Edwards v State of New South Wales - [2022] NSWCA 187 - NSWCA 2022 case summary — Zoe

NSWNSWCA

Edwards v State of New South Wales

[2022] NSWCA 187

Court of Appeal (NSW)|2022-08-09|Before: Macfarlan JA, Gleeson JA, Kirk JA, Walton J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2022-08-09

Before

Macfarlan JA, Gleeson JA, Kirk JA, Walton J

Catchwords

[2013] HCA 17 Clavel v Savage [2013] NSWSC 775 Commonwealth Life Assurance Ltd v Brain (1935) 53 CLR 343
[1935] HCA 30 Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 Fox v Percy (2003) 214 CLR 118
(2001) 126 A Crim R 562 Sahade v Bischoff [2015] NSWCA Searle v Commonwealth of Australia (2019) 100 NSWLR 55
[2019] NSWCA 127 Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145 Stanizzo v Fregnan

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 17 Clavel v Savage [2013] NSWSC 775 Commonwealth Life Assurance Ltd v Brain (1935) 53 CLR 343[1935] HCA 30 Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 Fox v Percy (2003) 214 CLR 118(2001) 126 A Crim R 562 Sahade v Bischoff [2015] NSWCA Searle v Commonwealth of Australia (2019) 100 NSWLR 55[2019] NSWCA 127 Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145 Stanizzo v FregnanStanizzo v Badarne

Judgment (41 paragraphs)

[1]

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2021/289643 2021/94958 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2021] NSWSC 181 Date of Decision: 04 March 2021 Before: Walton J File Number(s): 2014/349652

[2]

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] On 25 February 2011, Mr Edwards was charged with an offence of causing grievous bodily harm to another with intent to murder him. Mr Edwards was acquitted on 26 February 2013 after the jury at his trial returned a verdict of not guilty. He subsequently commenced proceedings in the Common Law Division against the State of New South Wales claiming damages for false imprisonment and malicious prosecution, alleging that the State was vicariously liable for the conduct of DSC Gill, the Officer-in-Charge of the investigation. The primary judge delivered judgment in favour of the State and dismissed Mr Edwards' proceedings on 4 March 2021: Edwards v State of New South Wales [2021] NSWSC 181. The issues on appeal were: (1) Whether for the purposes of the false imprisonment claim Mr Edwards' initially lawful detention became unlawful following his participation in an electronically recorded interview because the police ceased to have reasonable cause to detain him. (2) Whether DSC Gill ceased to be a "prosecutor" for the purposes of the tort of malicious prosecution when the prosecution was taken over by the DPP. (3) Whether DSC Gill brought or maintained the prosecution without reasonable or probable cause. (4) Whether DSC acted with malice in bringing or maintaining the prosecution. The Court (Macfarlan JA; Gleeson and Kirk JJA agreeing) dismissed the application for leave to appeal, dismissed the appeal and dismissed Mr Edward's application to adduce further evidence, with costs: [101]. (1) The primary judge did not err in finding that the matters known to DSC Gill following the electronically recorded interview justified Mr Edwards' detention being maintained. Those matters provided reasonable grounds for DSC Gill's suspicion that Mr Edwards had committed a serious offence: [91]. (2) The primary judge did not err in finding that DSC Gill ceased to be a prosecutor for the purposes of the tort of malicious prosecution once the prosecution was taken over by the DPP. DSC Gill's conduct did not go beyond that of the conventional role of a police officer assisting in the preparation of a prosecution under the control of the DPP: [100]. Stanizzo v Fregnan [2021] NSWCA 195; State of New South Wales v Landini [2010] NSWCA 157, considered (3) The primary judge did not err in finding that DSC Gill acted with reasonable and probable cause. Whilst inquiries and investigations arguably could have been handled more diligently and efficiently, it is by no means clear that the investigation departed from common practice or a standard that was reasonable in the circumstances: [93]. (4) The evidence did not indicate the existence of malice on the part of DSC Gill: there was no basis in the evidence for concluding that DSC Gill acted otherwise than for the purposes of appropriately invoking the criminal justice system: [94].

[4]

JUDGMENT

MACFARLAN JA: Commencing on 18 February 2013 the appellant, Mr Matthew Edwards, was tried in the District Court on a charge that at about 2:50am on 25 February 2011 he caused grievous bodily harm to Mr Daniel Fing with intent to murder him. Mr Edwards was acquitted after the jury returned a verdict of not guilty on 26 February 2013. He thereafter commenced proceedings against the present respondent, the State of New South Wales, claiming damages for false imprisonment and malicious prosecution, alleging inter alia that the respondent was vicariously liable for the conduct of Detective Senior Constable Jason Gill who was the Officer-in-Charge of the investigation into the relevant incident which involved the shooting of Mr Fing.
Following a lengthy trial in the Common Law Division, Walton J published a judgment on 4 March 2021 dismissing Mr Edwards' proceedings (Edwards v State of New South Wales [2021] NSWSC 181).
The principal issues to be determined on Mr Edwards' appeal from that decision are: 1. Whether Mr Edwards' initially lawful detention as a result of his arrest by Senior Constable David Graham at about 4:00am on 25 February 2011 became unlawful following Mr Edwards' participation in an electronically recorded interview ("ERISP") with police concluding at 8:16am on that day. Mr Edwards alleged that from that time DSC Gill ceased to have reasonable and probable cause to detain him. 2. Whether DSC Gill ceased to be a "prosecutor" for the purposes of the tort of malicious prosecution on 2 March 2011 when the conduct of Mr Edwards' prosecution was taken over by the Director of Public Prosecutions pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). 3. Whether in acting as a "prosecutor", either before or after 2 March 2011, DSC Gill brought or maintained the prosecution against Mr Edwards without reasonable or probable cause. 4. Whether in acting as a "prosecutor" DSC Gill acted with malice in bringing or maintaining the prosecution.
Walton J found that DSC Gill ceased to be a prosecutor in the relevant sense on 2 March 2011 and in any event acted at all times with reasonable and probable cause, and without malice. His Honour also found that Mr Edwards' detention did not cease to be justified once the ERISP concluded.
By Notice of Motion heard in this Court at the same time as the appeal, Mr Edwards sought leave pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) to adduce on appeal evidence further to that adduced at first instance. For the reasons given below, both that application and Mr Edwards' appeal should be dismissed with costs.

[5]

THE FACTUAL CIRCUMSTANCES

Mr Fing told police that at about 2:50am on 25 February 2011 he was watching television at his home with his brother Mr Jacob Fing and his friend Mr Joshua Uicich when they heard a vehicle pull into his driveway, with its headlights shining towards the house. Mr Fing said that when he opened the front door to investigate, he saw Mr Edwards standing next to the vehicle, he heard a gunshot and immediately felt a pain in his left bicep. He said that he then retreated inside the house and shut the front door. He then heard another three gunshots. Mr Fing called the triple-0 emergency number and provided the operator with the vehicle's registration number, which Mr Uicich had noted. Mr Fing told the operator that "Matthew Edwards" was the shooter and that "I've got an AVO on him at the moment".
Some neighbours heard the gunshots. One, Ms Elaine Hartney, also heard a car sometime before 3:00am but another, Inspector Reid (an off-duty police officer), did not see or hear a car at the relevant time.
At about 3:15am SC Graham arrived at Mr Edwards' home after hearing a message broadcast on police radio requesting that a patrol go past Mr Edwards' address to see if a motor vehicle bearing the registration number given by Mr Fing to the emergency call operator was there. He observed Mr Edwards' vehicle travelling nearby without headlights or parking lights illuminated. Mr Edwards' vehicle sped away after the police vehicle's flashing lights were turned on.
At about 4:00am, police located Mr Edwards' vehicle again and saw him get out of the car and run to the boot, and open it, before he submitted to the police at gunpoint. His female companion, Ms Tugba Zabun, had emerged from the boot and run away, evading capture. She later told police that she ran because there was an outstanding warrant for her arrest. An axe was found in the vehicle on the front passenger seat and a laptop computer on the rear passenger seat behind the driver.
Ms Renay Wood, a bystander, made a statement to the police on 14 February 2013 providing her observations of Mr Edwards' arrest on 25 February 2011. She said that she observed a person she now knew to be Mr Edwards exit the vehicle and open the boot of the car. She then saw a female climb out of the boot and heard Mr Edwards say "take the bag and go" to the female, who then proceeded to run up the street with a bag. Ms Wood then called triple-0 and reported what she had seen.
At about 4:20am on 25 February 2011 Mr Fing was medically examined at a local hospital. He reported being shot at a distance of 10 metres with a .22 shotgun. At about 5:05am DSC Gill spoke with Mr Fing at the hospital but did not make notes of their conversation, although he said in his later witness statement that "Fing told me something" during the conversation. At about 6:50am other police officers attended Mr Fing's home to collect evidence and take photographs.
From about 7:16am DSC Gill and DSC Scott Selkirk conducted the electronically recorded interview with Mr Edwards (the "ERISP") referred to above, after Mr Edwards had earlier spoken to his solicitor. Relevant statements made by Mr Edwards in the course of the interview were to the following effect: 1. Early on the morning of 25 February 2011 he and Ms Zabun were at his home using the internet when she received a call and messages from Mr Fing. These made Mr Edwards concerned that "somebody was coming to get me". He continued: "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 round the block, came back. We were going to sit over [at] 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 [Ms Zabun] was saying, They're after me, they're after me." 2. Mr Edwards said that he put an axe in the car because "from what I understand these people are, you know, pretty brutal when they grab people…" 3. Ms Zabun was concerned that the police were following her because there was a warrant outstanding for her arrest. As a result, when the car stopped, she got out and ran. 4. In response to a suggestion that police had found gunshot residue on his hand he denied that he had ever fired a firearm. 5. Mr Fing had an interim Apprehended Violence Order against Mr Edwards and Mr Edwards was seeking one against him. 6. Between himself and Mr Fing there was "the jealousy thing with Tugba [Ms Zabun]" and Mr Fing had smashed six windows of Mr Edwards' house. 7. The vehicle was hired from Budget Car Rentals by Mr Edwards' father, Mr Bruce Edwards, and was not stolen, as the police Facts Sheet asserted. 8. Ms Zabun had slept with Mr Fing in January 2010 and Mr Edwards could not help but "think in my mind that there's been something [more] happening". Mr Edwards felt "pretty really betrayed with her".
Immediately after the interview concluded, DSC Gill formally charged Mr Edwards and refused bail. At 10:31am DSC Gill served Mr Edwards with a Court Attendance Notice ("CAN") while he was in custody. The CAN set out the details of the following three offences, although Mr Edwards was ultimately only tried on the first: 1. cause wounding/grievous bodily harm to person with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW); 2. contravene prohibition or restriction in an apprehended violence order (personal), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and 3. take and drive conveyance without consent of owner, contrary to s 154A(1)(a) of the Crimes Act.
At about 10:10am police took a statement from Mr Uicich giving a description of the events at Mr Fing's home which was consistent with that given by Mr Fing, including that Mr Uicich observed and made a note of the registration number of the vehicle that came into the driveway, although Mr Uicich was not able to identify the shooter.
As noted above at [4], on 2 March 2011 the DPP took over Mr Edwards' prosecution.
On 5 May 2011 Mr Edwards was released on bail but on 7 September 2011 he pleaded guilty to Commonwealth tax fraud offences, as a result of which he served approximately 26 months in prison commencing in March 2012.
On 22 June 2012 Mr Edwards was committed for trial on the three offences charged in the CAN referred to in [13] above, resulting in his trial on the first offence in the District Court in February 2013. The AVO breach offence, and the drive conveyance without consent offence were the subject of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

[7]

False imprisonment

The respondent contended that Mr Edwards' arrest and continued detention until he was denied bail by a Magistrate was authorised by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). Section 99(1) provides that a police officer may arrest a person without a warrant if, inter alia, the police officer "suspects on reasonable grounds that the person… has committed an offence" and the police officer is "satisfied that the arrest is reasonably necessary" for any one or more of a number of specified reasons, including the nature and seriousness of the offence. Mr Edwards did not contend, at least on appeal, that the latter condition as to the necessity for the arrest was not satisfied.
The reasonable suspicion to which a section such as s 99(1) refers was described by the NSW Court of Criminal Appeal in R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 as follows at [53]: "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 [of the Crimes Act 1900 (NSW), now repealed]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence."
The primary judge stated the following further, applicable legal propositions: "(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 [v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336] at [14] per McColl JA, with whom Hoeben JA agreed). Similarly, the police are under a duty [to] prevent crime, and protect persons including victims of crime: s 6 of the Police Act 1990 (NSW). … (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."

[8]

Malicious prosecution

The elements of the tort of malicious prosecution were identified in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 as follows at [1]: "(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause."
The following presently relevant observations were made in A v NSW: 1. In relation to the identity of the appropriate defendant, the plurality said: "The 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]) (Footnotes omitted.) 1. The notion of "reasonable and probable cause" involves "both an objective and a subjective aspect" (at [38]). Thus, "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?" (at [58]). Further, the inquiry has a "temporal dimension" requiring consideration of what material was available to the prosecutor at the time the prosecution was commenced or maintained (at [59]). (See also Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4]). 2. Their Honours (at [86]) adopted the following statement of Lord Atkin in Herniman v Smith [1938] AC 305 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 a defence, but whether there is a reasonable and probable cause for a prosecution." 1. Proof that a prosecutor acted maliciously requires proof that he or she acted "for an improper purpose, not for the purpose of carrying the law into effect" (at [40]).

[12]

False imprisonment

The primary judge referred to the relevant police power to arrest as being conferred by s 99 of the LEPRA and later also referred to s 105 which permits a police officer to discontinue an arrest at any time if inter alia the reason for arrest no longer exists (see [20] above).
His Honour then referred to a number of authorities as to the notion of a reasonable suspicion which are relevant to the application of these sections, including the statement of the NSW Court of Criminal Appeal in R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 at [53(a)] quoted in [21] above.
His Honour later noted that Mr Edwards' counsel conceded that Mr Edwards' initial arrest was lawful and that his detention only became unlawful at 8:16am on 25 February 2011 when the ERISP was completed. Mr Edwards contended that he should have been "unarrested" at that time. His Honour also noted that it could not on any view be alleged that Mr Edwards was unlawfully imprisoned after the Magistrate denied him bail later on 25 February 2011.
The primary judge then referred to the following summary in Mr Edwards' written submissions of his case on this topic: "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."
His Honour stated, by way of conclusion, that DSC Gill gave evidence that it was proper for Mr Edwards to be arrested and that this together with DSC Gill's evidence that his view as to the propriety of the charges did not change, coupled with the objective evidence such as the triple-0 call, provided "ample justification for the continuation of the arrest in the period in question".

[13]

Malicious prosecution: Whether DSC Gill was a "prosecutor" after 2 March 2011

The primary judge referred to authorities to support his conclusion that DSC Gill would only have been a prosecutor for the purposes of the tort of malicious prosecution after 2 March 2011 if he had taken active steps to maintain the prosecution after that date. His Honour described as follows the basis of Mr Edwards' counsel's contentions that that in fact occurred: "(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 [the Crown Prosecutor'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 [that] 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 [Further Amended Statement of Claim] [relevant] to DSC Gill maintaining the prosecution after 2 March 2011."
His Honour referred inter alia to State of New South Wales v Landini [2010] NSWCA 157 in which this Court held that a police officer in charge of an investigation maintained a prosecution in the relevant sense. His Honour however noted that in HD v State of New South Wales [2016] NSWCA 85 this Court had "recently cautioned against assuming that the officer in charge is ipso facto a prosecutor" and in Sahade v Bischoff [2015] NSWCA 418 at [121] had stated that to maintain a prosecution, the defendant must engage in "some positive conduct … such as giving evidence in support of the prosecution, which was known to be false".
His Honour concluded that in the present case DSC Gill had not done this after 2 March 2011, stating: "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 [v State of New South Wales [2018] NSWSC 1247], who was far more actively involved in that prosecution, but was still found not to be a prosecutor for the purposes of the tort." (Emphasis added.)
His Honour noted that it was an agreed fact in the proceedings that the prosecution was conducted by the DPP after 2 March 2011 but he did not treat that agreement as determinative of whether DSC Gill also acted as a prosecutor after that date.
Although, in light of these findings, Mr Edwards' malicious prosecution case failed in respect of the conduct of DSC Gill after 2 March 2011 because he was not then a "prosecutor", his Honour nevertheless proceeded to consider if Mr Edwards had proved that DSC Gill had acted with malice and an absence of reasonable and probable cause in that period.

[14]

Malicious prosecution: Reasonable and probable cause

The primary judge summarised Mr Edwards' contentions on this topic as follows: "(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 [to Mr Edwards] 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."
His Honour found, consistently with Mr Edwards' concession to that effect, that Mr Edwards' initial arrest was lawful, referring to the following considerations: "(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 changed. (5) I have inferred he was told of the identification of the number plate by Mr Uicich."
His Honour had earlier summarised the evidence available to DSC Gill immediately after the conclusion of the ERISP as follows: "(1) the summary of the accounts by Mr Fing and the witnesses (including the neighbours) conveyed by Leading SC Gail Symington [(who first attended the scene where Mr Fing was shot)] to DSC Gill (and DSC Selkirk) upon their attendance to [Mr Fing's] 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."
His Honour then rejected Mr Edwards' submission that DSC Gill did not have reasonable and probable cause to prosecute Mr Edwards, stating: "(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 … 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.' (4) 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]."
His Honour concluded on this topic as follows: "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, [a number of identified issues are then referred to]."

[26]

Internet and phone use

Emails of 31 October and 10 November 2011 in evidence before the primary judge indicate that DSC Gill had made efforts earlier that year to obtain location data from Telstra in relation to Mr Edwards' phone. The latter email states that Telstra had indicated that it would be able to provide relevant data but had recently stated that it could not do so. In evidence DSC Gill said that inquiries had in fact been made of Telstra in March 2011. Whilst it was suggested to him in cross-examination that this was incorrect there is no basis, particularly considering the primary judge's general acceptance of the reliability of DSC Gill's evidence, to conclude that it was not done or to interfere with the primary judge's rejection of Mr Edwards' attack on DSC Gill's evidence.
DSC Gill made inquiries of Vodafone in respect of a portable modem for the laptop computer that Mr Edwards had in his vehicle when he was arrested. He was criticised in cross-examination for specifying in his request to Vodafone the date range of "23 February 2011 to 25 February 2011" but, as the judge accepted, no sinister motive can be attributed to DSC Gill in the formulation of that request. The hindsight information that Vodafone appears to have treated the request as one for a 24-hour period and may therefore not have treated it as covering the early hours of 25 February 2011, does not assist Mr Edwards' case. At most for Mr Edwards, it could perhaps be suggested, as it was in his cross-examination, that a more cautious approach would have been to include the following day, 26 February 2011, in the request to ensure that the relevant hours were covered.
Mr Edwards also complained that there was a delay, which should be inferred to have been intentional, in serving, prior to the criminal trial, a report of Mr Phillip Moore, an expert who examined Mr Edwards' electronic devices for any evidence of user activity around the time of the shooting. DSC Gill denied any intentional withholding of the report and in any event said in cross-examination that he did not regard the report as either inculpatory or exculpatory, as it did not provide information about where the relevant computer was at the time it was being used. The latter observation was not an unreasonable view in light of the terms of the report. As a result, and bearing in mind the primary judge's general acceptance of DSC Gill as a witness of credit, Mr Edwards' complaints under this heading do not advance his case on appeal.

[39]

The period for which DSC Gill acted as prosecutor

As an alternative reason for the failure of Mr Edwards' malicious prosecution claim, insofar as it related to DSC Gill's conduct after 2 March 2011, the primary judge held, in a finding with which I agree, that DSC Gill did not act as a "prosecutor" for the purposes of the tort of malicious prosecution during that period.
As was recognised by this Court in Stanizzo v Fregnan [2021] NSWCA 195 at [222], there is "long-standing authority that recognises that, for the purposes of the tort of malicious prosecution, the term 'prosecutor' is not limited to public officers (for example, a police officer 'informant' or the DPP) who, in the name, or on behalf, of the State, invoke the criminal process, or (more rarely in modern times) to a private individual who does the same thing." It is undoubted that DSC Gill was a prosecutor for the purposes of the tort of malicious prosecution prior to the DPP taking over the prosecution on 2 March 2011 as he had commenced the prosecution in his name. However, he ceased on that date to have that role either in a formal or de facto sense.
As noted above by reference to A v NSW at [34] (see [24] above), establishing that a defendant was a "prosecutor" when the defendant had no official capacity as such, requires proof that the defendant took "an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion". In Commonwealth Life Assurance Ltd v Brain (1935) 53 CLR 343 at 379; [1935] HCA 30, Dixon J identified as follows circumstances where this requirement would be satisfied: "It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible." (Footnotes omitted.)
More recent cases have also referred to the defendant's knowledge of the falsity of information supplied to the police as a relevant, though not necessarily sufficient, element in this context: see State of New South Wales v Landini [2010] NSWCA 157 at [55] and [57]; Sahade v Bischoff [2015] NSWCA 418 at [121]; Stanizzo v Fregnan [2021] NSWCA 195 at [237]. For example, in Landini, a police officer (Mr Knox) who participated in the fabrication of critical evidence against the plaintiff and was thus aware of the falsity of the charge against him was found to have taken active steps to maintain the prosecution of the plaintiff. Mr Knox's conduct was described as follows, at [68] and [69]: "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 …. 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 … 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 occurred in circumstances where it must have been clear to those involved in the proceedings that, by his presence, Mr Knox was indicating that he was prepared, if required, to go into the witness box to swear to the facts contained in the document. His presence, without demur to the tender of the document, thus implicitly confirmed its veracity."
On the other hand, the element of dishonesty was absent in Stanizzo v Fregnan [2021] NSWCA 195 where the malicious prosecution claim failed, although the Court did note (at [231] and [232]) that even if the relevant statement had been a deliberate lie, there was nothing to suggest, in that case at least, that it operated on the mind of the prosecuting authority so as to "procure" the laying of the charges, it being nothing more than a supporting statement as to the complainant's version of events.
Once it is accepted, as it must be, that Mr Edwards did not prove that DSC Gill was dishonest in any relevant respect and, in particular, did not hold the belief that the prosecution was based on false information, the conclusion must follow that after 2 March 2011 DSC Gill was not a "prosecutor" in the relevant sense as there were no other features of his conduct that would require that characterisation. Whilst DSC Gill was active in assisting the prosecution in this period, his conduct did not go beyond that of the conventional role of a police officer assisting in the preparation of a prosecution that was under the control of the DPP. As the primary judge put it, "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)".

Edwards v State of New South Wales

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