Edwards v State of New South Wales - [2021] NSWSC 181 - NSWSC 2019 case summary — Zoe

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Edwards v State of New South Wales

[2021] NSWSC 181

Supreme Court of NSW|2019-04-30|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-04-30

Before

Walton J

Catchwords

[2007] HCA 10 Bailey v Director General of Natural Resources [2014] NSWSC 1012 Beckett v New South Wales (2013) 248 CLR 432
[2012] NSWCA 336 Landini v State of New South Wales [2008] NSWSC 1280 Luxton v Vines (1952) 85 CLR 352
[2005] HCA 48 Saad v State of New South Wales
[1971] HCA 33 Wilkie v The Commonwealth (2017) 263 CLR 487

Source

Original judgment source is linked above.

Catchwords

[2007] HCA 10 Bailey v Director General of Natural Resources [2014] NSWSC 1012 Beckett v New South Wales (2013) 248 CLR 432[2012] NSWCA 336 Landini v State of New South Wales [2008] NSWSC 1280 Luxton v Vines (1952) 85 CLR 352[2005] HCA 48 Saad v State of New South Wales[1971] HCA 33 Wilkie v The Commonwealth (2017) 263 CLR 487[2017] HCA 40 Williams v The Queen (1986) 161 CLR 278

Judgment (103 paragraphs)

[1]

nson (2019) 266 CLR 619 [2019] HCA 46 New South Wales v Zreika [2012] NSWCA 37 Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 R v The Associated Northern Collieries (1910) 11 CLR 738 Robinson v State of New South Wales [2018] NSWCA 231 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 Saad v State of New South Wales; Saad v State of New South Wales [2016] NSWSC 1247 Savile v Roberts (1698) 19 ER 1147 Shahade v Bischoff [2015] NSWCA 418 State of New South Wales v Hathaway [2010] NSWCA 184 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 State of New South Wales v Zreika [2012] NSWCA 37 State of NSW v Hathaway [2010] NSWCA 184 The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29 Thomas v State of New South Wales (2008) 74 NSWLR 34 Uren v John Fairfax & Sons (1966) 117 CLR 118 Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 Wilkie v The Commonwealth (2017) 263 CLR 487; [2017] HCA 40 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Wood v State of New South Wales [2018] NSWSC 1247 XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 Zaravinos v New South Wales (2004) 62 NSWLR 58 Category: Principal judgment Parties: Matthew Edwards (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Cohen (Plaintiff) A N Williams with T Buterin (Defendant)

[6]

Malicious Prosecution

The tort of malicious prosecution is committed when a person wrongfully and with malice institutes or maintains legal proceedings against another. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a "perversion of the machinery of justice": Mohamed Amin v Jogendra Bannerjee [1947] AC 322.
The constituent elements of the tort were stated by the plurality of the High Court in an extensive decision on the topic in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 ("A v NSW") at [1] (per Gleeson CJ, Gummow, Kirby Hayne, Heydon and Crennan JJ). These were succinctly reformulated by the High Court in Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 ("Beckett") at [4], as follows: 1. the prosecution was initiated by the defendant; 2. the prosecution terminated favourably to the plaintiff; 3. the defendant acted with malice in bringing or maintaining the prosecution; and 4. the prosecution was brought or maintained without reasonable and probable cause.
In these proceedings, issues arise as to the third and fourth step.
The conduct on which the tort focuses is the taking of an "active step" by the relevant prosecutor. A mere omission to act is not an active step. Nor is a state of affairs.
The principles and authorities were summarised by the Court of Appeal in State of New South Wales v Landini [2010] NSWCA 157 ("Landini") at [52]-[59] (per Macfarlan JA, with Tobias JA agreeing at [1], Sackville AJA agreeing at [119]). There, the Court of Appeal said: [52] To deal with these submissions, it is necessary to refer to authorities relating to the acts which are capable of constituting the maintenance of a prosecution for the purposes of the tort of malicious prosecution. [53] In Daniels v Telfer the plaintiff alleged that shortly after the defendants procured the issue of a warrant for the arrest of the plaintiff on a charge of larceny, the defendants became aware that the plaintiff was innocent of that charge. The plaintiff's Declaration filed in those proceedings alleged that the defendants "falsely and maliciously and without reasonable and probable cause refrained from taking any steps to prevent the execution of the said warrant and to prevent the plaintiff from being arrested thereunder" (Daniels v Telfer at 99). On demurrer, the Court held that the Declaration was defective as it did not allege that the defendants maliciously took any active step to continue the prosecution. [54] Harvey ACJ made the following observations: "In my opinion malicious prosecution connotes an active prosecution of the plaintiff. It must be shown that at some time when the defendants took some steps towards pressing on the prosecution they were actuated by malice. Mere saying nothing, taking no part in pressing on the execution, in my opinion is no breach of any duty which the defendants owed to the plaintiff. They must at the time when they do something by way of prosecution of the defendant be actuated by malice and without reasonable or probable cause. All that is alleged here is that after the warrant had been properly issued they refrained from taking steps to withdraw the warrant. In my opinion that gives no cause of action. Had they taken any steps such as by way of giving evidence in support of the prosecution, had they actively prevented the giving of evidence by persons who were qualified to give evidence, had they suppressed evidence, then I think on the authorities on the cases which have been cited to us, particularly the case of Fitzjohn v [Mackinder] (8 C.B. (N.S.) 592 and 9 C.B. (N.S.) 505)[,] I think the Court is justified in saying that they took an active step actuated by malice without reasonable and probable cause sufficient to establish malicious prosecution; but mere abstaining from doing or taking any action at all is not, in my opinion, malicious prosecution" (at 102). [55] James and Halse Rogers JJ concurred. Halse Rogers J added the following observation: "The only matter that has caused me any doubt is that in the course of the history the pleader alleges that the defendants procured a further adjournment of the hearing. That in itself of course was an active step and in my opinion in a declaration properly framed, if the plaintiff declared that after the arrest the defendants knowing of the innocence of the plaintiff maliciously and without reasonable and probable cause suppressed from the magistrate their knowledge of the innocence of the plaintiff and procured an adjournment and caused damage to the plaintiff, in my opinion that would give them ground for action …" (at 103). [56] In Fitzjohn v Mackinder, a decision of the Court of Exchequer Chamber referred to by Harvey ACJ, the defendant gave false evidence in civil proceedings that the plaintiff had signed an acknowledgement. The plaintiff denied that the signature was his, but he was disbelieved by the County Court judge who determined the civil claim. The judge, on his own motion, bound the defendant over to prosecute the plaintiff for perjury. This the defendant did by preferring a bill of indictment, but the plaintiff was ultimately acquitted. [57] The plaintiff was non-suited in his subsequent action against the defendant for malicious prosecution, but he succeeded in obtaining a verdict on appeal (Cockburn CJ, Bramwell and Channell BB agreeing, Blackburn and Wightman JJ dissenting). Cockburn CJ, with whom Channell B concurred, said this (9 CB (NS) 505 at 531; 142 ER 199 at 210): "In my opinion … a prosecution, though in the outset not malicious, as having been undertaken at the dictation of a judge or a magistrate, or, if spontaneously undertaken, from having been commenced under a bona fide relief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused. Take, for instance, the case of a prosecutor, who, after the commitment of a prisoner, and before going before the grand jury, chanced to discover the clearest proof of the prisoner's innocence, and yet went on with the indictment and prosecution, suppressing the newly-ascertained facts, and supporting the case against the prisoner by evidence either absolutely false or rendered so by the suppression of facts which would have shewn the innocence of the accused. Can it be said that to prefer an indictment under such circumstances, to be followed up by such a course of proceeding as I have referred to, would not be a malicious prosecution, for which the man whose life or liberty had been put in peril by it should have a remedy by civil action?". [58] Daniels v Telfer was followed in Coleman v Buckingham's Ltd where it was held that allegations that the plaintiff had maliciously and without reasonable and probable cause continued the prosecution of a civil proceeding by taking certain identified steps were capable of establishing the commission of the tort. The steps alleged to have been taken comprised the procuring of an order to proceed, and of a judgment, "by falsely and maliciously representing to the court by a false affidavit certain facts" (at 178). [59] The joint judgment in A v New South Wales pointed out that "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. 'To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion'" (at [34] citing John G Fleming, The Law of Torts, 9th ed (1998) LBC Information Services at p 676). Their Honours continued: "[35] In Martin v Watson ([1996] AC 74), a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had 'in substance procured the prosecution' ([1996] AC 74 at 89). The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation ([1996] AC 74 at 89). Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand (Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208), that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge".
In the context of the tort of malicious prosecution, a prosecution is not initiated by an arrest. Rather, it is not initiated until the process of a court is invoked. As the Victorian Court of Appeal held in Mutton v Baker [2014] VSCA 43 at [37]: [37] In the present case, there is simply no allegation in the statement of claim that the defendant has invoked or commenced the processes of any court. The statement of claim alleges nothing more than that a complaint was made to the police and that the police arrested the plaintiff. That conduct is insufficient by itself to ground an action in malicious prosecution. That part of the claim has no real prospect of success. In my opinion, the judge was right to dismiss it.
The tort has what the High Court has described as a "temporal dimension": A v NSW at [59]. The High Court said: [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light.
Thus, what is relevant, however, is what the plaintiff proves about the material that the prosecutor had available for consideration, first when deciding whether to commence the proceedings, and thereafter from time-to-time during the maintenance of the prosecution, as opposed to any material that may have come to light subsequently: see also, A v NSW at [58].
The "temporal dimension" of the tort makes it critically important to identify the time at which each active step of initiation or maintenance occurred. It is at that time that the issue of malice and the issue of absence of reasonable and probable cause are to be assessed.
The High Court reinforced this temporal dimension in Beckett at [4]. There, the High Court said: [4] … One aspect of that consideration which assumes importance in this appeal is the discussion of the temporal dimension of the tort: proof of the absence of reasonable and probable cause directs attention to the state of affairs at the time the defendant is alleged to have instigated or maintained the prosecution. Evidence bearing on the existence of reasonable and probable cause is confined to the material available to the defendant at the time the prosecution was commenced or maintained. [Footnotes omitted.]
In Wood v State of New South Wales [2018] NSWSC 1247 ("Wood"), Fullerton J said (at [246]): [246] In an action for malicious prosecution the need for a close focus on what are contended to be deficiencies in the evidence is allied with the importance of recognising the temporal dimension to that enquiry. An enquiry into the question of the absence of reasonable and probable cause directs attention to the state of affairs that obtained when the prosecution was commenced or when it is alleged the prosecution was maintained. Moreover, as the High Court observed at [59] in A v NSW, the enquiry necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not any material that may have come to light thereafter.
This Court has repeatedly emphasised the importance of the temporal dimension: see, eg, Bailey v Director General of Natural Resources [2014] NSWSC 1012 ("Bailey") at [307] and [346] (per Fullerton J); Hamod v State of NSW [2007] NSWSC 600 at [19] (per Simpson J); Clyne v State of New South Wales (No 1) [2011] NSWSC 629 at [56] (per Fullerton J).
The onus of establishing absence of reasonable and probable cause is on the plaintiff, and that typically gives rise to forensic difficulties. As the High Court said in A v NSW at [60]: [60] It is important to recognise that, in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to institute criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise.
The High Court dealt with the test for absence of reasonable and probable cause throughout A v NSW. However, the following propositions from A v NSW warrant particular notice. At [77], the High Court stated: [77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. …
The plaintiff bears the onus of proving a negative with respect to absence of reasonable and probable cause. That onus is normally met, at least in part, by the tender of the brief of evidence: Hamod v State of New South Wales [2011] NSWCA 375 at [33]; State of NSW v Hathaway [2010] NSWCA 184 ("Hathaway") at [180] (per Tobias, McColl and Macfarlan JJA). Thus, if the plaintiff presses on the Court some analytical approach to the evidence available in aid of a submission that there was an objective deficiency, then the plaintiff would normally tender all of the material available to the prosecutor.
It may also be noted that during closing submissions, in reply to the contents of the State as to the appropriate test to be applied, counsel for the plaintiff submitted: Our position is fundamentally that subjectively there was a lack of reasonable and probable cause subjectively on the basis that simply Mr Gill had no genuine belief in the validity of the proceedings, or at least if he did have a belief they were valid in the sense was for the Court to determine the issue. That in itself would not be a legitimate belief.
Notwithstanding that clarification of position, the plaintiff submitted "in any event objectively the material would not amount to reasonable and probable cause".
The plaintiff did not, however, identify with any certainty how that contention was advanced, or tender, the brief of evidence from the criminal proceedings in this civil action. An index to the prosecution brief of evidence was tendered by the plaintiff in his case.
The State correctly submitted that it is readily apparent that the material otherwise tendered is not the same as that included in that index. As a consequence of this failure, it was contended, again with some force, there is an inference that the plaintiff is not able to demonstrate absence of reasonable and probable cause, at least objectively.
As an example, during the cross-examination of DSC Gill, the following exchange occurred on 27 August 2019: T404.49 Q. Well it doesn't show that, sir. What it says is initial inquiries with Telstra through iASK indicated that Telstra would be able to provide connection details … T405 ... in relation to time and dates of internet connections - Well, the brief of evidence will have the initial iASK I submitted to Telstra back in March 2011, so we could track it that way. Q. Well, sir, I haven't seen a copy of any initial iASK. A. Well it's in the brief of evidence. Hence why - the whole reason the laptop went to SEEB was because Telstra couldn't give me the information. Q. Sir, in fact you actually never asked for that information - A. That's ridiculous. Q. And you intentionally never asked for that information? A. On what grounds would I not ask. Why would I ask for all his mobile phone tower information and not the internet? I was crucial to the brief, either way.
While it was suggested by counsel for the plaintiff that DSC Gill never asked for information from Telstra, relevant parts of the brief of evidence were not before the Court referable to that issue and, in particular, DSC Gill's evidence as to an "original" iASK request. It was not established that initial request was not in the brief of evidence.
As to the standard of proof, s 140(1) of the Evidence Act 1995 (NSW) states that the case must be proved on the balance of probabilities. However, under s 140(2), the Court is to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. The allegations now made against DSC Gill are grave within the meaning of s 140(2) and of the utmost seriousness having regard to the statements of principle in Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw") at 362 (per Dixon J). This is particularly so given that, at para 20 of the plaintiff's written submissions, the plaintiff submitted that the shortfalls in DSC Gill's investigation were intentional, rather than a product of incompetence. If proved, they would constitute, among other things: 1. criminal conduct contrary to, see example, s 319 of the Crimes Act 1900 (NSW) (general offence of perverting the course of justice), which carries with it a term of 14 years' imprisonment; and 2. breaches of DSC Gill's professional ethical duties.
The burden of proof on the plaintiff is, therefore, an onerous one because of the allegations of impropriety that the actions entail: Landini v State of New South Wales [2008] NSWSC 1280 at [45] (per Hall J) (it may be noted the relevant passage was not disturbed on appeal), referring to Dixon J's judgment in Briginshaw; see also Hathaway at [259]-[273]. That is, in order for the plaintiff to make good his case against DSC Gill, clear and cogent evidence is required: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171; Briginshaw at 361-362 (proof to the state of reasonable satisfaction cannot be produced by "inexact proofs, indefinite testimony, or indirect inferences", where the nature and consequences of the facts to be proved are grave and inherently unlikely).
In Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 ("Fernando"), the Federal Court at [129]-[130] held: [129] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, a Full Court of this court considered the standard of proof required in civil proceedings in the light of Briginshaw and the requirements of s 140. The Court said (at 480 [32]) that: The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion. The Full Court continued (at 482 [37]), saying that: Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred]. [130] A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister's reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the court will not be satisfied that the applicant's case has been proved to the necessary standard. For the reasons which we have explained this is such a case.
In Wood at [30]-[31], Fullerton J did not accept the Court's observations in Fernando as being authority for the proposition that the plaintiff must exclude any hypothesis available or open on the evidence before finding an unfavourable hypothesis proved. Rather, her Honour noted: [30] … Competing hypotheses may be "open" but one of greater probability than another will allow a conclusion to be reached that, having regard to the matters to which reference must be made in s 140(2), it has been made out to the level of reasonable satisfaction. [31] Proper consideration of the conclusion expressed at [130] in Fernando, when considered in the context of what the Full Court of the Federal Court said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, and which was extracted at [129] of Fernando, reveals that the Court was concerned with conflicting "open" hypotheses for conduct where those hypotheses were of equal degrees of probability. To accept, as I understand the defendant to submit, that Fernando is authority for the proposition that an open and favourable hypothesis must be excluded before accepting a competing open and unfavourable hypothesis, even if it is less likely, would be, in my view, to alter the applicable standard of proof.
The onus is on the plaintiff in respect of each element is particularly important when a solely inferential case is mounted. Where a case relies on inferences, the onus of proof is discharged only if the circumstances "do more than give rise to conflicting inferences of equal degrees of probability": Luxton v Vines (1952) 85 CLR 352 at 358 (per Dixon, Fullagar and Kitto JJ).
Particulars play an important role in a malicious prosecution case. Allegations of malice and absence of reasonable and probable cause are serious allegations and there is a special need for distinct pleading and clear proof. This is no more than an application of the general principle that an opposite party should always be fairly apprised of the nature of the of the case he is called upon to meet: R v The Associated Northern Collieries (1910) 11 CLR 738 at 740-741 (per Isaacs J).
These general principles are fortified by rr 15.3 and 15.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Rule 15.3 states: "A pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies".
Rule 15.4 states: 15.4 Allegations as to condition of mind (cf SCR Part 16, rule 3; DCR Part 9, rule 21) (1) A pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies. (2) In subrule (1), condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.
The effect of these rules, particularly r 15.4, is that particulars of malice and any state of mind relating to absence of reasonable and probable cause must be given.
As regards absence of reasonable and probable cause, the High Court's decision in A v NSW described the content of the "absence of reasonable and probable cause" element.
The Court identified two ways in which absence of reasonable and probable cause might be established, which are commonly described as "subjective" and "objective" aspects of the element. Those two aspects appear in [58] of the judgment, where their Honours said: [58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.
The High Court returned to these two aspects at [70]-[71] of the judgment, where their Honours stated: [70] There are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution "made" or "should have made" of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. As has already been noted, two kinds of inquiry are postulated: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a "belief") in the mind of the prosecutor? What is the subject-matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals ("guilt" or "probable guilt" of the person prosecuted)? Or is it a persuasion about that material's sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice? [71] Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff.
At [80], the High Court identified two negative conditions for this element of the tort, the first of which relates to the subjective aspect of this element and the second of which relates to the objective aspect. Their Honour said: [80] … But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established.
As to malice, it is well-established that the malicious purpose must be the sole or dominant purpose of the prosecutor. In A v NSW at [91], the High Court said: [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor.
The High Court continued at [93]: [93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.
The plaintiff must therefore prove - not just raise conjecture or suspicion - that the sole or dominant purpose of DSC Gill at the time of the taking of each active step was some purpose other than the proper invocation of the criminal law.

[7]

The Prosecutor

The plaintiff contended DSC Gill as the only prosecutor for the purposes of the tort of malicious prosecution. This is notwithstanding his pleading that "the Office of the DPP" conducted and maintained the prosecution and the parties' prior agreement that, on Wednesday, 2 March 2011, the DPP took over the conduct of the prosecution.
As to the latter consideration, an agreed fact in these proceedings, as set out in the Joint Memorandum of Agreed Facts and Issues in Dispute filed 3 October 2018, dealt directly with the issue of the real prosecutor as follows (at para 3(d)(xii)): xii. the proceedings following the charging of the plaintiff were commenced by Detective Senior Constable Gill, the prosecution was taken over by the Director of Public Prosecutions on 2 March 2011, and the prosecution was conducted thereafter by the Director of Public Prosecutions.
I pause to record that I accept the submission by the State that, in light of the reformulation of the plaintiff's case, any reference in the FASOC to the DPP (including Mr Pincott, Crown Prosecutor), or any other police officer (including DSC Selkirk) conducting, maintaining or otherwise having any responsibility for the conduct or maintenance of the prosecution ought to be struck out.
Mr Jonathan Cohen of counsel for the plaintiff contended that DSC Gill remained the prosecutor after 2 March 2011 based upon the following: 1. DSC Gill was the Officer-in-Charge and it was his decision to charge the plaintiff; 2. DSC Gill was personally involved in the prosecution: he took statements of evidence, "caused evidence to be made", and dealt with experts; 3. DSC Gill carried out the investigation and made all the important decisions in relation to the investigation; 4. DSC Gill liaised with the DPP and the police expert witnesses; 5. Mr Pincott's evidence was that by the time the matter came to him he was duty bound to run the case and all the important decisions had been made; 6. there was no specific evidence in relation to the role of the DPP and its employed solicitors and the defendant led no evidence to suggest anyone else was the prosecutor for the purposes of the tort and the Court can make a Jones v Dunkel inference in the regard; 7. the mere fact the Crown Prosecutor proceeds with the prosecution is not determinative of the prosecutor; 8. there may be more than one prosecutor for the purposes of the tort; and 9. Reference was also made to portions of the FASOC to DSC Gill maintaining the prosecution after 2 March 2011.
During oral submissions, the plaintiff further submitted: 1. The DPP is not the prosecutor for the purposes of this tort. Whilst the DPP is the legal prosecutor, "the legal prosecutor is not the same prosecutor for the purposes of the tort". Reliance was placed upon the authority of Wood v State of NSW. 2. As to any contention that the plaintiff conceded the DPP was the prosecutor, in an agreed statement of fact, it was submitted: "That concession was only a technical concession in the sense that the Director of Public Prosecutions was the legal prosecutor not for the purposes of the tort". (It was also noted that no claim was brought against the "DPP" and the pleading only refer to the "ODPP").
As Fullerton J in Wood observed, citing Bailey and A v NSW, it is important for the plaintiff to establish the identity of a prosecutor against whom it is said he was prosecuted maliciously.
The identity of the prosecutor is significant because it is that individual's state of mind, and conduct, that is relevant for determining whether the tort of malicious prosecution is made out. In Wood at [580], Fullerton J remarked on the importance of properly identifying the prosecutor: [580] In Bailey I expressed the importance of the plaintiff establishing the identity of a prosecutor against whom it is said he was prosecuted maliciously as follows: [284] In A's case the High Court was not concerned with a general enquiry into the identity of those to whom responsibility or accountability for the tort of malicious prosecution might be extended. This much is clear from what was said at [36]-[38]. What the Court did emphasise was that it is important to properly identify the prosecutor in proceedings brought to recover damages for the tort of malicious prosecution in order to ground and focus the critical enquiry into whether the plaintiff has proved that person (or, if more than one prosecutor, those people) acted maliciously and without reasonable and probable cause in initiating and maintaining the proceedings and, as the Court said at [38], in focusing attention upon those critical questions, whether those who "effectively set the proceedings in motion" acted tortiously. [285] At [38] the Court said: For the reasons explained by the House of Lords in Glinski v McIver [1962] AC 726, justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.
Her Honour in Wood also noted at [146]: [146] Since the accountability imposed by the tort of malicious prosecution is only imposed on a person who plays an active role in the conduct of the proceedings by effectively instigating or setting them in motion (see A v NSW [37]-[38]), it is necessary in this case to identify who the prosecutor is (or who the prosecutors are if there be more than one) as a discrete issue.
As this Court recently observed Ea v Diaconu [2019] NSWSC 795 ("Diaconu") at [60] (per R A Hulme), citing Clark v State of New South Wales [2016] NSWSC 808 at [59], even where the State is alleged to be vicariously liable for the tort of a prosecutor in a public prosecution, it remains necessary to identify the individual who is alleged to have committed the tort.
The Court, in Diaconu, summarily dismissed the plaintiff's statement of claim, which alleged the torts of misfeasance in public office and malicious prosecution. That decision was the subject of an application for leave to appeal: Ea v Diaconu [2020] NSWCA 127. I note that the applicant ultimately did not press the appeal insofar as it related to malicious prosecution. That is, the application proceeded on the basis of misfeasance in public office alone and the appeal was allowed against the first and third respondents.
It is well-established that the inquiry as to the prosecutor is one of substance. In Davis v Gell (1924) 35 CLR 275 at 282, Isaacs ACJ said that the law "looks beyond legal theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor".
The inquiry is therefore into the person or persons who, at each time, are instrumental in prosecuting the accused.
It follows that the pleadings and the agreed statement of fact cannot be determinative of the question raised by the parties, namely, was DSC Gill the prosecutor or a prosecutor after 2 March 2011?
The New South Wales Court of Appeal has recently cautioned against assuming that the officer-in-charge of an investigation is ipso facto a prosecutor. In HD v State of New South Wales [2016] NSWCA 85 ("HD"), the Court of Appeal observed (at [74]-[76]): [74] Claims for malicious prosecution are commonly brought against the prosecutor and sometimes against additional defendants. As the High Court explained in A v New South Wales at [34]: "To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (citing John G Fleming, The Law of Torts (9th ed 1998, LBC Information Services) at p 676). [75] In State of New South Wales v Landini [2010] NSWCA 157, Macfarlan JA (Tobias JA and Sackville AJA agreeing) at [52]-[59] referred to the type of acts which are capable of constituting the "maintenance" of a prosecution for the purposes of the tort of malicious prosecution. It is unnecessary to repeat what is there stated. The common feature in the authorities is the requirement that the defendant, by some positive conduct, maintain the prosecution. [76] For the purposes of the appeal, it may be assumed, without deciding, since no argument was advanced to the contrary, that Detective Cameron is to be taken to be a prosecutor in relation to both the assault charge and the ADVO proceedings. In proceeding on this basis, I would hasten to add that it should not be assumed that, as a general proposition, all investigating police, let alone those named as "officer-in-charge" of the investigation, are to be treated as the real prosecutor. In all cases, it will depend on the circumstances.
Section 9 of the Director of Public Prosecutions Act 1986 (NSW) ("DPP Act") at the relevant time provided: 9 Taking over prosecutions or proceedings (1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and: (a) carry on the prosecution or proceeding; (b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence, (c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and (d) conduct, as respondent, an appeal in any court in respect of the offence. (2) The Director may not take over a matter under this section involving a summary offence, unless: (a) the offence is a prescribed summary offence, or (b) a person otherwise responsible for the matter has consented in writing. (3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents. (4) If the Director takes over a matter under this section: (a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and (b) the Director may decline to proceed further in the prosecution or to carry the proceeding further. (5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.
Section 10 provides for the Director to give notice when he or she takes over a matter under s 9. The effect of s 9(4)(a) is to deem the DPP to be the prosecutor (not a prosecutor) in connection with the prosecution. There does not appear to be evidence as to such notice.
In light of those principles, an inquiry which should properly be made concerning whether, on the evidence, DSC Gill had some decision-making responsibility in relation to the prosecution, such as whether it should proceed or be terminated; what evidence and what charges it might be based upon; or what case theory might be pursued: Diaconu at [81].
In my view, when based on that analysis and what follows below, the evidence reveals that DSC Gill did not take active steps in maintaining the prosecution from 2 March 2011. In fact, his own view was that the DPP had complete carriage of the matter: T391.43-44.
Given the DPP's role pursuant to s 9, after 2 March 2011, DSC Gill had no further decision-making role as to composition or formulation of the charges to be presented against the plaintiff, nor was he able to cause the charges to be withdrawn. That is, he ceased to be a prosecutor as and from that date. This is because he was not responsible for, and took no active steps in, maintaining the prosecution. This may be contrasted to the plaintiff's case predicated on DSC Gill's omissions or failures in the course of his investigation during this period. The situation can be contrasted with that which was before the Court of Appeal in Landini.
Mr Landini was arrested and charged with supplying heroin. He pleaded guilty to those charges and then received a sentence of 15 years' imprisonment. During a Royal Commission into the New South Wales Police Service, evidence was given by one of Mr Landini's arresting officer (Mr Knox) that the evidence in support of Mr Landini's charge was fabricated in that the heroin was planted in Mr Landini's vehicle.
During the prosecution of Mr Landini, Mr Knox prepared, and handed up to Court, a "Facts and Antecedents" document headed "Facts in relation to Henry Charles Landini charged supply heroin". The document described the arrest, including that Mr Landini was found in possession of heroin. The Court of Appeal found that this, amongst other conduct, was conduct which constituted "maintaining" the prosecution for the purposes of the tort. Macfarlan JA, with whom Tobias JA and Sackville AJA agreed, held (at [67]-[69]): [67] In my view these matters indicate that on 19 March 1984 Mr Knox in the relevant sense "maintained" the prosecution of the respondent. At first instance the respondent established that Mr Knox did so maliciously and without reasonable and probable cause. He did so because the judge found that Mr Knox had participated in the fabrication of the critical evidence against the respondent. Mr Knox therefore knew on 19 March 1984 of the falsity of the charge against the respondent. [68] Mr Knox was present at the District Court when the document that he had prepared and that he knew contained false information was tendered to the Court as material, and probably essential, support for the conviction and sentencing of the respondent. Mr Knox was not present in court simply as a spectator but was there to support the prosecution of the respondent by giving evidence to the effect of what was contained in the "Facts and Antecedents" document in the event that its veracity was challenged. The Crown Prosecutor who tendered the document was in the same position as the police officer in Martin v Watson [1996] AC 74 (described in A v New South Wales…). As in that case, the facts relating to the alleged offence were not here within the Crown Prosecutor's knowledge and in progressing the prosecution of the respondent on 19 March 1984 he "could not have exercised any independent discretion" (see A v New South Wales at [35]…). By making the document available for use by the Crown Prosecutor, Mr Knox put the Crown in possession of information which "virtually compel[led]" the Crown Prosecutor to press the charge (see ibid at [35]). [69] This conduct of Mr Knox satisfied the requirement that, to be liable for malicious prosecution, a defendant "must play an active role in the conduct of the proceedings" (A v New South Wales at [34]…).
The Court of Appeal has since observed that, with respect to maintaining a prosecution, the common feature in the authorities is the "defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false": Shahade v Bischoff [2015] NSWCA 418 at [121] (per Gleeson JA, with whom Basten JA and Beech-Jones J agreed).
The plaintiff tendered in his case, without limitation, a number of contemporaneous statements made by various police officers, including DSC Gill. Taking that evidence, and DSC Gill's evidence in cross-examination into consideration, the evidence (and my impression of DSC Gill's evidence) does not support a conclusion that he was acting on the basis of any animosity towards the plaintiff, or through some partiality towards Mr Fing. The evidence does not reveal DSC Gill having taken any active steps (in the Landini sense) in the prosecution. Rather, it shows that DSC Gill did little more than banal tasks of collation and following up experts (which largely corresponded to the extent of any claim by the plaintiff as to DSC Gill's involvement). As the State put it, the factual investigation was front loaded given the events of the night in question. This might be contrasted with Detective Jacob in Wood, who was far more actively involved in that prosecution, but was still found not to be a prosecutor for the purposes of the tort.
I reject the submission that a Jones v Dunkel inference may be drawn regarding the State's "failure" to call evidence of DSC Gill's interaction with the DPP. The difficulty with the contention is the onus borne by the plaintiff and a failure by counsel for the plaintiff to raise such issues in his cross-examination of DSC Gill or the Crown Prosecutor. As Mr Adrian Williams, counsel for the State, submitted, "it would be an astonishing finding… [for there to be] some inference against the defendant about a matter entirely unexplored and where … you would assume [the communications] to be privileged".
The State was under no onus to prove the identity of the prosecutor for the purposes of the tort, and no adverse inference ought to be drawn in this regard. In any event, the plaintiff's case against the DPP was not directed at any individual and had no content. The plaintiff did not identify the content of the inference he invites the Court to draw.
As to Mr Pincott being bound to run the prosecution, the evidence was merely hypothetical. He was not asked specifically about the trial or the plaintiff and whether any such issue arose at or before the trial. His evidence was to the effect that there was processes to be gone through and "By the time I receive [a] brief all of those processes are generally gone through" (T345).
On the view that DSC Gill ceased being a prosecutor on about 2 March 2011, then all that falls for assessment on the plaintiff's case is whether DSC Gill acted with an absence of reasonable and probable cause, and with malice, in initiating the prosecution. This is because the plaintiff's contention that DSC Gill was the prosecutor for the purposes of maintaining the prosecution is wrong at law. I shall nonetheless later deal with reasonable and probable cause as if maintenance were an active consideration both under the heading "Factual Background and Issues in Dispute" and "Reasonable and Probable Cause".

[8]

False Imprisonment

A false imprisonment is an intentional, total and direct restraint on a person's liberty. There is no requirement that the defendant intend to act unlawfully or to cause injury. In that regard, liability for the tort may be considered as strict liability: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [140] (per Kirby J, in dissent but not on this principle).
Mr Cohen of counsel who appeared on the plaintiff was correct to submit false imprisonment is the unlawful arrest or detaining of any person: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714. A significant difference between false imprisonment and malicious prosecution is that with false imprisonment, if the detaining or arrest was unlawful, the tort is established. The intent of the person doing the detaining is not relevant. See Ruddock v Taylor at [140].
Counsel for the plaintiff was also correct to submit that in Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 the concept of imprisonment was given a broad meaning to include circumstances where a person is led to believe that if a person attempts for example to leave, they would be compelled by force to remain.
The power to arrest is given by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"), which provides: 99 Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W) (1) A police officer may, without a warrant, arrest a person if - (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons - (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note - The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer - see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. (5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
The High Court considered s 99(1)(a) in New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 ("Robinson"). In Robinson, the High Court emphasised that the relevant standard was suspicion. It observed (at [55]): The degree of certainty of guilt required to charge [55] It is true, as has been noticed, that, in Williams v R , Mason and Brennan JJ observed in obiter dictum that there was no reason to think that, "in general", an arresting police officer would be unable to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. But contrary to the majority's reasoning in the Court of Appeal, Mason and Brennan JJ are not to be taken thereby to have represented that what suffices to constitute reasonable grounds to suspect must necessarily be enough to lead an arresting officer to believe that the arrested person is so likely to be guilty of the offence for which he or she has been arrested that a charge is warranted. The essential point of both Dumbell v Roberts and Hussien - which Mason and Brennan JJ cited with evident approval in support of their analysis of reasonable grounds to suspect - was that the requirement of reasonable grounds to suspect is "very limited" and nothing like as much as a prima facie case. As Lord Devlin stated in Hussien: Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.' Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. Likewise, as this Court observed in George v Rockett : Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam , 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees , a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said: A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses in sub s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors. [Footnotes omitted.]
The suspicion referred to in s 99(1)(a) must be held "on reasonable grounds". That is a familiar criterion in the exercise of statutory powers and attracts well-understood principles.
Reference may be made in this context to the judgment of the Court of Appeal in in Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 ("Hyder"). The facts in Hyder concerned Mr Christopher Gaggin, a Federal Police Agent, whom arrested the applicant without a warrant to do so acting pursuant to the discretion to so act provided by s 3W(1)(a) of the Crimes Act 1914 (Cth). Sub-section (1)(a) of s 3W relevantly provided that "[a] constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that: (a) the person has committed or is committing the offence ...". At [15]-[19], as to the requirement of reasonable grounds, McColl JA (Hoeben JA agreeing at [90]) stated the following: [15] The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind: (1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112); (2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J; (3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing); (4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at 53) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn; (5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116); (6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116); (7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope; (8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J; (9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319; (10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may' "; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ. [16] The primary judge referred (at [15]) with apparent approval to a statement in Purchas LJ's reasons in Castorina v Chief Constable of Surrey [1988] NLJR 180; Times, 15 June 1988, to the effect that "courses of inquiry which may or may not be taken by an investigating police officer before arrest are not relevant to the consideration whether on the information available at the time of the arrest he had reasonable cause for suspicion." [17] It is not apparent that Purchas LJ's proposition is consistent with the statement in George v Rockett (at 112, see above) to the effect that the arresting officer may not merely act as a cipher, or with the plurality's reasons in Ruddock v Taylor (at [40], see above) that what constitutes reasonable grounds for forming a suspicion or a belief must be judged, inter alia, against what was "reasonably capable of being known at the relevant time". Prima facie, in my view, it will be a matter of fact in each case as to whether the materials the relevant person was considering were such as to prompt other inquiries before the relevant state of mind could be formed. This question was not argued and need not be finally decided. [18] The point made in above deserves some elucidation in the context of the appellant's complaints. As Lord Hope pointed out in O'Hara v Chief Constable of Royal Ulster Constabulary (at 301 - 302), it is frequently the case that: "[an arresting officer's] action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised." [19] Lord Hope's remarks emphasise that the question of identifying the material sufficient to support an objective finding that, for relevant purposes, an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind.
The Court of Criminal Appeal in R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 discussed the notion of a reasonable suspicion as follows (at [52]-[53]): [52] In Streat v Bauer; Streat v Blanco (16 March 1998, CLD, unreported) I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects", namely Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266 at 303 per Kitto J, George v Rocket (1990) 170 CLR 104 at 115-116, R v Armstrong (1989) 53 SASR 25 at 27; O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1 at 5 and 11 and Anderson v Judges of the District Court (1992) 27 NSWLR 701. [53] These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
In Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 ("Hamilton"), Campbell J described the test of suspicion on reasonable grounds under s 99(2) as a "relatively undemanding test": at [154].
The assessment of whether any suspicion was held on reasonable grounds is be judged from the "standpoint" of the officer "at the time of his decision to arrest or not in the circumstances then actually pertaining. The Court's evaluation is not to be made retrospectively": Hamilton at [155].
The state of mind referred to in s 99(1)(b) is satisfaction. The subject of the satisfaction is that the arrest be "reasonably necessary" (not "necessary") or one of the identified purposes (contra the form of LEPRA considered in Robinson was decided at [43]).
There is a well-established body of law dealing with the validity of the exercise of powers conditioned on the holding of a satisfaction. The satisfaction "must be formed reasonably and on a current understanding of the law" (see, eg, Wilkie v The Commonwealth (2017) 263 CLR 487; [2017] HCA 40 at [109] (per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)). However, the ultimate criterion is that there be a satisfaction, lawfully formed, at the time the power was exercised; and error is not established merely because the Court itself would not have reached that satisfaction.
In order to be lawful, at the time of arrest, the arresting officer must intend to charge the arrested person: Robinson at [62]-[63] (per Bell, Gageler, Gordon and Edelman JJ).

[11]

Issues in Dispute

Prior to turning to the factual background, as several of the issues in dispute relate to factual findings to be made by this Court, it is convenient at this juncture to outline the agreed issues in dispute: 1. The defendant disputes that the plaintiff can establish that: 1. his arrest was not lawfully justified; 2. the defendant initiated or maintained proceedings against him without reasonable and probable cause; 3. the defendant acted maliciously in initiating or maintaining the proceedings, or in any way other than for the proper purpose of criminal law. 1. The defendant disputes that DSC Gill, or any other officers of NSW Police, were seized of information at 8.16am or earlier on 25 February 2011 that would have warranted the discontinuance of the arrest of the plaintiff or that was incompatible with any decision to charge the plaintiff. 2. The defendant disputes that: 1. There was not a proper and thorough investigation of the crime scene, or the other facts relating to the charges to the extent possible and appropriate at the time. 2. The plaintiff was not treated in a way other than in a fair and impartial manner. 3. The investigation was conducted in a manner other than in accordance with proper police practice and procedure.
As to the first category of issues, counsel for the plaintiff conceded that the "initial arrest" of the plaintiff by the arresting officer was lawful. The plaintiff's primary case against the defendant is that a malicious prosecution was maintained by DSC Gill. The prosecution of the plaintiff was unlawful, it was contended, from 8.16am at the completion of the electronically recorded interview of the plaintiff ("the ERISP") on 25 February 2011.
As to the second category of issue, notwithstanding a pleading of false imprisonment, counsel for the plaintiff advanced the following submission during closing submissions: [T]his is fundamentally not a case of false imprisonment. It's a case of malicious prosecution. In the record in the ERISP that the plaintiff gives there are two things that one takes out of that. One is that [DSC] Gill says right at the start, I think it's question 6 of 7, he says, "I'm probably going to charge you." And what that means is that we're out of false imprisonment territory and in more of a malicious prosecution territory. He says, "I'm probably going to charge you." He had intended to charge him. That seems to tick the boxes in relation to false imprisonment as a defence. I couldn't really properly advance the issue of false imprisonment but what is advanced is that at that point in time, he had no proper basis to charge him.
Notwithstanding that submission, the plaintiff submitted the false imprisonment claim is that DSC Gill charged the plaintiff at the time when there was insufficient evidence.
As to the third category of issues, insofar as the investigation was concerned, counsel for the plaintiff conceded that "this is not a case where the investigation was incompetent". Further, the plaintiff acknowledged the intelligence and technical skill of DSC Gill, the officer-in-charge, an experienced police officer (who has since retired from the police). However, it was against that background of experience, that the plaintiff contended "that given the amount of shortfalls in the investigation it [was] far more likely these deficiencies were in fact intentional, most likely on the basis [DSC] Gill had specific personal knowledge (possibly only known to himself) the plaintiff was innocent". The plaintiff submitted that "when the evidence gathered by the police was objectively scrutinised the offence taking place in the manner alleged by the prosecution was impossible and there continued to be absence of reasonable and probable cause".
The circumstances surrounding the alleged "shortfalls" and "deficiencies" of the investigation are contentious and will be dealt with in the context of the factual background and following after a description of the relevant parties.

[22]

Police

The following is a list of the police officers involved in either the arrest and charging of the plaintiff and/or investigation into the shooting of Mr Fing.
Officers that attended the Belmont North property: 1. Inspector Bruce Sydney McGregor ("Inspector McGregor"); 2. Leading Senior Constable Gail Symington ("Leading SC Symington"); 3. Senior Constable Ryan Donohue ("SC Donohue"); and 4. Senior Constable Paul Larson ("SC Larson").
Each of the officers that attended the Belmont North property prepared a police statement in 2011 that was tendered without limitation in these proceedings (marked Ex 15, 6, 7 and 25, respectively).
Officers involved in crime scene examination: 1. Senior Constable Kathryn Nicole Dunn ("SC Dunn"), Forensic Investigator, Newcastle Crime Scene Section, attended and examined crime and incident scene on 25 February 2011, conducted further examinations on 10 March and 1 April 2011; and 2. Crime Scene Officer Louise Craft ("CSO Craft"), conducted forensic test of a Gun Shot Residue ("GSR") stub.
Both officers involved in the Crime Scene Examination produced a police statement in 2011, which were admitted into evidence without limitation (marked Ex 8 and 29, respectively).
Officers present at the arrest: 1. Senior Constable David Graham ("SC Graham"), arresting officer; 2. Senior Constable Karina Nixon ("SC Nixon"); 3. Constable Dean Worth; and 4. Constable Chantelle Poyner.
The police statements of SC Graham, SC Nixon and Constable Worth made in 2011, were admitted without limitation (marked Ex 20, 9 and 24, respectively). A further statement of SC Graham dated 25 December 2017, together with an extract of transcript (Ex E), was tendered by the State, which was admitted without objection.
Custody Managers at Newcastle Police Station: 1. Sergeant Graeme Newman; and 2. Sergeant Sally Scott.
The Custody Management Record dated 25 February 2011, was admitted without objection or limitation (Ex 10). The Caution and Summary dated 25 February 2011, was also admitted without objection or limitation (Ex 11).
Other Officers: 1. Detective Senior Constable Nathan Abbott ("DSC Abbott"), officer that bagged the plaintiff's hands following his introduction to the custody manager. His statement dated 29 February 2012 was before the Court (Ex 40). 2. Senior Constable Lisa Chesworth ("SC Chesworth"), Facial Identification Operator attached to the Northern Region Technical Support Unit at Newcastle. On 9 March 2011, SC Chewsworth used Cellebrite Universal Extraction Device to copy the data from a Nokia mobile phone and produced a machine generated report detailing the data stored. SC Chesworth's statement was dated 6 November 2012, it was before the Court (Ex 12). 3. Assistant Superintendent McCaig, Assessing Officer, Cessnock Corrective Services, conducted a placement/threat assessment with respect to the plaintiff. The record of that assessment was before the Court (Ex 67).
[REDACTED]
[REDACTED]

[28]

The Triple-0 Call

On 25 February 2011, at about 2.50am, a call was made by Mr Fing to the triple-0 service maintained by Telstra ("the triple-0 call"). The triple-0 call was directed to the NSW Police and included a complaint as to a shooting. The triple-0 call was played at the hearing.
During the triple-0 call, Mr Fing reported that he had "just been shot… in the arm" outside the Belmont North property. He indicated he thought the weapon used was "a small handgun".
Mr Fing also confirmed that he required an ambulance. He told the operator: "the bullet's still in me, so it's gonna have to be removed". He also advised that he had put a "patch" and "pressure bandage" on his wound as it was bleeding. During the playing of the triple-0 call, Mr Fing was heard asking someone "to get a mop". In his statement to the police dated 9 March 2011, Mr Fing deposed: "I told Jacob to get a mop and to clean the blood up".
An extract of the triple-0 call appears below: Fing: "Yeah, you there?" Operator: "Yeah yeah, who did this to you." Fing: "His name is Matthew Edwards, I've got an AVO on him at the moment." Operator: "Did you see what car he was driving?" Fing: "Yeah it was a black Ford." Operator: "Did anyone get a rego?" Fing: "Um yeah someone else here did I think." Operator: "Ok can you ask them what it was so we can get police out there looking?" Fing: "Just one second [then Fing speaks to another person "Where did you write down the number plate...the lady wants to know the rego"]" … Fing: "Um looks like a B.I." Operator: "B for Bravo. India." Fing: "Bravo, India, two, zero, Tango um...November"
The other person, referred to in the above extract, was Mr Uicich. Immediately prior to the shooting, Mr Fing had been watching television in his lounge room with Mr Uicich. In a statement to the police, Mr Uicich stated that shortly before 3am, the two men had observed bright headlights from a car that had driven into Mr Fing's driveway, shining through the front window. A similar description was provided by Mr Fing.

[29]

The Shooting

Mr Fing had opened the front door to inspect the situation. Shortly after stepping outside, there was a loud bang; Mr Fing was shot in his left arm. Mr Fing returned inside. Three further bangs were then heard.
Immediately following the shooting, Mr Fing said the following occurred: 22. At that stage I stated feeling a burning pain in my arm. I noticed the blood coming from my left bicep. I saw a wound on the top of [m]y left bicep. I could see the blood coming out form the wound and dripping down my arm. By this time Josh was at the front door next to me. Josh opened the door and ran outside. I look out and saw that the car had reversed out of the driveway and was about to drive off up the street. 23. I went downstairs to the garage where I knew a first aid kit was. I grabbed a dressing pad and a bandage and covered the wound to stop the bleeding. I went back upstairs. I grabbed the landline telephone and called '000'. I told the '000' operator what had happened. 24. My mother came out of her bedroom whilst I was on the telephone to '000' I told my mother that nothing was going on as I did not want her to worry. My mother went back into her bedroom. I told Jacob to get a mop and to clean the blood up. I then walked out into the driveway. I found a shell casing on the driveway. I picked it up and then put it back down. This all happened while I was still on the telephone to '000'. I just kept walking around the house whilst still on the telephone. I now believe I was in a bit of shock.
Prior to the arrival of police, blood was mopped from the crime scene. During cross-examination, DSC Gill gave evidence that the mopped-up blood did not create suspicion in his mind and that such action was "not unusual". An extract of the cross-examination that followed that evidence appears below: Q. Right, but Mr Fing he's somebody with a significant criminal history, isn't he? A. Yes, he is. Q. He would not be the sort of person who would mop up blood after he had been shot, would he? A. His brother may have been. I can't tell you what Mr Fing did or didn't do after his shooting, other than he was taken to hospital. … Q. Why would he cover up his own blood at the very least? … A. Well what - if he did clean up the crime scene where he spilled his blood what else, other than his blood, is he going to remove from the scene. Q. That's if it was a genuine crime scene, sir, which I'm suggesting to you it wasn't. A. Well hence why we confirmed that it was human blood present and what else more can we establish.
I will return to the controversy with respect to blood at the crime scene at a separate juncture, in the context of the forensic examination conducted at the scene.

[32]

Factual Controversy as to the identification of the vehicle

The plaintiff contended that on an objective analysis of the evidence of Mr Uicich and the neighbours would support a finding of an absence of reasonable and probable cause that that the plaintiff was guilty on the case put forward by the prosecution (albeit when considered collectively in light of all reasons advanced at para 21 of the plaintiff's written submissions).
In support of that contention, the plaintiff advanced the following submissions (see at para 21(o)-(q)): 1. The paper that Mr Uicich was said to have written the registration on was never located, despite police looking for the paper. The plaintiff contended that if such evidence existed "it would have been easily located" and "there would be no need to lie about the paper". The plaintiff contended, "[t]he fact the paper was never found cast[s] serious doubt on [Mr Uicich's] version of events". 2. Given the time of night, "it [is] highly doubtful whether it would have been plausible in the dark of the night to see the number plate as the car was reversing from 15 metres through the fence". The vision through the fence/gate is not good as the wooden pikes are relatively close together. Nor was it plausible, it was submitted, that Mr Uicich ran out immediately after the shots were fired to write down the number place. 3. Neither of the neighbours gave evidence that they heard a vehicle drive away. Particular reliance was placed upon Mr Reid's occupation as a police inspector, albeit off-duty at the time. It was submitted: "one would expect [he] would have payed close attention and would know what to look out for, [even] with no apparent interest in the matter".
In reply to the above contentions, the State submitted: 1. Mr Uicich's statement, having been tendered in this case without limitation, is evidence of the fact that Mr Uicich wrote down the registration number immediately after the shooting. 2. The prosecution was entitled to rely upon that statement and the veracity of its contents was otherwise a matter for the jury. 3. The piece of paper is a matter of little if any significance in circumstances where the registration was given in the course of the triple-0 call. 4. As to the submission that the neighbours did not hear a vehicle drive away, "[i]t is not clear how this goes to the question of the absence of cause or the impossibility of the prosecution case theory".
The submissions advanced by the plaintiff, in this respect, cannot be sustained for the following reasons: 1. The fact that the paper could not subsequently be found was relevant to the question of reasonable and probable cause, but needs to be seen further in the light of information available to the parties, namely, that Mr Fing provided a registration number to the triple-0 operator. The triple-0 operator then passed on the information provided. The "doubtful" nature of Mr Uicich's ability to read the number plate was an issue for a jury, but in these proceedings his evidence was admitted without limitation. 2. Police officers ultimately located a vehicle within the vicinity of the Belmont North property bearing that registration and being driven by the plaintiff. As will be set out in greater detail below, police located the vehicle driving without headlights on and were prompted to engage in a police pursuit upon the vehicle speeding away at the sight of the police lights. 3. As to the accounts of the neighbours, I accept the submission of the State, it is not clear how the absence of a reference to a vehicle reversing and/or driving away contributes to a finding as to the absence of reasonable cause. The neighbours were both awoken in the early hours of morning and recalled hearing loud sounds, which evidence was consistent with the account of Mr Fing, Mr Uicich and, ultimately, the ballistics evidence at the crime scene.

[33]

Ambulance Officers at the Belmont North property

At 3.08am, ambulance officers, Ms Stitt and Mr Williams, arrived at the Belmont North property. Ms Stitt stated: "FING was walking around with a bandage on his left bicep when we arrived. FING told me he had been shot from a distance".
Ms Stitt examined and treated Mr Fing's wounds, which she described as "a puncture wound to the left arm and an exit wound at the back of his left arm". Ms Stitt completed a Patient Health Record of the treatment. No record was made that Mr Fing identified the weapon used.
At 3.29am, the ambulance officers conveyed Mr Fing to John Hunter Hospital.
As to the conduct of Mr Fing in the ambulance, Ms Stitt gave the following evidence: 8. … During the trip I was in rear of the Ambulance treating FING whilst Scott drove. I can recall that FING was stable and conscious. He was talking to me and telling where to place a canula in his arm. His vitals [sic] signs and I observed him to be stable. 9. On Friday 24 February, 2012 I attended Belmont Police Station to make this statement. Detective GILL asked me if I recalled FING talking on a mobile telephone whilst I was treating him in the rear of the ambulance. I cannot recalled if he used a mobile telephone or not. I think he may have called someone to tell them what happened. I seemed to recall that it may have been his girlfriend, but I cannot be certain.
During cross-examination of DSC Gill, counsel for the plaintiff suggested that the act of Mr Fing "telling where to place a canula" combined with his addiction to heroin was a basis for a staged shooting: Q. If you go over to the next page, 1726, do you agree that the ambulance officer who was attending to him said that he was telling her where to place the cannula in his arm? A. Yes. Q. You were aware that he had an addi[c]tion to heroin? A. I think so, yeah. Q. And that was indeed one reason why Mr Fing might have staged this shooting; do you agree with that? A. No.
The plaintiff contended that such evidence contributes to the absence of reasonable cause to initiate or maintain prosecution against the plaintiff. However, in the absence of developed submissions, with respect to the relevance and the contended impropriety on the part of DSC Gill, in that respect, the evidence can, in and of itself, attract little weight in these proceedings.
At about 4.20am, Dr Mark Hossain examined Mr Fing in the Emergency Department at John Hunter Hospital. On 26 August 2011, Dr Hossain prepared a statement with the aid of his hospital notes made at the time of Mr Fing's presentation. Dr Hossain recorded that "Daniel Fing reported that his condition was a result of: Gunshot wound fired from approximately 10m away from 22" shotgun". It is not clear when this statement was made available to DSC Gill.
Following the examination at the hospital, it was confirmed no bullet remained in Mr Fing's arm. As to the time at which that bullet was discovered missing (i.e. not lodged within the arm of Mr Fing), DSC Gill gave the following evidence in cross-examination: "some days later, certainly not at the time at the hospital. They hadn't even X-rayed him at that point in time".

[37]

Detectives arrive at the Belmont North property

At or about 4.30am, DSC Gill, together with DSC Selkirk, attended the Belmont North property. Both Inspector McGregor and Leading SC Symington were at the scene. Leading SC Symington, a general duties police officer, and one of the first officers to arrive at the property, relayed to them what she had been told by Mr Fing and witnesses. The details of that communication were not included in the officer's statement. However, Leading SC Symington did record details of her conversations in her Duty Book (which appeared together with her statement marked Ex 6).
As to Mr Fing, described as the "victim", and the witnesses at the Belmont North property, Leading SC Symington recorded: Page 47 … 25/2/11 3.15am re: shooting loc: [the Belmont North property] POI: Matthew EDWARDS Aged 28 Mereweather stood at front gate, fired 1st shot from small handgun (glock), hit victim in upper arm, Vic closed door and heard further 4 shots which vic believed hit house. Victim: Daniel FING DOB: [redacted] Page 48 wound in upper arm, which went through victims arm witness: Jacob FING DOB [redacted] PH: [redacted] witness: Joshua UICICH DOB: [redacted] [address redacted] PH: [redacted] stated seated inside in front room. Saw headlights coming down driveway. Daniel got up, opened front door wit was not paying much attention, but heard 1 loud crack and heard front door slaw. Wit then heard further 3 loud bangs. Daniel told wit what happened. Saw headlights backing away. VOI: BI20TN - dark coloured Page 49 Late model ford sedan Time: around 2.40am - 2.50am …
Leading SC Symington also included notes of her conversations with the neighbours on pages 49 and 50 of her Duty Book, which included accounts of "popping noises" and a "loud bang". The shortness of the recordings does not properly attract any criticism, particularly given their inclusion within a Duty Book entry as opposed to a formal police statement from a witness.
In a statement dated 27 February 2018, DSC Selkirk stated that: I was made aware by general duties police officers that I spoke to when I arrived at… [the Belmont North property], that blood had been washed away from the front steps, I am unable to recall the name of the officers that informed me about this issue.
DSC Selkirk said that "I took that information into account in my assessment of the scene". He concluded "there was nothing that appeared out of the ordinary". In making that assessment, he conceded, his assessment was made "at a distance".
As about 4.50am, following conversations with police officers at the scene, DSC Gill and DSC Selkirk left the scene. On the evidence of Leading SC Symington, which was not challenged as to its truth, I find the officer conveyed information as to the accounts of Mr Fing and the witnesses, including the accounts of neighbours, to the detectives.
At about 5.30am, on the account of SC Larson, only SC Larson and Constable Donohue remained on guard at the scene. All other police and ambulance officers had left. The two officers remained on guard until they were relieved by a truck crew from Belmont Police Station.

[39]

Crime Scene Examination by the Newcastle Crime Scene Section

At about 6.50am, SC Dunn attended the Belmont North property at the request of CSO Craft. Upon arrival, she observed two officers guarding the scene, namely, Senior Constable Sierota and Probationary Constable Hamilton. The crime scene was examined and investigated by crime scene officers from the Newcastle Crime Scene Section, and not by, or under the direction of, detectives.
Prior to attending the Belmont North property, SC Dunn had a conversation with DSC Gill. The details of that conversation were not recorded in SC Dunn's statement (nor was DSC Gill questioned about the same). In her statement, SC Dunn recorded: "as a result of that conversation [with DSC Gill] I conducted an examination".
SC Dunn conducted an examination of the crime scene. The following is an extract from Senior Constable Dunn's statement dated 29 August 2011: 8. Marion Place BELMONT NORTH runs generally north south. A cul de sac is located at the southern end. Number 19 Marion Place is located in the cul de sac. A paved driveway leads from the cul de sac to a metal and wood electronic gate and brick fence at the front of the property. At the time of my examination the gate was partially open. The top of the gate was 1.56 metres above the ground. On the brick wall at the western end of the gate there was an intercom. Exhibit: I produce 6 colour photographs 1 to 6 inclusive. Descriptive captions included in the statement are attached to each of the photographs. … 9. Inside the gate the paved driveway continued to a double garage and western end of the front verandah. On the west side of the driveway there was a garden area that extended to the western boundary fence. There was a council domestic waste and recycling bin against the western wooden picket boundary fence. I did not identify or locate any physical trace evidence or other indications that appeared relevant to this investigation in these bins. 10. On the western edge of the top of the driveway, inside the gate there were four fired cartridge cases. The fired cartridge cases were .22 calibre Winchester brand. There was a "Super X" head stamp on each. … Exhibit: I produce 13 colour photographs numbered 7 to 19 inclusive. Descriptive captions included in the statement are attached to each of the photographs. … 12. The garage had two single wood panelled roller doors. The eastern roller door was open and there were two vehicles in the garage. I did not identify or locate any physical trace evidence or other indications that appeared relevant to this investigation in these bins. 13. Adjacent to the east end of the garage was a tiled front verandah. On the paving in front of the eastern end of the verandah there was a door mat. On the centre of the door mat there was a red/brown stain. Leaning up against the common garage and west wall of the verandah was a mop and bucket. There was a red watery residue in the bottom of the bucket. 14. The front door was at the west end of the verandah and consisted on a wood frame screen door and a blue wooden door. A straw broom was leaning against the wall on the east side of the door. A dust pan and brush was on the tiles at the base of the door. There were three holes in the flyscreen in the top half of the screen door. These holes corresponded in location with three damage points in the blue wooden door. At the base of the wooden door there was a red/brown stain. Three projectiles were on the tiles at the base of the door. … 17. I conducted a presumptive test for the presence of blood on the red/brown stains at marker E, in the residue of the bucket and on the tiles at the bottom of the wooden door with Hemastix. All three stains returned positive reactions. …
Both DSC Gill and DSC Selkirk were questioned about the crime scene examination conducted by SC Dunn. Both detectives confirmed they did not direct the actions of forensic officers.
During cross-examination, DSC Gill was questioned about the absence of photographs of the inside of the Belmont North property. He denied any involvement with the photographs taken: Q. Can you explain why there are no photographs at all of the inside of the house? A. No. As I said I didn't process the scene. Q. You didn't go back later to take photographs of the inside of the house? A. No. Q. That would have been the logical and obvious thing to do, wouldn't it? A. No. Q. You don't agree with that? A. The offence didn't take place inside the house. Q. No, but the offence took place at the door and he went back in the house straightaway. Do you agree with that? A. I agree with that. Q. And he also says that he went to the garage from the inside of the house, or I think he says he went to the garage, but if you just assume for the moment the garage could be accessed from the inside of the house and he gives evidence of bleeding and bandaging up his arm. A. Correct. Q. At no stage you went back to the house to take photographs of the inside of the house, did you? A. No. Q. The reason you didn't do that is because you didn't think it would help the case. A. That's ridiculous.

[41]

Blood at Crime Scene

As to the evidence of blood at the crime scene, the plaintiff submitted (at para 21(e), (i), (k), (l) and (m)): 1. Mr Fing either mopped up or directed somebody to mop up the blood at his house. It was contended: "[t]here could be no logical reason for him to mop up the crime scene if the shooting happened as alleged, nor is it plausible he would have done so or anybody else would have mopped up the floor". Reference was also placed upon Mr Fing's notoriety "as a seasoned criminal who had experience making bombs". 2. Notwithstanding the fact "Mr Fing is said to have bandaged his arm up after the shooting in the garage", no "items of interest" were located in the garage, namely, "no first aid kit, no bullet nor any blood". 3. No photographs were taken of Mr Fing's wound or shirt. Despite Mr Fing stated he was bleeding after the incident, Mr Fing's shirt was never recovered "nor did any of the police officers who attended the scene comment on his shirt or take photographs". Police officers were at the scene when ambulance came, no one took photographs of Mr Fing's arm or wound. 4. No photographs were taken of the inside of the house. Therefore, there was no photographs of blood inside of the house. It was contended that in light of the evidence of Mr Fing, namely, upon being shot at his front door he immediately retreated inside, there was a lot of blood, and he accessed the garage after being shot, "[t]here is no plausible explanation why there might be blood on the outside of the house and not the inside of the house". Further, it was contended that evidence does not support a scenario of the blood being mopped.
In reply, the State submitted: 1. Despite contending that the mopping up blood was "not plausible", the plaintiff did not develop that submission beyond that bare contention. 2. There is no basis to not accept the evidence of DSC Gill, an experienced homicide detective, that it is not unusual, and not unheard of, for blood at a crime scene to be mopped up. Further, DSC Gill provided an explanation as to why the conduct was not cause for concern, namely, at the worst, the victim is cleaning their own blood and that may remove evidence of the shedding of human blood. However, in the case of Mr Fing, it was still able to be verified from blood in the bucket. 3. As to the balance of the contentions, "these are matters that do not support the submission that the prosecution's case theory was impossible". In any event, they appear to be criticisms of crime scene officers, who were not acting under the direction of DSC Gill.
The submissions advanced by the plaintiff appear to traverse two issues, albeit without clear delineation, namely, either the objective evidence at the crime scene was not supported by the account of Mr Fing, supporting an absence of reasonable or probable cause to continue the prosecution against the plaintiff, or the objective evidence suggests improper steps were taken by investigators without cause, which impropriety, for the purposes of tort, must be attributed to DSC Gill.
As to the first issue, clarity is required as to the particular account of Mr Fing being relied upon. On 25 February 2011, as at the time of the crime scene examination, the only account available was the triple-0 call, which information was broadcasted to officers. DSC Gill would subsequently speak with Mr Fing at the Hospital at around 5am, however, that account was not recorded.
As to that initial account, the State correctly identified that the crime scene was consistent with the account provided by Mr Fing during the triple-0 call, including the fact of blood being mopped up. In any event, as to any discrepancies between the account of Mr Fing, including his subsequent police statements, and the objective evidence at the crime scene, having regard to the context of each, was properly a matter for a jury.
As to the second issue, which will be returned to throughout this judgment, I accept that the crime scene officers conducted an examination of the crime scene and that they did not act under the direction of DSC Gill. This is supported by the following: 1. Both DSC Gill and DSC Selkirk gave evidence they did not direct the conduct of crime scene officers. Further, SC Dunn gave evidence that she attended the crime scene at the request of CSO Craft. Crime scene officers arrived at 6.50am. Save for a conversation with DSC Gill prior to her arrival at the Belmont North property (the content of which is unknown), SC Dunn had no communication with DSC Gill over the course of the crime scene examination. 2. DSC Gill arrived at the crime scene at 4.30am. He remained at the scene for around 20 minutes. As at that time, Mr Fing had already been conveyed to hospital, around 1 hour prior to the arrival of DSC Gill. Thus, he had no involvement in the decision to photograph the wound or contribute to any decision made with respect T-shirt of Mr Fing.
Whilst aspects of the crime scene examination may be the subject of criticism, no aspect of the investigation with respect to the examination of blood at the scene sustains a finding that improper steps were taken, nor has the plaintiff established a basis upon which the steps taken by crime scene officers during the examination or processing of the scene may be attributed to DSC Gill.

[42]

The Bullets and Casings

The plaintiff submitted the evidence concerning bullets and casings (also referred to as cartridges) supports a finding of an absence of reasonable or probable cause that the plaintiff was guilty (at para 21(a)-(d), (f)-(g), (j) and (u)): 1. Mr Fing told the triple-0 operator that the bullet was still lodged in his arm. The plaintiff contended that "it is extremely unlikely" that Mr Fing made an error as to whether or not the bullet was lodged in his arm. Rather, it was contended that the statement was a "calculated lie". That submission was supported by the following: 1. the wound was minor (5mm x 5mm); 2. the bleeding was minor; 3. Mr Fing "had the presence of mind to bandage himself up"; 4. the wound had stopped bleeding by the time it was redressed by the ambulance officer; 5. Mr Fing sounded calm on the triple-0 call; 6. Mr Fing was aware the gun fired a .22 bullet; 7. Mr Fing was able to direct the ambulance officer "where to inject the opiate"; and 8. Mr Fing was able to make phone calls and send texts. 1. Four bullets were alleged to have been fired by the plaintiff, but only three were recovered on the day of the shooting. The missing bullet, said to have hit Mr Fing, was handed in by Mr Fing on 9 March 2011. Mr Fing said it was found in the garage almost two weeks after the alleged shooting. It was submitted that if Mr Fing (or Jacob Fing) "had lied about where the bullet was located this in itself would be cast grave doubt on the veracity of the complaint as a gunshot victim or somebody closely aligned to the victim would have no logical basis to lie in such a manner". 2. The first ballistics report found that all four bullets were damaged as a result of hitting something hard. This is an important factor as it renders the prosecution case theory impossible for the following reasons: 1. If the bullet hit the arm of Mr Fing and then hit something hard, the bullet would have been located near the doorway either inside or outside the house. There would have been bullet damage to property which would have been almost certainly found by the police. 2. If the bullet had remained in the arm and be dropped in the garage when applying the bandage, it could not have hot something hard. Accordingly, there was no possible way the bullet could have ended up in the garage. 1. The first ballistics report also supports a conclusion that "the bullet more likely emanated from a larger gun or a home made or modified gun" (being a reference to the bullet said to have penetrated Mr Fing). Despite that evidence, "no search was ever conducted by the police of the plaintiff's residence nor was anything found on his computer suggesting he was searched the topic of modifying guns". 2. Mr Fing stated at the hospital the bullet was a .22 shotgun. Mr Fing could have only known that information if he had seen the bullet casings or bullets. In his statement, Mr Fing said he picked up a bullet casing whilst he was on the phone to triple-0. However, "there is no suggestion he walks up to the fence some 15 or so metres away from the front door. Nor is it plausible". It was submitted: "The most likely explanation is that Fing was aware it was a .22 because he orchestrated the shooting, if indeed the wounds were bullet wounds at all".
The above evidence does not sustain the conclusion sought by the plaintiff for the following reasons: 1. The fact that only three bullets, together with four spent cartridges, were recovered on the day of the shooting is evidence that a shooting took place. In isolation, such evidence neither implicates nor exculpates the plaintiff, but provides a basis for investigating the incident in light of the triple-0 call by Mr Fing. 2. The submissions advanced by the plaintiff with respect to whether a shooting victim might mistake as to whether or not a bullet is lodged in their arm; the size of the bullet wound; and the extent of blood from the wound, are matters for expert evidence. The plaintiff's submissions cannot be maintained in the absence of expert opinion on those matters. For that reason, I accept the submission of the State that there is no evidence upon which this Court can properly infer that Mr Fing lied. 3. As to the suggestion that Mr Fing knew where to inject an opiate, or that he was able to make further phone calls or texts, the evidence is relevant but of little weight, if it is to the effect that it would have been apparent that Mr Fing had not really been shot (there was an absence of evidence supporting such a conclusion). 4. As to the suggestion the fact that the bullet was found in the garage renders the prosecution case theory impossible, that submission is not supported by the evidence before the Court. Both DSC Gill and DSC Selkirk addressed the possibility of the bullet being inadvertently carried or moved into the garaged (in terms of the maintenance of a prosecution). See, for example: 1. The evidence of DSC Gill, "Well the bullet might have got caught in the shirt…". 2. The following evidence of DSC Selkirk: Q. Do you accept that that wouldn't be possible, if he was hit on the arm where that door is, if he was hit on the arm and that was the bullet that was found in the garage was the one that struck him, do you agree that just as a matter of common sense, and from your experience as a police officer, that it wouldn't be possible for the bullet to land in the garage, at least in terms of leaving the arm and then, as part of the shot, ending up in the garage? A. If the round was fired from the gate, it would have had to have caused damage, obviously, in the garage before you would find the projectile in the garage, but if the round is carried in a piece of clothing, and the victim is walking around, it is possible. Q. So it possible, do you say, that when he bandaged himself the bullet was in his shirt, and then it somehow fell on the ground as he was bandaging himself up? A. I believe that was one possibility that was raised, but, look, I'm only-- Q. Do you agree that it is highly unlikely, and in fact I will put it to you that it is actually impossible? A. No, nothing is impossible, believe me 1. The plaintiff contended that Mr Fing's identification of the ".22 bullet" at the hospital supports a conclusion that "he orchestrated the shooting". The State correctly, in my view, contended such a conclusion is "not available on the evidence in this case". Regardless, the question of Mr Fing's knowledge of .22 calibre bullets was a matter for the jury. It might also be added, that specific identification only came to light in the statement of Dr Hossain dated 26 August 2011. Prior to that statement, Mr Fing had described the weapon as a "small handgun" to the triple-0 operator but said he was not certain; Ms Stitt only made reference to a "gun" on her records of the incident; and no reference was made to any particulars of the gun and/or bullet(s) in Mr Fing's statement. 2. As to the contention that "there is no suggestion he walks up to the fence some 15 or so metres away from the front door" during the triple-0 call, both the triple-0 call and statement of Mr Fing, evince that Mr Fing was walking. I do not find that the triple-0 call provides a basis for rejecting the account of Mr Fing. In any event, such a finding would fall to the jury. 3. The plaintiff inaccurately recorded the evidence of Mr van der Walt as recorded in the first ballistics report. The expert did not say "the bullet more likely emanated from a larger gun or a home made or modified gun" (emphasis added). Rather, the relevant passage of the first ballistics report, in context, reads: The four .22 calibre fired bullets, (4b), do not display any land or groove impressions on their bearing surfaces. This could be indicative that they were discharged from either a larger calibre firearm or a homemade/non conventional .22 calibre firearm. (emphasis added) Again, the timing of the receipt of this report is relevant as to the assessment of cause. The first ballistics report was dated 4 October 2011. 1. In any event, the question and case theory of the location of the fourth bullet, initially thought to be lodged in Mr Fing's arm, and the nature of the weapon used was one properly left for the jury.
Notwithstanding the above consideration, it must be emphasised that any final conclusion as to the absence of reasonable or probable cause will need to be considered in light of the totality of all available evidence and submissions advanced by the parties.

[43]

Mr Fing's Shirt

The plaintiff further contended that had DSC Gill been conducting a proper investigation, free from malice, he would have made inquiries about Mr Fing's shirt.
DSC Gill was cross-examined at length about the potential significance of obtaining Mr Fing's t-shirt from the night of the shooting. DSC Gill gave the following evidence: 1. He confirmed that, as at 4 August 2011, the view had been formed that "the projectile [was] caught in the victim's shirt after the shooting and fell out upon receiving first aid". 2. Whilst he accepted obtaining the shirt of Mr Fing was "possibly" important, he stated "we didn't know that information" on 25 February 2011, namely, that the bullet may have been in Mr Fing's shirt. As such, the shirt was viewed to have minimal forensic value "other than [Mr Fing's] blood".
The plaintiff subsequently challenged the honesty of DSC Gill with respect to his evidence as to the forensic value of the shirt: Q. [At the plaintiff's trial] You were asked this question, "Would not be usual in such circumstances to seize a shirt from someone who was then a complainant." Your answer was, "No, there would be no benefit in seizing the shirt because the only person who would have blood on his shirt would be his own. There's no indication of anything else." A. Correct. Q. But you've previously stated that the bullet it was believed the bullet might be caught in the shirt. A. Well what do you expect to be in the shirt? If the bullet has been caught up in the shirt, we've retrieved the bullet from the shirt there's going to be no transference of evidence between the shirt and the bullet. … Q. I suggest to you you weren't telling the truth when you gave that evidence at trial and you are not telling the truth now? A. The truth in regards to what? Q. The truth in regards to the lack of importance of seizing that shirt? A. Explain to me what forensic benefit I would get from seizing that shirt. Q. Well there might be a bullet fragment, there might be a rip on the shirt. There could be a whole range of things. There's blood, gunshot residue. A. Firstly, if there was blood it would be the blood of the victim, so that would take me nowhere because it was his shirt. Gunshot residue doesn't work like that. It comes from the firing of the cartridge, not at the end of the bullet. So, there's two things. …. Q. Yes, and you weren't telling the truth, were you? A. That's ridiculous. If anything, if I go the shirt and there was gunshot residue on it it would confirm that he's been shot in the arm. Q. And you say that coming from somebody who was in the homicide squad that wasn't important? A. No. Q. Sir, you are not telling the truth, are you? A. I am telling the truth. What benefit would there be of me not telling the truth?
Further, the plaintiff contended DSC Gill suggested there was no point collecting the shirt from Mr Fing and "contradicted himself shortly afterwards by admitting there may have been GSR on the shirt whereas prior to that stating there couldn't be GSR on the shirt as bullets contain GSR". The relevant passages of transcript are extracted below (with some repetition of the earlier extract for completeness): Q. Sir, don't you agree it would have been important to, given that that was your belief, to obtain the shirt? A. Possibly, yes. Q. But you didn't get the shirt, did you? None of the police officers obtained the shirt. A. Well at the time we didn't know that information. Q. He was shot, he had a bandage around his arm when the police officers came and he was wearing a shirt, presumably. A. I presume so. Q. Or he may not have been wearing a shirt, but no police‑‑ A. No, I think he was. Q. He was wearing a shirt. So, he wasn't asked any questions about whether he changed his shirt or anything like that? A. I can't recall. Q. I suggest to you that there is no evidence whatsoever about what happened to his shirt? A. I can't recall. I can't think of any benefit the shirt would give in any event. Q. Notwithstanding the fact that the bullet was lodged the ‑ it was believed the bullet was caught in the shirt. A. Well the bullet might have got caught in the shirt, but what would that give? Q. I suggest it would be a usual ‑ it would be something usual to obtain, wouldn't it? A. Possibly, but, as I said, I don't think I knew that information at the time, on the day of the incident that it may have been caught up in his shirt, so taking his shirt on the day of the incident wouldn't provide me any forensic value, other than his blood, possibly, which like it's his blood. Q. So, was there a piece of information that made you consider that the bullet was caught up in his shirt afterwards? A. Obviously. Q. And what might that piece of information be? A. I can't recall.
The following extract of DSC Gill's cross-examination is also relevant to the contentions of the plaintiff: Q. Well there might be a bullet fragment, there might be a rip on the shirt. There could be a whole range of things. There's blood, gunshot residue. A. Firstly, if there was blood it would be the blood of the victim, so that would take me nowhere because it was his shirt. Gunshot residue doesn't work like that. It comes from the firing of the cartridge, not at the end of the bullet. So, there's two things. Q. But wasn't a gunshot residue located in the - on the bullet? A. I can't recall. On the bullet? Q. On the bullet? A. Probably from the bullet from the front door where it hasn't penetrated anything. Possibly not from the bullet that's penetrated an arm. Q. Right, but a moment ago you said, sir, that gunshot residue is not on a bullet. And a few moments later you said possibly there might be gunshot residue on a bullet; isn't that the case, sir. A. You heard what I said. Q. Yes, and you weren't telling the truth, were you? A. That's ridiculous. If anything, if I go[t] the shirt and there was gunshot residue on it it would confirm that he's been shot in the arm.
I do not accept the plaintiff's criticism of DSC Gill's credit based upon his evidence as to the forensic value of Mr Fing's shirt and GSR for the following reasons: 1. DSC Gill's answers, in my view, were responsive to the questions asked and he provided relevant explanations based upon his experience. Whilst his answers at times revealed frustration with the question being asked (eg, "Obviously", "That's ridiculous" and "You heard what I said"), he ultimately answered the questions based upon his recall without any evasiveness. I will return to my overall findings as to the credit of DSC Gill at a separate juncture. 2. In light of the earlier factual findings, I accept that DSC Gill was not made aware that the bullet thought to be lodged in Mr Fing's arm was missing (and that such information came to pass in the coming weeks). I also accept his opinion as to the forensic value of the shirt was genuinely held and informed by his extensive experience as a police officer. I find no basis to conclude the decision not to obtain the shirt was based upon malice or otherwise indicative of an absence of reasonable cause. What may have been optimal police practice in the investigation is quite another matter. 3. DSC Gill did not say "bullets do not contain GSR", but rather offered his understanding that GSR comes from the firing of the cartridge, not at the end of bullet. No adverse inference as to credit may be drawn from this evidence. 4. When considering DSC Gill's evidence in context, the plaintiff's criticism cannot be sustained.

[46]

Police Locate and Pursue the Vehicle

An account of what occurred upon arrival is set out in the Statement of SC Graham and is extracted below: 4. I drove to Morgan Street Merewether and in a westerly direction slowly past the premises of 213 Morgan Street. There were no lights on in the premises, the front garage roller door was clown, I then travelled further up the road and conducted did a U-turn. I again drove east in Morgan Street and when I drove past the premises again, the exterior sensor light activated and a light could be seen coming from the garage through a window. I thought this was a bit odd as the vehicle I was driving was further away from the premises. 5. I then conducted another u-turn and parked about a 100m further down the road east of the premises, keeping an eye on it; the sensor light had turned off. After I made two phone calls, the supervisor at Newcastle and the Duty Officer at Lake Macquarie, I contacted NCC18 and NCC17 by mobile phone and asked them to meet me in Morgan Street. A short time later NCC18 arrived in Morgan Street and I reversed back into a side street, Kiah Place. A short time NCC17 attended the location, parked in Kiah Place and I had a conversation with the officers in the police vehicles, at this time a Taxi drove west, then east in Morgan Street. 6. A short time later I heard a noise of an engine of a motor vehicle driving in Morgan Street, l looked into Morgan Street and saw a shadow of motor vehicle drive past, it was only about 6 metres away, it did not have it's head lights or parking lights on, it appeared to be dark in colour and the shape of a new style Ford Falcon Sedan, similar to that of the police vehicle NCC14 that I was driving. I said, "That could be him." 7. I jumped into NCC14 and turned left into Morgan Street, at this time the motor vehicle had turned its lights on and was about 150m in-front of me. I harshly accelerated the police vehicle to catch up with this motor vehicle and as the motor vehicle was about to approach the intersection of Hatfield Street I observed the registration plates being NSW plates Bl-20-TN. I activated the roof bar fights, the motor vehicle sped up and harshly turned left into Hatfield Street and accelerated heavily away from me. I accelerated after the motor vehicle south up Hatfield notifying VKG of the vehicle direction, I would estimate the speed l was travelling at about 70-80km/h, well over the posted 50km/h speed limit. The motor vehicle turned left into Sunhill Drive, heading back east, then its lights were turned off and it turned right into Bershire Avenue. The motor vehicle was no more then 100m in-front of me when the driver, the accused, Matthew Edwards turned the lights of the motor vehicle back on. 8. The accused then applied the brakes and pulled over to the left side of the street and stopped. With the information that the accused could possibly be armed with a firearm. l stopped about 100m behind, the accused got out of the drivers' seat and was waving his arms around, I opened the drivers' door, got out yelling, "Police, get on the ground, get on the ground."

[47]

Police Arrest the Plaintiff

Following the police pursuit, the plaintiff was arrested by officers of NSW Police at or about 4am at Berkshire Avenue, Merewether. The arresting officer was SC Graham. As mentioned at the outset, the plaintiff does not challenge the lawfulness of the arrest carried out by SC Graham.
The following account is based upon the statements of SC Graham and Constable Worth. After both vehicles had pulled over, the following occurred (with slight repetition of the account extracted above): 1. The plaintiff had exited the vehicle. He was observed "waving his arms around". 2. SC Graham exited his police car and yelled at the plaintiff: "Police, get on the ground, get on the ground". 3. Whilst retrieving a ballistic vest from the rear of the police car, SC Graham observed the plaintiff walk around to the rear of the vehicle and open the boot, from which a woman then exited the car. SC Graham provided the following description of the woman: "She was skinny and had black clothing on. The female walked from the rear of the vehicle onto the footpath and I could not see her". (The woman was Ms Zabun). 4. SC Graham, with his firearm drawn and walking in the direction of the plaintiff, yelled (for a second time): "Police, get on the ground, get on the ground". 5. In response, the plaintiff walked to the middle of the road, got down, laid on his back on the bitumen. SC Graham then yelled at the plaintiff: "Turn onto your front, spread your arms out where I can see them". 6. SC Graham, together with Constable Worth, and SC Nixon approached the plaintiff. SC Graham was holding a torch, his firearm had been re-holstered. SC Nixon had her firearm drawn. 7. SC Graham and Constable Worth took hold of the plaintiff. 8. SC Graham said: "I'm Senior Constable Graham from Newcastle Police, failure to comply with my direction may be an offence". 9. SC Graham had hold of the plaintiff's right wrist, brought it around to his back for the plaintiff to be handcuffed. At the time of that motion, SC Graham said: "You are under arrest for the investigation for a shooting, you do not have to say or do anything, anything you say or do will be recorded and used in evidence in court. Do you understand that?". 10. SC Graham and Constable Worth both said: "Where's the gun, where Is the gun". The plaintiff said: "What gun, I don't have any gun". 11. SC Graham and Constable Worth searched the plaintiff, lifted him up from the ground, and escorted him to a police car.
Following the arrest, Constables Poyner and Worth conveyed the plaintiff to Newcastle Police Station where he was introduced to the custody manager and placed in custody.
On 14 February 2013, Ms Wood provided the police a statement of what she heard and saw on 25 February 2011. She observed the plaintiff exit the vehicle, open the boot of the car and witnessed a female climb out of the boot of the car. She deposed that "I initially thought the female may have been abducted and feared for her safety". Ms Wood also recalled that she heard the plaintiff say "take the bag and go" to the female, who then proceed to run up the street with a bag. Ms Wood then recalled observing the arrest of the plaintiff. Ms Wood called triple-0 and alerted the police to the "female with a bag" that had exited the vehicle.

[55]

Interview of the Plaintiff at Newcastle Police Station

At about 5.35am, DSC Gill attended Newcastle Police Station. DSC Gill approached the plaintiff in the charge room and inquired if he wanted to participate in an electronically recorded interview. The plaintiff advised that he was waiting for legal advice prior to making any decision. At that point, DSC Gill left the charge room without interviewing the plaintiff.
At about 7am, DSC Gill returned to the charge room and inquired if the plaintiff wanted to participate in an interview. The plaintiff agreed and was escorted from the charge room to the interview room.
At 7.16am on 25 February 2011, DSC Gill, together with DSC Selkirk conducted an electronically record interview with the plaintiff. The ERISP was conducted at Newcastle Police Station. The duration of the interview was 1 hour, with the interview being finished at 8.16am. The transcript of the ERISP was 37 pages and was certified on 10 April 2011 by DSC Gill. An outline of the ERISP follows, with passages relevant to issues in dispute extracted.
At the outset of the interview, the plaintiff expressed doubts about wanting to participate in the interview. He inquired what would happen if he declined to participate: Q46. Well it's up to you, you --- A. I don't know what to bloody do, I don't know what to do. Q47. --- you can either say no to the interview --- A. OK, if I say no what happen? Q48. Well, the interview's stopped. A. And then what happens? Q49. Well, I'll speak to you after the interview about what, what we're going to do. Q50. Do I get charged or not, yes, or no? A. You probably will be, yeah Q51. OK. If you say yes to the interview you can answer what questions you want. You don't have to answer all the questions - A. Yeah, but if I answer the questions - Q52. Just let me finish for a sec - A. Am I going to be charged regardless? Q53. Well, I - A. Is that what you're saying. Like, is, is, am I going to be charged regardless of what happens? Q54. Well, that's the decision I've got to make after the interview. A. Righto, OK. … Q56. So that when Scott and I sit down, have a look at the evidence that we've got and make the decision then. A. Yeah, well, I, I think I need to go through the interview …
The plaintiff contended that the statement "I'm probably going to charge you" indicates that DSC Gill "intended to charge him" from the outset of the interview and provides evidence of malice. However, as evidenced by the above extract, that statement was not made by DSC Gill (the closest aspect of the extract is "You probably will be, yeah") and, in any event, must be considered in context of the whole of this extract from the ERISP. DSC Gill provides an answer to a specific enquiry by the plaintiff as to whether he would be charged if no interview took place. By stating "you probably will be" is not a statement of malice, but rather, indicative of the fact that DSC Gill was of the view there was a prima facie basis to charge the plaintiff prior to the ERISP. However, as he soon after advised the plaintiff, the decision to charge would be based upon the material available at the time and that any participation in an interview would contribute to the assessment of "the evidence that we've got". I do not find the above extract as indicative of a malice.
During the interview, the plaintiff gave evidence that he had spent the night at his house with Ms Zabun and that in the hours before his arrest, they had been "in the bedroom, on the internet". He told the detectives that "there were some concerns that somebody was coming to get me" and that Ms Zabun "received a call, to get out of the house and, and, and go". He said: A … And I said, Well, you know, we probably should get out of the house and observe the house and see if somebody comes to the house. And, and that's what we were doing, we were getting out of the house. We went out, went around the block, came back. We were going to sit over the park and watch the house, observe the house and just see what, if anyone come to the house and ring the police. And, and that's when they went past, the police and, and then they kept going up the road, they followed us, and put the lights on and she was saying, They're after me, they're after me. Q80. She was saying they were after her? A She was concerned, she was concerned that he called the police to, because of her warrant. Q81. So when you say he, who are you referring to? A Daniel, Daniel. Q82. Daniel, do you know his surname? A Fing.
During cross-examination, DSC Gill gave the following evidence with respect the plaintiff's "alibi" at the time of the shooting: Q. In fact, sir, he's given you a detailed record of interview and he's provided an alibi; do you agree with that? A. He's provided a record of interview, yes. Q. And he's also provided an alibi? A. To an extent, I guess, yes. Q. What do you mean by to an extent? A. Well the alibi has got to be verified. Q. He's given A. Given me a version of events. Q. He's given a version of an alibi that you had the capacity to verify. A. Correct. Q. Sir, it's the case, isn't it, that you took no steps to verify that alibi, did you? A. Not at all.
Returning to the ERISP, the plaintiff also confirmed that he brought an axe and laptop with him in the vehicle. He said: "I put an axe in the car because I didn't, from what I understand these people are, you know, pretty brutal when they grab people and, and I was trying to, the only thing I could have like that that's there to try and defend myself with".
During the interview, the plaintiff also gave the following answers: 1. When discussing phone calls received "a couple of weeks ago" by Mr Fing, the plaintiff said: "I'm telling you this, if he's been shot I got nothing to do with it. If he's saying 'cause of me, I'm telling you it wasn't me and he's setting it up". 2. When discussing internet usage, he said "we were actively using that internet when, when … just before we left, I close it down, shut it down - we left… that thing's crucial". DSC Gill then asked: "So from what you say to me that it was only a matter of minutes between you driving out of your driveway and being arrested by the police, is that correct?" To which he answered: "For sure, yeah".
The next series of questions concerned the following topics: 1. the plaintiff being advised of the allegation against him; 2. the plaintiff's familiarity with the Belmont North property; 3. the possibility of GSR being found on his person; 4. the plaintiff's interactions with Ms Zabun and Mr Fing; 5. Ms Zabun's drug use; and 6. Apprehended Violence Orders between the plaintiff and Mr Fing.
During cross-examination, DSC Gill accepted that over the course of the interview only five questions referenced the actual shooting itself (Q4, Q58, Q112, Q291 and Q292).
As mentioned above, the ERISP concluded at 8.16am.

[57]

Factual controversy as to the sufficiency of evidence to charge the plaintiff

The plaintiff contended that as at 8.16am on 25 February 2011, DSC Gill was seized of information that would have warranted the discontinuance of the arrest of the plaintiff or that was incompatible with any decision to charge the plaintiff. In support of that contention, the plaintiff advanced the following submissions: 1. The "scant detail" given as to the shooting during the course of the ERISP. It was submitted: "The fact [DSC] Gill and [DSC] Selkirk have been told the plaintiff is responsible for the shooting was not a sufficient or reasonable basis to charge the plaintiff". Objectively there could not be said to be reasonable and probable cause without a statement from Mr Fing in circumstances where there was no reason for Mr Fing not to give a statement, particularly on such serious charges. 2. During cross-examination, DSC Gill "admitted he was of the view there was insufficient evidence to obtain a search warrant" on the plaintiff's house. It was submitted that, "if [DSC] Gill formed the belief there was insufficient evidence for a search warrant, it follows he must have known there was insufficient evidence to charge the plaintiff, particularly as the charge attempted murder involved the shooting of a firearm". 3. As the plaintiff provided an alibi, "it was incumbent for [DSC] Gill to be objective and investigate the alibi. This did not happen. [DSC] Gill had at his disposal the plaintiff's computer and telephone and should have promptly investigated to see whether the alibi could be sustained".
As to the first submission, the evidence before the Court does not sustain the conclusion that the decision to charge was based solely or primarily upon DSC Gill being "told the plaintiff is responsible for the shooting". As at the completion of the ERISP, the following evidence was available to DSC Gill: 1. the summary of the accounts by Mr Fing and the witnesses (including the neighbours) conveyed by Leading SC Symington to DSC Gill (and DSC Selkirk) upon their attendance to the Belmont North property; 2. Mr Fing had identified the plaintiff as the offender; 3. the plaintiff was arrested by the vehicle, which had the same registration provided by Mr Fing on the triple-0 call (and subsequently broadcasted via police radio), which he was driving with no headlights or parking lights on, after a short pursuit with police; 4. DSC Gill had spoken to Mr Fing at the hospital (albeit without taking a formal statement); and 5. the answers provided by the plaintiff during the ERISP.
Further, whilst it is true that DSC Gill only questioned the plaintiff five times about the shooting itself, the balance of the hour-long interview is not thereby rendered irrelevant to the investigation. The ERISP is an important piece of evidence. It must be considered in its entirety, including observations as to the countenance of the plaintiff, together with the evidence available to DSC Gill at the time of his decision to charge the plaintiff. On the material before the Court, I find no basis to conclude that DSC Gill acted in an unfair or impartial manner or based his decision to charge the plaintiff solely upon the basis, as contended by the plaintiff, of being "told the plaintiff is responsible for the shooting".
As to the second submission, the admission made by DSC Gill with respect to the search warrant is extracted below: Q. I am just going to take you to book 1. Just before I get to that, in terms of the question you were asked about being any reason why there would be gunshot residue, do you agree that you did no search of Mr Edwards' house in that day? A. Correct. Q. That would be the obvious thing to do, wouldn't it? A. If I had sufficient evidence for a search warrant, yes, it would be. Q. So are you saying that you didn't have evidence for a search warrant? A. He was arrested away from his house; we had a person who had escaped from his vehicle when he was arrested, and we had no idea whether he had a firearm in the house or not. I hadn't sufficient evidence to go before a magistrate to ask for a search warrant. He was arrested between the crime scene and his house. Q. But you charged him on that day, didn't you? A. Yes, I did. Q. He was charged for the attempted murder and shooting, wasn't he, or was he charged for something else? A. No, attempted murder, shoot with intend to murder, I think. Q. Is it your evidence that that was not sufficient evidence to apply for a search warrant? A. I can't get a search warrant just on the basis of what I am charging him with, I need to have a search warrant and have reasonable grounds to what I'm going to find in his house. We assessed whether we could do a search warrant, and made a determination we would have insufficient evidence to go before a magistrate and get a search warrant granted. Q. You're not telling the truth, are you? A. That's ridiculous. … Q. You didn't think there was sufficient evidence you could bring before a Court to obtain a search warrant; is that right? A. Correct.
The plaintiff submitted that the fact that DSC Gill did not seek a search warrant of the plaintiff's premises was "telling". The plaintiff contended that DSC Gill's lack of cause is demonstrated by his evidence that "he hadn't obtained a search warrant on the plaintiff's premises (on the day he was charged) [because] there was insufficient evidence to obtain a search warrant from a 'magistrate'". If there was sufficient evidence to charge the plaintiff with attempted murder (involving shooting a firearm) it would follow there would be sufficient evidence to obtain a search warrant.
In addition to supporting the contention as to the unreasonable basis for the charge, which I have earlier rejected, the plaintiff contended that the fact DSC Gill did not have enough evidence to obtain a search warrant supports the following conclusions: 1. DSC Gill had no genuine subjective belief about the sufficiency of the evidence at the time the plaintiff was charged and went into custody. 2. DSC Gill had no genuine subjective believe the plaintiff was probably guilty. 3. There was an absence of reasonable and probable cause from an objective perspective. No search warrant was done of the plaintiff's house at any stage. This is very odd particularly as the allegation was a shooting and there would be a real and credible chance something relating to the firearm would be located at the plaintiff's residence. Despite this fact, the plaintiff was charged and remanded in custody the day he was arrested. 4. There was malice, because the plaintiff was criminally charged by DSC Gill for a purpose other than a proper purpose. That is, charging the accused with knowledge the evidence was insufficient (even in the alternate scenario, if it was the case he believed in the guilt of the plaintiff) is a purpose other than the proper invocation of the criminal justice system.
During cross-examination, DSC Gill's explanation for not obtaining the search warrant was that the shooting didn't happen at the plaintiff's residence so a search warrant would be of little value. It was contended that this Court should also find the explanation to be "implausible dishonest, significantly impacting on his credit". I will later find DSC Gill to be a witness of credit, I make no adverse findings with respect to the evidence of DSC Gill in this respect.
The State submitted that the plaintiff's argument rests on a non-sequitur. The plaintiff contended: "if [DSC] Gill formed the belief there was insufficient evidence for a search warrant, it follows he must have known there was insufficient evidence to charge the plaintiff", whereas, on the contrary, "this demonstrates that DSC Gill was cautious and proper in his investigation". I accept that submission.
Section 47(1) of the LEPRA provides police officers the power to apply for search warrants. It provides: 47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.
Section 48 of LEPRA empowers an "eligible issuing officer" to whom an application under s 47 is made to issue a search warrant if satisfied that there are reasonable grounds for doing so.
Under s 46 of LEPRA, an eligible issuing officer includes an "authorised officer" which, by reason of s 3 of LEPRA, includes a Magistrate or a registrar of the Local Court.
When determining whether there are reasonable grounds to issue a warrant, s 62(3) requires the Magistrate or registrar to consider (but not be limited to considering), the following: 1. the reliability of the information on which the application is based, including the nature of the source of the information; and 2. if the warrant is required to search for a thing in relation to an alleged offence - whether there is sufficient connection between the thing sought and the offence.
The explanation provided by DSC Gill (extracted above), provides a reasonable explanation as to why he did not apply for a search warrant of the plaintiff's premises before charging him, which included, inter alia: 1. the plaintiff was arrested away from his house; 2. the plaintiff has left his vehicle when arrested; 3. there was no basis to conclude whether a firearm would be at the plaintiff's house; and 4. the fact of charging someone is not enough to establish reasonable grounds for a search warrant.
In those circumstances, the State submitted, DSC Gill's remark "That's ridiculous" in response to the suggestion that he was not telling the truth was fair and reasonable. Whilst that answer reveals the frustration of the witness given the nature of his questioning, it does not, nor do the preceding answers, overall warrant any adverse credit finding.

[60]

Police Facts Sheet

The NSW Police Facts Sheet, relating to the charges, is extracted below: About 2.50am on Friday 25 February, 2011, the victim, Daniel FING was at his home address. The victim was watching television with his brother, Jacob FING and friend, Joshua UICICH. A vehicle was heard to pull into the driveway of the premises and slop. The victim could see the light coming from the headlights of the vehicle. Initially the victim thought that it was someone using the driveway to turn around in the street. After some seconds, the victim walked to the front door and walked outside. The victim saw a black Ford bearing NSW registration plates BI 20 TN parked in the driveway, just outside the two gates which enclosed the driveway. The victim saw the Accused, Matthew Bruce William EDWARDS, standing next to the vehicle, on the driver's side. The Accused was standing close to the gates of the driveway. The victim heard a gun shot and immediately felt a pain to his left bicep. The victim retreated back inside the premises and shut the font door. The victim heard another three gunshots fired in towards him, with the projectiles hitting the frontdoor. The victim contacted 000. The victim provided the registration number of the vehicle and the name of the Accused as being responsible for the shooting. There is a current enforceable interim apprehended violence order between the Accused and the victim, where the victim is the person in need of protection. The interim AVO states that the Accused must not assault, molest, harass, threaten or otherwise interfere with the protected person The Accused must not enter the premises at which the protected person may from time to time reside and must not approach or contact the protected person by any means. This matter is due to be heard in Belmont Local Court on 20 April, 2011. About 4.00am vehicle seen driving along Bershire Avenue, Merewether. Police followed the vehicle and activated warning devices to stop the vehicle. The vehicle stopped and the Accused got out of the driver's seat. The Accused went to the rear of the vehicle and opened the boot. An unknown female has exited the boot and fled on foot. The Accused was placed under arrest and taken to Newcastle Police Station. The Accused was introduced to the custody manager. The Accused was provided the Caution and Summary of Part 9 of the Law Enforcement (Powers & Responsibilities) ACT 2002. The Accused spoke to his solicitor on the telephone. The Accused then consented to a forensic procedure being the taking of gun shot residue swabs. The Accused participated in an electronically recorded interview where he denied being involved in the offence. The Accused participated in a forensic procedure being the taking of a buccal mouth swab. Enquiries reveal the motor vehicle Bl 20 TN is owned by Budget Car Rentals, Hamilton. On 7 January, 2011, the Accused attended Budget Car Rentals to hire a motor vehicle. The Accused provided his name as Bruce EDWARDS and his Drivers Licence number 6626ZL. Bruce EDWARDS is the father of Accused. RTA checks reveal that drivers licence number 6626ZL is not that of the Accused or his father. Budget Car Rentals sent a letter to Bruce EDWARDS, requesting that the he return the vehicle. No response was forthcoming from Mr EDWARDS. On 23 February, 2011 motor vehicle BI 20 TN was reported as being stolen. The Accused stated that he has had possession of the motor vehicle for the past five to six weeks.
As to the Police Facts Sheet, the plaintiff submitted: 39. Gill drafted the Facts Sheet which state Fing saw the Edwards fire the gun however this is not the case as Fing only see the silhouette of a body which resembles the plaintiff but doesn't see his face. (Exhibit 57, CB 4, Tab 65 p 1404)
During cross-examination, DSC Gill was questioned as to that fact of Mr Fing's identification and the corresponding inclusion in the Police Facts Sheet: Q. Do you accept that Daniel Fing does not assert that he saw Mr Edwards? A. He doesn't assert Q. Well he says - if you go to page 1398 A. Yep, I got that. Q. And if you go to paragraphs 19 and 20. You can have a read of 19 and 20. A. Yep, I read that before. Q. He says he couldn't see the face of the person. A. Yes, that's right. Q. He said he only saw the silhouette and it had a resemblance or the person matched the shape of Matthew's body? A. Correct. Q. And then over at page 30 and 31 sorry, paragraphs 30 and 31 over the page, he says something different, doesn't he? A. He talks of the conversation he had with Tugba. Q. And he says, "it's pretty clear that somebody shot me. I told Tugba. I told her I did not get a clear look at the person who shot me, and that maybe Matthew had organised someone else to shoot me if in fact it was not him." A. That's what he told Tugba. Q. In the facts sheet you've actually put in the facts sheet you've stated in the facts sheet - I'll get you a copy in a moment you've stated in the facts sheet, haven't you - do you recall what you put in the facts sheet? A. No. … Q. And in relation to the facts sheet that you drafted on 2011 and I haven't shown a copy of that to you, you intentionally made the case appear stronger than it was by suggesting that the plaintiff had actually seen sorry, had been seen by Mr Fing? A. I haven't seen the document, but that's not true that I boosted the facts, as you state.
DSC Selkirk, gave the following evidence in his statement of 27 February 2018: 24. The fact that Mr Fing was not able to positively identify Mr Edwards was not ignored. It was a fact that and was taken into account as part of the circumstantial case. 25. A statement was obtained from Mr Fing on 9 March 2011 in respect of his identification of Mr Edwards. 26. I spoke with Mr Fing on 2 February 2012. … 27. I regarded Mr Fing's identification of Mr Edwards from his silhouette as a fairly significant identification. 28. The suggestion that Mr Fing could not have identified Mr Edwards at night was a matter considered in the investigation. 29. Forensic examination of the crime scene commenced in the darkness in the early hours of 25 February 2011 and continued through to when the sun came up.
To the extent that the plaintiff seeks an adverse inference be drawn against DSC Gill based upon the content of the Police Facts Sheet, such a finding is not available. First, counsel for the plaintiff neglected to put the document to the witness, notwithstanding the fact that DSC Gill confirmed he could not recall what he put in the facts sheet. Second, counsel for the plaintiff did not establish when DSC Gill first came to know that Mr Fing's identification was based upon an interpretation of "silhouette". Whilst DSC Gill accepts that such a description is included in Mr Fing's formal statement, that statement was obtained approximately 2-weeks following the drafting of the Police Facts Sheet.
The alleged identification of the plaintiff vis-à-vis the shooter's "silhouette", first appears in Mr Fing's formal statement of 9 March 2011. As at the time of the drafting of the Police Facts Sheet, DSC Gill did not have the benefit of a formal statement from Mr Fing.

[62]

Plaintiff transferred to Cessnock Correctional Centre

Upon arrival at the Cessnock Correctional Centre, a placement/threat assessment was conducted by Cessnock Corrective Services with respect to the plaintiff ("the CCC record"). The Assessing Officer assigned was Assistant Superintendent McCaig.
The record of inmate interview recorded: Inmate has been remanded for allegedly shooting at a drug dealer on the outside. States he was trying to stop dealer selling to his girlfriend. Has been threatened by friends of the Langi brothers to get him inside. Shows genuine fears for safety.
The following factors were identified as specific vulnerability to the plaintiff: drugs, first time in custody, and terrified.
The proximity of the threat was identified as "within area" and "within centre". The likelihood of a threat occurring was categorised as "Low (Might Occur) level threat", namely, information suggested that a risk existed and a threat might occur but the threat is not real or immediate at the time of the assessment. An overall threat rating of "High" was nominated by the Assessing Officer. A rating of that level indicates that protective custody is recommended.
The recommended protective custody regime was Special Management Area Placement ("SMAP") due to "threats made to get him inside".
On 25 February 2011, the Assessing Officer informed the plaintiff of the recommendation, to which the plaintiff agreed. On or around 2 March 2011, Assistant General Mai Tiederman approved the placement recommendation.
The State advanced several submissions as to the significance of the CCC record, which are extracted below: 57. The plaintiff was then transferred to Cessnock Correctional Centre that day: T109.1-5. Upon arrival, the plaintiff was interviewed, but he cannot now recall what was said during that interview: T111.48. Exhibit 67, and in particular, the "Record Inmate Interview" reads: Inmate has been remanded for allegedly shooting at a drug dealer on the outside. States he was trying to stop dealer selling to his girlfriend. Has been threatened by friends of the Langi brothers to get him inside. Shows genuine fears for safety. 58. The significance of this record cannot be understated. On one view it is an admission by the plaintiff that he committed the offence for which he was charged, and for a reason he nominated gratuitously not long after the events concerned. While innocence of the charges is not in issue for the tort of malicious prosecution, it is inevitably a matter going to damages, especially where the plaintiff has claimed that part of his injury is the knowledge of his own innocence while in custody and then while awaiting trial. 59. The record also contains "Drug debts" in the list of current issues. In cross-examination, the plaintiff asserted this aspect of the record had been doctored, because there was "something else in there that [he] totally disagreed with": T113.29. That "something else" was the fact that the record states the plaintiff had consumed 2 Jack Daniels yet the plaintiff says "it probably would have been Jack Daniels, one or two at the most" (T113.48). The plaintiff cannot now recall what he said during that interview and therefore the assertion that Exhibit 67 had been doctored should not be accepted. [Original emphasis by the State.]
During oral submissions, the plaintiff contended that the Court should reject the submissions advanced by the State as to the significance of the CCC record. Reliance, in that respect, was placed upon the decision of The State of Beckett v State of New South Wales [2015] NSWSC 1017 ("Beckett v NSW"), which "makes it abundantly clear that the plaintiff's innocence is not in issue". As the plaintiff was ultimately acquitted of the charge of murder, it is improper for the State to "cast some kind of dispersion on one hearsay document".
It is true the CCC record may not be used as a device to cast doubt upon the innocence of the plaintiff. That is not the purpose of these proceedings. It is a Corrective Services record, that included an account attributed to the plaintiff. I have not been directed to any evidence the record was fabricated and make no such finding. As to the extent the State relies upon the document as relevant to damages, it need not receive any further attention at this juncture.

[63]

The Investigation

As noted at the outset of this judgment, the plaintiff did not contend this is a case where the investigation was incompetent. Rather, in support of a claim of malicious prosecution, the plaintiff relied upon the several instances of alleged "inaction" by DSC Gill and/or particular "deficiencies" within the investigation, at the hand of DSC Gill, which occurred following the charging of the plaintiff. They will be addressed, where relevant, within the following summary of the investigation. In light of the plaintiff's concession, it is unnecessary to set out every step taken.
Between 28 February and 17 March 2011, DSC Gill transferred certain exhibits between Newcastle and Charlestown Police Stations and booked them into Newcastle Crime Scene Section for examination. DSC Gill provided an outline of his steps taken in the investigation between that period in his statement of 3 August 2011, which is extracted below: 11. On Monday 28 February, 2011 I signed out exhibit D 842306 at Newcastle Police Station. I took the exhibits to Charlestown Police Station where I transferred them into Charlestown Exhibit Book number D 853659. These exhibits were retrieved during examination of the Ford Falcon XR6 motor vehicle that the Accused was driving when he was arrested, New South Wales registration number Bl 20 TN. 12. On Sunday 6 March, 2011 I spoke to Tugba ZABUN. As a result of that conversation I attended 183 Newcastle Road, Jesmond where I collected a mobile telephone used by ZABUN. A short time later I attended Charlestown Police Station. I booked the mobile telephone into exhibit number D 853664. 13. About 7.45am on Wednesday 9 March, 2011 I signed out exhibit D 853656, items 4 and 5 and exhibit D 853664. I took exhibits D 853656 to Newcastle Crime Scene Section, where I booked them into exhibit number D 810796. Exhibit D 853656 consisted of one black t-shirt and a pair of blue and white striped shorts. These were the clothes worn by the Accused when he was arrested. I took exhibit D 853664 to Facial Identification Unit for examination. This exhibit consists of the mobile telephone used by ZABUN. Data was downloaded from the mobile telephone. Upon completion of the download I returned the telephone to ZABUN. 14. About 10.40am I attended Charlestown Police Station where I spoke to the victim, Daniel FING. Whilst speaking with the victim, he handed me a small resealable plastic bag which contained a fired projectile. A short time later I booked the fired projectile into exhibit number D 853666 at Charlestown Police Station. 15. About 12.30pm on Thursday 10 March, 2011 I signed out exhibit D 853655, items 1, 3, 4, 5 and 8 and exhibit D 853666, item 1 at Charlestown Police Station. I took the exhibits to Newcastle Crime Scene Section, where I booked them into exhibit number D 652416. These exhibits consisted of four fired cartridge cases and four fired projectiles and were taken to Newcastle Crime Scene Section for fingerprint and DNA examination. 16. Whilst at Newcastle Crime Scene Section I collected exhibit D 810796, consisting of one black t-shirt and a pair of blue and white striped shorts. I also took possession of two sealed exhibit bags, one containing a Gun Shot Residue swab taken from the black t-shirt and the second bag containing a Gun Shot Residue swab taken from the pair of blue and white shorts. I booked the two sealed exhibit bags into exhibit D 853668 at Charlestown Police Station. 17. On Thursday 17 March, 2011 I signed out exhibits D 853655, item 2 consisting of a sealed exhibit bag containing a dry swab, D 853656 item 1 consisting of a sealed exhibit bag containing gun shot residue kit taken from the hands of the Accused, D 853659 item 1 consisting of a sealed exhibit bag containing gun shot residue sample of steering wheel and control taken from motor vehicle Bl 20 TN and D 853668 items 1 and 2 consisting of two sealed exhibit bags containing gun shot residue swabs taken from black t-shirt and blue and white shorts worn by the Accused. I took the exhibits to Forensic Microanalysis Laboratory where they were book into exhibit D 930705.
On 9 March 2011, SC Chesworth received from DSC Gill "exhibit D853664", being 1 x Nokia mobile phone model X5-01. Exhibit D853664 was the mobile telephone DSC Gill had collected from Ms Zabun on 6 March 2011. SC Chesworth extracted and copied the data from that phone and the SIM card in that phone the same day. The results of that examination were annexed to the statement of SC Chesworth dated 6 November 2012 (Ex 12).
On 16 August 2011, DSC Gill provided "exhibit D853659" to Facial Identification Unit for examination. Exhibit D853659 was the mobile telephone belonging to the plaintiff.
On 12 September 2011, SC Chesworth sent an email communication to DSC Gill, with an update as to her examination of the plaintiff's mobile phone (see Ex 13). She advised: When you take the SIM card out and boot up the phone, it asks for a separate UNLOCK code which is on the phone itself. In order to download the phone at all, you would need to do an iASK to obtain the PUK code for the SIM card, however this will only allow access to the information stored on the SIM card. You would need to obtain the phone UNLOCK code from the owner themselves. I downloaded the memory card contained in the phone … however it only contained three images of what appears to be a homemade kids play firetruck in a shed or similar. I am sorry it has taken this long to get this information to you.
DSC Gill referred to the impact of the absence of the PIN in para 5 of his statement dated 7 December 2012, which is extracted below: 5. On 16 August 2011, I signed out exhibit D 853659 Item 2 at Charlestown Police Station. I took exhibit D 853659 Item 2 to Facial Identification Unit for examination. The examination was unable to be completed as the exhibit, being a mobile telephone belonging to the Accused, Matthew EDWARDS, was locked with a PIN code. The Accused declined to provide Police with the PIN code and as a consequence Police do no have access to that PIN code and are therefore unable to complete examination.

[64]

Bail granted - 28 March 2011

On 28 March 2011, the plaintiff was granted conditional bail. However, he was not released from custody until about 5 May 2011.
A summary of the events that occurrent between 28 March and 5 May 2011, with respect to the grant of bail, appear below.
The Governor of Cessnock Correctional Centre provided the Registrar of the Newcastle Local Court a "Form 13 - Notice by Custodian Concerning Persons In Custody after Grant of Bail", dated 1 April 2011. By that form, the Governor advised that the plaintiff "remains in my custody, stating he cannot comply with the following conditions of bail".
The bail conditions incorporated the following: 1. applicant to enter an agreement: 1. to be of good behaviour; 2. to reside with Bruce & Sandra Edwards; 3. not to approach, contact, assault any prosecution or witness; 4. not to have any contact or approach Tugba Zabun; 1. one acceptable person to acknowledge he is a responsible person; 2. report to police daily between "7AM-9M"; 3. the applicant to forfeit: $50,000; and 4. one acceptable person to deposit: $200,000.
The following "reasons" were provided on the form, which represented conditions which the plaintiff had identified could not be met: 1. curfew restricts ability to gain employment; 2. Ms Zabun wants to continue de-factor relationship; and 3. cannot raise $200,00 cash, but can raise $50,000 security and understands obligations.
In the plaintiff's evidentiary statement dated 21 November 2016, he deposed: The Court granted me bail. However, we could not meet the conditions. Namely the condition of a grant of bail was the deposit of $200,000 cash which mum and dad couldn't meet.
On 11 April 2011, Hidden J varied the plaintiff's conditions of bail as follows: Further to the application for variation of bail granted on 28/3/11 by Local Court Magistrate Truscott to condition F - the amount is altered from $200,000 to $50,000. I confirm Ms Crooks is an acceptable person to act as surety. All other bail conditions are to stand
On 4 May 2011, Latham J varied the plaintiff's conditions of bail as follows: THE BAIL VARIED BY HIDDEN J ON 11TH APRIL 2011 IS FURTHER VARIED TO THIS EXTENT, THAT IN LIEU OF THE CONDITION THAT ESE AYSE CROOKS DEPOSIT SECURITY IN THE SUM OF $50,000, THE ACCEPTABLE PERSON, NAMELY ESE AYSE CROOKS IS TO DEPOSIT SECURITY IN THE SUM OF $15,000 AND FORFEIT THAT SECURITY IF THE APPLICANT FAILS TO COMPLY WITH HIS BAIL UNDERTAKING.
On 5 May 2011, the applicant was released from custody upon conditional bail.

[67]

The First and Second Ballistics Reports

As earlier mentioned, two reports were obtained in the course of the investigation, namely, the first and second ballistics reports prepared by Mr van der Walt on 4 October 2011 and 6 February 2012, respectively.
By the first ballistics report, the expert opined that the four .22 calibre fired cartridge cases and four .22 calibre fired bullets contained insufficient detail to determine whether they were discharged from the same firearm.
By the second ballistics report, following the receipt of an enquiry by DSC Gill as to the wounding capability of the bullet in question, the expert opined that the bullet discharged at a distance of 15 metres would have the capacity to cause a perforating wound to a bicep.
During cross-examination, DSC Gill was questioned about the first and second ballistics reports. As to the first ballistics report, he gave the following evidence: Q. Do you agree that Mr Van der Walt formed the view that the bullet had hit a hard object; all four bullets had hit a hard object? A. That's his evidence, yes. Q. And he actually says something about referring to his notes; do you agree with that? A. Yeah, "I'm just referring to my notes, very similar, yes, of these bullets". Q. So do you agree that he refers to his notes, and then he confirms that the damage to the bullet that was said to have gone through the arm had damage consistent with it hitting a hard object, rather than simply human tissue, or even a bone? A. Well, he says, "all four of these bullets had hit a hard object". Q. Yes, but he also goes on to say that he would have expected not as much damage if one of the bullets had merely hit skin or flesh? A. Well he says, "my opinion would be the bullet was still in the form slightly much less than as opposed to hitting a door". Q. Your task was to brief that expert, wasn't it? A. No. What do you mean by brief? … Q. The conclusion in that report was based on the markings on the bullet, that it was either from a larger calibre firearm or a home made non conventional 22 calibre firearm A. Which paragraph are you referring to? Q. Paragraph 5B? A. "They were discharged from either a larger calibre firearm or a home made, non conventional .22 calibre firearm". Q. Yes. A. That's what it says, yep.
As to the second ballistics report, he gave the following evidence: Q. Just going over to page 1677, this is the second report, this is in book 5. I'll just take you to paragraph 5 at page 1678, paragraph 5, this is Mr Lucas Van der Walt talking about receiving an inquiry from you. It says, "I received an inquiry from Senior Constable." Now what you were requesting is the wounding capacity of a 22 calibre bullet discharge at a distance of 15 metres. A. Correct. Q. He confirmed that that would have the capacity to cause a perforating wound to a bicep. A. Correct. Q. But, sir, you were aware, and it was in his notes, that all four bullets had hit a hard object. You were aware of that? A. I'm not aware of his notes. Q. Well you had had some discussions with him, hadn't you? A. Not in regards to his notes. Q. You had some discussions with him? A. Of course, I would have had discussions with him in the course of the investigation. Q. And he would have told you that all four bullets had hit a hard object? A. I can't recall. Q. You didn't ask for that to be put in this second report, did you? A. It's not for me to ask what goes in a report. Q. Isn't it? Well, just going back over the page, when you say not for you to ask what goes in the report, you ask questions, don't you? A. And they provide a report. Q. At paragraph 5 it says, "I received an inquiry from Senior Constable Gill. In his inquiry he requested information regarding the wounding capability of a 22 calibre bullet discharged at a distance of 15 metres." A. So, I ask a question and he provides an answer. Q. And you intentionally did not ask him about the fact that all four bullets had hit a hard object, didn't you, sir? A. Sorry, can you repeat Q. And you intentionally did not ask him to put his report that all four bullets hit a hard object. A. No.
That was the extent of cross-examination with respect to the ballistics reports.

[68]

The Air Rifles of Damien Fing

In DSC Gill's statement of 7 December 2013, reference was made to a search warrant conducted at the Belmont North property for "unrelated matters" and the discovery that firearms were stored on the premises and registered to Damien Fing. That evidence is extracted below: 6. On 31 January, 2012 a search warrant was executed at 19 Marian Place, Belmont North for unrelated matters. During the execution of the search warrant a gun safe was located. Enquiries revealed that two firearms were registered to the premises. The firearms were a Weihruach Air Rifle and a Norica Air Rifle. Those firearms belonged to Damien FING. A search of the safe found the firearms were missing. 7. On 3 February, 2012 Damien FING attended Charlestown Police Station. Damien FING surrendered the above firearms to Detective Senior Constable FRASER. The firearms were entered onto EFIMS Exhibit numbers X0000134690 and X0000134691. … 10. On Wednesday 6 June, 2012 I checked out EFIMS Exhibit numbers X0000134690 and X0000134691. Exhibit X0000134690 is a Weihrauch Air Rifle and exhibit X0000134691 is a Norica Air Rifle. I took the exhibits to Forensic Ballistics Investigation Unit for examination and comparison.
During cross-examination, in addition to confirming what appears in his statement, DSC Gill gave the following evidence with respect to the rifles (T391): Q. You never tested those guns to see whether they'd be compatible to those bullets? A. Well those two firearms were air rifles. The bullets and cartridge cases at the scene were 22 calibre, I think. Q. When you say an air rifle, is it a larger rifle? A. An air rifle is like a BB gun, so it doesn't have a firing pin; it's based on air pressure, which sends out a cartridge probably about 3 millimetres in diameter, at best. Kids used to have them 30 years ago, you could buy then from a supermarket, unlicensed, there's no firing pin, there's no gunpowder involved in the process. So they're a completely different type of weapon. Q. Putting aside the fact that they are different, if somebody was to fire an air rifle reasonably close to their arm or their bicep, around the fatty part of their arm, that wouldn't cause significant injury, would it? A. I'm not an expert. Q. Why did you include that in your statement? A. I don't recall specifically, but I think it may have been at the request of the DPP. … Q. Was a report ever done in relation to those rifles? A. I would presume there would be a statement from a ballistics expert in the brief of evidence. Q. Well, there is, but if I suggest to you, and I will take you to that ballistics expert in a moment, there is nothing about the ballistics expert dealing with those particular guns. A. Well, I'd have to check the brief of evidence.
In written submissions, the plaintiff relied upon the above evidence as corroborating the account of the plaintiff that DSC Gill "told him the police were looking for the weapon that was used (by the Fings) to shoot Daniel Fing (T72 line 1-5)". It was submitted: 50. The plaintiff gave evidence Gill said to him words they are looking for the gun Fing used. (T72 line 1-5) This is further corroborated by the fact Gill, in his statement (Exhibit 78, CB 5, TAB 125 P 1684 paras 7-10) refers to the fact that Damien Gill handed in a gun to Fraser and the guns were tested. While Gill suggested the guns were air rifles and could not be used to fire the .22 this was later contradicted by Gill suggested the testing was relevant to the investigation against the Plaintiff. The result of the testing is unknown. 51. The critical factor is this piece of information made its way into Gill's statement and thus was deemed to be relevant. It is this fact that corroborates the plaintiff's evidence in relation to Gill saying that he was looking for the gun that Fing used (in his shooting).
In closing submissions, as to the evidence of DSC Gill in his second police statement, counsel for the plaintiff submitted: …Then if your Honour looks at the second statement, which I have asserted in my written submissions, the second statement of Jason Gill, the one dated August 2012, he puts in the statement there's a raid, I don't know if it's a raid, I won't take it that far, but guns were handed in. He doesn't say what it's in relation to, he just says, "Guns were handed in". I think they were Damien Finns guns. He doesn't give any further evidence, though he was cross examined about that. He said they were taken for investigation and it goes no further than that, but he gives evidence about those guns. The fact of the matter is it made its way into his statement, your Honour, and he has given express evidence that according to Mr Gill, he only puts what's relevant and admissible in his statements. He's given that evidence in Court, your Honour. So Gill, for whatever reason, he's found that that is a relevant issue, that guns were taken away for investigation..
By the plaintiff's submission at para 50 (extracted above), it is suggested that DSC Gill contradicted himself in relation to the capabilities of an air rifle and that he nevertheless had it tested for relevance to the investigation. However, that is an incorrect characterisation of the evidence. In my view, the State correctly submitted that the detective's evidence, with respect to the rifles, reveals that DSC Gill knew what an air rifle was, that it could not fire a .22 calibre bullet, and that he was diligent in his investigation.
The State also contended that "[t]o the extent any contradiction in DSC Gill's evidence appears, the Court might draw an inference that the contradiction arises only because the questions asked of DSC Gill were insufficiently clear causing DSC Gill not to know what was being spoken". I accept that submission.

[69]

The GSR Report

As earlier mentioned, the GSR report was produced on 7 December 2011. That report set out the results of the analysis conducted by Dr Bojko for the purposes of detecting GSR. The following summary is based upon the contents of that report.
On or about 10 November 2011, following testing of the sample, GSR was found on: 1. the t-shirt worn by the plaintiff when arrested; and 2. on the steering wheel and gear lever of the vehicle (namely, the vehicle the plaintiff was driving when arrested).
GSR was also found on the bullet casings recovered from the Belmont North property.
Dr Bojok opined that the GSR particle found on the plaintiff's t-shirt and the vehicle were "not consistent" with the GSR particles found on the bullet casings recovered from the scene of the shooting.
As to the inconsistencies in the GSR evidence, DSC Selkirk stated: 46. I recall that I had discussions with Detective Gill in respect of the inconsistencies in the gunshot residue ('GSR'). 47. Despite the fact that the GSR analysis came back different, I considered that it was not insignificant that Mr Edwards had GSR on his hands in any event. 48. Despite the inconsistencies, my position was that the totality of the evidence known and collected was capable of proving beyond reasonable doubt that Mr Edwards shot Mr Fing. 49. I recall that at some point after the GSR analysis had been provided to Detective Gill and I, that he spoke to the Office of the Director of Public Prosecutions (ODPP) about the GSR issue as he called them from his desk phone which was near me at the police station and that he told me that he had discussion with the ODPP after that call.
The Crown prosecutor briefed in the matter at trial deposed that the inconsistencies, in his view, "did not detract from the strength of the Crown case".
During cross-examination, DSC Gill was questioned with respect to the GSR evidence, namely: 1. the plaintiff's response during the ERISP (T383); 2. the absence of testing of the plaintiff's property; 3. the absence of testing of the fence at the Belmont North property; 4. the possibility of GSR being found on Mr Fing's shirt (which, as earlier set out, was not collected or tested); and 5. the movement of exhibits within police custody.
The evidence and submissions with respect to (1), (2) and (4) have been dealt with earlier in this judgment.
The plaintiff relied upon DSC Gill's statement that "the absence o[r] presence of GSR is not necessarily an indicator of anything" as evidence adversely impacting upon the reasonable cause and impacting upon the prosecution's case theory.
In reply, the State submitted: 114. The plaintiff does not identify in PS [21(v)] how DSC Gill's opinion as to the reliability of GSR bears upon the assessment of cause or the prosecution case theory. Despite DSC Gill's personal views as to the reliability of GSR, the police obtained expert opinion in December 2011 and again in December 2012 stating that GSR was found on the plaintiff's shirt and steering wheel: Exhibits 73 and 74.
The State correctly, in my view, submitted that the personal opinion of DSC Gill as to the reliability of GSR carries little weight, in this context, upon the assessment of reasonable or probable cause. The fact is that forensic testing confirmed GSR was located on both the plaintiff's person and vehicle, albeit different to that found on the casings. The significance of any evidence of GSR, together with any expert analysis of the same, was a matter for a jury to consider in conjunction with all other material available.
In support of a claim of malicious prosecution, the plaintiff also relied upon the failure of DSC Gill to arrange for the GSR testing of the fence/gate at the Belmont North property. During cross-examination, as to the absence of GSR testing of the fence, DSC Gill gave the following evidence: Q. You didn't do a gunshot residue test of the fence, did you? A. That would be a matter for Kate Dunne; she was the crime scene officer assessing the scene. Q. Can I suggest to you that in fact, and I will take you to the specific document in a moment, that gunshot residue on a fence can last indefinitely; are you aware of that, or not/ A. I'm unaware of that. I only know that gunshot residue is very unreliable. Q. Very unreliable, is that right? A. Yes, in my experience anyway. Q. When you say very unreliable, what do you mean by that? A. I have had offenders in the past who have fired firearms in incidents, and there's been no gunshot residue on their hand, and they have clearly fired firearms. So, what I'm saying is that the presence of the absence of gunshot residue is, in my mind, not a reliable piece of evidence. As in this case, I think, Mr Edwards, there was gunshot residue found on his clothing, I believe, from memory. Q. You have just a moment ago said the presence or absence is not a reliable indicator, haven't you, sir? A. Correct, absolutely.
As I have earlier found, the DSC Gill did not direct the forensic examination of the crime scene. This "short fall" in the investigation has not be established as attributable to DSC Gill.

[71]

Factual Controversy vis-à-vis the investigation into the plaintiff's alibi

As mentioned above, the plaintiff contended that DSC Gill failed to make any attempts to conduct a location search of the plaintiff's phone or computer internet connection until August 2011, despite the plaintiff immediately offering an alibi during the ERISP. The objective evidence also points to the fact, it was contended by the plaintiff, that DSC Gill's attempts in August 2011 to obtain records from Telstra were disingenuous.
In the broad, the plaintiff contended that evidence relating to text messages stored on his mobile telephone (as well as Ms Zabun's) and evidence relating to his laptop (and modem), including inquiries with Telstra, were critically relevant to the plaintiff's alibi and confirming his innocence. However, as a result of the "improper conduct" by DSC Gill, it was submitted, a prosecution was wrongfully maintained against the plaintiff.
The plaintiff submitted that the following evidence is demonstrative of the intentional deficiencies and shortfalls relating to the investigation into his alibi (see at para 21(t), (y), (z) and (aa) of the plaintiff's written submissions): 1. In the ERISP, the plaintiff "immediately asserted his innocence and said [he] was at home with Tugba". The plaintiff asserted he was on his laptop and that Ms Zabun received a number of texts which made them go outside thinking there was going to be an attack the premises. The plaintiff confirmed he left his home and had taken various items including an axe (to defend himself) and his laptop. 2. The text messages between Mr Fing and Ms Zabun at the time of the shooting, it was submitted, "explain why the plaintiff was in the motor vehicle in the early morning with his laptop. There was a prior history of conflict between [Mr] Fing and the [p]laintiff including complaints by the plaintiff Fing had attacked his residence". 3. By the laptop report, there was evidence the plaintiff was watching porn at the time on his laptop. That is, he actively clicked on a link approximately 2-3 minutes prior to the alleged shooting. The plaintiff submitted that Mr Moore "only received a request on 29 December 2011". 4. Further, the fingerprints on the laptop were only of the plaintiff. The evidence supports the fact either no genuine attempt was made to determine the location of where the portable modem was being used, or alternatively enquiries were made and they were not disclosed by DSC Gill.
The first two submissions concern the investigation into the text messages stored on the mobile devices of Ms Zabun and the plaintiff. The second two submissions concern the investigation into the laptop retrieved from the plaintiff's car. I will address the two discrete aspects of the investigation in turn.

[72]

The investigation into the text messages

The evidence of the plaintiff's alibi was earlier extracted under the heading "Interview of the Plaintiff at Newcastle Police Station". It is unnecessary to repeat.
As to DSC Gill's investigation into the text messages, the following evidence is also relevant.
DSC Selkirk gave the following evidence as to how the ERISP impacted upon the investigation, including, inter alia, the plaintiff's asserted alibi: 32. I took into account many of the matter raised by Mr Edwards at the time of that interview and later, during the course of the investigation. 33. I considered assertion put forward by Mr Edwards that Mr Fing had shot himself. I held the view that this assertion was not plausible when considered in the context of the evidence as a whole. On at least one occasion Detective Gill expressed the same view to me. 34. I conducted enquiries into many of the things Mr Edwards asserted such as his alibi. Many of these enquires led to dead ends. … 38. In respect of Mr Edwards' assertions about his own alibi and Mr Fing's motive to set him set him [sic] up. I can say the following: a.I was aware of Mr Fing's criminal activity and set this against what we were learning in the investigation as it unfolded. b. I was not aware that AVO proceedings involving Mr Edwards and Mr Fing were on foot prior to attending the crime scene on 25 February 2011. Nor was I aware of the evidence in those proceedings. c.The fact that Mr Fing was sleeping with Ms Zabun also gave Mr Edwards a motive. d. Various attempts were made to locate Mr Zabun.
As earlier mentioned, an examination was conducted upon the mobile telephones of both Ms Zabun and the plaintiff. Turning first to the examination of Ms Zabun's mobile phone, in summary, on Sunday 6 March, 2011, DSC Gill spoke to Ms Zabun. As a result of that conversation, DSC Gill collected a mobile telephone used by Ms Zabun. That mobile phone was processed at Charlestown Police Station and given an exhibit number "D 853664". During cross-examination, DSC Gill confirmed a search was conducted of Ms Zabun's phone. That evidence is extracted below: Q. You did a search of text messages from Tugba's phone; do you recall those text messages? A. Yes, we did a download, yeah. Q. A download from Tugba's and Daniel Fing's phone? A. Daniel's I can't recall, but I remember Tugba's. …
In the absence of submissions developed as to the improper treatment of results of the examination of Ms Zabun's mobile phone (and there was none), in my view, this evidence reveals that steps were taken to verify the accounts of Ms Zabun (and the plaintiff) by conducting an examination of Ms Zabun's mobile telephone.
The plaintiff's mobile telephone was also examined, however, as earlier mentioned, that examination was unable to be completed due to the inability of police to access the plaintiff's PIN. In an email to DSC Gill dated 12 September 2011, SC Chesworth also confirmed the limitation of any iASK request to Telstra, with respect to information stored on the phone itself (as opposed to information stored on the SIM card), in the absence of the PIN code. Again, as mentioned earlier, she advised DSC GILL: "You would need to obtain the phone UNLOCK code from the owner themselves". (The "UNLOCK code" being a reference to the "PIN" code).
During cross-examination, DSC Gill confirmed that he made contact with the plaintiff via email in an effort to obtain the PIN code on 8 February 2012. He described the communication as "a simple request". He confirmed no caution was provided. That evidence is extracted below: Q. There's an email from you to Matthew. It says, "Matthew," and then it says, "are you able to provide me the unlocked PIN code for your silver Nokia mobile phone which we seized from the black XR6. I need the code to access your mobile for examination." A. Yep. Q. This is dated 8 February 2012, so this is while you're investigating him for and indeed, you're the officer in charge for an alleged crime that he's going to be prosecuted for. A. Correct. Q. And do you agree there's no warning given to him about the evidence that he might give you, the caution? A. Should I? Q. Well, I'm asking you. A. No, I'm just asking a simple request from him.
DSC Gill also accepted the contents of the plaintiff's reply to that communication, as read by counsel for the plaintiff: Q. And then he writes back to you and says, "Jason," if you go over to the next page he says to you, "You cannot be serious. Yet another insult, hey, asking for this nearly one year on, really, um, just over two weeks it'll be one year since you insulted me in my life. I still believe you are either corrupt or just the worst incompetent investigator ever. Um, I cannot remember the code." And then he says, "Good luck." And then he says, "I have a tip for you, you don't need a code to look at the phone. Pass it on to someone capable." And then he says, "I'm exhausted, frustrated and totally astonished by every part of your bungled investigation." Do you see that? A. Yeah.
Counsel for the plaintiff challenged the propriety of the approach adopted by DSC Gill, in particular, his decision to seek information from the plaintiff without a caution and his characterisation of the plaintiff's inability to recall the PIN as a refusal. That evidence is extracted below: Q. The reason why you give him no type of caution, isn't it the case, is because you knew he was innocent? A. No, not at all. … Q. If you believed he was sorry, I withdraw the question. If you genuinely believed he was guilty you would have not had that type of email communication with him, would you? A. Why not? Q. For starters you don't offer him any caution. You're investigating a criminal matter and he's the he's not just the suspect, he's the person charged? A. Correct. Q. And if you genuinely believed that he was going to give you information that would have incriminated him you would have cautioned him? A. Well, no. All I did was ask him for a request to see if he was willing to provide an unlock code for his phone. The fact that I didn't caution him would be a matter for the Court if evidence was obtained from that phone. That would be an argument for the Court. He was under no obligation to answer it and he still didn't give the code anyway. Q. He didn't give the code because he said he couldn't remember the code, did he? Isn't that the case? A. Well that's what he said. Q. In fact, I think in your statement you say that he refused to give you the code? A. Well he did.
During cross-examination, DSC Gill confirmed that an expert cannot unlock a phone without the PIN. That evidence is extracted below: Q. Are you trying to say that an expert cannot unlock a phone without the PIN? A. Correct. Q. That's not the case, is it, sir? A. It is the case? Q. Sir, if you genuinely believed he was innocent you would not have had that type of communication with him, would have you? A. I beg your pardon.
I do not accept the submission by counsel for the plaintiff that an absence of a caution in DSC Gill's email to the plaintiff on 8 February 2012 may sustain a conclusion that DSC Gill "was of the view the plaintiff was innocent". That submission is unfounded. This is particularly so, in light of the evidence of SC Chesworth and DSC Gill, which indicated that the examination was unable to be completed in the absence of retrieving the PIN from the owner of the mobile phone. The action taken by DSC Gill was a logical step in the investigation, particularly in light of the limitations upon the capacity of the police to complete an investigation into the plaintiff's alibi vis-à-vis an examination of his phone in the absence of access to the PIN code to the plaintiff's phone.
In the light of the material before the Court, as set out above, I do not accept the plaintiff's submission that DSC Gill's approach to the investigation into the plaintiff's alibi vis-à-vis the examination of either Ms Zabun's mobile or the plaintiff's mobile (noting the plaintiff placed particular emphasis upon deficiencies relating to the examination of the plaintiff's mobile phone), was conducting an investigation for improper purposes or sustains a conclusion that the detective was disingenuous in his attempts to find exculpatory evidence of the plaintiff.

[73]

The investigation into the laptop

On 29 December 2011, DSC Selkirk arranged for the laptop retrieved from the vehicle on the night of the shooting to be forensically examined by SEEB. Between 15 March and 6 June 2012, Mr Moore conducted the examination and, as earlier mentioned, produced the laptop report. He examined the following: 1. Black Toshiba Laptop Computer ("the laptop"), together with its "640 Gigabyte Hard Disk Drive" ("the hard drive"); and 2. Telstra Sierra Wireless 3G Modem ("the modem"), together with a Telstra Subscribe Identity Module ("SIM") card ("the SIM card").
The scope of Mr Moore's examination "was to determine if there was any evidence of user activity around the time of the offence on 25th February 2011".
In summary, Mr Moore found that: 1. there was computer activity on 25 February 2011 until seizure at approximately 3.45am; 2. there was an internet connection on 24 February 2011 between 10:43pm to 3.44am; 3. browser history shows a number of websites accessed until approximately 1:38am (it was noted this does not include websites accessed through "Private Browsing" as access times are not recorded); and 4. there was some user activity at 2:48am which showed a mouse moving over a link to a video (on a pornography site).
Mr Moore also opined: "It was not possible to ascertain whether a user was logged into the computer at the exact time of the offence".
During cross-examination, DSC Gill was asked about the significance of the report. That evidence is extracted below: Q. And you knew that that report may significantly help acquit the accused, didn't you, the accused at the time, being Mr Edwards? A. I don't think the report really provides anything. Q. So you don't suggest that report is of any value? A. I would have to re read it, but I don't think it gives inculpatory or exculpatory evidence towards Mr Edwards. … Q. So, when you said before, putting aside the drive time, just simply looking at that point there saying that there was user activity at 2.48, why do you say that that report doesn't in any way assist the accused or the accused at the time? A. It doesn't tell me where the computer was at the time. Q. So, based on that you say that that report doesn't assist you? A. No. Q. Because you could have used that report outside Marion Place he could have used the computer outside Marion Place? A. It was a laptop found in the car; it could have been used anywhere. Q. Wouldn't the obvious thing to do was to make inquiries with Telstra? A. Which they were. Q. Sorry, say that again. A. Which they were. Inquiries were made with Telstra.
The plaintiff contended that the evidence of DSC Gill during cross-examination, with respect to the laptop report, supports the making of an adverse credit finding. It was submitted that DSC Gill "suggest[ed] the report by [Mr] Moore was not significant because it could not say where the download at 2.48am took place as the modem was portable".
In reply, the State submitted: 36. DSC Gill's evidence on this point is fair and indeed, logical, so much so that the plaintiff's counsel appeared to accept the proposition that the laptop in question could have been used anywhere at 2.48 during his cross-examination of Mr Pincott: T329.20 Q. If we assume for a moment that the shooting was said to take place at 2.50, the accused was found with a laptop in his car, the laptop had a modem on it, one would normally assume a good indicator of where the accused may have been, in terms of an alibi, was if he was using his computer at 2.47. Now, he may have been using that computer in his car, near where the crime was said to have taken place, but he may have been using that at his house. Do you agree with that? A. Yes, or anywhere else for that matter.
The State further submitted: The plaintiff also directs criticism towards DSC Gill for failing properly to take into account the plaintiff's alibi. However, … DSC Gill (and others) properly identified the fact that the expert evidence obtained on point did not exclude the possibility that the plaintiff may have been accessing the internet from his laptop from within his car. …
As to the arguments advanced vis-à-vis DSC Gill and the laptop report, I accept the submissions of the State. In my view, an objective analysis of the laptop report indicates relevance to both the alibi alleged by the plaintiff and the case theory put forward by the prosecution. It does not establish a basis for my making a finding of an absence of reasonable cause. Further, the steps taken by DSC Gill with respect to investigating the laptop are consistent with a proper police investigation and do not sustain a conclusion that DSC Gill was not making a genuine attempt to determine the location of where the portable modem was being used. Rather, the steps taken by DSC Gill indicate the contrary proposition. This is further supported by my findings below with respect to the inquiries made via iASK to Telstra (and my earlier observations as to the absence of relevant parts of the brief of evidence concerning iASK).
I do not make an adverse finding as to the credibility of DSC Gill in light of his response to questioning as to the importance of the laptop report, in particular his answers as to "the value" of particular findings. The answers of DSC Gill were, in my view, honest and responsive to the questions put to him. I will return to my consideration of DSC Gill's credit at a separate juncture.
The plaintiff also contended that DSC Gill intentionally delayed the service of the laptop report to the DPP. During cross-examination, DSC Gill denied the same: Q. Firstly, do you agree or disagree that you only gave that report to the DPP a week or so before the trial? A. I find that highly unlikely. Q. I suggest to you that that was the case. A. I suggest that it is highly unlikely. Q. But you can't rule it out, can you? A. No. Well, I could, if I had access to the brief, because I'm sure I've got a receipt when I served items on the DPP. … Q. Okay, I'll start again. Putting aside the assumptions for the moment, isn't it the case, sir, that you intentionally did not give that report to the DPP in a timely manner? A. No, it's not. Q. The reason why you didn't do that is because you felt it would harm the case? A. No, that's ridiculous. Q. And you knew that that report may significantly help acquit the accused, didn't you, the accused at the time, being Mr Edwards? A. I don't think the report really provides anything. … Q. In relation to the report from Philip Moore you intentionally delayed serving that to the DPP. A. Not true.
To the extent the plaintiff relies upon the above evidence as relevant to the credit of DSC Gill, I find no adverse inference is available. First, as earlier mentioned, DSC Gill was answering questions with respect to the "brief" in the absence of access to the same. The inability of a police officer, since retired, to recall the specific time and date in which a particular document that was served within what would be assumed to be a large brief of evidence (in light of the index to the brief and voluminous nature of the court book in these proceedings, which does not represent the complete brief), does not support the drawing of any such adverse inference against DSC Gill. It does, however, again, coincide with my observations regarding the failure of the plaintiff to put the full brief of evidence before the Court.

[74]

Timing of the initial inquiries with Telstra via iASK, relating to internet use on and location of the laptop

I now turn to the factual controversy as to the timing of "the initial inquiries" with Telstra, made by DSC Gill via the iASK system, namely, the request relating to the timing of internet access and location of the laptop on 25 February 2011.
During cross-examination, DSC Gill confirmed that at the District Court trial he gave evidence that his "first inquiry of Telstra" would have been "during March 2011, not long after the arrest of the accused". He confirmed that evidence was true. Counsel for the plaintiff sought to challenge that evidence and contended that DSC Gill deliberately delayed making Telstra inquiries, upon the basis that such evidence may weaken the prosecution case or otherwise prove the innocence of the plaintiff. Reliance in that respect, was placed upon the following documentation: 1. an email received by DSC Gill from Ms Raford, Client Liaison with the Operational Information Agency for the NSW Police Force, dated 31 October 2011 (Ex 95); and 2. an email from DSC Gill to SEEB, dated 31 October 2011 (Ex 94).
Reference was also made to a four-page extract from the iASK External Agency Information Request System, relating to an iASK request created by DSC Gill on 12 August 2011, with identifier "iASK 3876677". That document was tendered on the State case and marked Ex I.
As each document was the subject of cross-examination, the relevant aspects of the documents are set out below: 1. Ms Raford's email is extracted in full: Subject: Iask_387 6677 Good afternoon Jason, Carmen asked me to follow up with Telstra in relation to the above iASK. Unfortunately Telstra are unable to provide the recent session times for the account tor the cell locations used by the mobile. Kind regards, Michelle Raford 1. DSC Gill's email to SEEB, relevantly stated: [Initial] inquiries with Telstra through iASK indicated that Telstra would be able to provide [connection] details in relation to times and dates of internet connections. Telstra has recently stated that they are unable to provide any information in relation to the internet connections … [It] is requested that this examination request be conducted as a matter of urgency. … in relation to the Internet connections made by the Accused is crucial to the [prosecution] case as it will go towards either confirming or refuting the version provided by the [Accused]. The reason for the delay in this examination request is due to the fact that Telstra [stated] that they would be able to provide connection details only to have Telstra now state [they] are unable to provide those details. 1. An extract of the iASK request that appears in Ex I, follows: ATTENTION CATHY GLEESON at TELSTRA This request relates to a Telstra Wireless Internet Modem, IMEI 351828040410606 Mobile Number [redacted] Telstra Reference 261261. On your result I was provided the above mobile service number in relation to the above wireless internet modem with the above IMEI. I am requesting records for "ALL CONNECTIONS TO THE INTERNET USING THE ABOVE WIRELESS MODEM AND LOCATIONS OF CONNECTIONS" from 23/02/2011 to 25/02/2011. … The Accused in this matter states that he was connected to the internet at his home address at the time of the offence. Records required for brief of evidence.
During cross-examination, DSC Gill confirmed his familiarity with iASK and provided evidence as to how the system is utilised within a police investigation. He described it as "a system to obtain information from external providers for the New South Wales Police". He also said: "It would be unlikely that I would put that [reference to iASK requests] in my statement". As to that absence, he gave the following evidence: Q. Can I suggest to you that - why do you say that it would be unlikely that you would put that in your statement? Isn't it something relevant that would go in your statement? A. Well I don't introduce the evidence obtained through an iASK. Q. But there is a whole range of things in your statement in relation to removing and taking out exhibits in your statement? A. Well, that's where I have direct involvement with the exhibit. It would be akin to me putting a paragraph in my statement where I got a witness statement from somebody. The iASK isn't the evidence, the evidence is what I obtained from the iASK.
Counsel for the plaintiff suggested that in light of Ex 94 and 95, that DSC Gill did not make an inquiry of Telstra in March 2011. That extract appears below (albeit with some repetition): Q. Sir, isn't it the case, that if you made inquiries in March they would have been able to provide those results, that's the case, isn't it? A. No, it's not. Q. And you would have got those results straightaway? A. If anything, this document shows that for the seven six months I was liaising with Telstra, trying to get results. Q. Well it doesn't show that, sir. What it says is initial inquiries with Telstra through iASK indicated that Telstra would be able to provide connection details in relation to times and dates of internet connections A. Well, the brief of evidence will have the initial iASK I submitted to Telstra back in March 2011, so we could track it that way. Q. Well, sir, I haven't seen a copy of any initial iASK. A. Well it's in the brief of evidence. Hence why the whole reason the laptop went to SEEB was because Telstra couldn't give me the information. Q. Sir, in fact you actually never asked for that information A. That's ridiculous. Q. And you intentionally never asked for that information? A. On what grounds would I not ask. Why would I ask for all his mobile phone tower information and not the internet? It was crucial to the brief, either way.
DSC Gill also gave evidence that the iASK request that appeared in Ex I did not include earlier requests submitted through iASK. He said: There was a lot more requests put in prior to this one, and I can confirm that because where it says, "what you told us, attention Kathy Gleason at Telstra", she was one of the people I was liaising with with previous requests to try and obtain this information.
When pressed further about the circumstances of the alleged delay, based upon the date of his email to SEEB, DSC Gill gave the following evidence: Q. Sir, the fact of the matter is this email is dated 11 November 201[1] A. Which shows between March 2011 and November 2011 I was making constant inquiries with Telstra to obtain the cell site locations of the wireless modem and its activity. Obviously towards the end of October, early November, Telstra have come back to me and said we are unable to provide this data, hence why I had to get the laptop sent to SEEB under urgent request because the trial date was coming and see if they could retrieve any internet activity from the laptop.
By reference to email sent by DSC Gill to SEEB and the iASK request that appears in Ex I, counsel for the plaintiff suggested DSC Gill made deliberate errors to manufacture inaccurate results. First, it was suggested his request for "recent session times" did not relate to the relevant timing, namely, at the time of the alleged offence: Q. Why would you be asking for recent session times, sir? Do you see it says, "Unfortunately, Telstra are unable to provide the recent session times"? A. That's for the wireless modem. Q. Yes, but this is 31 October 2011. A. Can you produce the original request? Q. I will get to that in a moment, sir. Sir, you intentionally asked for the wrong session times, didn't you? A. No, I did not.
Secondly, counsel for the plaintiff suggested that DSC Gill intentionally limited the request period to "23 February 2011 to 25 February 2011": Q. If you go down here, it says, "all connections to the internet using the above wireless modem and locations of connections"? A. Correct. Q. From that period of time, 23 February 2011 to 25 February 2011? A. Correct. Q. I understand that the offence was alleged to have taken place on 25 February 2011? A. Yep. Q. But you could have asked for, say, 26 February 2011; do you agree with that? A. There would be no point, cause the modem was in police possession. Q. Well, what if the times and so forth are not accurate? A. Well, why would I assume that they weren't?
During cross-examination, DSC Gill was also questioned about the absence of a request via iASK concerning "triangulation". It was suggested that this choice was made in an effort to either not actively seek or to suppress evidence that would lead to the acquittal of the plaintiff. DSC Gill gave the following evidence: Q. Well, in terms of your iASK message to Telstra isn't it the fact, sir, that you made no attempt in March 2011 to get those records from Telstra because you knew that they would help acquit the plaintiff. A. Firstly, for the Court, triangulation doesn't mean triangulation can only occur on a live, active phone, so that was impossible because Matt Edwards was in custody shortly after the shooting, so there was no way to triangulate either his phone or his internet. And there's very specific circumstances when police can access triangulation under which this didn't fall. Further, if you're inferring to cell locations for mobile phones Q. Sir, I'll just get back to the triangulation. Now, isn't it the case, sir, that Mr Edwards gave you an ERISP and setup an alibi and assisted you at all times in giving his phone and so forth, didn't he and you claim that he you couldn't do that because he was in custody? A. I couldn't triangulate his phone. If I was permitted to put a triangulation on his phone all it would tell me was that his phone was that his phone was in Newcastle Police Station. It's not retrospective. I can't go back in time and see where that phone has travelled. Q. Sir, what about the cell towers? A. That's what the iASKs are for on his mobile phone. Q. You didn't do that until late 2011? A. No, that's rubbish. It's not true. All his mobile phone records are in the brief of evidence. The only one that Telstra couldn't provide us information on was his wireless modem. I think he had three mobile phones registered in various names. All those records are in the brief of evidence.
Whilst it was suggested by counsel for the plaintiff that DSC Gill never asked for information from Telstra in March 2011, as extracted above, it was never put to DSC Gill that "the initial" iASK or, as DSC Gill described it, "the original request", was not in the brief of evidence. The State submitted, as a result, "[t]he Court is now left not knowing whether the iASK was in fact in the brief of evidence". I have earlier dealt with the principles regarding onus and standard of proof. In the absence of clear and cogent evidence and, in particular, the absence of the relevant iASK request and the complete brief of evidence, the argument advanced by the plaintiff, in this respect, is not sustainable upon the material before the Court. Nor do I consider DSC Gill's explanations in cross-examination to lack credibility.
Thus, on the objective evidence before the Court, I find that DSC Gill took appropriate steps in his conduct of the investigation with respect to organising the appropriate examination of both the plaintiff and Ms Zabun's mobile telephones via the Technical Support Unit; and it may be inferred made multiple inquiries of Telstra via iASK. It may also be noted that on the request before the Court, DSC Gill specifically addresses the alleged alibi of the plaintiff within the request, namely, "the Accused in this matter states that he was connected to the internet at his home address at the time of the offence". It may also be noted that DSC Selkirk, the Second Officer-in-Charge, arranged for the examination of the plaintiff's laptop and modem to be examined by SEEB. I find no basis to conclude that DSC Gill made little or no attempt to investigate the plaintiff's alibi stated in the ERISP and reject the contention that DSC Gill's attempts to obtain records from Telstra were disingenuous.

[80]

The credit of the Plaintiff

The plaintiff was an unimpressive witness whose evidence often strained credulity and was significantly self-interested. Other parts of his evidence were simply untrue (even if, as submitted by counsel for the State, the evidence was misguided as to proof of an absence of reasonable and probable cause or malice).
It is apparent that the plaintiff himself was involved in the preparation of the evidence of his witnesses to such a degree that would be less than reasonable for a party who was self-represented at the time he served that evidence (evidentiary statement of Ms Zabun (Ex 5) and affidavit of Ms O'Connor (Ex 4)). Again, this evidence was self-serving and, at least in respect of Ms Zabun, she did not come up to proof on certain matters. On his version, the plaintiff only helped Ms Zabun type her statement: T157.6-7. He had typed the statement in the presence of Ms Zabun which was purportedly based on a handwritten draft prepared and given to him by Ms Zabun: T157:21-22. Yet the plaintiff seemed to try to guess the answer as to whether Ms Zabun had, in fact, provided him with those drafts and then, when pressed, committed to the position that he was given drafts: Q. Mr Edwards, were documents produced by Ms Zabun given to you? A. I have to say I would've had to have seen anything she was she often writes a lot of things on paper, so I'd have to say I would've seen them to have helped her type it up, so. Q. Do you, in fact, know whether you did or do you merely say that you would have done? A. Well, I did. Q. You did? A. Yes. She actually started it, now from memory, she started it a few times and she did handwrite it a couple of times, yeah. Q. So there was, at least, one handwritten draft or partial draft? A. Yes, yes, there was.
The plaintiff's unreliability was manifest in that evidence.
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The plaintiff exhibited a degree of dishonesty in relation to his history of drug use. In one instance, he told Mr Watson-Munro, psychologist, who prepared a report dated 12 March 2012 (Ex G) for the plaintiff on his sentence hearing, he had no involvement in drugs. However, in oral testimony, he admitted to having used cocaine, ecstasy, ice and marijuana. As Mr Williams counsel for the State put it, the plaintiff was a little too careful with his construction of "involvement in drugs" to state it was not inconsistent for him to say he had had "no involvement" despite having previously used illicit drugs: T146.9-T148.33.
The plaintiff has a history of dishonesty, including convictions of Commonwealth dishonesty offences (Ex H).

[81]

The credit of Ms Zabun

Further, the plaintiff's counsel was granted leave to take evidence-in-chief from Ms Zabun from the witness box on her discussions with Mr Max Pincott whom, according to Ms Zabun's statement (prior to rulings on admissibility), was the prosecutor. The transcript records: Q. Do you recall there was a person there the prosecutor, the Crown Prosecutor? A. Yeah, I guess so, yeah. I don't understand. I don't. Q. So, he was the person do you recall speaking to the police? A. Yes, I do, yes. Q. Do you recall speaking to a person by the name of Max Pincott, or that name doesn't ring a bell? A. It does ring a bell. Q. Yes? A. It does ring a bell. Q. And do you recall what he was wearing? A. Pincott? Q. Yes? A. I don't know. Probably a suit, I'm not sure. Q. Was he sort of wearing something sort of similar to what I'm wearing? A. No, I don't think - I'm not sure. Q. All right, anyway do you recall that you were having some discussions with him, anyway, and what you said? A. To Pincott? Q. Yes? A. Not that I can - I'm not sure, no. Q. To the best of your recollection? A. About actually what had happened? Q. Well, presumably you were talking, you were having discussions with him about what had actually happened? WILLIAMS: I object, your Honour. It's getting into leading. … Q. Yes, thank you, I asked you some questions before about your dealings with Mr Pincott, what did you discuss with Mr Pincott? HIS HONOUR: At the trial. COHEN Q. At the trial, I should say? A. I guess it was about the case. Whether or not Daniel shot himself, or yeah, I'm not quite sure. Q. What did you say? A. I said, "He told me he admitted to me that he did shoot himself".
The fact that Ms Zabun could not recall who Mr Pincott was or what a prosecutor was, despite her express reference to both in her evidentiary statement, tends to suggest she did not draft it.
One would have expected Ms Zabun to provide considerably more evidence if the plaintiff's, and her account, were true. There was scant detail in relation to the alibi. Similarly, she was unable to give evidence as to when and what she told police and the DPP. Having regard to the manner in which Ms Zabun's evidence was given, it was submitted by the State, the Court can find that she had insufficient input into the preparation of her evidentiary statement, resulting in a finding that the oral evidence in the plaintiff's case was unreliable. I make that finding.

[82]

The credit of Ms O'Connor

As for Ms O'Connor's evidence, the plaintiff also typed her affidavit and derived the content from words written by Ms O'Connor, although the plaintiff could not recall in what format the writing was provided to him: T159:11-24. Conversely, Ms O'Connor provided the plaintiff with "a verbal of what exactly". Moreover, on the plaintiff's account, Ms O'Connor was not with the plaintiff when he typed up her affidavit: T159.49-50. Yet, in response to an otherwise benign question, Ms O'Connor offered a lengthy answer in which says she was with the plaintiff during part of the typing: Q. Just again, where was it typed, were you there when it was typed? A. I gave him a verbal of what exactly and I was there for half of the typing, the last - just those top bits that are like the formal parts, he added on, like and then sent me the copy and then I looked at it, printed it off, took it to the JP, got it signed, made the alterations.
Ms O'Connor said the affidavit was sent to her by the plaintiff, she "then…looked at it [and] printed it off". When noting the nature of the handwritten corrections on Ms O'Connor's affidavit (which included corrections to her address, and the name of the Correctional Centre in which she had previously been in custody), the State submitted that the more probable result is that the plaintiff typed Ms O'Connor's affidavit with little or no contribution from her. I agree.
It is a reasonable inference, in my view, that the plaintiff spoke to Ms O'Connor about the cross-examination he underwent. This is particularly so when having regard to Ms O'Connor's demeanour when giving evidence. When asked simple and benign questions about whether she retained a copy of her affidavit, she offered unsolicited remarks that it contained her words. An extract of that evidence appears below: WILLIAMS: Could I have the witness shown a copy of her affidavit. Q. Ms O'Connor, have you had a chance to look at that lately? A. No, but I remember it quite clearly. Q. When did you last look at it? A. I'm not sure exactly. Q. But we're not talking about in the last few days or even weeks? A. No, I don't think so, I think it would've been longer than that. Q. Did you look at it at all after you swore the affidavit? A. Of course. I kept the document, of course I looked at it. Q. You retained a copy, did you? A. Of course I did, I signed it and it's got my words on it, of course I kept a copy. … Q. Thank you. But it was the case that you didn't type it? A. Not physically. Q. Mr Edwards typed it? A. They were my words.
Ms O'Connor has a history of dishonesty, having been in prison for most of 2012 on fraud offences: T167.43-47; T168.4-7. It was during this time that, according to her affidavit, DSC Gill and another police officer visited her in prison and DSC Gill said to her, "D [sic] worry, we hate EDWARDS more than we hate you": Exhibit 4 at [9]. In her affidavit, Ms O'Connor could not specify in which month DSC Gill saw her in prison yet her oral testimony was that it was in June or July 2012.
Having regard to the general demeanour with which Ms O'Connor gave evidence, including the fact that she corrected matters in her affidavit that were of no consequence (e.g. her address and location of prison) but adopted the balance, the State submitted the Court should not accept her testimony as being reliable. I agree, particularly having regard to Ms O'Connor's demeanour and obvious attempts to bolster the case for the plaintiff.

[83]

The credit of DSC Gill

In written submissions, the plaintiff contended that the following matters adversely impacted upon the credit of DSC Gill (at para 56): (a) Gill stating in evidence the reason a search warrant wasn't obtained was the shooting happened away from the plaintiff's residence. (b) Gill suggesting the report by Moore was not significant because it could not say where the download at 2.48am took place as the modem was portable. (c) Gill suggesting there was no point collecting the shirt from the Fing, and contradicting himself shortly afterwards by admitting there may have been GSR on the shirt whereas prior to that stating there couldn't be GSR on the shirt as bullets contain GSR. (d) Gill stating the absence or presence GSR is not a reliable indicator of the use of firearm. (e) His reluctance to attend Court to give evidence and the manner which he had to be subpoenaed. (f) The fact he gave limited evidence in chief (see Jones v Dunkel; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 and Nominal Defendant v Rooskov [2012] NSWCA 43 (g) Gill at first suggesting he couldn't remember why there was a finding by the ombudsman of a conflict of interest and then giving specific and detailed evidence on the issue. (h) Gill denying the ombudsman finding related to Fing (and suggesting it related to Edwards) and later giving evidence that the finding did in fact relate to Fing. (i) Gill tailoring his evidence, and giving detailed, technical and legalistic evidence when it suited him and at other times and asserting a lack of memory
The plaintiff submitted that DSC Gill was "an unimpressive witness and his evidence should be rejected apart from any admissions made against his interests".
During oral submissions, the plaintiff submitted: 1. DSC Gill was not a witness of credit nor was he an impressive witness. As to his memory recall with respect to the circumstances of the conflict of interest, "[t]he fact that he couldn't remember what the conflict was about is implausible. It's conflict of interest that is where ultimately he admitted that he in fact was his handler, that in itself was very telling". 2. DSC Gill's oral testimony is contradicted by the objective evidence and supports a conclusion he is a witness of "shocking credit": 1. DSC Gill "assert[ed] he only puts only relevant and admissible in his statements, whereas Court Book 1683 7 December 2012, paras 4, 5, 6, 7 and 12 clearly he goes beyond that Submissions of the State". The assertion relied upon concerns DSC Gill's decision to not include iASK references in his statement. 2. DSC Gill "made much of the gunshot residue and yet at transcript 387, line 20, he asserts the absence or presence of gunshot residue is not a particularly probative factor". 3. DSC Gill was aware the shooting took place at the front door and that Mr Fing returned inside and in the garage, yet no photographs were taken.
I accept DSC Gill as a witness of credit having regard to my observations of him giving evidence and his general measured and frank responses to questions put to him in cross-examination, together with the particular observations I made of him. He did at times appear affronted in cross-examination, but this was generally limited and a reflection of the tone and content of the questions asked.
DSC Gill presented as a witness who was doing his best to tell the truth in circumstances where he had not worked for NSW Police for more than approximately 5 years. He was a disinterested witness, who was brought to court under subpoena, following numerous unsuccessful attempts by the State to obtain his cooperation without compulsion of court order.
On the whole, his evidence was undamaged in cross-examination and I accept him as a reliable witness. The confined nature of his evidence in chief does not give rise to any adverse inference against the State. Unlike the authorities relied upon by the plaintiff in support of that submission (see at para 56(f) of the plaintiff's written submissions, extracted above), here, the State bore no onus on matters on which DSC Gill could have given evidence. Further, as mentioned, DSC Gill was not a party (or an employee of a party) to the proceedings. Given the way the plaintiff has chosen to run his case vis-à-vis the matters actually pleaded, and the circumstance in which the plaintiff came to give evidence, it was perfectly reasonable for DSC Gill to cover the field in a general way in examination in chief.
I will deal with some particular criticisms which I reject, some of which overlap with earlier findings.
The plaintiff's attack on DSC Gill's credit in written submissions at para 56 (extracted above) is, in my view, ineffective. Adopting the numbering used in para 56, my findings, noting that, as will be seen, the plaintiff has failed to provide the context in which DSC Gill's evidence was given or where it can be found, are as follows: 1. as earlier found, the complaint vis-à-vis the absence of a search warrant (and as otherwise discussed) is misplaced. Instead, DSC Gill's evidence demonstrating one of a number of examples of the propriety with which he conducted his investigation; 2. as earlier found, the plaintiff's characterisation of the DSC Gill's evidence with respect to the laptop report was not accepted. In my view, DSC Gill's evidence on this point was fair and logical; 3. as earlier found, the plaintiff's criticism of DSC Gill's evidence vis-à-vis Mr Fing's shirt was not supported by the evidence; 4. as to the criticism of DSC Gill's evidence concerning the reliability of GSR evidence, DSC Gill is entitled to convey his opinion on the reliability of gunshot residue. Whether his opinion is accepted may be a matter for independent expert evidence and jury consideration. In any event, his opinion in this regard does not give rise to any unreliability as to his evidence as a whole; and 5. as to the reluctance of DSC Gill to partake in the proceedings, as mentioned, he was not a party witness in these proceedings and the fact he was subpoenaed does not provide a basis for drawing any adverse inference.
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[86]

The Plaintiff's Case

The following is a summary of the submissions were advanced by the plaintiff as to the "absence of reasonable and probable cause", noting, in that respect, many of the plaintiff's submissions were dealt with earlier in this judgment.
The plaintiff contended: 1. If DSC Gill had formed the belief there was insufficient evidence to obtain a search warrant, it follows "he must have known there was insufficient evidence to charge the plaintiff, particularly as the charge of attempted murder involved the shooting of a firearm". This is evidence that DSC Gill had no genuine subjective belief that the plaintiff was probably guilty. The evidence also supports the absence of reasonable and probable cause on an objective basis. 2. During the ERISP, "scant detail" is given by DSC Selkirk and DSC Gill about the shooting, namely, "only that they've been told the plaintiff is responsible for the shooting". It was submitted this is not a sufficient or reasonable basis to charge the plaintiff. 3. Objectively, there could not be said to be reasonable and probable cause without a statement from Mr Fing in circumstances where there was no reason for Mr Fing not to give a statement, particularly on such serious charges. 4. Reliance was placed upon the plaintiff's voluntary participation in the ERISP, together with the evidence of his alibi, which, it was submitted, "could have been corroborated by investigation". 5. It is improbable that the investigation could have been so incompetent on so many critical aspects of the investigation. Given the amount of shortfalls in the investigation, it is far more likely these deficiencies were in fact intentional, most likely on the basis of DSC Gill had specific personal knowledge (possible only known to himself) the plaintiff was innocent. 6. When the evidence gathered by the police was objectively scrutinised, the offence taking place in the manner alleged by the prosecution was impossible and there continued to be absence of reasonable and probably cause. That submission was supported by reference to 27 aspects of the evidence at para 21 of the plaintiff's written submissions.
In oral submissions, the plaintiff submitted: 1. The subjective test is appropriate because there is an absence of reasonable cause based upon: 1. the objective material before the Court; and 2. the "state of mind of Gill and indeed what he made of that material and what he personally knew himself perhaps not even in the material, that he had a personal awareness of matters that weren't within the material".

[87]

Consideration: Absence of Reasonable and Probable Cause

In order for a plaintiff to establish that a prosecutor acted with an absence of reasonable and probable cause in initiating (and/or maintaining) the proceedings the plaintiff must prove either: 1. The prosecutor did not believe the material was such as to warrant setting the processes of the criminal law in motion; or 2. The prosecutor's belief that it was appropriate to set the process of the criminal law in motion was based on insufficient grounds (A v NSW at [80]).
I have earlier set out the relevant principles governing the considerations under this heading. However, some additional remarks should be made.
I agree with the submission of the State that in a case such as this, where the prosecutor did not have personal knowledge of the facts underlying the charge, but acted on information, the issue is not whether the plaintiff proved that the state of mind of the prosecutors fell short of a positive persuasion of guilt. Rather, it is whether the plaintiff proved that the prosecutors did not honestly form the view that there was a proper case for prosecution, or proved that the prosecutor formed that view on an insufficient basis. A v NSW at [118]; Gillies v State of New South Wales (No 2) [2014] NSWSC 1598 ("Gillies") at [51].
The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden on a plaintiff of proving the absence of reasonable and probable cause in the variety of factual and forensic circumstances in which that question may arise: A v NSW at [81]; Wood at [240].
In determining whether the prosecutor had a sufficient basis to warrant the charges being laid or maintained, Gyles JA in Thomas v State of New South Wales (2008) 74 NSWLR 34 ("Thomas") at [105], identified the following factors: 1. The material to be considered cannot be limited to that which is admissible in evidence. 2. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. 3. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. 4. It is not necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. 5. A practical assessment is required; situations vary so much that it is not helpful to endeavour to lay down strict ground rules.
With the entirety of relevant principles in mind, I turn then to the question of reasonable and probable cause.
At the outset it may be noted that the plaintiff accepted that his initial arrest was lawful. In my view, and consistent with the submissions of the State, at the time DSC Gill charged the plaintiff, he clearly considered that there was "proper case for prosecution". Reference, in that respect, may be made to the following elements of the factual background: 1. Mr Fing had identified the plaintiff as the offender. 2. The plaintiff was arrested by his vehicle, which he was driving with no headlights or parking lights on, after a short pursuit with police. 3. DSC Gill spoke to Mr Fing at hospital. 4. At no stage had DSC Gill's view about the propriety of the charges against the plaintiff change. 5. I have inferred he was told of the identification of the number plate by Mr Uicich.
Further, and contrary to the plaintiff's submission, DSC Gill's evidence was that the identification of the shooter given by Mr Fing was not the sole basis for the charge. He took other matters into account.
The plaintiff submitted that, objectively, there could not be reasonable and probable cause shown without a statement from Mr Fing. Thatt submission may not be accepted in light of the discussion above.
Further, the plaintiff's contention overlooks the fact that any doubts as to the account given by Mr Fing and others are matters properly left for the jury to determine. For example, any failure on the part of police to produce the notepaper on which Mr Uicich says he recorded the registration details of the vehicle, or whether the shooting itself was staged, are questions for the jury (noting that Mr Uicich identified the number plate of the car driven from the scene).
The proposition is, so far it is expressed in the broad terms relied upon by the plaintiff, contrary to law for the following reasons: 1. A prosecutor does not necessarily act without reasonable and proper cause in prosecuting only on the uncorroborated statement of the victim: A v NSW at [87]. 2. Absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made: A v NSW at [86]. As Lord Atkin stated in Herniman v Smith [1938] AC 305 ("Herniman") at 319: It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is defence, but whether there is reasonable and probable cause for a prosecution. 1. A third-party prosecutor may have serious doubts about the ultimate success of the prosecution, but may consider, even before there was independent corroboration or evidence in support of the accusation, that the objective sufficiency of the material, in light of all the facts of the case, warranted a charge and a determination by jury. The test of objective sufficiency may require consideration of the public policy that a contest as to the credit worthiness should be determined by the fact finder (either a jury or a judicial officer) and not be pre-judged by the police: Clavel v Savage [2013] NSWSC 775 at [69].
As mentioned, in written submissions at para 21, the plaintiff identified 27 reasons why "the offence taking place in the manner alleged by the prosecution was impossible" (emphasis added). In doing so, the plaintiff has assumed upon the prosecutor the role of fact finder and, in a sense, a responsibility to test every possible relevant fact before taking action (cf Herniman). Further, most of the matters raised, were of the kind that were properly left to the jury.
It is unnecessary to return to each of those contentions seriatim (as the State did in written submissions) because in substantial measure, I have earlier either rejected the subsidiary propositions said to substantiate the conclusions the plaintiff sought to be drawn or have not accepted the factual foundation upon which the plaintiff's contentions were based.
I have found that DSC Gill was not the prosecutor for the purposes of the tort from 2 March 2011. In any event, as I have mentioned, I have rejected the factors relied upon by the plaintiff as to the absence of reasonable and probable cause (and malice) in the course of traversing chronologically the events after 2 March 2011, including, the issues regarding the first and second ballistics reports, the air rifles, the GSR report, and the investigation into the plaintiff's alibi.

[88]

Submissions by the Plaintiff

In order for malice to be made out, the plaintiff must prove the prosecutor, DSC Gill, was motivated to prosecute the plaintiff by an improper purpose.
The plaintiff advanced the following submissions in support of its case vis-à-vis malice: 1. DSC Gill was aware of all the deficiencies in the prosecution case (listed at para 21 of the plaintiff's written submissions). It was submitted an absence of reasonable cause can be used to infer malice. 2. The Court can also infer by the evidence and the conduct of DSC Gill that he was aware of the basis for the deficiencies and anomalies in the prosecution evidence: that being the innocence of the plaintiff. It was submitted: "[DSC] Gill was not simply aware of all of the deficiencies in the prosecution case, he was also aware the plaintiff was innocent". 3. It is the prosecution by a person with active knowledge of the innocence of the plaintiff that enables the Court to determine the prosecution was for an improper purpose. This was not merely the case of a furtive belief against the preponderance of the evidence. This is a case where DSC Gill "had an active belief, understanding or knowledge and this state of mind was the wholly consistent with the preponderance of the evidence including the numerous anomalies in the evidence". 4. Reliance was once again placed upon DSC Gill's knowledge that there was insufficient evidence to obtain a search warrant of the plaintiff's house. It was contended that evidence sustains a conclusion that the plaintiff was charged by DSC Gill "for a purpose other than a proper purpose". 5. DSC Gill "knew the evidence was inadequate when he charged the plaintiff and the dominant purpose continued to be one other than the proper invocation of the criminal justice system. That submission is supported by the fact that at no stage during the investigation, after the plaintiff was charged, did DSC Gill do any of the following (see para 35): a. in the immediate aftermath of the alleged shooting go back to look for the missing bullet. b. go back to the Fing premises to take further photos of the inside of the house (where they may have been blood). c. Test the gate for GSR d. make any enquiries about the t-shirt Fing was wearing. It is unknown what if anything Fing told Gill about the shooting in the hospital, which ordinarily would be recorded in the dutybook. e. make any attempts to do a cell location search of the plaintiff's phone or computer broad connection until August 2011, despite the plaintiff immediately offering an alibi. The evidence also points to the fact Gill's attempts in August 2011 to obtain records from Telstra were disingenuous. There is in fact no evidence to suggest Gill made any attempt to do a cell location search. 1. Despite the plaintiff providing an alibi during the ERISP, "nothing was done to investigate the alibi of the plaintiff". 2. At the completion of the ERISP, "there was no basis to charge the plaintiff".
In written submissions, the plaintiff further submitted: 38. While there may have been a prima facie case against the plaintiff, consisting of the evidence of the complaint by Fing and the volunteering of the motor vehicle number plate by Joshua Ucich [sic], this cannot account for the anomalies in the case which Gill must have been abundantly aware. The anomalies were of such a kind, that Gill must have known the complaint was not genuine. Gill was aware in Fing he was not dealing with an ordinary complainant but an atypical complainant, as well as being of bad character and credit. 39. Gill drafted the Facts Sheet which state Fing saw the Edwards fire the gun however this is not the case as Fing only see [sic] the silhouette of a body which resembles the plaintiff but doesn't see his face. (Exhibit 57, CB 4, Tab 65 p 1404) 40. The Court should [ac]cept the evidence of the plaintiff that Gill expressed to the plaintiff on a number of occasions he believed the plaintiff was innocent. 41. The Court can infer that if Gill did in fact make such statements to the plaintiff, he did so because he knew the plaintiff was innocent. 42. There was also a level of cooperation between Gill and the plaintiff which can only be explained by the fact the plaintiff believed that Gill believed the plaintiff to be innocent and was actively seeking exculpatory evidence. That is, it was mutually understood by Gill and the Plaintiff, the plaintiff was innocent.
It was contended that DSC Gill acted malicious in the following ways (see at para 58): (i) He gave evidence he had discussions with Lucas Van Der Walt prior to writing the report. The ballistics expert, in his notes had written all four bullets had damage consistent with hitting a hard object. This evidence was not in the first Van Der Walter report or the further report sought by Gill. This evidence only came out in cross examination of the ballistics expert. The Court should infer Gill intentionally did not ask the expert to put this material in his report. It is not suggested the ballistics expert himself acted impropriety. Gill would have been clearly aware of the significance of the fact the bullets all hit a hard object. This fact renders the manner in which the prosecution alleged the offence happened impossible for reasons previously stated. (ii) The report of Phillip Moore, which states the plaintiff clicked on a link at 2.48am (approximately 2 minutes before the alleged shooting) was served late by the DPP. It is dated 23 June 2012 yet was only served a week or so before the trial (which commenced on February 2013. (Note see letter from Paul Marr to Max Pincott which is annexed to these submissions. An application will be made to tender the letter on the basis, the document was in the possession of the defendant, and Max Pincott was cross-examined on the document. There is no suggestion the letter is a forged document). (iii) Max Pincott has given evidence the DPP would have served the report immediately upon receipt of the report. This has not been challenged and there is no reason to doubt this fact. The court can therefore infer the person responsible for the late service is Gill (as he was the OIC) and he withheld sending the report to the DPP. (iv) Furthermore, the email communications between Gill and Telstra are entirely at odds with making any attempt in March 2011 to obtain the information as there is no record of any attempt made in March 2011. The first attempt appears to be in August 2011.
The plaintiff further submitted: 59. It is not suggested the DPP or Crown Prosecutor had any involvement in the matters referred to in paragraph 58 further emphasizing the fact Gill was the prosecutor for the purpose of the tort. 60. Gill may have had a number of reasons for continuing a prosecution in circumstances where he was aware accused was innocent. The reasons may be ambiguous. However the plaintiff does not have to prove what exactly was Gill's improper purpose, only that there was an improper purpose which was the dominant purpose. 61. What is clear, is that Gill would have been aware that the plaintiff was innocent and accordingly, given this fact the dominant purpose of the prosecution was an improper purpose.
During oral submissions, the plaintiff submitted: [T]he plaintiff's position is the malice was that Mr Gill was the prosecutor for the purposes of the tort. He said he believed that the plaintiff was innocent. And indeed if he believes somebody is innocent, that is not a proper basis to maintain the proceedings, merely because the proceedings are on foot. It is not a basis to maintain proceedings and this is, not simply a position, assertive position to say this is an active position he has taken and it is entirely consistent the actions he took.
Counsel for the plaintiff also placed emphasis upon the statements attributed to DSC Gill by the plaintiff: Now, so what we say is the fact that Mr Gill said I believe you are innocent but the matter is before the Court, is a malicious position to take because it is a purpose other than a proper purpose to prosecute, being the purpose being simply to prosecute you simply because the matter is before the Court rather than any genuine position or belief in the actual validity of the prosecution, and of course the plaintiff's evidence goes much further than that. Mr Gill had meetings with the plaintiff. He said it looks dodgy to me. Your evidence adds up. The case is about to fall apart. We are looking for the gun that was used in the shooting of Daniel Finn and so forth. So this goes well and truly beyond Mr Gill's mere assertion that the matter is before the Court therefore it is a matter for the Court to drop.
During oral submissions, as to the evidence of DSC Gill maintaining the prosecution, counsel for the plaintiff submitted "[h]e maintained the prosecution by taking steps". He went out and got statements, he spoke to people, he caused evidence to be made, he did dealings with experts. He was the officer in charge, I mean, how could he not maintain the prosecution? He's the officer in charge, your Honour so he's taken active steps, notwithstanding his state of mind. And that's a subjective state of mind.
Reference, in that respect, was made to Landini, which cites Daniels v Telfer (1933) 34 SR (NSW) 99.

[89]

Consideration: Malice

In my view, the matters relied upon by the plaintiff to establish malice by inference, particularly when seen in the light of my earlier factual analysis and findings therein, are insufficient to establish malice.
Further, the plaintiff has not clearly delineated the improper purpose relied upon to support his claim.
DSC Gill expressly denied any malice. I have found him to be a credible witness, I agree with that State that his affront at being asked somewhat presumptuous questions cannot now be taken as a substitute for malice.
Further, the evidence, including the numerous police witness statements tendered without restriction in the plaintiff's case, reveals DSC Gill as being but one among many involved in the investigation, which was said to be competent.
The plaintiff sought to establish malice by inference by pointing to the prosecutor's reliance upon Mr Fing's evidence in the face of what he alleges is material that demonstrates his lack of credit, namely, that he was a heroin user with a criminal history. However, that does not prove the prosecution was motivated by malice. As RS Hulme AJ observed in Saad v State of New South Wales; Saad v State of New South Wales [2016] NSWSC 1247 ("Saad") at [392]-[393]: [392] …The police or the DPP do not choose the persons who witness offences or admissions and many of whom do have personal deficiencies and attributes of unreliability. Whether their accounts should be accepted in a particular case is primarily for a court or jury. Accordingly, the mere fact that a prosecution, depending for its success on witnesses easily discredited or not able to be corroborated, is continued, while obviously relevant to the issue of reasonable and probable cause, says little or nothing otherwise on whether the prosecution was motivated by malice. [393] Nor are prosecutors required to give significant weight to exculpatory evidence. They should of course give it due consideration, make anyone charged aware of it and generally, at least, ensure that the evidence is adduced. But prosecutors are not required to assume exculpatory evidence is true as seems to be assumed in some of the Plaintiff's submissions, …Nor if prosecutors believe that further incriminatory evidence can be obtained, is it necessarily improper for them to seek it, even if this involves some degree of entrapment."
I have earlier rejected the plaintiff's submissions regarding a failure to investigate an alibi. As to the matters raised in [487(5)] I have either found them unsubstantiated or explicable as part of the course of the investigation being undertaken by DSC Gill. Additionally, as to what the plaintiff says were DSC Gill's omissions in his investigation, those matters were matters for crime scene officers. I have accepted DSC Gill's evidence regarding his relevant and appropriate attempts to obtain information from Telstra (reference might also be made to the objective evidence which supports this: see Ex I).
As to other bases relied upon by the plaintiff, I shall approach them globally in light of my earlier findings.
The criticism that DSC Gill's malice is demonstrated by the fact that he drafted a Facts Sheet that Mr Fing saw the plaintiff fire the shot is misplaced. This is because the Facts Sheet was prepared prior to obtaining Mr Fing's statement and was based on the content of the triple-0 call in which a more robust identification was made.
[REDACTED]
I have earlier found that I do not accept Ms O'Conner's evidence. In any event, her evidence does not establish malice.
I have earlier dealt with the issue of the search warrant. I accept the submission of the State that there is a conflation between failing to obtain a search warrant and an admission of malice is tenuous. The evidence in relation to DSC Gill applying (or not applying) for a search warrant demonstrates the overall circumspection involved in his investigation.
I have earlier discussed the issue of whether, as the plaintiff contended, DSC Gill maintained the prosecution against him.
Finally, as to the contention that DSC Gill was somehow responsible for the timing of the service of the laptop report, there is no evidence as to why that report, which was dated July 2012, was only served in February 2013. It may have only been provided to the DPP in February 2013. Further, I accept the submission of the State that, even if DSC Gill is mistaken, poor practice does not equate to malice.

[91]

The Plaintiff's Case

In written submissions, the plaintiff submitted: 62. The detaining of the plaintiff was unlawful. While the initial arrest may have been lawful, the plaintiff was detained for the purpose of investigation and voluntarily gave an ERISP. Gill has admitted he was of the view there was insufficient evidence to obtain a search warrant of the plaintiff's home. Furthermore, the plaintiff provided an alibi and it was incumbent for Gill to be objective and investigate the alibi. This did not happen. Gill had at his disposal the plaintiff's computer and telephone and should have promptly investigated to see whether the alibi could be sustained. 63. Furthermore, Fing without any reason has declined to provide a statement until 9 March 2011, about 12 days later. There was no basis to continue to arrest the plaintiff once he had given an ERISP. 64. Based on the ERISP and at the time of charging the plaintiff, the police information concerning the shooting is very limited. Furthermore, there are other anomalies, such as the fact the "blood" at the crime scene was "mopped"; Furthermore, based on the photograph it would been highly unlikely if not impossible for Joshua Ucich [sic] to have been able to read the number plate in the dark. The police were also aware there was a recent history between the plaintiff and Fing, and that Fing was a person of bad character and credit.
In oral submissions, the plaintiff submitted: 1. The false imprisonment claim is framed as follows: DSC Gill charged the plaintiff at the time where there was insufficient evidence. To charge someone with a belief that there was insufficient evidence - notwithstanding a belief there will be "later evidence down the track" - is malicious conduct. 2. As to the timing of "the real malice" it was submitted it arose in DSC Gill's later dealings "some time in around August/September/October/November 2011 and onwards to the date of the hearing or the trial where it is abundantly clear that Mr Gill had no genuine belief in the validity of the proceedings and simply proceeded because the matter was before the Court". That submission was supported by reference to statements made by DSC Gill: Transcript 71 line 25 there is a reference to the case falling apart. Gill said the case is falling apart. Transcript 74 lines 45 50 Gill states it is up to the Court to throw it out. Gill also states is he able to test certain things in relation to the ERISP and he believes the plaintiff is telling the truth. Transcript 75 lines 35 50 Gill refers to the case against the plaintiff as looking dodgy. Transcript 72 lines 1 5 the plaintiff gives evidence, Gill told them the police were looking for the weapon that was used, in context the weapon used by Finn, to shoot Finn. That is transcript 72 lines 1 5. It may be noted, however, that each of those references concern evidence provided by the plaintiff during the hearing. None of the references correspond to evidence of by DSC Gill. As to the same, counsel for the plaintiff submitted, "none of these matters, at no point, the plaintiff was not challenged on any of these issues. There is no reason why the court wouldn't accept that as the truth". 1. Reliance was also placed upon DSC Gill's "very limited evidence in chief and has made no attempt at least in chief to traverse these issues". The issues being the statements attributed to DSC Gill by the plaintiff and the evidence, earlier set out, that corroborates the account by the plaintiff.

[92]

Consideration: False Imprisonment

The plaintiff's case for false imprisonment is not based on the initial arrest being unlawful, but rather proceeds on the notion that from 8.16am on 25 February 2011, DSC Gill was armed with information which justified the withdrawal of the plaintiff's arrest. That is, the plaintiff was falsely imprisoned from 8:16am to the time the plaintiff was brought before a magistrate. It cannot properly be contended that the plaintiff was unlawfully imprisoned after the magistrate denied him bail.
The plaintiff does not specifically identify what is said to justify the withdrawal of his arrest or how or when the arrest ought to have been withdrawn. In any event, I am satisfied, on the evidence before the Court, that the continued arrest of the plaintiff to the time he was brought before a magistrate was lawful.
Section 105 of LEPRA, as at 25 February 2011, provided: 105 Arrest may be discontinued (1) A police officer may discontinue an arrest at any time. (2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances: (a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason, (b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.
As a preliminary step, some legal principles should be mentioned: 1. While the law places a high importance on personal liberty (Williams v The Queen (1986) 161 CLR 278 at 292 and 296), it also has to be borne in mind that there is a public interest in the detection of crime and bringing those who commit it to justice: Holgate-Mohammed v Duke [1984] AC 437 at 445 per Lord Diplock (cited with approval in Hyder at [14] per McColl JA, with whom Hoeben JA agreed). Similarly, the police are under a duty prevent crime, and protect persons including victims of crime: s 6 of the Police Act 1990 (NSW). 2. A police officer's use of his discretion to make an arrest where reasonable grounds for suspicion exist cannot be questioned except on Wednesbury grounds and, the question is not what the judge thought was reasonably necessary, but what the officer thought was reasonably necessary in the circumstances: Holgate-Mohammed v Duke at 443 per Lord Diplock; State of New South Wales v Randall [2017] NSWCA 88 at [38] per Basten JA. 3. When looking at whether reasonable grounds exist to justify an initial arrest, "the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof": Hyder at [14]. By analogy, the same consideration ought to apply when determining whether an arrest should be withdrawn approximately 4 hours after it was made. The Court should not be concerned with a prima facie proof of the offence, even though in this case, it existed.
The person whom the plaintiff contends ought to have withdrawn the plaintiff's arrest was DSC Gill. He gave evidence that it was proper that the plaintiff had been arrested, and that his view as to propriety of charges did not change. That evidence, coupled with the objective evidence such as the triple-0 call, which was admitted without limitation, provides ample justification for the continuation of the arrest in the period in question. It may be observed in that respect that the magistrate refused bail.
The State pointed to the converse of the position maintained by the plaintiff. If the plaintiff's arrest were withdrawn, he then may have had a claim for false imprisonment if he could establish there was never an intention to charge him: see e.g. Robinson v State of New South Wales [2018] NSWCA 231 ("Robinson"). In Robinson, the appellant was arrested in circumstances where there was no intent to lay charges until further information was obtained from him in a police interview. Following the interview, he was released. This period of detention, the Court found, amounted to false imprisonment.
The arrest, being the precursor to criminal proceedings, was deemed unlawful because it was made at a time when a decision whether to charge the appellant had not been made and thus was not for the purpose of commencing the criminal process. The judgment of the Court of Criminal Appeal was affirmed in the State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46. Here, there can be no doubt that the arrest was for the purpose of commencing the criminal process.
In these circumstances, the plaintiff has not made out a claim for false imprisonment. The police involved would properly have been criticised had they discontinued the arrest of the plaintiff in this matter after his ERISP and without bringing him before a magistrate. The magistrate, unsurprisingly, remanded the plaintiff in custody.

[94]

The Plaintiff's claim

In the FASOC, the plaintiff claims damages totalling $3,147,200, plus exemplary damages, interest and costs, which comprises: 1. general damages "for physical, psychological and psychiatric hurt, curtailment of liberty, injury to reputation and disruption to life and enjoyment of life" in the sum of $1,441,200; 2. damages for economic loss in the sum of $1,456,000; 3. aggravated damages in the sum of $250,000; and 4. exemplary damages.
The origins and basis of these claimed figures is entirely unclear.
The State correctly contended that the plaintiff makes no attempt in his written submission (see section headed "Damages") to identify the amounts he claimed for damages. In particular, no submission is made supporting a claim for damage to reputation, or exemplary damages. Little or no evidence supporting such claims was adduced.
In written submissions, the plaintiff submitted (see at paras 65-68): 65. The damages the plaintiff has suffered were extremely significant. The plaintiff gave evidence at hearing of having suffered very significant emotional trauma. Furthermore, the plaintiff was bail refused in this matter for three months and was subjected to bail conditions up to the date of the trial (Feb 2013). 66. The fact the plaintiff was in custody for tax related offences is of no great significance. The plaintiff pleaded guilty to the tax matters. However the emotional damage as a result of having to go through a jury trial for such a serious offence was significant. Furthermore, there is objective evidence the plaintiff received a more serious classification while in custody, and thus spent his time in custody with violent offenders rather than being classified as a non-violent offender. Furthermore, the fact the plaintiff spent time in custody for the tax matters would have made it more difficult to prepare for trial for the attempted murder charge. 67. [REDACTED] 68. General damages should be assessed at the upper range given the gravity of the conduct of the defendant and the emotional harm caused to the plaintiff.
As to aggravated damages, counsel for the plaintiff contended in oral submissions the following bases for the amount: 1. The plaintiff was classified as a violent offender. 2. [REDACTED] 3. There was significant emotional hurt.

[95]

Damage to person or liberty

The plaintiff maintains, it would appear, a claim for injury to person and loss of liberty.
The plaintiff accepts he was lawfully arrested and detained, but claims that from 8.12am on 25 February 2011, his detention became unlawful: see FASOC at paras 9-18. That being the case, any claim for loss of liberty can only commence from about 8.12am. The plaintiff was brought before a magistrate that morning and bail was refused.
As stated above, the plaintiff was granted conditional bail on or about 28 March 2011 but was not released until about 5 May 2011, after variations to surety arrangements.
The plaintiff remained on bail until 30 March 2012, when he was imprisoned for tax and dishonesty offences. He was released on 29 May 2014: Exhibit 72; T105.6, 48-9. His sentence for the Commonwealth offences was being served at the time the plaintiff's criminal trial was heard in February 2013.
Any claim for loss of liberty is limited to the period 25 February 2011 at 8:12am to 5 May 2011, being a period of 69 days.
In Beckett v NSW, Harrison J recognised at [670] that "there is no authoritative guideline on how to calculate damages in wrongful imprisonment or malicious prosecution cases by reference to the period of time the plaintiff was detained. There is no clear arithmetical symmetry". Ordinarily, applying a daily rate for each day in detention is not appropriate.
In that decision, Harrison J departed from the previously widely held view that the initial period of custody was worth more as it was more shocking than the end of a longer sentence: Beckett v NSW at [806]. The State submitted that, on this view, awards of damages for comparatively short periods of loss of liberty are lower than would formerly have been the case. With this in mind, and adopting a comparative approach by reference to the cases referred to in Beckett v NSW at [672]-[690], the State submitted that the plaintiff, if successful, would be entitled to no more than $40,000 for deprivation of liberty.
I consider that the apportioning amount to be $60,000. However, this assessment is premised on the assumption the plaintiff succeeded in establishing that the initiation of the prosecution was malicious, which I have rejected. It may be further observed that if the plaintiff established a claim for maintenance, he would not be entitled to any damages at all for deprivation of liberty because by the time that conduct took place either (a) he was already out on bail, or (b) he was serving his sentence for tax offences.
I agree with the submissions of the State that the evidence of the plaintiff is deficient so far as it seem to prove very significant emotional trauma. This may be illustrated by the plaintiff's evidence below: Q. And in terms of those letters there, do you agree that you were concerned about those issues, that are letters A to J, the issues that concerned you while you were in custody? A. They were certainly issues of being in custody, and they were also issues that were constantly on my mind, yes. Q. Can I just take you to J.? I don't want you to look at it, sir, if you can just tell me how you were feeling while you were in custody? A. Well, essentially I was, I guess it would say beyond just being in custody for the first time, it was a sense of being in there for something that I had completely no knowledge of. So, my whole time in custody was essentially from when I was released from my cell at any one time, I'd be on the phone trying to organise what I could organise, to call my father for help, my lifeline. Q. Yes, but just going back to the first point you made about something you had no knowledge of, can you explain to the Court what you mean by that? A. I mean well I was completely innocent of the charges. I had no knowledge of any shooting, and that was the basis of my feelings when they were more than just simply being in custody for the first time, and what would go with it.
Further, the plaintiff's Record Inmate Interview at Cessnock Correctional Centre, as recorded in the CCC record, does cast doubt as to the extent the plaintiff was in fact experiencing emotional distress.
It is also relevant that the plaintiff does not challenge the legality of his arrest. Thus, to the extent the plaintiff does suffer psychological sequelae, it is at least in part attributable to lawful conduct. For example, at para 76 of Exhibit 2, the plaintiff says that "still to this day [he has] clear flash backs of been [sic] cable tied and arrested".
Although the plaintiff had served expert medical evidence in these proceedings (see paras 57-59 of the plaintiff's Statement of Particulars), he did not to tender any such material.
For this reason, my findings would be restricted to findings made with respect to effect the plaintiff's time in custody (25 February 2011 - 5 May 2011) had on him. Without expert evidence, the Court cannot be satisfied that the injuries and losses set out at paras 10-43 and 46-49 of the plaintiff's Statement of Particulars were, in any event, caused by the alleged malicious prosecution.
The plaintiff led no evidence, and made no submissions, as to reputational loss. No amount is allowed in that respect.

[97]

Economic loss

The plaintiff submitted he "should also receive a lump sum cushion for economic loss". In my view, the State is correct to submit that the plaintiff should not receive any award for economic loss in light of the insufficient proof offered to the Court on that question.
The plaintiff did not tender any notice of assessments issued to him by the Australian Taxation Office, despite having purportedly lodged returns over the years. In his oral testimony on the topic, he referred back to a summary prepared by his then accountant, Mr Edward Dixon. Mr Dixon was not called to give evidence and the tender of his summary (which initially appeared at p 49 of Ex 88) was not pressed: T218.13; T219.47-220.4. That being the case, the extent of the evidence is those tax returns which appear within Ex 88 and the plaintiff's oral evidence on the topic: T104-6.
I place limited weight on the plaintiff's evidence of past earnings. Further, there is no objective evidence with which the Court can satisfy itself of the accuracy of either the information contained within the returns that form part of Ex 88, or the plaintiff's oral testimony.
There was evidence that the plaintiff was bankrupt from 2007 to 2010. It may be inferred that the plaintiff's earnings for the years immediately following his discharge were modest.
In any event, the evidence (T141.11-T143.50) reveals that: 1. in March 2011, the plaintiff had a security license revoked (Exhibit 3); 2. the plaintiff has not applied for the reinstatement of his security license; 3. the plaintiff had maintained an electrical license for some 20 years and, in 2013 he applied for (while in custody on tax offences) and was issued with a further electrical license; 4. in 2017, the license was revoked on the basis that the plaintiff failed to disclose his tax conviction; 5. on 2 January 2019, a member of the New South Wales Civil and Administrative Tribunal ("NCAT") affirmed the decision to refuse the application (Edwards v Department of Fair Trading [2019] NSWCATOD 5); and 6. on 15 August 2019, an appeal panel of NCAT allowed the plaintiff's appeal and remitted the matter back to a newly constituted panel for further hearing on the issue on whether the plaintiff is a fit and proper person to hold a license (Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208).
Unlike with his electrical license, the plaintiff has made no attempt to have his security license reinstated. The evidence rather suggests that the plaintiff would have, and indeed wished to, pursue a career requiring an electrical license and that any difficulty he is experiencing obtaining that license is solely attributable to his tax conviction. As the State submitted, contrary to FASOC para 33, the plaintiff's inability to return to gainful employment is not caused by anything done or not done by DSC Gill.
In the circumstances, the plaintiff has not proved any economic loss. I would not have awarded any amount for economic loss.

[98]

Aggravated and exemplary damages

Aggravated damages are compensatory in nature and are awarded where the harm done by a wrongful act is "aggravated by the manner in which the act was done": Uren v John Fairfax & Sons (1966) 117 CLR 118 at 149. The award of aggravated damages particularly recognises any acute insult or humiliation over and above what might ordinarily be expected to occur: Fernando v Commonwealth of Australia (No 4) [2010] FCA 1475 at [3]-[4]. A plaintiff who succeeds in an action for an intentional tort will not necessarily receive either aggravated or exemplary damages. When assessing the plaintiff's damage it is necessary to ensure that no element is compensated more than once: State of New South Wales v Zreika at [60]-[64].
Where a plaintiff has been detained by police but has not been maltreated, or has been dealt with in a polite and courteous manner, it is unlikely aggravated damages will be available: see e.g. New South Wales v Delly [2007] NSWCA 303 (police wrongfully arrested a plaintiff for non-payment of fines, but at all times treated her in a polite and courteous manner); Zaravinos v New South Wales (2004) 62 NSWLR 58 (plaintiff detained at police station after attending for an interview, but he was not maltreated).
The plaintiff's claim for aggravated damages seems to be based on the notion that DSC Gill knew the plaintiff was innocent and that the plaintiff led the plaintiff to believe the charge would be dropped. I have rejected such contentions. Nonetheless, evidence does not properly permit of an award of aggravated damages because the plaintiff has not demonstrated there aggravating features which give rise to a claim for aggravated damages.
Exemplary damages are punitive in nature and focus upon the conduct of the defendant, rather than the harm caused to the plaintiff. Typically an award would only be made in circumstances where the defendant's conduct showed "a conscious and contumelious disregard" for the rights of the plaintiff: XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 at 471; New South Wales v Cuthbertson [2018] NSWCA 320 at [124], [150].
There is no evidence that DSC Gill acted in bad faith or otherwise than in accordance with what he considered was appropriate in the circumstances. There is no evidence anyone acted with a conscious and contumelious disregard for the plaintiff's rights.
In these circumstances, the plaintiff has not made out a case for aggravated or exemplary damages.

Edwards v State of New South Wales

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