominant cause of the conduct goes to provide a foundation on which the jury may reason, through the presumption that there must be some explanation of what the defendant did, to the conclusion that he must have been actuated by an inadmissible motive of some kind or another. An example may be found in the case of evidence which shows that the defendant in an action of malicious prosecution had no reasonable or probable cause …" 113 In a malicious prosecution action, where it is sought to establish by way of evidence, facts to support an allegation of the fabrication or manufacture of evidence, the evidence may also be relevant to the assessment of reasonable and probable cause. 114 The matters sought to be raised by the proposed amendments are matters which are closely associated with the factual issues that have been raised in the existing pleading, in particular, as to the events that allegedly preceded the plaintiff's arrest on 19 January 1980 and 20 July 1982. Additionally, it is not irrelevant, at least on the issue of possible prejudice, that the allegations of fabrication of evidence and false evidence had been expressly pleaded at the outset of the proceedings and remained for almost two years until the less precise and somewhat muted allegations replaced them in August 2004. The fact that the allegations were either later removed or diluted is, of course, a matter to be properly taken into account as the defendants have correctly observed. 115 Subject to the question as to the additional persons identified in paragraph 11.1 of the proposed pleading said to be associated with the second charge (as to which see below), I consider that the plaintiff should be granted leave to expressly plead, in a suitable form, allegations now sought to be reinstated to the effect that relevant officers participated in the production of fabricated evidence including false statements and knowingly gave false evidence. I will say something about the form in which such allegations may be pleaded below, having regard to the recasting of the allegation since the proposed fifth further amended statement of claim. 116 There is some validity to the second defendant's submission as to the lack of timeliness of the application to amend. Against that, however, are the factors:-

(a) The importance in considering applications to amend pleadings of the need to have all issues between the parties finally heard and determined.

(b) The allegations of fabrication of evidence, conspiracy to do so, false statements and giving of false evidence are not entirely "new" , in the sense of them having been expressly or impliedly raised in various forms in the past, although dropped in August 2004.

(c) The delay from that time until April 2006 is reasonably limited in duration and is at least partly through not necessarily completely explained and/or justified by the plaintiff's lawyers' withdrawal of the express allegations pending their attempts to obtain Mr. X's confirmation.

(d) The plaintiff's lawyers, quite apart from the explanation given in evidence, may have been responsible for some error of judgment in not pursuing the task of obtaining evidence to support the allegations. However, any such misjudgment is to be seen in context. Without what may be referred to as a co-operative "roll-over" witness, the plaintiff's legal representatives only had their client's denials. Affirmative proof of malice confirmed by a sworn or at least a signed statement of Mr. X or some other witness would be required. Many of the allegations raised in the proposed fifth further amended statement of claim are said not to be supported by information and evidence that has been provided and given by Mr. X. That is a discrepancy that is not to be ignored in the evaluation of the evidence in support of the application to amend. However, I do accept Ms. Burn when she said that the plaintiff's legal representatives were reluctant between late 2004 and early 2006 to pursue the allegations until they had spoken to Mr. X in conference. 117 The submission made on behalf of the second defendant that prejudice has been occasioned to the defendants because of the way cross-examination has been conducted (second defendant's written submissions, 25 September 2006, paragraph 26), has not been substantiated by any defendant by reference to any part of the transcript. Further, no "delay" since the express allegations were "dropped" in August 2004 has been shown to have contributed to the loss of any material evidence or potentially relevant witness (no such witness or evidence has been identified in submissions). In fairness to the second defendant, it is acknowledged in paragraph 30 of the last mentioned submissions it is stated:- "Whilst it is true that much of the prejudice would have arisen if the application had been made in a timely fashion, that is not the correct way to approach the issue." 118 The reference to Brisbane South British Regional Health Authority v. Taylor is not in point to the circumstances of the present case. Application made under limitation statutes raise considerations that are not applicable to a case where the plaintiff's rights to sue arose the year prior to the commencement of proceedings (2001) and were brought well within time. 119 The following matters were central in the analysis of McHugh, J. in that case:-

(a) The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. A limitation period represents a legislature's judgment concerning causes of action being litigated within the limitation period.

(b) An extension of time application must therefore be seen as an extension to the general rule established by the legislature.

(c) Whether a particular plaintiff may suffer "injustice" must be evaluated by reference to the rationales of the limitation period that has barred the action.

(d) An applicant for an extension must therefore show that his or her cause is a justifiable exception to the general rule.

(e) "Justice" requires all the relevant circumstances related to an extension of time application to be evaluated in order to determine whether the discretion is enlivened and should be exercised in favour of the applicant. 120 I have, notwithstanding the differences in approach to raising statute-barred causes of action to amendments to a cause of action litigated within time, had regard to the materiality of the amendments sought to be made to the malicious prosecution proceedings. The plaintiff, in that respect, seeks by the amendments to raise allegations of an affirmative nature (whereby he claims to have been "framed' or "loaded"). I have, accordingly, in considering this application had regard to the overall time scale involved and not only that since the convictions were quashed. In doing so, I have had regard to issues of prejudice beyond any marginal prejudice created by any "delay" that can be attributed to the plaintiff since he amended his pleadings on 12 December 2003 to delete the original allegations. I have had regard to the overall lapse of time since 1982 and the nature and extent or level of prejudice claimed. I have, in relation to the second defendant, had regard to the investigations undertaken and referred to in Ms. Amos' affidavit. 121 I have, as stated elsewhere, also had regard to the fact that the allegations of fabrication of evidence, false statements, etc. have earlier been raised and they remained for some time as issues in the proceedings and the plaintiff is, in effect, seeking to reinstate and rely upon them, although framed or expressed differently in the proposed amended pleadings. 122 I, with respect, cannot accept the submission made on behalf of the first defendant (written submissions, 17 July 2006, paragraph 7) that the application to amend is one that "is seeking to fill gaps in a statement of claim through particulars so as to avoid defences such as would be available to the defendant under the Limitation Act 1969 (such as any claim that he might have for conspiracy and misfeasance in public office …)". In particular, to permit amendments as proposed:-

(b) Will not give rise to a question under the Limitation Act 1969 .

(c) Could not provide the basis for a defence under that Act.

(d) Will not involve an evasion of the immunity referred to by the first defendant. On the hypothesis that the plaintiff were to establish the alleged matters of fabrication of evidence, the making of false statements and the giving, knowingly, of false evidence, the law as to immunity ( Darker (supra) could not operate to protect those who were responsible for the same. The nature of the allegations in other words do not, and cannot outflank the immunity referred to. 123 Criticism has been made that the phrase "institution and/or maintenance and/or prosecution" of the "first charge proceeding" (first defendant's written submissions, 17 July 2006, paragraph 11) offends Part 14 Rule 14.6 of the Uniform Civil Procedure Rules as it fails to present for trial what and when each of the officers is said to have done. However, I do not consider that this is a submission of substance. Counsel for the plaintiff confirmed that the plaintiff proposes, if leave be granted, to proceed upon the basis that a police officer who can be said to be an "active instrumentality" in supplying false information to a prosecuting authority may thereby be considered a "prosecutor": Commonwealth Life Assurance Society v. Brain (1935) 53 CLR 343, 379-380. 124 The second defendant submitted that any prejudice that flows from the time the application is made should weigh heavily against the making of the orders sought. It is, as I have stated elsewhere, relevant to an application to amend to have regard to the overall context of the case in terms of lapse of time. I have had regard to the fact that the events of 1980/1982 occurred over 20 years ago. I also must take into account the fact that it was not until November 2001 (almost two decades later) that the plaintiff's right to sue arose consequent upon orders by the Court of Criminal Appeal quashing his convictions. The evidence, including the evidence led on behalf of the second defendant, does not, in my opinion, establish that in the period August 2004 (when express allegations were "dropped" as discussed above) to the date of the application to amend that the first or second defendant will suffer identifiable actual prejudice if the amendments sought are permitted. 125 The period of "delay" (August 2004 to April 2006) is to be distinguished from the "lapse of time" between 1980/1982 and November 2006. The plaintiff (and/or his legal representatives) has/have to accept responsibility for the former and provide an explanation. The plaintiff cannot be held responsible for the latter for self-evident reasons. That lapse of time, as previously noted, however is not to be left completely out of account. 126 In that respect, I do not, however, consider that the submission made on behalf of the second defendant (written submissions, 14 July 2006, paragraph 27) that the lapse of time in the period 1980/1982 to November 2001 weighs heavily against the making of the order for the amendment in circumstances in which:-

(a) The lapse of time in that period cannot constitute "delay" by the plaintiff in circumstances in which the plaintiff's cause of action for malicious prosecution was only complete in November 2001 and the proceedings were brought well within the limitation period.

(d) No application was made to stay the proceedings following the institution of proceedings in 2001 on grounds of prejudice, actual or otherwise. 127 Whilst the fourth further amended statement of claim no longer propounded express allegations of fabrication of evidence/false evidence etc., it did by its terms challenge the bona fides of both prosecutions. In alleging that the criminal prosecutions were brought in the knowledge that no evidence existed, the pleading did implicitly raise a serious abuse of public office of a criminal nature: see as to the offence of official misconduct Shum Kwok Sher v. Hong Kong Special Administrative Region [2002] HKCFA 30, Mason, NPJ (former Chief Justice of Australia); Regina v. Bembridge (1783) 3 Doug. 327; 99 ER 679. 128 The history of the plaintiff's pleadings set out earlier may be summarised as follows:-

As to the first charge, the plaintiff's original allegations included:-

(a) The charge of possession or prohibited drug, heroin, for the purpose of supply was false.

(b) A conspiracy to give false evidence against the plaintiff.

(c) Knowingly and maliciously prepare a false statement

(i) to be presented to the prosecuting authorities;

(d) Maliciously giving false evidence at committal and at trial. 129 In the pleading filed on 12 December 2003, the above allegations were omitted. A general allegation was made against the third to seventh defendants (ie., including Ross and Haken) that evidence had been given in the Royal Commission that they had fabricated evidence in relation to the charge. It was alleged Haken had admitted conspiring to "frame" the plaintiff at the invitation of Ross. This was accompanied by the "Abuse of office" allegations to which reference has been made above. 130 In the pleading filed on 12 August 2004, the allegations were confined to paragraphs 6 and 30 - which included instituting proceedings in the knowledge that there was no evidence etc (an allegation effectively alleging the common law offence of official misconduct) and the abuse of office allegations. 131 The last mentioned allegations were deleted from the pleading filed on 24 February 2005. 132 The current version of the pleading filed on 15 March 2005 retained the allegation of instituting proceedings knowing there was no evidence but removing the "abuse of office" allegations. 133 As to the second charge, the original pleading contained allegations as to:-

(b) conspiracy to give false evidence and preparation of false statements;

(c) fabrication of other evidence for use at committal;

(d) giving of false instructions to prosecuting authorities;

(e) giving false and fabricated evidence at committal and at trial'

(f) giving of false instructions to prosecuting authorities; 134 In the pleading filed on 16 December 2002, the allegations in (b), (c), (d), (e) and (f) were, in essence, -re-stated. 135 In the pleading filed on 12 December 2003, the above allegations were not re-stated. A general allegation was made that, at the Royal Commission, evidence was given that the eighth to twelfth defendants had fabricated evidence in relation to the second charge. The "Abuse of Process" allegations earlier discussed including attempt to pervert the course of justice were also included along with the allegation of instituting criminal proceedings knowing that there was no evidence to support the charge. 136 In the pleading filed on 12 August 2004, the "Abuse of Process" allegation was re-stated along with the allegation of commencing proceedings knowing that there was no evidence. 137 In the pleading filed on 24 February 2005, the previous pleading was left unchanged so far as the above last mentioned allegations are concerned. 138 In the current version of the pleading, the pleading was narrowed to the allegation of commencing criminal proceedings knowing that there was no evidence to support the charge. 139 The pleadings, although later amended, did provide the defendants with a period of approximately two years and four months (in which there appeared express allegations relevant to the proposed amendments) in which to investigate the allegations with relevant personnel and obtain documents. 140 In his written submissions dated 3 October 2006, Mr. Strickland, SC. directed attention, inter alia, to two particular matters:-

(a) The allegations contained in paragraphs 15(p), (q) and (s) of the proposed pleading especially insofar as they relate to the fourth defendant. It was submitted that those allegations were not made as a result of the fact that full particulars of the alleged conspiracy came into the possession of the plaintiff's legal representatives on 6 April 2006. It is an agreed fact that Mr. X has not made statements to them in relation to the allegations in "the agreed script" in (i), (ii), (iii), (iv), (v), (vi) and (vii).

(b) The application to amend is a reaction to and an attempt by the plaintiff to remedy the problems said to arise from his cross-examination. The court should decline to exercise its discretion. 141 I have considered the above submissions, having regard to the evidence of Ms. Burn and the cross-examination of the plaintiff commencing at transcript, p.493. 142 Whilst the first point set out above is an issue of significance, I do not consider that it outweighs an exercise of discretion in favour of permitting the amendments sought. In that respect, I note:-

(a) Whatever the extent of information that has been actually provided by Mr. X to the plaintiff's legal representatives, it was not until Mr. X agreed to speak to them and did so that they had first hand material from a person who may be described as a roll-over witness or "whistleblower" who was involved as a former police officer in relevant activities. I do not consider that the second matter raised by Mr. Strickland is sufficient to warrant the rejection of the application to amend. These are, no doubt, matters that will be raised and relied upon to challenge the plaintiff's reliability on the facts relevant to reasonable and probable cause.

(b) The plaintiff's solicitor adopted the approach that information should be obtained from a person who was in a position to give corroborative evidence.

(c) The fact that there is not an exact match between the information supplied by Mr. X and the particulars in the proposed pleading does not, in itself, negate the fact that corroboration was seen as necessary and Mr. X is said to have provided information of that character to the plaintiff's legal representatives. Any discrepancy between the particulars and Mr. X's information may well go to issues of credit and reliability, etc.

Submissions (by first defendant) re: Law Reform (Vicarious Liability) Act 1983 143 In the first defendant's written submissions dated 3 October 2006, the submission was made that the State of New South Wales, pursuant to Part 4 of the Law Reform (Vicarious Liability) Act 1983, made a determination (as it was required to do by that Act) to accept liability for the officers, again on the case pleaded. It was said in that respect that the case was restricted to the pleadings in particulars set forth in the fourth further amended statement of claim. 144 Part 4 of the Act does not, in fact, require the first defendant to make a determination pursuant to its provisions. Part 4, entitled Legal Proceedings for Damages for Torts by Police Officers, specifies, in particular, in s.9B and s.9C, how police tort claims are to be made and the requirement for the court (not the Crown) to make an "initial determination" as to the vicarious liability in any legal proceedings where in issue. 145 Section 9C provides:- "If the vicarious liability of the Crown is in issue in any legal proceedings in which a claim is made for damages for a tort allegedly committed by a police officer (whether or not it is a police tort claim) and the Crown and the police officer are both parties to the proceedings:- (a) subject to paragraph (b) - the court must make an initial determination as to whether or not the Crown would be vicariously liable for the tort if it were established that the tort was committed by the police officer, and (b) that determination is to be made as soon as is reasonably practicable during the proceedings unless the court considers it impracticable in the circumstances to make such a determination before it determines whether or not the tort was committed." 146 In the present proceedings, the State has acted in the defence of the relevant former New South Wales police officers in relation to allegations made in the fourth further amended statement of claim, the nature of which raises serious allegations impugning the bone fides of those officers. 147 It is unnecessary for the purposes of this application to analyse and finally determine the issues of vicarious liability in the proceedings arising under the Act. The issue of the vicarious liability of police officers exercising functions has been the subject of consideration: Pryor v. State of New South Wales (CA 40615/96, BC 9805599); Knight v. State of New South Wales [2004] NSWSC 791 and State of New South Wales v. Eade [2006] NSWSC 84. 148 In relation to the argument that has been raised concerning the Act, the following observations are stated in summary form:-

(a) In Knight (supra), Hoeben, J. observed at [112] that there was no authorisation for reading into the words "vicariously liable" any common law limitation such as was referred to in the Canterbury Bankstown Rugby Leagues Club v. Rogers (1993) ATR 62, 538.

(b) Hoeben, J. referred to an extract from the Second Reading Speech by the then Attorney-General:- "The Government has decided that the State should accept liability for the wrongful acts of all persons in the service of the State in addition to those employees who fall within the strict master and servant relationship."

(c) Hoeben, J. observed, "in other words, the intention of the Parliament was to accept all liability for wrongful acts" . His Honour also added that he did not see that the use of the word "vicariously" in subsection 8(1) was intended to place a restriction on the liability accepted by the Crown. He read the subsection as involving an acceptance of all liability for the tort by the Crown including any liability for exemplary damages "in respect of the tort" .

(d) The approach taken in Eade (supra), a claim for malicious prosecution, wrongful arrest and false imprisonment was one in which the State admitted vicarious liability for the conduct of Messrs. Eade and McClelland. The plaintiff gave evidence before the Wood Royal Commission that a confession had been procured by Mr. Eade (the cross-defendant) through a series of threats in that the plaintiff would be "loaded up" with heroin if he did not confess. The approach taken in that case, with respect, was guided by the principles enunciated in Pryor (supra). 149 In terms of the vicarious liability issues raised in the first defendant's submissions, the following points are noted:-

(a) Whether or not any improperly motivated conduct as alleged occurred (individually or conjointly) either before or after 28 October 1983, if such conduct were substantiated, it could continue to act or be instrumental through until conviction on 15 December 1983.

(b) The allegations sought to be raised by the proposed amended pleading generally fall within the scope of allegations made in earlier versions of the pleading and the current amended statement of claim concerned with the alleged improper abuse of the "functions" as defined in the Act of police officers in undertaking police investigations and seeking to procure the prosecution of the plaintiff. 150 The allegations made against the first defendant in the fourth further amended statement of claim allege against "the NSW Police Officers" in respect of the 1980 incident and the "second charge officers" in respect of the second incident, issues involving criminality in terms of paragraphs 6(c) and 15(c), namely, the allegation of instituting proceedings against the plaintiff knowing that there was no evidence to support the charges. The proposed amendments seek to raise allegations involving criminality in respect of the same charges and the same proceedings in relation to what has earlier been termed the preparatory stage and the evidentiary stage associated with those proceedings. There is a commonality in the alleged "functions" performed by those former police officers in exercising their power or authority to charge the plaintiff with criminal offences and to act as instruments in the bringing of proceedings against him. On that basis, it can be said that the issues of vicarious liability arising on the existing current pleading and the proposed pleading are intertwined or closely connected, one with the other. 151 Accordingly, whether considered as a matter of principle of one of discretion, I do not consider that the matters raised in respect of the Law Reform (Vicarious Liability) Act 1983 and the further submissions of the first defendant provide a basis for refusing the application for leave to raise allegations of the kind in question.

The permitted scope of amendments - the appropriate form of orders 152 The scope of amendments to be allowed should be informed by considerations that, inter alia, bring into account the following:-

(a) The extent to which, by allegations raised in earlier pleadings, the relevant defendant or defendants was/were put upon notice and afforded the opportunity to investigate the allegations.

(b) Specific evidence adduced in opposition to the application to amend or matters otherwise raised relevant to particular aspects of prejudice claimed.

(c) The extent to which the proposed amendments are directly relevant to the elements of reasonable and probable cause and malice.

The first charge 153 I am of the opinion, upon consideration of the application, that amendments should be permitted to raise the following:-

(a) Alleged pre-arrest activities of (then) New South Wales police officers asserted to have been directed to the fabrication of evidence against the plaintiff.

(b) Alleged pre-committal activities including the alleged making of false statements and the provision of such statements to prosecuting authorities for use in committal proceedings.

(c) The allegation that false evidence was given for the purpose of obtaining a conviction on a charge of possession of a prohibited drug, namely, heroin for the purposes of supply.

The second charge 154 I am of the opinion, upon consideration of the application, that amendments should be permitted to raise allegations on the matters set out below as particulars of absence of reasonable and probable cause and of malice alleged. The scope of the amendments is to be restricted to claims respectively against the first and second defendants for the alleged vicarious liability as currently framed in the fourth further amended statement of claim in relation to alleged activities, namely:-

(a) As to the first defendant: William Raymond Donaldson.

(b) As to the second defendant: Dennis Reginald Pattle (fourth defendant) and Glen John Matinca (fifth defendant.) 155 The restrictions on the claims against the first and second defendants to which I have referred does not of itself necessarily confine evidence as to alleged activities of the nature detailed below to the persons identified by name in the preceding paragraph. 156 The alleged activities are those that are related to the following:-

(a) Allegations as to pre-arrest activities in relation to the second charge.

(b) Allegations as to false procuring of a charge against the plaintiff relating to conspiracy to supply a prohibited drug, namely, heroin and being in possession of an unlicensed pistol.

(c) Allegations as to pre-committal activities including the making of false statements for use in committal and/or trial proceedings and/or maliciously giving false instructions to prosecuting authorities.

(d) The giving of false and/or fabricated evidence at committal and/or trial proceedings. 157 Paragraphs 15(p), (q), (r) and (s) of the proposed fifth further amended statement of claim are framed by reference to "the agreed script". If the proposed amendments are to be pressed in that form, then attention needs to be given to the requirements of reasonable particularity. The term "script" is derived from the Latin term "scriptum" and refers to a written thing, a piece of writing or document as in the word "manuscript". 158 If the plaintiff in referring to the expression "agreed script" is intending to refer to a document then that should be stated with reasonable particularity. If the plaintiff is referring to some other form of agreement, then reasonable particularity is required to make clear what is intended. 159 The plaintiff is to provide a further draft proposed amended statement of claim which gives effect to the above. 160 I accordingly make the following orders:-

(a) The plaintiff is granted leave to amend the fourth further amended statement of claim. Such amendments are to be in accordance with and to reflect the basis for the grant of leave as set out in this judgment.

(b) The plaintiff is to serve a copy of the fifth further amended statement of claim upon the legal representatives of the defendants by 9.00 am Tuesday 10 October 2006.

(c) Costs of the application for leave to amend are reserved.

Corrigenda This copy of the judgment incorporates the following corrections to the judgment delivered on 9 October 2006:- Paragraphs 107, 108 for "Fullagher, J." there has been substituted "Fullagar, J.".

Paragraph 111, the fourth word in the first line "of" has been deleted.

Paragraph 113, third line, the word "must" has been deleted and the word "may" substituted.

Paragraph 122(d), fifth line, the phrase "could operate to protect" has been corrected to insert the word "not" so as to read "could not operate to protect" and the word "those" has been inserted after the word "protect".

Paragraph 124, tenth line, the word "leg" has been deleted and the word "led" substituted.

Paragraph 149(a), first line, the word "improper" has been deleted and the word "improperly" has been substituted.

Paragraph 150, fifth line, the word "on" has been deleted and the word "of" substituted. Paragraph 154, third line, delete the word "alleged" and substitute "absence of". **********

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