Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales

Supreme Court of NSW|2015-02-23|Before: Hulme AJ

Judgment Introduction

R S HULME AJ: It is convenient to consider the issues and evidence in these proceedings under a number of headings: Introduction Paragraph 1 Resurrection of the Investigation Paragraph 23 Issues and Evidence Paragraph 36 Exhibit U Paragraph 41 Mr Roth's Statements Paragraph 76 Mr Roth's Evidence Paragraph 85 Mr Roth - Circumstances of statements Paragraph 91 Mr Roth - Criminal and Psychiatric History Paragraph 98 Mr Roth and Mr Shepherd Paragraph 127 Mr Roth - Other Matters Paragraph 133 Listening Device Evidence Paragraph 139 Speaker Identification Paragraph 171 Michelle Holland Paragraph189 Geoffrey Holland Paragraph 209 Circumstances of Ms Holland's statement Paragraph 215 Darren Byrne Paragraph 238 Other Witnesses Paragraph 247 Sergeant McLennan and Police Investigation Paragraph 254 Prosecutors Paragraph 283 The Law Paragraph 295 Consideration Paragraph 305 Reasonable & Probable Cause Paragraph 353 Reasonable & Probable Cause (Second Test) Paragraph 378 Malice - Sergeant McLennan Paragraph 389 Malice - DPP Prosecutors Paragraph 444 Wrongful Arrest Paragraph 463 Damages Paragraph 469 The Use of Evidence Paragraph 492 Orders Paragraph 502
By Statement of Claim filed on 23 October 2007 Fred Saad, Danny Saad, James Elwasfi, Sam Kassis and Andrew Pound commenced proceedings against the State of New South Wales and others claiming damages for malicious prosecution. These proceedings were numbered 2007/265173.
There have been a number of amendments to these Statements of Claim. By the Third Amended Statement of Claim filed on 1 November 2012, the above Plaintiffs claimed for "wrongful arrest and malicious prosecution". Counsel for the Plaintiffs identified as the balance of the pleadings in that action, an Amended Defence filed on 16 August 2013 and a Reply filed on 5 December 2012.

The first group of arrests connected with Mr McPherson's death occurred on 1 or 2 April 1998. One of those arrested on that day was Mr Pound who was then charged with Mr McPherson's murder. During the course of the criminal proceedings that inspired the present suit and at an earlier stage of it, Mr Pound was referred to as "AH". This was in consequence of the Children (Criminal Proceedings) Act 1987 and an order of Sully J made on 13 September 2004. During the course of these proceedings and with the consent of Mr Pound, I vacated that order. In the course of the various proceedings he has also been referred to as "Shorty" and "Andrew Hoogwerf".
On 2 April 1998 Messrs Danny Saad and Sam Kassas were arrested and charged with Mr McPherson's murder.
On 14 July 1998 at the Bidura Children's Court, Mr Pound was committed for trial. A Mr Roth was the only witness who gave evidence and the crucial part of what he said was that Mr Pound had confessed to breaking a baseball bat over Mr McPherson's head. In the course of her reasons for committing Mr Pound, Magistrate Gilmour remarked that Mr Roth's evidence was "pivotal", that he was "clearly a rogue" but that she had found him to be "frank", "spontaneous", "believable and credible".
Despite being committed, the charge against Mr Pound was "no-billed" by the DPP on or about 22 February 1999. This followed the withdrawal of committal proceedings against Danny Saad and Mr Kassas on 27 October 1998. As has been said, on 11 April 2003, he was re-arrested pursuant to an ex-officio indictment being preferred and effectively resurrecting the charge against him. On 11 April 2003, he was remanded in custody to appear in the Supreme Court on 2 May 2003.
Committal proceedings relating to these two took place in October 1998 and, as I have said, were withdrawn and they were discharged. The inspiration for the withdrawal was that Mr Roth declined to give evidence upon the stated ground that subsequent to his giving evidence against Mr Pound and because of giving that evidence, he had been assaulted and police had not assisted him, and another witness, Mr Ezzy, was not able to be found. Resurrection of the Investigation
In consequence of a number of internal police reports canvassing the topic, the police investigation into Mr McPherson's death was re-opened on 1 May 2002. Sergeant McLennan was appointed to head that investigation. Additional evidence referred to below came to hand.
Commencing on 9 August 2002, a number of arrests followed. On that day Danny Saad and Sam Kassas were again arrested and charged with Mr McPherson's murder. Also on 9 August 2002 Ashley Saad was arrested and charged with concealing a serious offence and Mr Fred Saad was arrested and charged with being an accessory after the fact to murder.
On 23 August 2002 Mr Elwasfi was arrested and charged with concealing the serious offence of the murder of Mr McPherson. On 6 November 2002 he was again arrested and on this occasion charged with Mr McPherson's murder. On 5 January 2005, the DPP directed that there should be no further prosecution of the concealment charge. On the same date the DPP decided there would be no further proceedings against Danny Saad and Sam Kassas on charges of assault occasioning actual bodily harm to Mr Mazzeo.
Because in a number of pieces of evidence, Mr Elwasfi is referred to by a nick-name "Camel", it is appropriate to record the fact at this stage. From time to time that nick-name has been spelt "Kamil".
On 4 November 2002, fresh committal proceedings against Danny, Ashley and Fred Saad, Mr Kassas and Mr Elwasfi commenced before Magistrate Orchiston. On 6 November the proceedings were adjourned to 13 January 2003 and then continued on 21, 24 and 30 January (principally concerned with bail) and 24 to 27 March 2003. On that last mentioned date, all five were committed for trial in the Supreme Court on 2 May 2003 or such other court or date as might be appointed. On 11 April 2003 an ex officio indictment was preferred against Mr Pound.
On 13 October 2003, a trial of Messrs Danny Saad, Kassas, Pound and Elwasfi on a charge of murder and Fred Saad on a charge of being an accessory after the fact, commenced before Newman AJ. The charge against Mr Ashley Saad was by consent adjourned back to the Local Court. The proceedings before Newman AJ commenced with a voir dire enquiry that extended until 6 November when his Honour reserved his decision. The decision was delivered on 21 November and was to the effect that the evidence challenged in the voir dire was admissible. However, in the course of dealing with that application, Newman AJ made remarks very critical of the credibility of the Crown's principal witnesses Messrs Roth and Byrne. His Honour referred to the fact that two other important witnesses Ms Holland and Mr Holland had recanted from their statements but could be cross-examined. He said that some Listening Device evidence relied on by the Crown was admissible but concluded: While the trial should proceed with the challenged evidence being called, the nature of the challenged testimony was such that a Court of Criminal Appeal might well come to the conclusion that any verdict founded on that evidence was unsafe. Given the generally unsatisfactory nature of the evidence, it is a question for the DPP to consider. A no bill application would be a more appropriate mode of challenging the Crown case than an application that the evidence be excluded.
Applications for bail made by Messrs Kassas, Elwasfi, Pound and Danny and Fred Saad came before Levine J on 5 March 2004 and were granted. In the course of his Honour's reasons for the grant of bail, he remarked that the prosecution case rested to a not insubstantial degree on the evidence of at least three people, Messrs Byrne and Roth and Michelle Holland and that he had come to the same view as Newman AJ to the effect that the Crown case could not be characterised as strong.
A trial before Newman AJ and a jury commenced on 16 August 2004 but on 30 August was aborted because of some prejudicial evidence volunteered by Mr Roth to the effect that the Accused or a number of them were selling heroin.
On 13 September 2004 a further trial commenced before Sully J. There were a number of applications his Honour dealt with before a jury was empanelled on 20 September 2004. There were further problems and a fresh trial finally commenced on 29 September. Again Messrs Danny Saad, Kassas, Elwasfi and Pound were charged with murder and Fred Saad with being an accessory after the fact to that murder. By agreement, the trial of Ashley Saad on the charge of concealing a serious offence was postponed until some time after the resolution of the murder charges. It is not necessary for me to pursue the question of how Mr Ashley Saad's matter was again in the Supreme Court.
One of the decisions his Honour made was to exclude the Listening Device recordings which the police had obtained and the corresponding transcripts which his Honour observed, had originally been seventeen but were then five. Sully J acquiesced in the application, his reasons being in substance: … the quality of what is produced on the discs is almost indecipherable to the unaided ear. … the transcripts, viewed fairly, overall comprise disconnected phrases, and sometimes sentences interspersed with passages of matter which are simply indecipherable, even to those who have listened repeatedly, and with the best available equipment to the tapes. It seems to me that, with all the good will in the world, to put this material before a lay jury would simply lead to a situation where, inevitably, the jury either could make no sense in a real way of what it was hearing, in which case the material might as well not be there; or the jury would be tempted, and would be all too likely to yield to the temptation, to fill in by speculation the gaps that will be at once apparent to the jury in the matter recorded on the discs themselves, and in the transcripts such as they are. I cannot think… it would be in accord with what the interests of justice might be thought reasonably to require to permit material of that equivocal and ambiguous kind to be led as part of the Crown case against the accused.
During the course of the trial, the Crown also made an application to cross-examine Ms Holland, upon the ground that it seemed likely that she would give evidence contrary to two statements she had earlier made and which in their terms constituted evidence - Sully J thought powerful evidence - against some of those on trial. However, Sully J concluded that in view of the decision of the High Court in Lee v The Queen (1998) 195 CLR 554 the statements could amount only to proof that Ms Holland had made prior inconsistent statements and were not evidence of the substance of what were said to have been "inculpatory admissions made verbally to her by various of the accused" and that accordingly he should not give leave to cross-examine. His Honour made a similar ruling in the case of Mr Holland with the result that the Crown elected not to call either of those persons.
At the end of the Crown case, the Prosecutor conceded that the Crown had no case against Mr Elwasfi, observing that the entire case against him was to come from the Hollands. Sully J then directed the jury to find Mr Elwasfi not guilty which the jury on 27 October 2004 then did.
As has been said, Messrs Kassas and Pound were also acquitted. In the case of Danny Saad, the jury could not agree and in December 2004 the DPP decided not to further proceed against him. The Amended Defence in the proceedings by Mr Ashley Saad admits that on 9 December 2004, the proceedings against him were withdrawn. Issues and Evidence
As I have said, there is no doubt that Mr McPherson was murdered. His injuries occurred when he and a companion, Mr Mazzeo, were attacked by a group of men in James Street, Redfern at or near its corner with Castlereagh Lane. There is also no reasonable scope for doubting that a number of the men were acting in concert. The principal issues about which there was doubt during the court proceedings to which reference has been made, is whether the Plaintiffs and other members of the Saad family were members of that group or, in the case of Fred and Ashley Saad and Mr Elwasfi, had knowingly assisted one or more of them or had knowledge of the involvement of one or more of their number so as to fulfil the knowledge or belief element in s 316(1) of the Crimes Act 1900 (NSW) which provides: If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.
There was also a question whether, within the operation of that section, there was or may have been "reasonable excuse".
In large part, although not exclusively, the evidence of the involvement of the Plaintiffs relied on by the prosecuting authorities came from a Mr Roth, some Listening Device tapes, a Mr and Ms Holland, and a Darren Byrne and it will be necessary to deal with each part of that evidence specifically but it is convenient to refer to the other evidence first.
Much of it was contained in a brief provided by police to the office of the DPP and which in these proceedings became Exhibit U. It consists of two lever-arch files of documents, which it was accepted was the brief concerning Fred Saad delivered by the police to the DPP. This brief substantially coincided with the briefs delivered in relation to Messrs Kasses, Elwasfi, and Ashley Saad and there was no suggestion that the differences were of consequence. The witness list and summary of evidence included in the bundle was dated 19 August 2002 and, although unsigned in the bundle tendered, it provided for signature by Sergeant McLennan.
The brief was added to by some later statements, e.g. Exhibit W, to which it presently unnecessary to refer. Exhibit U
Chalmers Street, Castlereagh Lane and Great Buckingham Street, Redfern run north-south parallel to each other. Castlereagh Lane ends in T-intersections with James Street and Redfern Lane which run east-west. Living at 262 Chalmers Street at the time was the Saad family, including Danny and Fred Saad. Those premises extended from Chalmers Street to Castlereagh Lane. Prior to 27 January 1998, one or other of the Saad family had leased a garage at the rear of 60 Great Buckingham Street and which garage faced onto the lane opposite the rear of 262 Chalmers Street. It was not in dispute that members of the family and friends and acquaintances often gathered in and adjacent to the garage, from time to time working on cars nearby.
Castlereagh Lane was commonly referred to as "Leb Lane" and sometimes "Saad Lane". In December 1999, there were at least two pieces of graffiti on the walls of the lane in terms, "Leb Lane". There was evidence that Fred and Ashley Saad were of Lebanese appearance as were others who worked on the cars. In Exhibit U there was no evidence how many other people of Lebanese appearance may have lived near or commonly used the Lane although Exhibit N in these proceedings, dated 4 October 2001, refers to there being other residents of Lebanese extraction.
Estimates of the number of persons involved in the attack on Mr McPherson generally varied between four and six. Two persons who lived nearby, Chelsea Brennan and Kevin McCall described the persons who attacked Mr McPherson as all, or mostly, Lebanese. On the other hand, a Mr Cerne whose residence backed onto Castlereagh Lane, said that at about 5.30pm on 27 January, he saw six males go into what would seem to have been the Saad garage, four of these males being "Aussies, whiter than me". The first ambulance on the scene arrived at 2153 hours.
A Mr Rupert Olivera who attended on Mr McPherson prior to the attendance of police or ambulance service, said in a statement on 2 February 1998 that he asked the deceased who did it and the deceased replied, "The Lebs, when I come back from the bottle shop". Shortly afterwards Mr Olivera saw a utility he described as "orange" going around the corner from Castlereagh Lane into James Street and Danny Saad running down towards the garage opposite his place. A Mr Woodings who saw the deceased staggering down Chalmers Street after the attack also recounted hearing the deceased say, "Lebanese".
In a later statement made on 9 July 2002 Mr Olivera also recorded that on the night of 27 January 1998 he had seen Danny Saad in the laneway but had not mentioned this in his earlier statement because he was scared and did not want to become involved. In his later statement, he also said that some days later, Danny Saad said to him, "What happened, happened. We got away with it".
Mr Mazzeo said that he and the deceased had walked down the lane and into James Street with a view to purchasing some whisky at a nearby hotel. In James Street, a red utility accelerated hard and just missed them. Mr McPherson called out, "Take it easy you idiot" and offered to take on both its occupants. The utility sped off. While Mr McPherson and Mr Mazzeo were walking back along James Street and near Castlereagh Lane, the red utility and what Mr Mazzeo described as a blue XB Ford, pulled up in front of them and about six occupants of the vehicles alighted. Mr Mazzeo was grabbed and hit with a stick. He broke free and ran to 234 Chalmers Street calling out for help for Mr McPherson. Returning almost immediately he saw four persons get off Mr McPherson who stood up and said that he had been stabbed.
In a statement of 27 January 1998, Mr Mazzeo provided some description of the assailants albeit largely by reference to their clothing. In a video-taped walk-around on 10 May 2002, Mr Mazzeo identified two of the attackers as Danny Saad and Kassas. Consideration of all that Mr Mazzeo said, suggests that that identification was based principally on what Mr Mazzeo saw on 27 January although he did not then know the attackers' names. However there are some answers that provide grounds for thinking that the identification may have been more reliant on subsequent information. During that walk-around Mr Mazzeo also said that the attackers included a "couple of white boys".
When on 18 February 1998, Mr Mazzeo had been shown by Detective Moubarak three video tapes depicting a number of persons, he then said he was unable to identify any of the persons depicted. Before Newman AJ on 23 August 2004, the Crown prosecutor said that each of the accused was depicted on one or more of the video tapes.
The index to Exhibit U refers to two statements of a Mr Andrew Ezzy who is said to identify Danny Saad at the murder scene. Mr Ezzy's statements were not in Exhibit U but there were two in the Court Book, dated 28 January and 4 March 1998 that were admitted into evidence. Exhibit K also contains reference to two statements of Mr Ezzy and having regard to their date, they were obviously available to the police and DPP at the time any presently relevant decision was made to institute or maintain the prosecution of the Plaintiffs.
In his statements, Mr Ezzy says that his attention was directed to the incident when Mr Mazzeo called out that Mr McPherson was in a fight and that he and others then ran to the location. He said that he saw nine Lebanese males standing next to a red utility throwing bottles at Mr McPherson and Mr Mazzeo, one of the males being Danny Saad. In his statement of 4 March, Mr Ezzy added that he had not been able to identify any of persons on three video tapes he was shown that day because of the 5 weeks since the murder and because he had tried to block it out of his mind. He also said that he was certain that one of the attackers had been Danny Saad because he had seen him on numerous occasions.
A Mr Craig Spicer (sometimes referred to as Craig Duncan and sometimes as Duncan-Spicer) who said that he had seen the attack as he happened to be passing along Chalmers Street on his way to Mr Olivera's, identified Danny Saad as calling encouragement during the fight. He also said that a few days later, in a coffee shop with Rupert Olivera, he saw another of those who had been in the laneway during the fight. Mr Spicer provides a description but does not name that person and Mr Olivera's statement makes no mention of the occasion. There seems to have been no other evidence identifying that person.
Mr Spicer also said that as he walked along Chalmers Street and apparently crossing James Street he had seen the front of a utility sticking out of Castlereagh Lane into James Street. He could not remember the colour, but thought it was either a ZF or XD model Ford. Mr Spicer's statement was not made until 5 July 2002 "because I had my own court matters pending and police had never come to talk to me before this".
Other evidence in Exhibit U bearing on the involvement of Danny Saad, is that on 29 January he was seen to be suffering from injuries to his right leg for one of which on that day he received treatment from a Dr Duggin. When questioned by the doctor, he attributed the injuries to falling onto some rocks on the beach but Dr Duggin opined that one of the injuries was not consistent with such a fall. Signs of injury were seen by police officers and another doctor in the days that followed 29 January.
Statements of a number of other persons corroborate Mr Mazzeo's account of the presence of two vehicles. A Mr Scott Pritchard who lived on the corner of Chalmers Street and James Street and whose attention was directed to the incident, said that he saw someone strike the victim a number of times, apparently with something in his hand. Mr Pritchard said that at the time there was a red Holden utility and a Blue XB or XC Falcon behind it in James Lane.
A Mr McCall referred to a red utility stopping in Castlereagh Lane as if about to turn into James Street with a greeny-blue sedan right behind it.
Other statements refer to only one vehicle although I do not read those statements as denying the presence of two. A Mr Higginbotham said that, at what must have been the relevant time, he had seen a Ford Falcon parked almost across what he referred to as a laneway but which may have been James Street. He said that the Falcon appeared to be chocolate brown but there were no lights other than the headlights of the car in the laneway.
Within Exhibit U, there is evidence that Mr Danny Saad owned a red Holden utility. Included in such evidence are statements of a Nathan Sproule, his mother and a Mr Kohut showing the sale on or shortly before 22 November 1997 of a red Holden utility QGY-155 to Danny Saad of 262 Chalmers Street, Redfern. Mr Sproule also indicated that Danny was in possession of the red utility until at least early January 1998.
Janko Cerne, who as has been said was a resident, identified Danny Saad as the only person who he had seen driving the vehicle almost every day for a month prior to the murder. However in his statement of 31 May 2002, Sergeant Baker said that about 8.45 to 8.50 pm on 27 January 1998, he had seen Fred Saad move and park a red Falcon utility near the rear entrance to the Saad residence.
A number of the locals who said that they had seen the vehicle in the Lane previously, remarked that they had not seen the red utility since the date of the murder. On 2 February 1998 the red utility was found parked near Botany Drive in the Eastlakes area by Detectives Woolback and McMahon. Both detectives described the vehicle as appearing to be in "pristine" condition and said that it was towed to a police station where it was examined. Senior Constable Gordon recorded that on 2 February 1998 he saw the vehicle at Eastlakes, locked and appearing to have been recently polished inside and out.
The red utility was photographed and examined. A forensic examiner reported that the vehicle had some damage to a near side quarter panel and a small mark on the off-side of the driver's seat. A presumptive test, presumably for blood, of the mark gave a positive result and a swab was taken. Within Exhibit U, there is no information as to what happened to the swab or whether thorough inspection revealed that the vehicle had been cleaned to an unusual degree or with a substance called Armourall to which I make further reference below.
On 12 February 1998, Danny Saad was questioned about the vehicle by Detective Moubarak. He told the detective that he had sold the vehicle to someone named James whose surname he did not know and who lived up the lane in a house Danny could not identify.
In Exhibit U there is evidence that Fred Saad owned a Ford, generally described as a Falcon but sometimes as a Fairlane - grey or blue or a combination of these two colours A statement of a Graham Bayliss records that he is a former owner of such a vehicle, registered number, SPC-182 and, shortly after Christmas 1997 in the presence of a Mr Michael Grech, sold it to someone called Fred who came out of a garage about half way down Castlereagh Lane on the right hand side as one faces the city. On 28 January 1998, Mr Bayliss identified the garage to Senior Constable Gordon. Detective Carter confirms that the garage was at the rear of 60 Buckingham Street. Mr Grech's statement confirms such a sale but said that the person to whom the vehicle was sold to, was someone known to him as "Marko".
During the night of 28 January, the Falcon was deliberately burnt in a street in Surry Hills. A Margaret Johns said that shortly before she saw the vehicle on fire, she had experienced a strong smell of petrol in the vicinity and noticed a group of males nearby. When the fire started and she called out, the males, one of whom was carrying a petrol can, ran away. The males were described by Ms Johns and according to Sergeant Hall and another witness, Stuart McDonald, as Caucasian and of dark complexion. Police attended and in due course the vehicle was impounded.
Searches of 262 Chalmers Street and the garage behind were conducted by police on 30 January 1998. Nothing indicating the involvement of the Plaintiffs in the murder of Mr McPherson was found.
On 2 April 1998, there was another search of these premises and in the garage a chain attached to a piece of wood and with U-bolts through its links was located in the rear wheel of a go-cart chassis. Within Exhibit U there is no relevant expert evidence but a comparison of the chain and photographs of the marks to be seen on Mr McPherson's back, provides grounds for thinking that the marks were inflicted by the chain.
Apart from its location when found and a reference to it by Mr Roth, there is no other evidence linking the object with any of the Plaintiffs or other persons charged with Mr McPherson's murder. In a statement of 1 April 1998, Mr Roth remarked that when he was in the laneway some weeks after Mr McPherson's murder, he had seen a chain of a similar description picked up and thrown down by Danny Saad and that he had also seen it sometime later in the garage. When questioned about the piece of wood and attached chain after police had found it, Danny Saad denied ever seeing it before.
Pausing at this stage, the material to which I have referred - that of Messrs Olivera, Ezzy, Spicer, Dr Duggin and that relating to the ownership and absence of the red utility - provides strong grounds for thinking that Danny Saad was one of those involved in the attack on Mr McPherson and that the other attackers were or included some of his friends or associates. Some of Danny Saad's statements concerning the sale of the vehicle might well be regarded as lies told out of a consciousness of guilt.
The identity of his friends or associates seems not to have been the subject of specific attention in the preparation of Exhibit U although there is a deal of evidence including Listening Device records indicating that the friends and associates included his brothers Fred and Ashley, Sam Kassas, James Elwasfi, Gary Roth and Andrew Pound. Constable Hollingsworth who was attached to Redfern Police Station, said in a statement dated 12 September 2002, but which was not in Exhibit U, that Mr Elwasfi was an associate of Danny and Fred Saad and Sam Kassas.
In his statement of 1 April 1998, Mr Roth said that Danny Saad was very friendly with Sam Kassas. Constable McDonald in evidence before Magistrate Orchiston, said that he knew Mr Elwasfi to be an associate of Danny Saad. In a statement of 27 October 2003, Constable McDonald referred to the area around 262 Chalmers Street, Redfern being a crime "hot spot" and during some 2½ years at Redfern to having had extensive dealings with Danny, Fred and Donna Saad, Sam Kassas, James Elwasfi, Andrew Hoogwerf and Garry Roth and recalled arresting most of them.
In a statement of 30 July 2002, Mr Elwasfi acknowledged that he and a number of other people, including the other Plaintiffs and Danny Saad, used the garage.
Some further information in this regard can be found in the statement of a Mr Clemm contained in Exhibit U. Mr Clemm referred to hanging out at the Saad's, seeing "Camel" there occasionally and meeting Sam Kassas and "Shorty" there.
When arrested in April 2003 and asked if he intended to be interviewed, Mr Pound's response was: Who do you think you're talking to, you mad cunt. I'm not saying anything. They're my mates and I'd fucken die for them.
As I have said, the topic seems not to have been the subject of specific attention in the preparation of Exhibit U, but having regard to all of the material mentioned, it seems highly likely that the DPP could readily prove that Messrs Kassas, Elwasfi and Pound were friends or associates of Danny Saad. And although I do not need to rely on it here, it is relevant to bear in mind that the method of identification of the voices recorded via Listening Devices was by having Redfern police depose to knowing the identity and voices of the speakers. Furthermore, although Constable McDonald's statement of 27 October 2003 was after most of the arrests relied on in these proceedings, it seems likely that the Plaintiffs' association was a matter of common knowledge within the Redfern police station.
Exhibit U also contained four statements by Mr Roth. It contained one statement by each of Mr and Ms Holland under the pseudonyms "Witness 1" and "Witness 2" although substantial parts of each statement were blacked out. Mr Byrne's statement was made later and thus not in Exhibit U. It is not clear that the exhibit contained transcripts of the Listening Device recordings although these were referred to and had in any event been available in 1998.
There were four major aspects of the Plaintiffs case before me. One was that, because of Mr Roth's past, aspects of his evidence in the proceedings against the Plaintiffs, and the benefits he was offered or received, no reliance should have been placed on anything he said unless it was independently corroborated and there was no corroboration. The second was that the Listening Device recordings and the purported identification of the speakers were of little or no value. The third was that because of Ms Holland's mental history and state, inconsistency between Ms Holland's first and second statements and because she and Mr Holland had repudiated the contents of their statements, no weight could be given to anything they had said. The fourth was that no weight should have been placed on Mr Byrne. Mr Roth's Statements
On 27 January 1998, Mr Roth was boarding in a room of the Saad household at 262 Chalmers Street. He was spoken to there by police during a search of the premises on 30 January but his first formal statement to police was made on 1 April 1998. He made another statement on 16 April and then after being further interviewed provided statements dated 7 July and 7 August 2002. He provided a fifth statement on 5 November 2002 dealing with much of his past including psychiatric treatment, a drinking problem, medication and violence.
In his 1 April statement, Mr Roth gave an account of his activities on the night of 27 January including a two stage fight between him and another resident, Mr Mick Shepherd within the 262 Chalmers Street premises and hearing persons calling to him from the laneway. He went on to say that soon after the fight "Eddie and Sam Kassas came up the stairs" and then "we went back down to the laneway". In the laneway were "Eddie, Danny, Sam, "Shorty", but not Fred. The boys started talking in the course of which Sam said, "I stabbed him in the stomach and in the back", and Shorty said "I broke the baseball bat over his head."
(I have not mentioned "Eddie" previously. He may have been Eddie Clemm, although the latter denied having any knowledge of the murder of Mr McPherson.)
According to Mr Roth, on the next day Danny referred to having had a heated argument and a fight during which the bloke "bit me on the leg". Although the statement does not make the time of the conversation entirely clear, Mr Roth also said that Fred told him that he had burnt his Ford sedan. Mr Roth went on to say that he knew "from the newspaper that it was Surry Hills and it had been burnt because of fingerprints".
In the 1 April statement, Mr Roth also refers to Eddie and Shorty burning the broken handle of a baseball bat, and to Danny saying that he had to get rid of the ute and talking to someone about going over the whole car from top to bottom with "Armourall" to get rid of fingerprints. Later, after the red ute disappeared, Danny told Mr Roth that the police had it and he proposed to say that he had sold it.
The statement records that Mr Roth refused to be interviewed on a video machine, that he was frightened of Sam Kassas, the Saads and their friends, but was willing to sign the statement. He said that he had known the Saads and Mr Kassas for about four years and that Sam Kassas was Danny Saad's closest friend.
In his statement of 16 April 1998, Mr Roth said that on the morning "after the killing" he asked Fred, "Where's the Ford?" to which Fred replied, "We burnt it to get rid of our fingerprints". Otherwise the statement adds little to the information contained in that of 1 April.
The 7 July 2002 statement does not contain any information as to the circumstances of the attack on Mr McPherson. That of 7 August 2002 deals principally with a fight that Mr Roth says he had with Mr Elwasfi, a matter I deal with below when considering the Listening Device transcripts. However in that statement, Mr Roth also said that he remembered that one of the voices that had called out to him from the laneway on 27 January was that of Sam Kassas.
The first four statements of Mr Roth to which I have referred and a transcript of proceedings, principally Mr Roth's evidence before Magistrate Gilmour, were all contained in Exhibit U. Mr Roth's Evidence
Mr Roth gave evidence at the committal proceedings involving Mr Pound before Magistrate Gilmour in July 1998; on 15, 16 and 17 January 2003; in the committal proceedings involving the other Plaintiffs before Magistrate Orchiston on 15, 16 and 17 January 2003; in the voir dire before Newman AJ which commenced on 23 October 2003; again before Newman AJ in 2004; and for some 3 days before Sully J. His cross-examination before Magistrate Gilmour was reasonably confined but he was cross-examined very extensively, indeed an inordinate length, in subsequent hearings.
To a large extent, he adhered to his account of the confessions recorded in his 1 April 1998 statement. However in matters of detail there were some inconsistencies.
He said that Mr Pound's statement referring to the baseball bat occurred not at the same time as Mr Kassas' remarks but later in the laneway. In January 2013, he said that Mr Pound's remarks were made the next day. On 16 January 2003 he placed the time of being called to somewhat different from that asserted in the 1 April 1998 statement.
In his statement of 16 April 1998, he said in effect that it was on the morning of 28 January that Fred Saad said that he had burnt the Ford. Other strong evidence indicates that the burning occurred on the night of 28 January. Cross-examined before Magistrate Orchiston on the difference, he acknowledged having been told by the police that the Ford had been found burnt out and said that he guessed he "did verbal" Fred Saad in his statement". Later he agreed that he had made up the statement "We burnt it to get rid of the fingerprints". However, it is of relevance to record that Mr Roth was under a deal of pressure in this part of his cross-examination. He had earlier raised the possibility that what Fred Saad might have said was that they were going to burn the car and in the course of that part said that he had not meant to lie. It is at least arguable that "verbal" when used by Mr Roth did not have its traditional meaning and that his admission of verballing Fred Saad was not intended to indicate he had told an deliberate untruth.
Mr Roth also gave a number of other answers that, quite apart from his record, were calculated to damage his credibility. I see no occasion here to attempt to summarise all of these but examples also taken from the transcript of proceedings before Magistrate Orchiston include the following: Having said that he did not lie, he admitted to "little white lies" to doctors asking for medication and lying to the police to protect himself and when it suited him. In answer to a question, "You're prepared to sacrifice somebody else's freedom to save your own skin, aren't you, aren't you?", he replied, "Yes you could say that".
During the January 2003 proceedings, Mr Roth agreed that he could not actually remember the events of early 1998 and to give evidence about anything he needed to read his police statements. Later he said that he did remember the events. He accepted that in consequence of his history he has memory impairment. He said also that he had a good memory and remembered just about everything about what's happened in his life. Asked if he had ever hallucinated he said, "No I haven't" but asked in the next question, "Not even once?" he said, "Yes, I have". Elsewhere he said that sniffing paint thinners makes one hallucinate and accepted the he had been sniffing such substances for 35 years. Mr Roth - Circumstances of Statements
The circumstances in which Mr Roth came to make his various statements of April 1998 are not calculated to inspire confidence in them. On 31 March 1998, Mr Roth had been arrested and charged with a number of offences including malicious wounding and maliciously inflicting grievous bodily harm. Apparently the victim's skull was fractured. According to evidence he gave in January 2003, Mr Roth said that while he was in the cells at Newtown Police Station he was approached by Detectives McMahon and Woolbank who told him they wanted him to help with the murder at Redfern adding, "Maybe we can help you if you help us", and talked to him about getting a lighter sentence if he helped. He said that he was talked into making a statement. Giving evidence in October 2003, he agreed that he knew that the way to get a better deal was to give the police information that they wanted to hear.
In fairness I should add that Mr Roth also gave evidence that the Saads used to be friends of his and he didn't want to make statements against them. He was living with them on 27 January and said that he did not know what to do. They were also apparently suppliers of heroin to Mr Roth and though he said he left the area because of his conscience, he acknowledged that he had returned at some stage to score heroin.
On 1 April 1998 he was granted bail, the court being told he was helping the police on a more serious matter.
When asked during the course of court proceedings in January 2003 about the circumstances in which his 16 April 1998 statement was made, Mr Roth agreed that he had not wanted to go back to gaol and in fact obtained bail on that day. He gave evidence that his statement of 16 April 1998 was made in the context of police approaching him and saying that if he helped them, they would help him. He also agreed that by then he had worked out that the more statements he made and the more information he gave, the more benefits he received from the police and that he only assisted the police after he needed their help.
In 2002 Mr Roth was the subject of a warrant from the NSW Parole Board, parole having been revoked because Mr Roth had failed to report to a supervising officer. There remained only some 9 months for him to serve under the revocation. On 15 May 2002 Sergeant McLennan made representations to the Board to induce that organisation to rescind the revocation of parole that had led to the warrant and when this occurred, Mr Roth had no matters outstanding in New South Wales that would impact upon his attending in this State. In those representations Sergeant McLennan observed that Mr Roth was a pivotal witness in relation to Mr McPherson's death, adding that it was anticipated that without his involvement in the prosecution, there were no prospects of any conviction relating to the murder.
Sergeant McLennan, in company with a Detective Donohue, then approached Mr Roth where he was in another state, on remand and charged with arson, probably in gaol or possibly living in a squat, Sergeant McLennan first informed Mr Roth of the matters referred to in the immediately preceding paragraph and of the existence of a $100,000 reward. He did this in order to induce Mr Roth to reverse his previous stance of refusing to give evidence. Sergeant McLennan also told Mr Roth that they intended to write a letter to the DPP in the state where he then was to help Mr Roth in his forthcoming sentencing.
The police took notes and returned next day with a typed document for Mr Roth to sign. That document was the statement dated 7 July 2002 and in which Mr Roth indicated his willingness to give evidence again. Mr Roth - Criminal and Psychiatric History
Mr Roth has an extensive criminal record extending from 1975 when he was nearly 18. The record, which includes offences in Queensland and New South Wales, includes numerous offences of assault - before Newman AJ, Mr Roth said "26" - some involving the infliction of actual bodily harm, a number of offences of causing malicious injury or damage, breaking entering and stealing, taking and using a motor vehicle without the consent of the owner, and five of driving with an excess concentration of alcohol in his blood. Two of the charges of assault were, in January 1993, dismissed pursuant to s 32 of the Mental Health Act 1990. Another, dealt with in the Queensland Magistrate's Court on 3 December 2001, resulted in a sentence that included special conditions which were to "undertake such medical, psychiatric and/or psychological treatment to include inpatient treatment to address mental health and alcohol abuse problems as is considered appropriate".
There are also recorded offences, one committed in each of 1982, 1983 and 1984 of using number plates calculated to deceive, stating a false name and place of abode, and fraudulently using a driving licence. A number of the offences were committed in 1997.
In addition to Mr Roth's criminal antecedents, he had some other attributes that militated against his reliability and credibility. He had taken to sniffing glue or paint thinners when he was 14 and become addicted. He had a very extensive history of admission to psychiatric hospitals or for problems associated with his mental state. A discharge summary from the Macquarie Clinic, Liverpool Hospital, records admissions there in 1976 for depression and anxiety, in 1982 for schizophrenia and in 1984 for glue addiction and substance abuse. His discharge in 1982 was while he was "AWL". A report of a clinical psychologist, Mr Graham Trembath, of 18 February 1982 indicated that short term memory and concentration appeared impaired and symptoms were consistent with early stage schizophrenia.
Another note records that Mr Roth was admitted on 19 March 1982 and discharged on 30 March 1982, that he was brought in on a Schedule 2 from the Campbelltown Area Health Service, diagnosed as suffering from schizophrenia but not presenting with schizophrenic features on admission, that he absconded before formal testing could be done, and that he had repeatedly absconded and brought back paint thinners.
In July 1982 Mr Roth was admitted to the Parramatta Psychiatric Centre under the Inebriates Act 1912. The admission seems to have been inspired by orders or suggestions at the Campbelltown or Camden Magistrates Court. A psychology report of August 1982 recorded that Mr Roth's IQ placed him within the "borderline retarded range" and testing suggested the possibility of organic brain damage.
In October 1982 a discharge summary from the Parramatta Psychiatric Centre referred to Mr Roth as having a personality disorder and continuing to be "unmotivated to do anything about his addiction to paint thinners, which was quite evident by his blatant lies when caught red-handed abusing alcohol and other substances on the grounds of the hospital".
A report of 23 March 1984 of Andrea Grom, psychologist at the Cessnock Correctional Centre, recorded many abnormalities in Mr Roth's thinking and conduct but concluded there was "little evidence to suggest any form of brain damage". A "psychiatric in-patient review" from the Liverpool District Hospital which appears to be dated 14 May 1984 recorded Mr Roth's memory as "unimpaired" and that auditory hallucinations, being musical sounds, were no longer present.
On or about 16 July 1984 Mr Roth became an inpatient at Morisset Hospital consequent on a bail condition imposed at Camden Local Court. The principal diagnosis was alcohol and glue thinners addiction and mild organic brain disease and that he had suffered some decline in cognitive abilities. He was recorded as having a poor short term memory although a psychologist who tested Mr Roth on 9 August 1984, recorded that his memory functioning was normal. Mr Roth denied hallucinations.
Hospital notes, the date of which is not clear but appears to be 16 July 1984, records that his memory is "grossly intact". Other notes of 18 July said Mr Roth appeared to "have a poor short term memory". A report of Ian Gale, psychologist, recorded that Mr Roth's memory function is in the normal range although he obtained a very low score on a sub-test and his pre-morbid functioning level was at least in the high normal range. The report went on to suggest Mr Roth had suffered some decline in cognitive abilities from pre-morbid levels and that some of the decline might well be attributable to abusing paint thinners.
The Morisset Hospital records state that on 13 November 1984 Mr Roth's Probation and Parole officer contacted the hospital and reported that Mr Roth had returned to his drug abuse pattern.
On 24 April 1987, Mr Roth was taken to the Macquarie Clinic by Police, intoxicated, disorientated and somewhat incoherent. He was found by Police while trying to break into a car. He claimed he had seen his friend trapped in the car when, in fact, there was no-one inside the vehicle. He seems to have been at the Clinic again on 14 June 1987 and 19 July 1987.
On 10 September 1987, he was taken to the Liverpool Hospital. On examination he was found unable to give a coherent history, his thoughts were confused, he believed he was James Bond and he said he had been hearing voices. A discharge summary from the Cumberland Hospital of or about 1 December 1987 indicated he had been admitted on 31 October 1987 for detoxification from alcohol, that five days into his admission he exhibited clear signs of hypomania, that he was seen by a neuropsychologist who felt he functioned in the average range intellectually but had some mild problems which could be due to hypomania and there was subsequent deterioration consistent with this. The report records that Mr Roth discharged himself saying he wished to leave "to get drunk".
In 1988 he was admitted to the Cairns Base Hospital after Police had attended his residence finding "it stank of stale food thrown around and liquid cleanser, coffee, soft drink, butter, eggs all over the floor". The fridge was opened and the stove was pulled out and also thrown on the floor. Mr Roth was observed to be drowsy, slurring his voice and staggering.
Inpatient notes of August 1988 from that hospital, recorded that Mr Roth admitted to having treated his flat that way but didn't know why. A report of a Dr Fama, psychiatrist, of November 1988 referred to a normal level of intelligence but a history indicating severely disturbed personality with anti-social and possibly paranoid traits, perhaps aggravated by psychotic disorder and certainly worsened by alcoholism. The report recommended his confinement to a psychiatric institution.
A February 1989 report from a psychiatrist, Dr Young, said that in Dr Young's opinion Mr Roth was suffering from bipolar disorder and a manic episode in partial remission, alcohol dependence, borderline intellectual functioning and possibly an anti-social personality disorder. Notes of 5 December 1989 from that hospital record him as "talking gibberish".
An 18 December 1989 report from the Psychiatric Registrar at the Cairns Hospital said he had been admitted there on 3 December in an acute psychotic state.
In 1990 he was again in the Cairns Base Hospital having been observed to be hitting cars "because he thought they were stolen". On admission he became physically violent. The hospital notes refer to him drinking alcohol. Notes of 26 May 1990 from the Cairns Base Hospital said that Mr Roth "claims he hears voices quite regularly - feels he becomes possessed". A, possibly provisional, diagnosis referred to an "acute psychotic episode alcohol related".
Further notes of 30 May 1990 recorded that Mr Roth was calm and rational saying that alcohol was the cause of his behaviour and that he was determined to avoid alcohol in the future. Notes of a further admission, probably again to the Cairns Base Hospital, record that he had interrupted a wedding ceremony with chains and a knife.
A report from the Medical Superintendent of that hospital dated January 1991 records that "even as an inpatient, he absconds continually from what is virtually an open ward, abuses solvents", and there is a resulting deterioration in his mental state.
On 10 March 1992 there seems to have been an unsuccessful request made by Constable Dorrough of Petersham Police Station for Mr Roth's admission under the Mental Health Act 1990. A further request for admission dated 18 April 1992, this time by Sergeant Hickson, recorded Mr Roth holding conversations with the room heater and chairs in the enquiry section of a Police Station.
An affidavit of 13 October 1992 by Sergeant Norris of Petersham Police clearly directed to having Mr Roth admitted under the Inebriates Act 1912 recorded him attending the Police Station on numerous occasions, intoxicated, in his underpants and with a knife down the front and requesting the Police to shoot him. Sergeant Norris said that over the previous 9-12 months, Mr Roth appeared to be losing control of his coordination, especially his head and facial movements. On 13 October 1992, a Magistrate ordered Mr Roth be placed in a State Institution for the Reception of Inebriates. (I should add that under cross-examination on more than one occasion concerning the suggested conduct while in his underpants, Mr Roth was vehement in his denials.)
He seems to have been admitted to the Rozelle Hospital in October 1992. Notes of 13 October record two previous short admissions. On 15 October he denied hallucinations but was unable to give a clear account of his past. Notes of 19 October record that he remained fairly settled in his behaviour.
Tests at the Rozelle Hospital in November 1992 led to the opinion that Mr Roth exhibited paranoid and psychotic symptoms but his memory deficit was limited and it was only immediate memory span which was significant. Tests indicated schizophrenia to be significant. Mr Roth seems to have been again taken to the Rozelle Hospital on 15 December 1992 after causing a disturbance. At the time he was "intoxicated, cognitively impaired and unable to give a clear account of recent events".
Mr Roth seems to have been admitted to the Rozelle Hospital again in May 1993 after fighting with an imaginary enemy in his room, accumulating match heads to make a "pipe bomb" and attacking a shopkeeper because "I hate Vietnamese". The hospital notes record that on 11 January he was determined unfit to plead under s 32 of the Mental Health Act 1990.
Cumberland Hospital records record Mr Roth's admission to the hospital on 31 October 1997 and contain a note "finding it harder to remember". He was said to be suffering from alcohol withdrawal. On 7 November 1997 nursing notes record "pressure of speech, tangential conversation and hypomanic symptoms". Further nursing notes dated 11 November 1997 indicated his IQ was at the level of "borderline retardation" and on 30 November that he was very disruptive.
A psychological examination on 13 November 1997 recorded he was currently functioning in the average range intellectually, that learning and memory functions were intact despite complaints of memory difficulties. Hypomanic symptoms are referred to, though it is said that at age 41 the development of hypomania for the first time would be unusual. It suggested that any hypomania would be due to substance abuse induced mood disorder.
Arrangements were apparently made on behalf of the DPP to have Mr Roth psychiatrically examined on 13 January 2003. A letter from Dr Skinner, undated but shown to have been of that date, said that she did not find any evidence of mental illness or that Mr Roth was suffering any mental condition that would prevent him from giving evidence. Dr Skinner gave evidence at the committal proceedings that occurred during that month. She said the she had examined material she had been given and which clearly included prior psychiatric and hospital reports and notes. She acknowledged that at times Mr Roth had been diagnosed as having a mental illness and that at times he might have been insane. However when Dr Skinner saw him in January 2003 she saw no clear evidence of an underlying mental illness and saw nothing in the prior reports to indicate underlying mental illness as distinct from substance abuse. Dr Skinner opined that the prior reports were provisional. She did not think that Mr Roth was delusional. She accepted that he was intermittently violent and had a personality disorder.
Dr Skinner's letter of 13 January was admitted but not as evidence of the truth of its contents or of Dr Skinner's opinion. Having regard to the general approach taken during the hearing generally to the limits on the use to which many aspects of the evidence could be put, there is much to be said for the view that, quite apart from the general principle concerning evidentiary rulings, that ruling was tentative. Indeed counsel for the Plaintiff in his written submissions on the topic provided during addresses seems to have proceeded on the basis that no ruling had been made and wanted one in similar terms.
The complexities inherent in ruling as to the use that could be made of various types of evidence led to the topic ultimately being left until these reasons. In that situation it seems to me that I should treat Dr Skinner's letter or report in the same way as other medical evidence and admit it for all purposes. Mr Roth and Mr Shepherd
Another issue that arises from the contents of Mr Roth's 1 April 1998 statement, is inconsistency with an account given by a Mr Michael Shepherd. In his statement of 1 April, Mr Roth said that it was dark and he thinks about 8pm that he first approached Mr Shepherd within the premises at 262 Chalmers Street, and then the fight with that person began. According to Mr Roth it was one minute before the fight that he heard voices calling him from the laneway.
Mr Roth said that Mr Saad senior stopped his fight with Mr Shepherd, Mr Shepherd went to his room and then returned with an iron bar. There was more violence, Mr Saad Senior again intervened and Mr Shepherd left for the night. It was minutes after this that Eddie and Sam Kassas came up the stairs.
Mr Shepherd places the fight at a different time. He says it was about midnight or just after midnight that the fight commenced. He does agree with Mr Roth that there was a break after which he returned with an iron bar and after things settled down he left. He also said that when he had the fight with Mr Roth, he did not hear anybody calling out.
Mr Shepherd does say that on 30 January he had a conversation with Mr Roth in which Mr Roth said that he was lucky he was fighting with Mr Shepherd when the boys were calling for Mr Roth's help as otherwise, he would have been involved with the other fight in the laneway and the Police would be after him for murder.
The significance of the conflict between the two accounts arises because the evidence shows that the attack on Mr McPherson occurred shortly before 10pm. Paramedics received calls at 9.53 pm.
Apart from Mr Shepherd's evidence as to the conversation on 30 January, there is nothing in the evidence that enables me to make a decision as between the statements of Mr Roth and Mr Shepherd as to the time of their fight. However that conversation does tend to favour Mr Roth's account. Roth - Other matters
There are some other matters concerning Mr Roth that should be mentioned. As has been said, he declined to give evidence at the committal proceedings that took place in October 1998. In his statement of 7 July 2002 Mr Roth gave as a reason for this that he didn't want to give evidence at that time, continuing, "I had been bashed in Wollongong and the Police did nothing to help me". His statement continues: "I am now willing to give evidence again in this matter, because I am one of Gods faithful followers and in the Ten Commandments it says 'Thou shalt not kill' and that's why I gave evidence to start with and that's why I want to give evidence again." (sic)
During her reasons for committing Mr Pound for trial, Magistrate Gilmour remarked, as I have said, that Mr Roth's evidence was "pivotal", that he was "clearly a rogue" but that she had found him to be "frank", "spontaneous", "believable and credible".
When Magistrate Orchiston committed Messrs Elwasfi and Kassas and Ashley Saad for trial he gave no reasons beyond findings that he was satisfied that the evidence was capable of satisfying a jury beyond reasonable doubt and that there was a reasonable prospect of a jury convicting them. During the course of those proceedings, Constable McDonald who had worked at the Redfern Police Station for an appreciable period and who had arrested Mr Roth, gave evidence that Mr Roth had many problems and agreed with the propositions that: Q. And it was painfully obvious to anybody who spoke to him for any length of time that he had some problems, would you agree? A. Yeah, correct. Q. And I will go so far as to say this. Nobody in their right mind, having spoken to Mr Roth for a relatively short period of time would form the view that he is normal, would you agree? A. Yeah, correct.
In the course of his voir dire ruling as to the admissibility of evidence, Newman AJ remarked that while Roth's evidence taken at its highest was of high probative value, he had difficulty in accepting Roth as a credible witness.
Tendered before me were "mug shots" of Mr Roth taken on one occasion of his arrest. While conscious that they but reflect Mr Roth's appearance at one particular time and that appearances are liable to be an unreliable indication of the reliability and credibility of the person photographed, they certainly do nothing to inspire confidence. Indeed they argue to the contrary.
During the course of cross-examination before Sully J, Mr Roth agreed that the reason he advanced for refusing to give evidence at the second lot of committal proceedings was that the police had not properly investigated an assault on him in Wollongong but that in fact he had never reported the assault and hence the reason advanced had been untrue. Listening Device Evidence
Soon after Mr McPherson's murder, police installed a number of listening devices on the phones of the suspects and one in the garage to which reference has been made. Those on the phones produced nothing of significance. The one in the garage was monitored 24 hours a day and a recording device was continuously running. Conversations detected by those devices were listened to by police officers as they occurred and also recorded on a second "highlight tape" if they seemed significant. (The device suffered from the disadvantages that its presence was discovered and anything that was transmitted suffered from the difficulty that the device had been installed in or near the cage of a noisy bird.)
At the various stages of the criminal proceedings against the Plaintiffs, the Crown sought to use extracts from that second recording device. Even in the case of those extracts there are extensive gaps and much of what was recorded is unclear. Expert techniques were used to enhance the recordings and while some of the sounds detected are reasonably clear, much remains inaudible or indecipherable. In due course transcripts of the recordings were made.
There is no doubt that by listening to the recordings, the voices of a number of persons can be detected but as is to be expected, in general the speech recorded did not reveal the identity of any particular speaker. The task of identification was undertaken by police officers who listened to the recordings. Passages appearing in the transcript were then ascribed to persons so identified.
Some twelve of those transcripts were regarded as significant and came into evidence before me as Exhibit 1 (although the transcript of proceedings before me does not seem to record the fact). Further copies are in volume 4 of the Court Book. Only five of the twelve seem to me to have any possible relevance and, subject to the issue of speaker identification which I deal with below, they and my view of the corresponding transcripts, can be summarised as follows.
30/1/98 - 4bjl The voices are attributed principally to Sam Kassas and to one or more "male voice(s)", there also being attribution of a few passages to James Elwasfi and Fred Saad. The conversation recorded is directed to the subjects of fingerprints on a utility and the cleaning of that vehicle, "Armourall" being suggested, and indicates concern at the fingerprints of one or more persons in the group being found by police. Mr Kassas is recorded on page 4 of the transcript as saying, "Freddy no … done for murder …" but more significantly on page 2, following mention of the vehicle, Mr Kassas and Mr Elwsfi are recorded as saying: SAM KASSAS: Yeah that's what I was thinking… looks abandoned, someone rings up straight away, trust me the chances are someone will report it abandoned or shifty, because someone - the Cops will be down there like… (Inaudible conversation) SAM KASSAS: … it's an abandoned car Gary … They can almost can see we've done it, … and no ones gone near it, give em fifty bucks two Armourall bottles and a bucket of water, two tea towels… bucket, two of them over the whole interior… two hands on top of the engine. Over the seats, over the steering wheel, the column, the ignition, the doors and the windows… (Inaudible conversation) ELWASFI: What about underneath it, the diff and … they won't get prints offthere man.
In its terms, the remark, "They can almost see we've done it" is an admission that the speaker had done something of interest to the police and, given the conversation was but 2 days after the murder or Mr McPherson nearby, the earlier references in the recorded conversation to a utility and the other evidence of a red utility being present at the time of the murder, the recording if accurate provides significant evidence of the speaker's participation in that murder. Otherwise, particularly in light of the post-murder absence of Danny Saad's utility from Chambers Lane and it being found in a cleaned state, the transcript is incriminatory of Messrs Kassas and Elwasfi. However, that other incrimination is just as consistent with their being accessories after the fact or satisfying the knowledge requirement for the offence of concealing a serious offence as it is with their involvement in the murder itself. (I may perhaps add that presumably the police had available to them more information as to the extent of cleaning of Danny Saad's vehicle, and what products had been used in that exercise than was disclosed in Exhibit U. However, as the nature of any such further evidence was not the subject of evidence before me, I shall ignore the possibility.)
The transcript of this tape occupies 4 pages. The audibility of the recording purporting to be reflected on pages 1 and 2 of the transcript or of those pages of the transcript is poor but not so poor as seems to me to justify its and their exclusion from evidence. On the other hand so much of the recording represented by pages 3 and 4 was inaudible or indecipherable as to make those pages practically meaningless.
However, having listened to the passage on tape about 20 times I am unable to hear the words "they can almost see we've done it". Some of those words can be heard but insufficient to conclude that the speaker was making a statement to the effect of those words.
30/1/98 - 5bjl The words are attributed principally to Gary Roth asking what "you" are going to do with the red ute and whether it is going to be torched. Someone, said to be Fred Saad, tells Mr Roth to shut up as he talks too much. The transcript indicates some knowledge on the part of Mr Roth and possibly Fred Saad of the involvement of the "red ute" but in its terms the transcript does not otherwise provide evidence of involvement in the murder.
The transcript of this tape occupies half a page. There is nothing apparent about the quality of the recording purporting to be reflected on this transcript that seems to me justify its exclusion from evidence.
2/2/98 - 57bjl In part the transcript reads:

MALE VOICE: Look, the last time he had a pole he went for the legs…

ELWASFI: Yeah, 'cause fucking that was Gaz - HOOGWERF: That's even fucking more reason to go for the fucking head. He's a fucking machine. I was trying to fight with a robot. ELWASFI: He's a robot that cunt, I'm telling ya - HOOGWERF: You know what he done, he bent one of his fucking fluid fucking things that's… one of his hydraulic fluid caddies, I saw him bend it mate I swear. Ruptured it a bit. MALE VOICE: … HOOGWERF: Yeah man, have you seen his leg, tree trunks man, go hit a tree trunk to see what you do to it. ELWASFI: No but honestly, Gaz knows mate, cause… I got him across there, he would have known about it mate. No you hit em on the kneecap I got him there, that much I needed there. HOOGWERF: … ELWASFI: … cause you can't miss … off the head, the shoulder, but you won't … the arm, bring his arm down, break his arm, it's just all bone, straight bone there. KASSIS: Hey, I had a knife right, this cunt launches at me, I'm wrestling with him with the knife, he just body slams me. I don't know what done so boom, body slams me. I had the knife in my hand and … he's trying to fucking … could have just gone boom, boom, boom.

There were also passages attributed to Ashley Saad although these do not suggest any involvement by him in the murder. "Gaz" was a nickname given to Mr Roth although I am by no means sure that the first "Gaz" reference accurately reflects what can be heard on the tape.
The transcript of this tape occupies a little over 2 pages. There is nothing apparent about the quality of the recording purporting to be reflected on these pages or of the transcript itself that seems to me justify their exclusion from evidence.
13/2/98 - 214bjl The voices are attributed to Mr Pound, someone named "Riley" and one or more "unknown male(s)". There was discussion about being sent to various Juvenile Prisons and the transcript includes the following: RILEY: If you escape from Cobham they chuck you in Minda, if you escape from Minda they chuck you in Kariong. HOOGWERF: Oh yeah I suppose so. MALE VOICE: People for murder and things like that. MALE VOICE: What are you trying to prove? HOOGWERF: It doesn't matter see, if I got done for murder I'll still go to Reiby, you know what I mean.
Particularly given the subject of murder was introduced by someone other than Mr Pound, there is nothing in this transcript incriminatory so far as Mr McPherson's death is concerned.
The transcript of this tape occupies marginally over 1 page. At the beginning of the recording purporting to be represented by these pages there is short conversation inaudible or indecipherable but otherwise there was nothing apparent about the quality of the recording purporting to be reflected on this transcript or of the transcript itself that seems to me justify their exclusion from evidence. Given the terms of what is transcribed there is no reason to think that the passages I have quoted were likely to have been qualified by the conversation not transcribed.
3/3/1998 - 32/45bjl The voices are attributed to Danny and Donna Saad, Mr Pound, Gary Roth and one or more unidentified males. On page 1 of the transcript there is mention of an engine, touching it and the use of a "chain thing", but there is nothing said to link any of these events to the offence against Mr McPherson. On page 2 the transcript includes the following:- DONNA SAAD: "You know Arthur, Arthur Crowler (?), yeah, he told us - he told us that all you guys fucking stabbed some guy … in the newspaper and yous were all in goal - yeah that's why I came down to seen you guys because we though (sic) the heat was on you know - yeah they told us hey. DANNY SAAD: Got a fucking big mouth that cunt.
Although in some circumstances a failure to deny an allegation constitutes an admission of it, the absence of evidence of the surrounding circumstances and the statement "yous were all in goal" when that was not the situation at the time of Mr McPherson's death make it impossible to regard the absence of any denial by Danny Saad as an admission of involvement in the stabbing of Mr McPherson. Otherwise there is nothing in this transcript incriminatory of involvement in Mr McPherson's death.
This transcript occupied parts of 5 pages. There is nothing apparent about the quality of the recording purporting to be reflected on page 1 of the transcript that seems to me justify its exclusion from evidence. On the other hand much of the recording that follows is so inaudible or indecipherable and there is so much omitted from the remaining pages that I would have regarded them as inadmissible on that ground.
In the immediately preceding paragraphs, I have largely expressed my conclusions by referent to pages of the transcript of the tape recordings. I would extend those conclusions to the corresponding parts of the tapes. I want to make it clear also that when making remarks concerning admissibility and inadmissibility, I have been referring to admissibility and inadmissibility in a criminal trial, not in the current proceedings.
There was further evidence said to relate to the conversation recorded on 2 February 1998. During the committal proceedings in July 1998, Mr Roth said that he had been in two fights with Mr Elwasfi in one of which Mr Elwasfi had threatened him with a rusty knife and hit him with a piece of square pipe.
On 30 July 2002 Mr Elwasfi gave evidence to the Crime Commission. He said that that conversation referred to in tape 57bjl related to a fight he had had with Mr Roth and provided some details of the fight. Included in those details was a reference to Mr Elwasfi picking up a "rectangular metal pipe". On the same day Mr Elwasfi also made a statement to police. In that statement there is an account of the fight including a reference to Mr Elwasfi picking up a hollow steel pole "square in shape".
Mr Roth's statement to police dated 7 August 2002 and which was taken in Queensland also dealt with the topic of a fight with a person he knew as "Camel". Mr Roth said this fight occurred about a month before Mr McPherson's death in what may be referred to as the Saad garage and said that "Camel" had a rusted "little folding knife with a blade about three inches long". Others present broke up the fight, and the contestants went into the laneway. In the lane, according to Mr Roth's account, Camel had a length of square hollow pipe about a metre long and an inch square with which he hit Mr Roth on the calf of his left leg.
The summary of Mr Elwasfi's hearing before the Crime Commission observed that "Elwasfi seemed to have been exceptionally well prepared for the hearing. From the outset Elwasfi was intent on explaining the LD transcript. Whether this was because he had viewed the brief for the case against Danny Saad and Sam Kassas in 1998 or had reviewed it in recent days is unclear". Whatever be the situation in that regard and although there are differences in their several accounts the similarity in them suggests that in those accounts both person are talking of the same incident and one which, if Mr Roth has any credibility, occurred.
The transcript contains two references to "Gaz" and thereby suggests that "Gaz", a nickname for Mr Roth, was a participant or at least present. On the other hand there is nothing in those accounts to explain any involvement by Mr Pound or Mr Kassas or to account for the statements attributed to Mr Pound, "I was trying to fight with a robot" and to Mr Kassas near the end of the transcript. Thus, although they may well have had a fight as Mr Roth and Mr Elwasfi assert, such an incident does not account for the words attributed to Mr Kassas towards the end of the conversation recorded on tape 57 bjl and which clearly implicate Mr Kassas in an unspecified fight in which Mr Kassas was armed with a knife. Occurring as the conversation recorded did, 6 days after Mr McPherson was stabbed, in my view it provided some evidence of the involvement of one or more of those who participated in the conversation in Mr McPherson's death.
To those remarks I should add some qualifications. Firstly, the absence of reference in the taped conversation to others who would seem to have participated in the attack on Mr McPherson clearly provides grounds for arguing that the conversation does not relate to that incident. The references to "Gaz" may argue in the same direction although, as I have said, I am by no means sure that the first reference accurately reflects what can be heard on the tape. So far as I am aware there was no evidence to the effect that Mr McPherson had legs like "tree trunks" or linking the injuries he suffered to the blows described on the tape. While I have taken the view expressed in the immediately preceding paragraph, I am by no means confident of it.
Before I leave this topic I should record a submission made on Mr Elwasfi's behalf to the effect that in considering his evidence to the Crime Commission I should start off with the proposition that his evidence was likely to be truthful. Mr Elwasfi has been addicted to drugs and has a significant criminal record: His response to Sergeant McLennan when asked on 23 August 2002 if he wished to make a statement also argues for him preferring his own or his friends' interests rather than justice or decency. I do not make the presumption sought.
I am conscious that, in expressing the views I have as to the audibility, decipherability and admissibility of the tapes, I am differing from the views expressed by Sully J and which I have set out circa [31] above. I do so with reluctance because of the respect to which any views of Sully J are entitled. Certainly his Honour was correct in remarking that large portions of the tapes are inaudible or indecipherable. However I see no ground for concluding that what can be heard might be qualified to any significant degree by what cannot.
(It may be that I can derive some support for my view from the fact that Newman AJ seems to have listened to the tapes and regarded some as very clear - see CB 17.046. See also his reference to "listening device material" at CB 17.236, an expression which I would interpret as encompassing the tapes. However it is not clear that page 17.046 is in evidence before me and accordingly I do not rely in this respect on what occurred before Newman AJ or his Honour's remarks.)
Be that as it may, in the present proceedings the decisions are mine and I must act in accordance with my own views. I should also record that I have seen nothing in the material which should have informed the various persons responsible for the institution or maintenance of the prosecution that there was any reasonable likelihood of the decision such as Sully J made in respect of all the Listening Device material. In that connection it may be noted that the tapes were tendered and played before Newman AJ and there was no rejection, of them on the ground relied on by Sully J. Indeed before Newman AJ the ground relied on by Sully J was not even advanced by the counsel who then appeared and a number of whom were of considerable experience.
Of course the prosecuting authorities had a responsibility to assess the worth of that material insofar as it afforded evidence of the guilt of the Plaintiffs here and their suggested co-offenders. That worth was not, and in my view could not have been reasonably regarded as, higher than I have assessed it.
It may indeed have been less, depending on the quality of the evidence available as to the identification of those to whom the potentially incriminating passages were attributed. To that topic I now turn. Speaker Identification
Included in Exhibit U was a statement dated 10 July 1998 by Constable McDonald wherein he said that on 6 July 1998 he listened to ten audio cassette tapes and recognised certain voices whilst listening. Typical of the way the statement was expressed was the following: On tape number 2, I recognised the voices of Fred Saad, Donna Saad, Sam Kassis and Ashley Saad. On tape number 3 I recognised the voices of Sam Kassis, Fred Saad and Ashley Saad.
In his statement Constable McDonald did not otherwise identify the tapes or the passages he attributed to each of the persons named. However, immediately following his statement are copies of the transcripts to which I have referred and counsel for the Plaintiffs did not dispute that I might infer that Constable McDonald was referring to the tapes the subject of those transcripts.
A statement of Detective Rudens of 10 July 1998 was to the effect that Constable McDonald identified the speakers while listening to the tapes and that transcripts were marked accordingly. However, according to that statement it was not until later that evening that transcripts of the recordings were made. In a further statement of 23 June 1998 Detective Rudens said: On many occasions I was occupying the Listening Post, I heard a distinct adolescent male voice. I recognise this voice as Shorty. On Highlight tape 214 I recognise Shorty's voice as saying, "If I got done for murder." I know this voice to be Shorty's voice because I have heard others refer to the voice as Shorty.
Exhibit U contained statements of a number of other police officers as to their manning of a Listening Device post and movement of the tapes but the only other statement that dealt with the topic of identification of speakers was by Constable Schott who indicated that he had monitored conversations on 2 days and recognised the voice of a number of persons. His statement referred to production of the logs and tapes of those days but does not in terms identify the speakers.
That was the extent of voice identification in Exhibit U. There was no indication of the foundation for the identification of the voices mentioned. During proceedings before Magistrate Orchiston and later before Newman AJ there was extensive cross-examination of these witnesses. It then appeared from the evidence of both Constable McDonald and Detective Rudens that there were no transcripts at the time Constable McDonald made his voice identification. According to Detective Rudens, in the preparation of the transcripts "numerous" other police officers including Constable Schott purported to identify one or other of the speakers.
Later, further statements were prepared. On 12 September 2002, Constable Hollingsworth recorded that he had listened to the two CDs and read the corresponding transcripts which he said were accurate. He said that he recognised the voices of, inter alia, Fred, Donna, Caroline and Ashley Saad, Sam Kassas, James Elwasfi and Gary Roth having previously spoken to them. Constable Hollingsworth did not list as persons whose voice he recognised, Danny Saad or Andrew Pound although he had earlier said that the voices listed in Constable McDonald's statement of 10 July 1998 were the same voices he recognised. Two of those referred to in Constable McDonald's statement were Danny Saad and Andrew Hoogwerf.
In his further statements, Detective Rudens added nothing of present significance. In evidence before Newman AJ, Detective Rudens acknowledged that he had never spoken to Mr Pound, and could not identify Mr Kassas' voice, but he also said that he could identify Danny Saad's voice
I have previously referred to a statement of 27 October 2003 wherein Constable McDonald indicated that during the period November 1996 to March 1999 he had extensive dealings with, inter alia, Danny, Fred and Donna Saad, Sam Kassas, James Elwasfi, Andrew Hoogwerf and Gary Roth and recalled arresting most of them. He said that the basis of his voice identification was the contact he had had. (This statement of Constable McDonald was admitted before me on a limited basis that it was information in the possession of the police as at 27 October 2003 but the limitation is of no consequence for present purposes.)
I have referred to a statement of Constable Schott in Exhibit U wherein he had said that he recognised a number of the speakers whilst contemporaneously monitoring the Listening Devices. In a statement of 3 November 2003, Constable Schott said that he was familiar with the voices of most of the Plaintiffs, having spoken to each of Danny and Fred Saad, Sam Kassas and James Elwasfi on at least forty occasions and to Andrew Hoogwerf on no more than twenty occasions.
For completeness I should add that contemporaneously with the voices being recorded, notes were made by police at the time in Listening Device Logs in some of which they purported to identify persons present or speaking. Those logs add something but not much to the identification evidence to which I have referred. The same remark might be made concerning the statement of 10 October 2003 of Mr Roth in which he records listening to tapes and identifying the voices of Danny and Caroline Saad and perhaps that of Mr Elwasfi.
When all of this evidence is taken into account, there is clear justification for taking the view that the authors of the statements recorded on the Listening Devices were those nominated in the transcripts and that that fact could be proved. The matter is not so obvious if the time of any judgment is earlier than October and November 2003. However, even at the time of Exhibit U, August 2002, those responsible for the prosecution might reasonably have inferred from the statements of Constables Rudens and McDonald that the identification was based on familiarity with the speakers and the transcripts accurately recorded the speakers and those matters could be established. Constable Hollingsworth said so in his statement of 12 September 2002.
And although I do not need to rely on it, when regard is had to Sergeant McLennan's association with that station, to the fact that his investigation was centred around Redfern and to the attention of Redfern police that the Saads and their associates had obviously attracted, I would readily infer that Sergeant McDonald almost certainly became aware of that attention and its incidents, including familiarity with at least many voices. I would not be deterred from this conclusion by Sergeant McLennan's evidence that before the McPherson matter he had never dealt with the Saads.
In the proceedings where the Listening Device material fell for consideration, criticism was made of the fact that the voice identification that occurred in relation to the Listening Device transcript was not effected by scientific analysis, and there was no comparison of the voices heard with other recordings the police may have had of the voices of the person said to be the speakers. It was suggested that the methodology used rendered the evidence liable to be excluded on the basis that the evidence of prior involvement of those accused with police was liable to be unfairly prejudicial, and render the Listening Device evidence inadmissible.
While undoubtedly the criticism referred to in the first sentence of the immediately preceding paragraph was open to be made in any trial, where defence counsel commonly seize on any argument that suits their case, it is not one to which I would give much weight or consider that Sergeant McLennan or the DPP officers had to. Sufficient answer to the contention in the second sentence is in my view afforded by the remarks of Newman AJ on 21 November 2003 in holding that a deal of challenged evidence was admissible. In connection with the Listening Device material his Honour observed: In relation to all of the accused who are identified on the material I am of the view that the material is indicative of knowledge on behalf of those accused identified by the events in question and is therefore probative. As far as the mode of voice identification is concerned I agree that this is in some ways unsatisfactory. If it follows that Constables Schott and the now Mr McDonald would have to reveal that their familiarity with the various voices of the accused which they identified came about as a consequence of their activities as police in the Redfern area. Be that as it may, I am now of the view that any prejudice can be outweighed by direction given under section 165 of the Evidence Act to which I have earlier made reference. The transcripts are admissible under sections 47(2) and 48(1) of the Evidence Act. Accordingly, the challenges made to the admission of the listening device material are also rejected.
It will be apparent from what I have said when reflecting on the content of the transcripts that I do not agree with the first of these quoted paragraphs, at least in the generality in which it was expressed. However I do agree with the second.
Furthermore there could be no certainty that, at the risk of unfair prejudice, counsel for the various accused would have challenged the voice identification, particularly if counsel had formed the same impression of their probative value as I have. Accordingly, I do not regard the possibility of a challenge to the admissibility of the tapes or transcripts based on the methodology of identification or the possibility of unfair prejudices as arguing with any significant weight against the apparent strength of that evidence.
For completeness I should add that before Magistrates Gilmour and Orchiston only the transcripts, and not the tapes, were tendered. Magistrate Orchiston made no presently relevant remarks but Magistrate Gilmour remarked of the transcript of tape 214bjl of 3 March 1998 that the passage "If I got done for murder I'd go to Reiby" was significant "in light of the conversations occurring before and about that time as recorded on the Listening Devices and in relation to the date of the death of Mr McPherson". For reasons indicated, I am unable to so regard it although I accept that Magistrate Gilmour's remarks, and those of Newman AJ that I have quoted were, after the remarks were made, available to be taken into account by those responsible for the prosecution between 1998 and 2004.
Before I leave this topic, there are three other matters to which I should refer. Firstly, while in Exhibit U there was clear evidence as to the ability of some police officers, particularly Constable McDonald, to identify voices on the Listening Device tapes, there was no clear evidence enabling the attribution of various passages to particular persons and this although the transcripts of the conversations purported to do so. Assuming its contents were in due course accepted, Constable Hollingsworth's statement of 12 September 2002 largely cured this deficiency although Mr Pound is not mentioned. Secondly, whatever deficiencies there were in this connection, Newman AJ regarded the evidence as indicative of knowledge on the part of those identified and admissible. His Honour must therefore have been satisfied that there was evidence connecting what was recorded as said to the purported authors. Thirdly, there have been statements to the effect that there were errors in the Listening Device transcripts. Having compared them to the voices as recorded, I am satisfied that, subject to the qualifications I have expressed concerning tape 4bjl, the remaining pages of the transcripts are reasonably accurate and any inaccuracies are not such as to lead to those pages and the corresponding portions of the tapes generally being inadmissible. Michelle Holland
Soon after Sergeant McLennan's involvement in the investigation commenced, the Crown case appeared to be strengthened following on from a phone call from a woman, Michelle Holland. In cross-examination of Sergeant McLennan, it appeared that police had records of Michelle and Jeffrey Holland being in Castlereagh Lane on a number of occasions between 29 January and 13 April 1998 and including 6 April 1998 although there is no reference to that fact in Exhibit U in which Mr and Ms Holland are simply referred to as Witness 1 and Witness 2.
According to evidence Sergeant McLennan gave, Ms Holland contacted police on 6 August, told police she had information and within a couple of hours he and Detective Shannon White drove to Port Macquarie and he took a statement from her at her home. The statement was typed on a laptop which was taken away, the statement was printed and then brought back and signed by Ms Holland. A statement of 16 September 2003 from Detective White corroborates some of this evidence.
A statement from Sergeant McLennan of 12 October 2003 is to largely of similar effect, although in the statement he says that his phone conversation with Ms Holland was on 5 August and in it she spoke of Danny having confessed.
Detective White's duty book of 2 August 2002 records a "telephone call from "Michelle" but, surprisingly having regard to what, in a statement of 16 September 2003, Ms White said was the subject of the conversation, no further information in that regard. In the statement of 16 September 2003, Ms White said the subject of the conversation was information about Mr McPherson's murder.
During the visit to Port Macquarie and after taking the statement from Michelle Holland, the police went to the residence of Jeffrey Holland who lived nearby and obtained a statement from him. Jeffrey Holland was Michelle Holland's partner and the father of two of her children but the couple were living apart.
On 4 November 2002, a further statement by her was taken by Detectives White and Scott.
In her statement of 6 August, Ms Holland said that she had met, through Jeffrey Holland, a number of members of the Saad family. She said that she and Jeffrey used to go to the Saad's place to buy heroin for Jeffrey and to buy and sell stolen items. She said that "Danny Saad, Ashley Saad, Shorty and Charlie have all been to the house I was living at with Jeffrey at Dolls Point".
On an occasion which she identifies as a few days after seeing on the news reference to the murder in the lane, she and Jeffrey attended the premises, this being an occasion when Danny Saad gave a mini-bike to one of her children. She recounts a conversation wherein, after she raised the topic of the murder, Danny Saad said: "This black fucking cunt was walking down the laneway, we were all in the laneway and he knocked the mirror on the car so I got out of the car, an argument broke out and there was a fight and I turned around and I stabbed the black bastard. I didn't mean to kill but…"
Ms Holland said that when this conversation took place, also present were Ashley Saad, Charlie, Shorty and Jeffrey and all five were laughing about it.
In the statement Ms Holland also says: "Last week I read a newspaper article in The Daily Telegraph about Camel being arrested for selling drugs. I don't know Camel's real name, I know he is Egyptian, about 22 years old. Camel was selling drugs for the Saads and Jeffrey had been as well. Because of this newspaper article I decided to ring Redfern Police and tell them what I knew about the murder."
Ms Holland came to Sydney in November 2002 following on Sergeant McLennan having served her with a subpoena to appear at the committal hearing. On 4 November she made a second statement. Detective White's statement of events leading up to that statement is that after receiving information from Constable Scott she attended a hotel where Ms Holland was staying and there Ms Holland informed her that Mr Elwasfi had also been involved in Mr McPherson's murder but she didn't inform police earlier as Mr Elwasfi was a nice person. Constable White said that in company with Constable Scott she then obtained the further statement from Michelle Holland.
In that statement, Ms Holland said that since making her first statement: I now know Camel's real name to be James ELWASFI. I have known "Camel" about six years. He stayed at our house when we lived in Sydney. He has been to every house that Jeffrey and I have lived in. Those houses were, Botany, Dolls Point and Zetland. "Camel" used to be a good friend of Jeffrey's and mine. In January 1998 I saw the 5 o'clock news about the stabbing in the lane. When I say "lane" I mean "Leb Lane" where the Saads lived and where I used to go with Jeffrey to buy heroin. A couple of days later "Camel" came to Jeffrey's and my place at Dolls Point. I said: "Do you know anything about what happened. Give us the goss." [sic] At the time I was referring to the stabbing in the lane. Camel said: "The two black blokes were walking up and they were carrying alcohol and one of the boys asked why they were walking up the lane. The other guys were mouthing off and he knocked the mirror on the car and a fight broke out. We had him on the ground and we were all kicking him and booting him in the head. The other guy took off. Sam was just going off his head. Then Danny turned around and stabbed him. When the Police came we all took off." The next time I saw Danny Saad was down the lane, and I asked him what happened. This is in my statement dated 6 August 2002. At the time of this conversation "Camel" was also there. I forgot about "Camel" being there, because when I knew him, he was quiet and not using drugs. I have since thought about that day, and remember "Camel" being there.
In a statement of 17 September 2003, Constable Scott said that on 5 November 2003 - obviously a mistake as to the year - Ms Holland mentioned "that she believed Camel had some involvement with the murder of Robert McPherson" and that "Holland told me that she hadn't mentioned this to Police earlier as she thought Elwasfi was a nice person".
Ms Holland was not called during the November 2002 stage of the committal proceedings nor when they resumed in January. When she gave evidence at the continuation of those proceedings on 24 March 2003, she almost completely repudiated the contents of her statements, indeed in a detail that I do not think I have ever previously experienced. She agreed that she had signed the statements but said that she could not remember doing so, adding that at the time of the statements she was sick, very obviously so, and had a mental illness and her memory was not good. She said that she was bipolar, saying that that was a condition in which small amounts of information can be exaggerated and she was confused. She denied knowing a number of people referred to in her first statement. She could not remember who said what and whether it was Danny Saad or Jeffrey Holland who made the statement commencing "This black fucking cunt". Ms Holland said that she was using cannabis extensively in January 1998 although the police had not asked her about this.
She agreed that it was she who contacted the police prior to her first statement but said that she had rung about Caroline Saad with a view to eliminating Ms Saad, with whom Jeffrey Holland had been having an affair, from her life.
She said that she had no recollection of making her 4 November statement. She said that she could not remember talking to Mr Elwasfi about the murder at all. Taken to the passage that in her 4 November statement she had attributed to "Camel", she said that it was Shorty who had made it. Taken to the reference in that conversation, "Sam was just going off his head", she said that she did not know a Sam and the reference should have been to Charlie. She said that while in hospital after 28 October she had rung Sergeant McLennan every day telling him that there were things wrong in the statement she had then made. She asserted that she had made similar statements to other police officers.
The Crown was given leave under s 38 of the Evidence Act 1995 (NSW) to cross examine her and she was taken to many more topics than I have referred to. However, this was to no avail, Ms Holland remaining steadfast in her repudiation.
She adopted a similar attitude when giving evidence on a voir dire before Newman AJ in October 2004.
She was called on the voir dire before Sully J on 14 October 2004. She said that many of the things in her statement of 6 August were wrong and did not reflect what she had told the police; Danny Saad had not said the things attributed to him in that statement. So far as the second statement is concerned, Ms Holland said that she would not make a statement about "him", presumably one of the persons therein nominated. She said that she was off her face at the time.
As has been said, Sully J refused an application by the Crown under s 38 of the Evidence Act to cross-examine Ms Holland and the Crown then elected not to call her in the trial itself. It should be remembered however that the remarks of Newman AJ at the conclusion of the voir dire hearing before him contemplated that Ms and Mr Holland would be cross-examined and that the contents of their statements would be admissible before a jury.

Geoffrey Holland

In obtaining a statement from Mr Holland, police followed a similar procedure to that adopted in the case of Michelle Holland. Sergeant McLennan said that at the time of making his statement, Mr Holland did not appear to be under the influence of alcohol or drugs but was quite apprehensive and appeared concerned about repercussions.
In his statement dated 6 August 2002, Mr Holland gave an account similar to that of Michelle Holland about attending the Saad premises and garage on an occasion when Danny Saad was donating a mini-bike for a child of Mr Holland's. Mr Holland said that in addition to Michelle and himself, Danny Saad, Shorty and Ashley Saad were there. After some conversation about the mini-bike he heard the following: Michelle: You didn't have to kill him. Danny Saad: The cunt hit my mirror so we did what we had to do. Mr Holland: You didn't all have to get into him. It didn't take eight of youse. Danny Saad: Sam just went off his head.
Mr Holland said that at the time, Ashley Saad was standing right beside those talking. In other paragraphs Mr Holland said that he had been a heroin addict for many years, used to obtain heroin in the laneway and, after the conversation I have recounted, Danny remarked that a birdcage in the garage was bugged. Mr Holland also indicated the identity of a number of people who tended to hang around the garage.
Mr Holland also gave evidence at the committal proceedings in March 2003. He said then that there were things in his 6 August statement that he had never said. One of these was that he had scored heroin in the lane. He agreed that the reference to putting the mini-bike in the car and that Michelle was talking to Danny was true but said that he had not overheard any of the other conversation. He said also that he was pretty sure Ashley was not there. Mr Holland went on to say that he had asked Danny and others and they had said that they had nothing to do with the murder.
He said also that while he signed each page of his statement, he had not read it before doing so. He said that Michelle had told him of having a conversation with Danny in which she had said, "You didn't have to kill him" and Danny had replied, "They can't hit my mirror so we did what we had to do". He went on to say that he knew Shorty and James Elwasfi and both had been to his house.
I should perhaps add that there was evidence that Mr Holland had a criminal record. Before me no attention was given to it and its details not explored. Circumstances of Ms Holland's Statements
Ms Holland's mental state is clearly relevant to any assessment of the worth of any evidence she could have given against the Plaintiffs. Evidence as to her mental state at about the time of her statements and Sergeant McLennan's knowledge of the latter are also relevant to the issues of reasonable and probable cause and malice. So also is the evidence Ms Holland gave during the course of proceedings against the Plaintiffs.
A deal of evidence as to Ms Holland's mental state is contained within Exhibits D and E being almost identical bundles of photocopy records from the Port Macquarie Base Hospital and the Kempsey Health Service covering a period from about April 1987 to March 2003 dealing with Ms Holland's pregnancy, the birth of one of her children and mental state. Records relating to the latter topic were concentrated in the months leading up to March 2003. Having regard to a gross inconsistency between, on the one hand, Ms Holland's account of her condition and some, but not all, of the records, and, on the other, evidence police officers gave of their observations of Ms Holland, it is necessary for me to quote from those records at substantial length. That need is greater because, at least at first blush, of inconsistencies within the records themselves.
Included in one or other or both of Exhibits D and E are nurses' notes and other documents to the following effect, or including the following statements. (In the interests of space I have not included 100% of the entries from which I have quoted, endeavouring nevertheless to present a fair picture of what is recorded and relevant here): 19/2/99 - Concerns re partner's drug history and bipolar history - does not wish to continue with ? Dr Holmes. 27/2/99 - Presented with 9 day old baby who she is concerned about - has bipolar disorder. Depressed and unable to cope. 7/9/99 - Stabbed a Koori girl up the road after an argument. 9/9/99 - BI [presumably Bipolar] affective disorder since '86. 12/11/99 - Patient states is a schizophrenic and having trouble coping - OD caused by family history/partner problems. [It is possible that "history" is a wrong interpretation of the document.] 13/11/99 - Kempsey Hospital - Has a script … for Epilim from Dr Holmes - but may be out of date. Diagnosed BPAD by Dr Holmes 18 months ago and OI caused by family...? partner problems. Attempt was impulsive and now regrets the episode. 18/2/02 - Michelle indicated on phone that she feels she is slipping emotionally - thoughts of suicide yesterday. 3/7/02 - Christine Nowland (mother) rang seeking help for Michelle. 3/7/02 - Mother sought Police escort for Michelle to A&E for mental state examination. 3/7/02 - Form T2 - Problems - States is "bipolar", distressed, Interpersonal problems - H & Family. 4/7/02 - Form 1 - History - involved in domestic dispute 3/7/02 resulting in partner being stabbed - Michelle states dispute precipitated by both her partner and her own impulsive behaviour which is becoming more frequent and violent - no contact with psychiatrist for 3 years - active in school community - Partner wanting to help now. 4/7/02 - Michelle states her own impulsive behaviour is becoming more frequent and violent and she had had no contact with a psychiatrist for three years - current dangerousness difficult to assess. 4/7/02 - Appointment with Dr Holmes tomorrow - main problems recent increase in impulsive, aggressive behaviours mainly directed to partner. 24/7/02 - Emergency Department Clinical record -Stressed, anxiety attacks - stabbed H Geoff - angry to tears - violent. Feels tension builds over about ½ hr till snaps - At other times is high - 90% of time - happy bubbly - flits from one topic to another sometimes depressed for few [hours or days] - not often. 2/8/02 - Kempsey Progress Notes - feel left out of the family by my mother and sisters - Secondly is issue of marriage - Michelle is … divorce papers husband - girlfriend and she wants to prevent him taking any of her $20k - having blood test for Epilim. 30/9/02 - Kempsey Progress Notes - Presents with high anxiety & rapid speech. States she is not coping with family issues - having difficulties [reducing] THC. 15/10/02 Progress Notes - Self assessment completed - Michelle states smokes cannabis every day 30 plus cones, suffers from bipolar, prescribed from doctor Epilum currently has not started taking medication because of not telling doctor of cannabis use. 15/10/02 Alcohol and other drugs general assessment - Plan - reduce cannabis aiming toward abstinence. 19/10/02 - Walked into ED complaining of: Bipolar says she is schizophrenic as well - now is hearing voices, sometimes good, sometimes bad. 19/10/02 - Mayne Health Form A1 - Seeing Dr Holmes for 10 years without significant change - described fluctuating mood high/Depression - Smoking up to 50 cones per day states she has been self medicated herself with THC. Feels better. No perceptual disturbances or Delusions or Hallucinations expressed - Not on any medication - Mental state examination - Tidy, Restless agitated, Can't focus for too long - Drug withdrawal, engaging smile. Speech - Clear rate & slightly pressured - anxious. Mood - Depressed, 1 - 10 scale - 8-9 depression, not suicidal. Thought - Thought disorder not evident, not paranoid, No voices/hallucinations. Preliminary Problem Formulation - THC withdrawal - Bipolar disorder - Depressed at present - Wants change in life. Initial Management Plan - Admitted to WD 1A. 19/10/02 - Hyperactive, pressure of speech, elevated affect, no self-harm thoughts - father suicided at 28 years. 19/10/02 - Relapse in symptoms of hypomania - required medication for cannabis withdrawal. 19/10/02 - Dr Scott-Orr confirming plan for Ms Holland's withdrawal from THC and treatment for mania. 19/10/02 - Port Macquarie Emergency Case Notes - patient complains of - Bipolar - says she is schizophrenic as well - now is hearing voices - Not on medications - O/E Pleasant 36 yr old - Tidily dressed, hyperactive, Pressure of speech, Elevated affect - Imp [?Impression] Manic. 22/10/02 - Able to concentrate well, complained of feeling really anxious - realised that she really is very unwell - being flying into violent rages. 23/10/02 - Mood labile - feeling stressed - angry at doctor talking to mother - not amenable to counselling. 24/10/02 - Left ward - doesn't feel mentally well enough at present (to attend court). 24/10/02 - Kempsey Progress Notes - states is 7 days free of THC and doing well … Taking Epilim. 28/10/02 - Detective aware Michelle is currently inpatient because he visited here last week - Michelle also concerned about her family's safety from defendants and their associates - Michelle has decided now to attend court. 30/10/02 - Very worried about court case next week - Doesn't think she is up to it - couldn't even contemplate going in aeroplane to Sydney - would have to get drunk before she could do this. 31/10/02 (11am) - Determined not to go to court on Monday - fearful of the other parties in the case. 31/10/02 (22.30) - Currently intends to attend court. 3/11/02 - Health Service assessment - fears DOCS is watching her. 4/11/02 - Almost swallowed poison on Saturday but changed her mind -stated that she had decided to go to court this morning - left unit 0840 hours. 7/11/02 (2200) - Settled afternoon and evening enjoying company of others. Bright and reactive mood but still expresses some worries about coping with family (kids). 7/11/02 - Dr Scott-Orr has indicated that more leave for Michelle the better: If she wishes to discharge herself then this is acceptable to him. 8/11/02 - Michelle fears for her safety and those of kids from people involved in murder trial - fears that the evidence she supplied to Police was false - can't recall some of the information she provided in Sydney - desire not to be involved in court case. 11/11/02 - Discharge Summary - Admission on 19/10/02 - Relapse in symptoms of hypomania in relation to medication non compliance and excessive cannabis use and mental [?] - … - Required medication for cannabis withdrawal - stress at Court case to Sydney - adjourned - But felt emotionally much stronger afterwards - Good response to medication.
Also included in Exhibit E are reports or letters from doctors relating to Ms Holland. In a letter dated 18 October 2002 to the "Admitting Medical Officer, Port Macquarie Base Hospital" Dr L M Shaw, a treating psychiatrist in the Mid-North Coast Area Health Service, wrote saying, inter alia, that Ms Holland had a past diagnosis of bipolar disorder, was last seen by Dr Holmes on 24 July, had stabbed her husband following a disagreement, now presents as pressured of speech, with minimal thought disorder, irritable and anxious and that she needed hospitalisation for the control of her mania and to clarify her diagnosis.
On 24 January 2003, in a letter to the Solicitor for Public Prosecutions, Dr Scott-Orr, another psychiatrist, made remarks which included some to the following effect: Ms Holland arrived at Port Macquarie Hospital on 19/10/2002 on the recommendation of Dr Marie Shaw. Dr Shaw's referral stated a long standing diagnosis of bipolar disorder, an admission to Kempsey Hospital following an overdose and an episode of violence towards her husband. Ms Holland had been seen on an off over a 10 year period by a Kempsey psychiatrist, Dr Holmes. Two months prior to admission to Port Macquarie Hospital she stopped prescribed medication and resorted to heavy use of cannabis. On admission she showed no evidence of delusions or hallucinations but symptoms of hypomania - pressure of speech, irritability, anxiousness and slight thought disorder. At the prospect of flying to Sydney she expressed fear of flying, the pressures of court and of possible harm from those against whom she would be testifying. [On her return] she felt "proud" about how she had handled it all. Concerning her mental state on August 6, not having met her until October 21, I would have to assume it was disturbed. She was reported to have told staff, on November 8 (when apparently reasonably settled), that she feared that some evidence she had supplied to police, regarding her being a witness to a murder, was false. I believe she would be "fit to give evidence generally" provided she adheres to prescribed medication and is reasonably supported socially. However, she has a history of equivocation and ambivalence in relationships and I am sure this would affect her capacity to give a consistent account on occasions. I would be seeking corroboration in matters of great import.
There was another letter dated 1 March 2003 addressed to the Solicitor for Public Prosecutions and written by Dr LM Shaw. The letter is entitled "Medico-legal report concerning the treatment of Michelle Holland …" and is said to be based on, inter alia, medical records of the Port Macquarie and Kempsey Hospitals, a Medico-legal report of Dr Scott-Orr and interviews on 18 October and 20 December 2002 and on 31 January 2003. In the report Dr Shaw makes observations to the following effect: The prescription of a mood stabiliser by Dr Holmes on 24/7/02 suggests a hypomanic state at that time. Irrational behaviour occurring around 8 August 2002 that time is consistent with an abnormal state of mind. It is highly probable that she had an abnormal state of mind on 6/8/02 and her statement made on that day may be unreliable. Ms Holland stated that she had been motivated to give evidence because her de facto had an affair with Carolyn Saad. When seen on the 20/12/02, she deeply regretted making this statement as she was not sure what she had said was the truth. When Dr Shaw assessed her on 18/10/02 she was hypomanic. "This was evidenced by a history of overspending, irrational behaviour and a mental state examination which revealed pressured speech, elevated and irritable mood." Notes in the Port Macquarie Base Hospital file describe an elevated mood 31/10/02, labile on 1/11/02 and stressed at the prospect of travelling to Sydney to give evidence. However, the fact she was allowed to go by her treating psychiatrist and her discharge was planned on 7/11/02 suggests her mental state had improved. It is probable the evidence she gave "at this time" (presumably early November 2002) would be less affected by an abnormal state of mind and may be more reliable.
It must be recorded that other than notes to which I have referred, there is nothing in the hospital notes to justify Dr Shaw's reference to "Irrational behaviour occurring around 8 August 2002". And the notes to which I have referred of or close to 6 August do not suggest that Ms Holland when interviewed by police on 6 August was not as described by them.
In his statement of 12 October 2003, Sergeant McLennan said that during the entire time the statement was being taken, Ms Holland appeared lucid and displayed no signs of being under the effect of any drugs or alcohol. He said that she then presented to him as a rational, well presented person who dominated a conversation and showed no signs of mental difficulties although under cross-examination Sergeant McLennan said that on 6 August he had noticed that Ms Holland was anxious and nervous. These observations may of course be consistent with the references to "pressured speech" and "hypomania", whether or not of the same degree.
Sergeant McLennan denied taking Mr and Ms Hollands' statements in an improper manner and denied that either informed him of inaccuracies in them. He said that he did not consider that it was necessary to make any reference to the reward and said that it was not his practice to include in witness statements the possible motivations a witness may have for providing a statement. He denied other impropriety and threats towards Michelle and Jeffrey Holland alleged in the Statements of Claim.
Detective White said that she had spoken to Michelle Holland about 30 times and each time Ms Holland appeared to understand and gave information freely. Detective White knew on 4 November 2002 that Ms Holland was a mental patient and had come from a psychiatric institution to give evidence but made no enquiries to ascertain what Ms Holland's state of mind was and made no enquiry of Ms Holland about her state of mind before taking the statement of 4 November 2002.
Constable Scott who had, among other contact, picked Ms Holland up from the airport, in a statement of 17 September 2003 said that she had been responsible for sitting with Ms Holland on 4 and 5 November while the latter was waiting her court appearance, they discussed numerous topics, there was no difficulty in communicating with her and throughout her time with Ms Holland the latter was lucid and easily understood.
During the committal proceedings in January 2003, Sergeant McLennan was cross-examined at length concerning Ms Holland. In the course of that cross-examination he said that he had been informed, presumably on or after her admission on 19 October 2002, that Ms Holland was in hospital. Because he was concerned about Ms Holland's mental health he visited Port Macquarie between 20 and 28 October 2002 to see if Ms Holland would be able to go to court on 4 November 2002. He made inquiries and was informed by a male nurse at the Port Macquarie Base Hospital that the problems Ms Holland was suffering from was THC overload. Sergeant McLennan also said that he had spoken, possibly over the phone, to Ms Holland's female treating psychiatrist at Port Macquarie and, in another answer, the consulting psychiatrist in her section. It is not clear whether Sergeant McLennan intended to refer to two different people. He did not know if the person(s) spoken to was Dr Shaw, Dr Scott-Orr, Dr Holmes or someone of another name although later he said that "Scott-Orr" sounded like the name of the doctor he spoke to. Later Sergeant McLennan was asked and agreed that he had spoken to a psychiatrist prior to 4 November 2002.
He agreed that he was told (possibly by Ms Holland) that she did not want to appear in court because of her own mental health problems. He did not think that she said that some of her statement was not true. He said that he had served Ms Holland with a subpoena on 28 October 2002.
He and Mr Kimble discussed the topic and Mr Kimble said that records from the hospital should be subpoenaed.
Sergeant McLennan knew that prior to Ms Holland's second statement she came to Sydney from a psychiatric institution or ward and immediately on her return went back to the same place. At one stage he said that he had told Mr Kimble that Ms Holland had come to court from a psychiatric institution. Later he accepted that he might not have mentioned "psychiatric" as distinct from "Port Macquarie Hospital". He said that he had told Mr Kimble that the treatment "was for THC". He said that he could not remember if he told the Crown that he had spoken to a psychiatrist about Ms Holland.
I should add to the above account the fact that reliance was sought to be placed on other contents of the transcript of Sergeant McLennan's evidence on 20 January 2003. However in large part those other contents were part of questions asked by counsel and, often because of the way questions were phrased, not accepted in the witness' answer. On other occasions it is not clear to what the witness was referring. I am not persuaded that the reliance sought was justified.
The records relating to Ms Holland's health had been subpoenaed for the committal proceedings that took place in late 2002 and early 2003. Included in Exhibits D and E are copies (not all complete) of subpoenae dated 8 January 2003 issued at the request of Sergeant McLennan and addressed to the Kempsey Hospital and to the Port Macquarie Base Hospital requiring production to the Central Local Court of records relating to Ms Holland. There are also copies of a fax cover sheet from Constable Rebecca Scott advising that Ms Holland's medical records at the Port Macquarie Hospital were required. The address on the sheet is that of the Redfern Police Station. A file note on one of these records suggests that records may have been despatched by express delivery or post on 8 January 2003.
During the cross-examination on 17 January 2003, Mr Kimble said that certain documents that had been subpoenaed had been sent for some reason to Redfern Police Station "last week" and "Sergeant McLennan had these documents or they were under his control. One of the police officers involved in the investigation of the case or this court case has had those documents but hasn't handed them into the court or informed the prosecution about the documents." At one stage before me, Sergeant McLennan said he could not remember if he read them although taken to a particular entry to the effect that Ms Holland feared that the evidence she gave to the police was false he said that he certainly had not and that note only came to his attention during the proceedings before me.
On the other hand, included in Exhibit D is a covering letter from the Mid North Coast Area Health Service, dated 8 January and addressed to the Central Local Court saying that medical records for Ms Holland were enclosed. The letter bears a "received" stamp from the Central Local Court dated 9 January 2003.
During the course of the committal proceedings before Magistrate Orchiston, there was a deal of cross-examination clearly directed to showing that there was something nefarious about the hospital records being sent to the police station and not immediately disclosed. It is not necessary that in these reasons I dilate in detail on those circumstances. I am not so persuaded, and the fact that the subpoenae to both the Kempsey Hospital and the Port Macquarie Base Hospital required production to the Central Local Court and that one set of records was produced directly to the Court, provides strong evidence against the tenor of the cross-examination.
A further aspect of the evidence must be mentioned. In her statement of 6 August, Ms Holland said that she decided to make contact with police and inform them of what she knew about the murder because in the previous week she had read a newspaper article about Camel being arrested for selling drugs. Sergeant McLennan took her 6 August statement and said that it was his practice when taking such a statement to ask the witness if there was anything else the witness could tell him and he would have followed that practice with Ms Holland. Logic indicates the likelihood of such a practice. It is to be inferred that Ms Holland responded in the negative.
In her statement of 4 November, Ms Holland purports to recount a conversation with Camel that could not be regarded as other than very significant in its terms and asserts that Camel was present at an equally significant conversation with Danny Saad, saying that she had forgotten about Camel being there. Given that on her account Camel was the inspiration for her contacting the police and mentioned in her 6 August statement, she could not have forgotten about him being at the conversation with Danny and it is impossible to reconcile her 4 November statement with her having told the police on 6 August to the effect that she had nothing to add. On at least one of the occasions when she made statements, she obviously lied on the topic of her recollection in relation to Camel.
Despite asserting in her 6 August statement that she did not know Camel's real name, Ms Holland said in her 4 November statement that she had known him for about 6 years, that he had been to every house that she and Geoffrey Holland had lived in, and that he used to be a good friend of both of them. Darren Byrne
A Mr Darren Byrne made a statement to police in August 2003. He had been arrested on 31 July of that year and while at the Redfern Police Station announced to Constable Schott that he had knowledge of the murder in Castlereagh Lane and that he could help police in the matter. Constable Schott informed Constable Shannon White, "There's a guy in the dock saying he knows stuff about the Saad murders. Do you want to go and have a word with him?" Constable White did so and Mr Byrne told her he would give her information in respect of the "Saad murder" if she assisted him with bail. Subsequently, on 7 August Mr Byrne attended the station and at the suggestion of Sergeant McLennan, Constable White arranged for a Detective Hayward, someone who had no substantial part in the investigation, to take Mr Byrne's statement. That seems to have occurred in part on that day but Mr Byrne was allowed to leave before the statement was completed, returning on 11 and 15 August 2003 and completing and signing it.
In the statement, Mr Byrne described associating with Danny and Fred Saad and frequenting the garage in what was known as "Leb Lane". He said he went there to score drugs. He nominated also a number of the Saads' associates. He said that on an occasion when there were a number of police at the end of the lane, those in the garage were on edge and agitated. He asked what was going on and Danny said something to the effect: We killed a bloke last night. That's what they get for fucking around in our lane. We sliced him like a pig and cut his throat and jumped on his head.
According to Mr Byrne, Fred, Danny and Sam and possibly Camel were there at the time Danny was talking and someone said that Sam was the first to pull a blade, that he jumped out of the car with a knife and stabbed the victim a number of times. On the following day Danny talked about the matter again, possibly in the presence of Mr Pound.
In the statement Mr Byrne also said: The reason I am coming forward now with this information is to help my legal matters, and also to leave my old life behind. I'm sick of criminal life and once I do this, I've burned my criminal bridges once this becomes knowledge. Until I was told by Police after I came forward, I did not know about the reward that is on offer. … Things have changed for me and I've stopped using drugs and with that's come a different state of mind, and I've got a conscience again.
On 8 October 2003 police, including Constable Shannon White, provided to the DPP a "Witness Informer Report". The report indicated that Mr Byrne had a criminal record and that police or Corrective Services had some information that would assist in evaluating Mr Byrne's credibility and some benefit had been claimed, offered or provided to Mr Byrne. Other evidence in Exhibit AA shows that Mr Byrne's assistance was recognised in the course of a sentencing hearing in June 2004.
Relevant to the weight that could be given to Mr Byrne's statement is the fact that, commencing no later than 1999 when he was 27, he had acquired a considerable criminal history including offences of supplying prohibited drugs, making false instruments, larceny and breaking and entering. He committed further offences of dishonesty in 2003 - at least five in May, four in June, two in July, one in August and, despite the protestation in his statement of a desire to leave his criminal past behind, nine in September and three in October. The offence in August was one of breaking, entering and stealing committed on 11 August 2003 and was in the midst of the interviews he was having with police in order to make his statements. Giving evidence in June 2004 he said that following his statement to police in respect of Mr McPherson's death, he was subjected to threats and violence, felt under pressure and exploded into heroin use.
The date when those concerned with the prosecution of persons for the murder of Mr McPherson became aware of Mr Byrne's post 7 August offences is not apparent. However, a Facts Sheet in respect of an offence committed on 9 September attached to a Court Attendance Notice shows that he was arrested in respect of that offence on 11 September 2003. He was again arrested on 9 October and then admitted to committing a number of recent offences. The first time he gave evidence against the Plaintiffs was in the course of a "Basha" enquiry before Newman AJ in October 2003, Byrne then being in custody. Objection was taken to his evidence but it was ruled admissible. Proceedings recommenced in August 2004 but Mr Byrne was not called before they were aborted. He was called again in October 2004 during the ultimate trial before Sully J.
On its face, the information given by Mr Byrne provides strong grounds for believing that Danny and some of his associates, including Fred Saad and Sam Kassas, were involved in Mr McPherson's death. However, Mr Byrne's credibility could never have been regarded as higher than poor. Furthermore, once it became apparent that he was offending during and after the time of making his statement to police, the assertions in his statement that he had changed and stopped using drugs could not sensibly have been accepted and his credibility was zero or close to it. There is no evidence what, if any, of the recent discreditable information concerning Mr Byrne became known to Sergeant McLennan prior to the voir dire before Newman AJ but from the terms of Mr Byrne's cross-examination it certainly seems to have been freely available then.
During the course of address, counsel for the Plaintiffs criticised the police on the basis that they had neglected to check the content of Mr Byrne's statement, which included the allegation that he went to the premises virtually every day to score drugs against the Listening Device tapes. There is undoubtedly some validity in this criticism although if, as its terms suggest, the remarks I have quoted occurred on the day after Mr McPherson's death, they would not have been recorded via the Listening Devices that were not installed until later. Some additional evidence Mr Byrne gave concerning the timing of sporting events particularly the running of a racehorse "Octagonal", advanced as a check on his reliability, was proved to be wrong. Other Witnesses
Although as I have said there were three major aspects of the Plaintiffs case before me, I should say something more about the other witnesses. Mr Clemm
In July 2002 "Eddie" Clemm made a statement to police. In it he revealed that he was an associate of the Plaintiffs and a regular visitor to the Saad garage and asserted that he had no knowledge of the murder of Mr McPherson and no-one had told him anything about it. His evidence thus probably contradicted some of Mr Roth's. Mr Spicer
I have largely summarised above (circs [50]) the contents of Mr Spicer's police statement of 5 July 2002. His second statement of 24 January 2003 deals with his own situation. It was taken at Long Bay gaol and in it Mr Spicer states that he had been told he was paranoid, manic and at one stage suffering from speed psychosis. He also indicated he was suffering from depression. He has a criminal record and a number of periods of imprisonment for a number of offences.
Any evidence he could give suffers from the disadvantage that his first statement was taken 4 years after the events. There is also evidence from others such as Messrs Mazzeo and Ezzy suggestive of Mr Spicer not in fact having been present. When cross-examined in January 2003, he was quite vague concerning significant parts of his own recent history. He also made the remark at one time that the only thing that he could remember about the night of the murder was everybody crying and everybody stressed out although he did go on to recount other apparent memories. Mr Mazzeo
Early in these reasons (circa [45]) I have summarised the contents of Mr Mazzeo's statements and the evidence he could give. One is led to the conclusion, as the Crown conceded before Newman AJ on 23 August 2004, (and despite paragraph 27 of the Crown submissions of 4 November 2003) that Mr Mazzeo could provide no evidence identifying any of the Plaintiffs. However, it does not follow that those who attacked Messrs McPherson and Mazzeo did not include the Plaintiffs. There are a number of possible reasons for Mr Mazzeo's final evidence. Mr Ezzy
Before Newman AJ in August 2004, Mr Ezzy said that of those who were present in the laneway when Mr McPherson was attacked, and whom he saw throwing bottles but nothing else, he knew Danny and Fred. However, Mr Ezzy's stated inability to identify any of Mr McPherson's assailants other than Danny Saad (assuming as seems reasonable that their photographs were on the videos Mr Ezzy was shown) was something those prosecuting had to take into account. Mr Olivera
He seems to have been called before Magistrate Orchiston and Newman AJ but as the relevant pages of the Court Book were not tendered, there is nothing more to add so far as he is concerned. Sergeant McLennan and Police Investigation
At all relevant times Sergeant McLennan was an experienced police officer. He became a constable in 1979, a sergeant in 1989 and a detective in January 1998. He said that he was aware of the guidelines for interviewing informants. In March 2010 he returned to Redfern Police Station as a team leader in the Detectives Office there. After his appointment to the investigation into Mr McPherson's murder in May 2002, he reviewed the results of the earlier investigation including the transcripts of committal proceedings against Mr Pound and against Danny Saad in 1998. Sergeant McLennan took steps to familiarise himself with what had occurred including the cross-examination of Mr Roth during the committal proceedings involving Mr Pound, remarking before me "what better way to judge a witness than to look at how they performed".
After taking charge of the re-investigation of Mr McPherson's murder, Sergeant McLennan formed the view that Mr Roth was a pivotal witness if there was to be a conviction of Messrs Kassas, Pound or Elwasfi for murder and Ashley Saad for concealing. Asked whether Mr Roth was a suitable witness to rely on for a murder charge, Sergeant McLennan said he had given consideration to this topic. Sergeant McLennan said that police involved in the original investigation told him a little about Mr Roth and that he had spoken to someone who seems to have been Mr Roth's parole (or like) officer in Brisbane although what these persons told Sergeant McLennan was not disclosed.
Sergeant McLennan also looked at Mr Roth's criminal history observing that people with long histories invariably have something wrong with them.
Sergeant McLennan was aware that Mr Roth had a substantial criminal history, had alcohol problems - ingesting up to 10 litres of alcohol a day - other drug problems, and of his detention in the Rozelle Mental Hospital as a result of police action. That latter topic is mentioned in the proceedings before Magistrate Gilmour and Sergeant McLennan said that he had read of it in May 2002. Also mentioned before Magistrate Gilmour were other aspects of Mr Roth's criminal record, including that he had been placed on a recognisance including a requirement that he attend drug and alcohol counselling, and a dismissal of two charges in 1993 pursuant to s 32 of the Mental Health Act 1990.
At some stage Mr Roth told Sergeant McLennan that he suffered from bipolar disorder and took medication, lithium, for it. Nevertheless, Sergeant McLennan took no steps prior to 9 August 2002 to obtain details of Mr Roth's mental history. Sergeant McLennan also accepted that prior to 29 August 2002 delivery of the brief to the DPP he did not investigate the question of Mr Roth's committal to an institution. He said that he did not think committal to a psychiatric hospital in 1992 had much relevance to what a person saw and did in 1998 and to his capacity to give evidence in 2002.
He denied that the reason he did not investigate Mr Roth's psychiatric history was because he was closing his eyes or because of the possibility of exculpatory evidence relating to Mr Kassas.
Sergeant McLennan accepted that he had had the responsibility to investigate the value of Mr Roth's evidence but disagreed with the proposition that if he had been carrying out his investigation properly he would have immediately taken steps to investigate Mr Roth's mental health background. Elsewhere, Sergeant McLennan said that although he was aware that Mr Roth had mental health issues in connection with his abuse of alcohol, he seemed to have an exceptional memory for detail. Observing that when people are lying their evidence varies over time, Sergeant McLennan said that he was struck with the consistency of Mr Roth's information and satisfied that Mr Roth was telling the truth.
Sergeant McLennan also expressed the view that, if anything, Mr Roth's violent history added to his reliability concerning the Saads. He said that the latter were dangerous and to hang around them and the other Plaintiffs one needed to be very physical and anyone without a criminal history would raise questions.
When Sergeant McLennan was investigating Mr Roth's reliability in 2002, he knew of the circumstances leading to Mr Roth's first statement, knew Mr Roth made his statement as part of a deal and that his evidence needed to be corroborated. Before me, Sergeant McLennan claimed for a time that Mr Roths's evidence was corroborated and pointed to the evidence of Dr Duggan, that of concerning the vehicles sold to Danny and Fred and to the Listening Device material. Ultimately however, he conceded that there was no material that corroborated Mr Roth's claim of a confession having been made by Mr Kassas.
As has been said, on 15 May 2002 Sergeant McLennan made representation to the Parole Board concerning Mr Roth and after these were successful he approached Mr Roth in July 2002. Sergeant McLennan agreed that his motivation then was to get Mr Roth, who had already made statements, to come to Court. He encouraged Mr Roth to give evidence and wanted Mr Roth to know he had been helped by warrant revocation and drew his attention to the possibility of a reward. As to the latter Sergeant McLennan said Mr Roth did not seem to be interested.
On 3 July 2002 Sergeant McLennan signed Exhibit R, a draft affidavit of assistance for Roth. It refers to a number of charges against him having been dealt with under Mental Health legislation. Subsequently to interviewing Mr Roth, Sergeant McLennan provided an affidavit of assistance in connection with the charges Mr Roth was then facing in Brisbane.
Before me, Sergeant McLennan agreed that he was drinking with Mr Roth during one of the trials and, although the evidence does not disclose when, he had become "quite friends" (sic) with Mr Roth. He said that the "mug shots" of Mr Roth, Exhibit J, did not sound alarm bells.
As an incident of the committal proceedings before Magistrate Orchiston, subpoenae were issued for the production of medical records relating to Mr Roth. The evidence before me, particularly Exhibits S and T seems to show that the first subpoena in this regard was issued on 24 October 2002 by a solicitor for one of those accused and another in identical terms on 29 October 2002. These subpoenae were directed to the Rozelle Hospital. On 6 November another subpoena, directed to the Morisset Hospital, was issued at the request of Sergeant McLennan. Sergeant McLennan recalled that he had also subpoenaed records relating to Mr Roth from Cairns Hospital and Brisbane but before me there is no corroborative evidence of this claim.
Mr Roth made a statement dated 5 November 2002 in which he described at length his medical history, his alcohol use and abuse, sniffing paint thinners, attempted suicide, a diagnosis of bipolar disorder, being aggressive, violent and in fights and having records at numerous identified hospitals including a number known to be psychiatric institutions. This statement was referred to by counsel for one of the accused on 6 November 2002 early in Mr Roth's evidence before Magistrate Orchiston. Sergeant McLennan said the DPP would have had this statement but he did not know whether the statement was the first time he himself provided evidence to the DPP that Mr Roth suffered from a bipolar disorder. In January 2003 there was of course the report of Dr Skinner to which I have earlier referred.
In evidence, Sergeant McLennan agreed that he had sought to apply pressure to Mr Elwasfi in the hope that he would roll over and given evidence about the murder. He agreed that, as a tool to obtain a witness statement from Mr Elwasfi, he arranged for a controlled operation whereby a police operative made one purchase of drugs from Danny Saad and four from Mr Elwasfi. It was proposed to use the prosecution of Mr Elwasfi regarding the ongoing supply of heroin as a tool to obtain a witness statement from him regarding the murder. Sergeant McLennan considered whether he could have Mr Elwasfi charged for breaching bail and arranged for Mr Elwasfi to be examined before the New South Wales Crime Commission. He hoped this would result in incriminatory calls on phones that had been intercepted.
On 14 June 2002, Sergeant McLennan made an application to the NSW Crime Commission for the holding of an inquiry into the murder of Mr McPherson and for the questioning of, inter alia, Messrs Elwasfi, Kassas and Danny and Fred Saad. A statement was taken from him Mr Elwasfi at Redfern Police Station on the evening of the day he had given evidence to the Crime Commission which would seem to have been 30 July 2002.
Sergeant McLennan agreed that he regarded the conversation recorded on tape 57bjl as critical and that he sought to obtain from Mr Elwasfi further evidence. I have already recorded that before the Crime Commission Mr Elwasfi explained the statements in 57bjl as relating to a fight with Mr Roth.
In connection with Mr Elwasfi being charged Sergeant McLennan prepared a document to be annexed as part of a police Facts Sheet concerning Mr McPherson's murder. In that annexure there is reference to a red utility and silver and metallic blue Ford stopping in front of Mr McPherson and Mr Mazzeo. The statement then goes on to assert that specified persons, including Mr Elwasfi were known to have exited from the vehicles. In cross-examination Sergeant McLennan agreed that at that time there was no direct evidence available to establish that Mr Elwasfi exited from any of the vehicles and could not explain why the statement had been included. He did however make the point that Mr Elwasfi was not then charged with murder. He denied that the statement indicated that he then had a closed mind.
On 23 August 2002 Mr Elwasfi was again spoken to. Sergeant McLennan asked him if he would provide a statement about the murder of Mr McPherson. In somewhat strong terms Mr Elwasfi declined, observing inter alia that, "They are my friends". Mr Elwasfi was then charged with concealing a serious offence.
Sergeant McLennan regarded Mr Elwasfi's explanation for the contents of tape 57bjl to the effect that the incident being referred to on that transcript was a fight between himself and Mr Roth, as a fabrication, something that Mr Elwasfi had made up having, in Sergeant McLennan's view, seen the brief served on Danny Saad and Sam Kassas (presumably in 1998). Sergeant McLennan maintained the view that what was recorded on 57bjl related to the incident in which Mr McPherson was killed, justifying his stance by the fact that in the recorded conversation, Mr Kassas said: Hey, I had a knife right, this cunt launches at me, I'm wrestling with him with the knife, he just body slams me, I don't know what done so boom, body slams me, I had the knife in my hand and … he's trying to fucking … could have just gone boom, boom, boom.
Sergeant McLennan said that Mr Kassis' admission of using a knife was consistent with the incident involving Mr McPherson and not with a fight between Mr Elwasfi and Mr Roth.
Others, Fred, Danny and Ashley Saad, and Sam Kassas had been arrested on 9 August 2002 and Sergeant McLennan accepted that responsibility for those events was his.
Sergeant McLennan also said that at the time he arrested Mr Pound he was satisfied that there were reasonable grounds to suspect he had committed the offence of murder. He annexed a statement in which he said that about a week prior to the arrest he had been advised by Mr Kimble that Mr Pound should be arrested and charged as the DPP had determined that Mr Pound's arrest and re-charging would be lawful.
Sergeant McLennan said that he held the view that there was sufficient cause to commence and maintain the prosecutions against the Plaintiffs and that his view did not change throughout the course of the prosecutions. However he also said that the DPP took over the prosecutions after the first court appearance on 9 August and thereafter he was in no position to give instructions to the DPP officers as to the conduct of them.
Sergeant McLennan agreed that he gave an undertaking to the DPP that he would provide all material relevant to the prosecution of Mr Kassas. He denied that he had breached this undertaking but accepted that he had not provided information of Mr Roth being told of the reward on offer, of the withdrawal of the warrant that Sergeant McLennan had obtained, of an affidavit of assistance and representations to a Department of Housing in aid of Mr Roth obtaining accommodation. He explained the omission of this information from Mr Roth's statements upon the basis that police training did not include that matters of motivation were to be included in witness statements. Despite this he accepted that God is referred to as a motivating factor in Mr Roth's statement of 7 July 2002.
Sergeant McLennan accepted that there seems to have been no Disclosure Certificate and no early record of publication by him of Mr Roth's criminal record, his psychiatric history, his alcohol and drug addiction and paint sniffing.
There is also no reference in Ms Holland's statements to the fact that, as Sergeant McLennan attested, in Ms Holland's early contact with police, there was mention of the reward and that she had some mental problems and had been treated by a psychiatrist.
Medical records concerning Ms Holland which were the subject of a subpoena had been sent to the Redfern police station. Sergeant McLennan was asked if he read them when they turned up. He said he couldn't remember, albeit after being taken to a particularly significant entry he said, "No, certainly, no". Sergeant McLennan also said that he could not recall any conversation with Mr Kimble prior to 6 November 2002 about Ms Holland's medical condition.
Included in the evidence Sergeant McLennan gave was that he had no reason to approach the investigation other than with an open mind and denied that his approach involved an accumulation of evidence against the Plaintiffs rather than an open investigation. As I have said, he made the point that he had never dealt with the Saads before the McPherson matter.
It should be noted also that Sergeant McLennan was the only witness called on behalf of the Defendant. This led to counsel for the Plaintiff placing reliance on the principle for which Jones v Dunkel (1959) 101 CRL 298 stands as authority. Prosecutors
As has been said, the Plaintiffs rely also on what are said to have been tortious acts by employees of the DPP who, at various times had substantial responsibility for the proceedings and steps taken against the Plaintiffs. All of the Plaintiffs gave evidence that, apart from as an incident of their prosecution with which I am concerned, they had no dealings or involvement with these employees. Mr Kimble
Mr Kimble appeared for the DPP in the committal proceedings before Magistrate Orchiston in November 2002 and January and March 2003
On 2 April 2003 Mr Kimble recommended that an ex-officio indictment be found against Mr Pound for the charge of murder and that he be joined with the Plaintiffs and others in the Supreme Court on 2 May 2003. In the document, Mr Kimble summarises the evidence as to the commission of the murder and that suggesting Mr Pound's involvement. Identified as the principal witness or evidence against Mr Pound is Mr Roth, the Listening Device material and Ms Holland. Mention is made of the fact that before Magistrate Orchiston there was a challenge to Mr Roth's mental state and to his capacity to give evidence, to Dr Skinner's report, to the changes of account by Ms Holland and psychiatric reports concerning her. There is no reference to Mr Roth's criminal record or to Mr Shepherd's statement and the summary reflects a more optimistic view of the Listening Device records than I have taken, but I see nothing in the document to suggest that it was other than a fair and objective attempt to summarise the case against Mr Pound. Whether the document achieved its object is another question because it shared with the next document mentioned, significant omissions.
On 24 April 2003 Mr Kimble completed what was described as a "Post-Committal Summary and Checklist. This is a somewhat fuller document than the one just referred to and directed to the situation of the other plaintiffs and others who were said to be their co-offenders and again, so far as the document goes, I see nothing in it to suggest that it was other than a fair and objective attempt to summarise the case against them. However, counsel for the Plaintiffs made substantial attack on Mr Kimble based on what the document does not say. It is convenient to defer most details of this criticism until I consider the complaint against Mr Kimble of malice but some matters should be noted here.
The document records that Ashley Saad had been charged with concealing a serious offence and despite a heading "COMMENTS (including issues, possible defences and requisitions raised or recommended)", the substance of what is alleged against Ashley Saad is stated merely as: Ashley Saad's involvement relates to him having knowledge that his brother Danny Saad and the others were involved in the murder and did not bring it to the attention of the police.
Although there was some discussion of the concept of Joint Criminal Enterprise - relevant to some of the suggested offenders but not to Mr Ashley Saad - there is no mention, let alone consideration, of the requirement in s 316 of the Crimes Act of "without reasonable excuse". Reference is made to Ms Holland not confirming her statement and she and Mr Holland having been treated as unfavourable witnesses. There is no recognition of the improbability inherent in her second statement and no reference to the significance so far as admissibility is concerned, if Ms Holland maintained her repudiation of the contents of her statements.
Mr Kimble went on to recommend that a bill be found against Danny Saad, Sam Kassas, James Elwasfi, Fred and Ashley Saad and Andrew Pound for the offences for which they had been committed for trial. Mr Roser
Mr Roser appeared for the DPP in the voir-dire proceedings and trial before Newman AJ in October and November 2003 and August 2004. Correspondence indicates that he was involved in the matter from at least September 2003. He had one or more conferences with Sergeant McLennan in late October and/or early November 2003 although Sergeant McLennan could not remember what was discussed.
Included in his actions were the preparation of submissions dated 4 November 2003, the tenor of which was that the evidence of the Listening Device tapes and transcripts, and of the various witnesses mentioned in these reasons was admissible.
In a document dated 7 July 2004 addressed to the Director, Mr Roser referred to an ERISP in which a Mr Kalaitzis had participated and in which Mr Kalaitzis described, apparently in some detail, Fred Saad participating in the attack on Mr McPherson, observed that this information placed Mr Fred Saad in the role of a principal and recommended that an ex-officio indictment be presented charging Mr Fred Saad as such. No statement or ERISP by Mr Kalaitzis was in evidence before me. Mr Thorpe
Mr Thorpe appeared as the Crown Prosecutor in the voir-dire proceedings and trial before Sully J in September to November 2004.
On 30 July 2004 Mr Thorpe recommended that the ex-officio indictment charging Mr Fred Saad and which had been recommended by Mr Roser be withdrawn but that a charge against him of being an accessory continue. Mr Thorpe recorded that Mr Roser's recommendation had been based on information from a Mr Kalaitzis contained in interview of 16 June 2004 and in which Mr Kalaitzis had claimed to have been present on the night Mr McPherson was attacked. Mr Thorpe recorded that in a later interview Mr Kalaitzis had asserted that his earlier interview was full of lies and remarked that the Crown case had enough difficulties without relying on the evidence of Mr Kalaitzis. The Law
In A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [38] et seq. the High Court made a number of definitive statements concerning aspects of the tort of malicious prosecution. The Court made clear that in considering the topic of the absence of reasonable and probable cause, both subjective and objective issues had to be considered - see at [58].
In expanding upon the objective test of reasonable and probable cause, a majority of the Court indicated that a judgment as to objective sufficiency required an assessment in light of all of the facts of a particular case" - at [87] - and a consideration of questions such as what an "ordinarily prudent and cautious man, placed in the position of the accuser" would conclude, or "persons of reasonably sound judgment would regard as sufficient" or "whether a reasonable man might draw the inference from the facts known to him, that the accused person was guilty." - at [83]. Their Honours indicated that corroboration of a sole witness was not always required.
The majority of the Court did not define the subjective test but made it clear that the test would require examination of the prosecutor's state of persuasion about the material considered by him - at [81] - and a relevant question was whether the prosecutor is shown not to have honestly concluded that the material available was such as to warrant setting the processes of the criminal law in motion - at [80].
The Court also addressed the question of malice, observing, at [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.
At [92] the majority of the High Court disclaimed any attempt to identify exhaustively when the processes of the criminal law may properly be invoked but an observation of Lord Devlin in Glinski v McIver [1962] AC 726 at 766, referred to in Gibbs v Rea [1998] AC 786 at 804 is helpful: Malice, it is agreed, covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice.
The authorities also establish that a prosecutor is entitled to have regard to information not itself admissible in evidence and a practical assessment is required - Thomas v State of New South Wales [2008] NSWCA 316 at [105] but that relevant to the existence of reasonable and probably cause is whether reasonable care was exercised in the collection and consideration of material, including its trustworthiness - Abrath v The North Eastern Railway Company (1882-1883) 11 QBD 440 at 459.
The claims by Messrs Elwasfi and Pound for wrongful arrest are based on establishing that, at the relevant times, viz 23 August 2002 and 11 April 2003 respectively the requirements of s 352(2)(a) of the Crimes Act 1900 (NSW) did not exist. The section provides: 1. Any constable or other person may without warrant apprehend, 1. any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, 2. any person who has committed a felony for which he has not been tried, and take him, and any property found upon him, before a Justice to be dealt with according to law. 1. Any constable may without warrant apprehend, 1. any person whom he, with reasonable cause, suspects of having committed any such crime, 2. … and take him, and any property found upon him, before a Justice to be dealt with according to law.
It was submitted that on the occasions mentioned Sergeant McLennan and the arresting police had no evidence upon which a police officer could have had a reasonable suspicion that the person arrested had committed the offence for which he was arrested.
In considering the application of the sub-section it is appropriate to bear in mind that suspicion is less stringent than belief and belief less stringent than knowledge or proof - see George v Rockett (1990) 170 CLR 104 at 115, 116 and the cases cited.
Attention was also directed to the terms of the Director of Public Prosecutions Act 1986 and in particular s 9(4) wherein it is provided that after a matter is taken over by the Director he shall be deemed to be the prosecutor. However it was not suggested that Sergeant McLennan ceased to also be a prosecutor if by his conduct he continued to carry the prosecution forward - see State of New South Wales v Abed [2014] NSWCA 419. Obviously the facts may determine whether someone who initiates a prosecution may be said to remain a prosecutor but for the moment it is sufficient to recognise the possibilities. Consideration
In making any judgment as to the existence of reasonable and probable cause for the institution or maintenance of proceedings against the Plaintiffs, it becomes necessary to examine the issue of what weight could reasonably have been placed on various aspects of the evidence that those prosecuting had available to them. I have made some remarks bearing on individual aspects of the evidence but it must be considered in totality. One must also recognise that the evidence or information available to the prosecuting authorities changed at times.
It is also relevant to bear in mind that, in addition to the evidence directed specifically against the Plaintiffs here, there was, as I have already remarked, other material providing strong grounds for thinking that Danny Saad was one of those involved in the attack on Mr McPherson, that the other attackers were or included some of his friends or associates and that each of the Plaintiffs fell into that category. LD Material
A deal of criticism was directed to the quality of the Listening Device material and the way that material was dealt with and Sergeant McLennan's endorsement or acceptance of that treatment. It was submitted that some scientific method of identifying the speakers was essential, that any voice identification could have been achieved more fairly than by the calling of police officers whose evidence of familiarity with the voices of the Plaintiffs would have involved revealing substantial prior contact with them, indicative of criminality on the Plaintiffs' part.
Certainly, the suggested different course could have been followed and the use of the police officers' familiarity with the Plaintiffs carried with it the risk that the evidence would be excluded although Newman AJ clearly thought that any risk of unfair prejudice could be dealt with by suitable directions. And, if the attributions were correct, the risk of unfair prejudice could also have been avoided by the Plaintiffs accepting that conversations as recorded had occurred.
In any event, most of the evidence of attribution had been prepared before Sergeant McLennan had any involvement with the matter and it strikes me as unreal to criticise him for not having the exercise done again by some spectrograph analysis, with presumably the obtaining of adequate examples of prior speaking by the Plaintiffs and at, so far as the evidence before me goes, some unknown cost.
There can be no doubt that the voice attribution evidence could have been better. Insofar as it consisted of the statements of Constables McDonald, Rubens and Schott, the attribution was sloppily done. Constable Hollingworth's statement referring to his repetition of the attribution exercise in September 2002, presumably on the instructions of Sergeant McLennan, contains, at most, a bare minimum of material but he came to the same conclusions as the earlier evidence suggests. In totality there was reasonable evidence of accurate attribution.
It must be accepted also that the quality of the Listening Device material was poor. That quality however was primarily determined by the conditions operating at the time it was recorded and there was no persuasive evidence that its quality could be improved further than it was. Despite the decision of Sully J concerning that material, given its treatment previously it was reasonable for those prosecuting to rely on the Listening Device material for whatever its contents reasonably revealed. I have recorded my views on that aspect.
There are some particular features of the recordings that are to be noted. The first is the extent to which the contents of the tape 4bjl accords with what appears to have been - though the evidence of this could have been more comprehensive - the cleaning of Danny Saad's vehicle. The second is the extent of support those contents give to Mr Roth's account of the conversation he asserts he heard on the day following the murder, including mention of "Armourall" being used to eliminate fingerprints.
If the tape records Mr Kassas saying, "They can see we've done" as the author of the transcript concluded, the tape also provides further strong support for Mr Roth's account that Mr Kassas confessed to involvement. At the very least the tape provides evidence Mr Kassas was interested in concealing the involvement of a vehicle, presumably the red utility, in some recent event.
Another feature of the Surveillance Device material is the statement recorded on tape 57bjl and attributed to Mr Kassas of being armed with a knife in a fight. I have referred to evidence that provides substantial grounds for thinking that a significant part of what was included in that recording had nothing to do with Mr McPherson's death but also that the remarks attributed to Mr Kassas may well have related to it. That tape arguably provides grounds for suspicion that Mr Pound was also involved
The attribution of remarks on tape 4bjl to Mr Elwasfi provides evidence of him having the knowledge necessary for the offence of concealing a serious offence. Mr Roth
I return to the evidence of Mr Roth. It was submitted that the factors arguing against his credibility were so strong that no reliance should have been placed on him in the absence of independent corroborative evidence and that there was none.
However, as I have said, the similarity between Mr Roth's account of a conversation between Danny Saad and someone about going over the red utility with Armourall to eliminate fingerprints and a conversation recorded via the Listening Device about applying Armourall to the interior of the utility, apparently for the same purpose is striking. In this connection, I do not regard it as vital that the speaker of those remarks has been correctly identified.
The transcripts 5bjl and 57bjl and the corresponding recordings provides further support for the view that Mr Roth did associate with those who frequented what I may call the Saad garage. In summary, there is clear evidence to the effect that the relationship between Mr Roth and the Plaintiffs and Danny Saad was not such as to make an admission by them to him unlikely.
Mr Roth's account of Mr Kassas' and Mr Pound's confessions to him on the night of the murder is, in its terms, uncorroborated. However, in that the conversation recorded on tape 4bjl tends to indicate at the very least Mr Kassas' interest in concealing the involvement of a vehicle it does provide some support for that part of Mr Roth's evidence. Some support is also afforded by Mr Kassas' reference in tape 57bjl to having a knife in a fight.
I do not overlook the fact that in its detail, particularly the reference to the deceased being stabbed in the "stomach and back" the description of events Mr Roth says was given to him, does not accord with what apparently happened to Mr McPherson. Obviously the differences provide fertile ground for argument but the statements may have reflected mistake on the part of their author, not unlikely in the course of a physical confrontation, the making of blows that did not injure, or a disposition to skite.
One must recognise also that the evidence of Mr Shepherd and Mr Clemm tends to indicate that things did not occur on the night of the murder as Mr Roth alleges. However, Mr Shepherd's evidence is not so compelling as to justify the authorities declining to act on the basis of what Mr Roth had said. Indeed Mr Shepherd's confirmation of Mr Roth having said. "I was lucky that I was fighting you the other night. The boys were calling for me to help them in the lane when we were fighting" provides some support for Mr Roth's account of the evening. Mr Clemm's statement also provided some contradiction of Mr Roth's account. Mr Clemm was obviously an associate of the Plaintiffs and their suggested co-offenders so, while what he said had to be taken into account, I do not see in it a reason for those prosecuting not to rely on Mr Roth.
I do not ignore the factors arguing against Mr Roth's credibility. Principal among these were Mr Roth's criminal, drug (including paint thinners) and mental health records, the fact that he provided a statement only in return for police assistance with his own charges, that he was offered the prospect of a reward and help with his Queensland charges and had had a warrant for his arrest withdrawn in New South Wales - matters highlighted at length during the cross-examination of Mr Roth before Magistrate Orchiston. Clearly on all these counts a jury would have received a warning under s 165 of the Evidence Act 1995 and may not have accepted Mr Roth's evidence. However, I do not see in those matters any justification for completely discounting what he had to say.
Attention was directed to some evidence that Mr Roth gave before Magistrate Orchiston. In his statement of 16 April 1998 he had purported to recount a conversation with Fred Saad on the morning after the killing in which Mr Roth had asked: "Where's the Ford" and Mr Saad had replied: "We burnt it to get rid of our fingerprints". In cross-examination it was put to Mr Roth that it was not until the night of 28 January 1998 that the Ford was burnt. Mr Roth first replied that he must have made a mistake, later that he might have been told they were going to burn it, later that while the police officer taking the statement was typing into the computer probably what he said was: "We burnt the car" and finally "I guess I did verbal Fred Saad on that occasion in the statement."
It was submitted that Mr Roth's confession of a "verbal" argued against him being put forward as a reliable witness. Clearly a deal of what Mr Roth said would have been rejoiced in by those acting for the Plaintiffs and the other accused. However, I am by no means convinced that Mr Roth used the term "verbal" in the traditional sense and while undoubtedly any prosecutor contemplating calling Mr Roth would have to reflect on this evidence, in the overall context it does not weigh conclusively against the calling of Mr Roth.
Also relevant for those prosecuting to take into account after they were made or known, were the remarks of Magistrate Gilmour and Newman AJ. In his reasons for allowing proceedings to continue his Honour remarked that he had difficulty in accepting Mr Roth as a reliable witness and concluded:- It follows that I am of the view that the challenges made to the admissibility of the evidence of the various witnesses to whom I have referred and to the admission of listening device material cannot succeed. Accordingly I am of the view that the trial should proceed with the evidence being called. I should add that the nature of the testimony which was challenged is such that a Court of Criminal Appeal may well come to the conclusion that if any verdict found against all or any of the accused on it is unsafe. However, as was pointed out very clearly in my view in Singh-Bal, this is a matter for the Court of Criminal Appeal to determine and not the primary Judge. As far as the generally unsatisfactory nature of that evidence is concerned when considered at this stage of the proceedings it is a question for the DPP to consider should a No-Bill application be made. It seems to me that at this stage of the proceeding this would be the more appropriate mode of challenging the matter raised rather than on the basis that the evidence should be excluded. However, this is a matter for Executive Government to determine and not the Judiciary.
While from the time they were made, these remarks were something that those prosecuting had to take into account, I do not regard the remarks as so strong that those prosecuting thereafter had no reasonable and probable cause for continuing to prosecute such of the cases as, prior to those remarks, they were justified in pursuing. And there were some grounds for discounting what Newman AJ had said. In their terms, his Honour's remarks applied equally to the case against Danny Saad as to the cases against others and this despite the fact that, as I have sought to indicate, there was a substantial body of evidence against Danny Saad, at least a deal of which was not subject to the same credibility problems as the evidence against other persons.
And though the remarks of Newman AJ were critical of Mr Roth, the remarks of Magistrate Gilmour had been at least reasonably complimentary. Taking all of the matters to which I have referred into account, particularly the support afforded to Mr Roth by the contents of tape 4bjl, I regard the prosecuting authorities as having been entitled to place reliance on the statements and evidence of Mr Roth. Ms Holland
Another field of attack on Sergeant McLennan and the DPP prosecutors concerned the evidence of Ms and Mr Holland. As has been said, both made statements on 6 August 2002, Ms Holland made a further statement dated 4 November 2002 and both repudiated the contents of those statements when they gave evidence before Magistrate Orchiston in early 2003, before Newman AJ in October 2003 and before Sully J in October 2004. Any consideration of the weight to which those statements were entitled requires consideration of the evidence of Ms and Mr Holland and Sergeant McLennan's evidence and of the records that came from the Port Macquarie Base Hospital and the Kempsey Health Service.
At one extreme, if one were to accept what Ms Holland said in March 2003 and adopt the most pessimistic of the remarks in the hospital and medical evidence, her statements as to conversations involving the Plaintiffs and those alleged to be their co-offenders were entitled to no weight. They reflected fictional statements made up by police and agreed to by someone mentally disturbed. At the other extreme, the statements represented apparently honest recollections by a witness who had an addiction to marijuana and some, possibly consequential, mental problems but who could generally function satisfactorily. There are, of course, possibilities between these extremes.
I remarked earlier that many of the hospital and medical notes and remarks are at odds with descriptions of Ms Holland given by police. There is obvious inconsistency also between what Ms Holland said in the committal proceedings before Magistrate Orchiston and what the police said then and Sergeant McLennan said in evidence before me. The only witness to these matters who gave evidence before me was Sergeant McLennan, so any attempt to resolve or choose between these inconsistencies is less than ideal. However, as the contents of Ms Holland's statements were relied on in the institution and/or maintenance of the proceedings against one or more of the Plaintiffs, I cannot avoid doing so.
A number of matters seem clear. Firstly, there is something inherently unlikely about Sergeant McLennan and Detective White simply manufacturing the contents of Ms Holland's statement of 6 August 2002. They could not have done so without it being apparent to them at the time that Ms Holland would almost certainly disown the contents when she came to give evidence and if so their efforts would almost certainly prove futile. They may not have known of the High Court decision in Lee v The Queen but there was limited evidence other than that of Ms Holland against some of the Plaintiffs and a prosecution based on a written statement repudiated by its purported author is inherently likely not to meet the standard of proof beyond reasonable doubt. Even if, as was submitted to me, Sergeant McLennan's objective was to secure a conviction at any cost, manufacturing the contents of Ms and Mr Holland's statements does not seem sensible.
Of course one must recognise the possibility that the police may have been motivated as much by creating difficulties for the Plaintiffs and other accused, or by creating pressure on one or more of them to "roll over" and become a Crown witness as by prospects of obtaining a conviction based on what Mr and Ms Holland said but it strikes me as inherently unlikely that Sergeant McLennan and Detective White would have indulged in wholesale manufacture of evidence for that purpose.
While accepting the limitations of the printed page, Ms Holland's own evidence does not inspire confidence in her credibility. Her statements that she could not remember signing her statements are inherently difficult to accept as are her remarks as to the effect of a bipolar disorder. One may accept that she was experiencing inter-personal problems and impulsivity in July 2002 but the observations of the same month that she was active in a school community and she was "happy bubbly" or on a high 90% of the time are hard to reconcile with the massive memory loss on and after 6 August that, according to her, followed. The hospital notes of and near August 2002 and Dr Scott-Orr's letter of 24 January 2003 are not compatible with the degree of mental disability she later asserted. I also have the distinct impression - indeed I am convinced - from the magnitude of her repudiation and profession of ignorance and illness when giving evidence, that she was then saying whatever she thought would enable her to avoid giving evidence adverse to the Plaintiffs and other accused.
I am not unconscious that I have not seen Ms Holland in the witness box. Nevertheless her evidence in repudiating those statements is such as to give me no doubt that that the vast bulk of that evidence is deliberately false. I have no doubt that Sergeant McLennan was entitled to take that same view and that such evidence was unlikely to be believed. Of course, it would still reflect on Ms Holland's credibility.
It seems clear from the hospital records that she was ambivalent about appearing in Court but whether this was because of concerns for her family's safety, fear of air travel or a fear that some of the information she had given to police was false or a combination of some or all of these reasons is impossible to decide. However, the fact that no doctor seems to have prevented or dissuaded her from going to Court, that shortly afterwards Dr Scott-Orr regarded Ms Holland's discharge as acceptable, that she seems to have had a good response to medication and that there are no notes to suggest that at about 6 November, her mind was in a very bad state, all argue against her being in the condition she said she was at that time.
Although Dr Scott-Orr in his letter of 24 January said he was willing to assume Ms Holland's mental state was disturbed on 6 August, the references to "minimal" and "slight" thought disorder in the letters from Dr Shaw and Dr Scott-Orr are impossible to reconcile with Ms Holland's account of her condition.
In the result, I am not persuaded that there was anything about Ms Holland's statement of 6 August, the circumstances in which it was taken or about Ms Holland's appearance at the time that argued against the statement being regarded as an apparently honest recollection by a witness who had an addiction to marijuana and some, possibly consequential, mental problems but who could generally function satisfactorily. I also accept Sergeant McLennan's evidence to the effect that no illness significantly incapacitating her evidence giving ability was apparent at and about the time he obtained Ms Holland's statement or visited her in hospital.
Once one rejects Ms Holland's account of how her 6 August 2002 statement came to be made, there is nothing in that repudiation to suggest that it should not, in August 2002, have received weight in accordance with its terms. Of course, that is not to say that Ms Holland's repudiation of it could be ignored. Subject to issues of admissibility to which I direct attention below, which account should be accepted was very much a jury question.
There followed Ms Holland's statement of 4 November 2002. In this connection also I have not seen the relevant witnesses including Ms Holland and Detectives White and Scott but nothing has been put before me to persuade me that at the time of this statement Ms Holland was, or appeared to be, suffering from any illness reflecting on her capacity to provide an account of her recollection.
In its terms that second statement affords substantial evidence of Mr Elwasfi's participation in the murder itself and, a fortiori, in having the knowledge element for a "conceal serious offence" charge. However, in light of what I infer to have been Ms Holland's denial of having further information at the time of her 6 August statement and the other remarks I have made above as to her memory of Mr Elwasfi, I do not regard her statement of 4 November as ever having been entitled to any appreciable weight in favour of the prosecution. The explanation she gives in the statement for her change of stance is inherently improbable.
Be that as it may Sergeant McLennan said that it was on the basis of this further statement albeit under advice from Mr Kimble that Mr Elwasfi was charged with murder.
That statement of 4 November also throws doubt on Ms Holland's credibility so far as her first statement is concerned and the question arises whether, after the 4 November statement was made, anyone with knowledge that she had probably told the police on 6 August that she had no other information, could reasonably have relied on the earlier statement. Except at most to a minimal degree they could not reasonably have done so.
The next significant event so far as her evidence was concerned was Ms Holland's evidence in March 2003. There is much to be said for the view that her credibility became worse. Her evidence then was so extreme that it is not unlikely that it would be so disbelieved as to leave open the possibility that some part, at least of the earlier statements, would be accepted. While I think that that qualification should be recognised, it does not persuade me against the view that after 4 November 2002 no substantial weight could properly be placed on anything that Ms Holland had said.
I should say something more concerning the decision of Sully J to reject the application to cross-examine Ms and Mr Holland upon the ground that the decision of the High Court in Lee v The Queen meant that what they had said to police or in their statements could not be evidence of the truth of the admissions recounted in those statements. With respect, I agree with so much of his Honour's decision as related to express admissions attributed to Danny Saad and Mr Elwasfi. However the foundation of the decision in Lee v The Queen is the hearsay rule embodied in s 59(1) of the Evidence Act. The sub-section provides:- Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
The rule does not apply to representation that cannot reasonably have been supposed to have been intended, commonly, implied representations
According to her statement of 6 August, Danny made his statement implicating himself in Mr McPherson's killing when "we were all in the laneway", also present and laughing were Ashley Saad, Charlie, Shorty and Jeffrey. Some may not draw the inference, but in my opinion the better view is that by their actions or non-denial, these last mentioned four were impliedly and unintentionally representing that they were present at the time of the attack on Mr McPherson. In my view Lee's case did not preclude the Crown relying on such representations.
It seems clear from Sully J's remarks that he was concerned with "inculpatory admissions made verbally … by various of the accused" and to that extent I agree with his Honour. One may infer that that was the area of Ms Holland's evidence which was the subject of debate before his Honour and no-one considered the unintentional admissions by those nearby.
Because Mr Holland says nothing about the reaction of Ashley Saad, the only bystander to whom he refers, there is no evidence of an unintended representation by Ashley and hence so far as Mr Holland's statement is concerned, Sully J's decision was correct. A similar remark may be made concerning the assertion in Ms Holland's 4 November statement that "Camel" was present at the time of Danny Saad's admission. She does not assert any conduct by Mr Elwasfi that could be regarded as an admission.
But in any event, I do not regard Sully J's ruling as one that Sergeant McLennan should have anticipated. The issue was not one canvassed by Magistrate Orchiston or Newman AJ or, so far as one can judge by the oral submissions - there were some written submissions not in evidence before me - of any of the experienced counsel who appeared in those proceedings, all of whom could be expected to have a far greater knowledge of the laws of evidence than Sergeant McLennan and some at least of whom had an obvious interest in having excluded anything Ms Holland had said.
Although I am of the view that Sergeant McLennan should not have anticipated Sully J's ruling so far as Ms Holland's evidence is concerned, the officers of the DPP prosecuting the case should have done so, at least to the extent to which I have agreed with it. Lee's case is such a significant one in the field of criminal evidence that lawyers engaged in criminal prosecutions should be aware of it and in any case where a witness has repudiated a statement wherein he or she purported to recount a confession, considered Lee's case's ramifications.

Mr Holland

So far as Mr Holland is concerned, again I have not seen him or Detective White. Accepting that limitation, I am nevertheless persuaded that much of what I have said so far as Ms Holland is concerned applies to Mr Holland. His explanation for having signed every page of a statement so different from what he said were the facts although not as extreme or replete with detail as is that of Michelle Holland is not inherently probable. Again, I think the inherent probabilities argue strongly against Mr Holland's evidence of signing the document without reading it and against the police simply fabricating the important parts and I am not persuaded that his statement did not represent apparently honest recollections of a witness and that Sergeant McLennan and the prosecutors were not justified in acting on the basis of it. Indeed, insofar as Sergeant McLennan gave evidence before me that Mr Holland had lied when accusing the sergeant of verballing him and making up material included in his statement I accept what he has said.
After Mr Holland gave evidence in March 2003, little weight could be placed on his statement although again his repudiation could have been rejected leaving, subject to the impact of Lee's case, his statement available for acceptance. Reasonable and Probable Cause
Against the background of the above remarks, I now turn to one of the principal issues I must determine, viz. whether there was reasonable and probable cause for the prosecution of the Plaintiffs or, more accurately, whether the Plaintiffs have established an absence of such cause. Mr Kassas
Mr Kassas was arrested and charged with murder on 9 August 2002. At that time the incriminating evidence against him consisted of: 1. (i) Mr Roth's evidence of Mr Kassas having confessed on the night of the murder; 2. (ii) Listening Device tape 4bjl. 3. (iii) (Possibly) Listening Device tape 57bjl
In respect of that last mentioned item, I accept that Sergeant McLennan honestly believed that Listening Device tape 57bjl was incriminatory of Mr Kassas, and, even if he was wrong, for the reasons I have given, his view was not unreasonable. Tape 4bjl was incriminatory of Mr Kassas whether or not it recorded the words, "They can almost see we've done it". I am not persuaded that Sergeant McLennan was unreasonable to rely on the transcription of that tape even if the transcription was erroneous.
There was also the evidence of Danny Saad's involvement in the murder and that Mr Kassas was a friend of Danny Saad who frequented the garage. Of itself, this last evidence was not incriminating of Mr Kassas but it was calculated to make easier acceptance of the evidence that was incriminatory of him.
In combination, the evidence to which I have referred in sub-paragraphs (i) and (ii), notwithstanding the criticisms that can be made of it, provided grounds for charging Mr Kassas with murder that I regard as objectively reasonable and probable. Nothing occurred thereafter to significantly weaken the case against Mr Kassas until Sully J excluded the evidence of the Listening Device tapes. Mr Byrne's statement of August 2003 provided further information tending to incriminate Mr Kassas but given Mr Byrne's past and that, by October, he was known to have continued committing offences, I regard his statement as of negligible weight. Apart from in the areas and the witnesses I have mentioned, there was no other significant evidence incriminatory of Mr Kassas.
And even after Sully J's rulings concerning the Listening Device material and the evidence of Ms Holland, there remained the evidence against Danny Saad of association and the evidence of Mr Roth. Particularly given the stage proceedings were at, there were reasonable and probable grounds to continue them.

Mr Elwasfi

Mr Elwasfi was arrested and charged with concealment on 23 August 2002. At that time the evidence of him having knowledge of information that might be of material assistance concerning Mr McPherson's murder consisted of:- 1. (i) Listening Device recording tape 4bjl; and 2. (ii) (Possibly) Listening Device tape 57bjl.
Again there was also the evidence of Danny Saad's involvement in the murder and that Mr Elwasfi was a friend of Danny Saad who frequented the garage. In his own statement made to police on 30 July 2002, Mr Elwasfi provided further evidence of association and frequenting the garage. Again, this evidence was not incriminating of Mr Elwasfi but it was calculated to make easier acceptance of the evidence and inferences that were incriminating.
On 23 August 2002 Mr Elwasfi was asked in effect what he knew about the murder and he declined to provide information. Combined with the evidence of his knowledge referred to in (i) above (and a fortiori if (ii) is taken into account), there was thus evidence of his concealing a serious offence.
However the relevant provision of the Crimes Act, s 316, requires that for a failure to provide information to be an offence the failure must be "without reasonable excuse" and the question arises whether because of fear of self-incrimination Mr Elwasfi might have been justified in saying nothing. Putting aside Ms Holland's statement, there is not in the material before me any direct evidence of Mr Elwasfi having participated in the murder. However, the evidence clearly indicates that there were some offenders unidentified. Mr Elwasfi is Lebanese, and was an associate of Danny Saad and others who frequented the lane and who were charged with Danny with murder in 1998. There was no evidence that excluded Mr Elwasfi as an offender. As at 23 August 2002, he had already acquired a substantial criminal record. The police were obviously interested in him and it would not be surprising if he believed that there was a distinct possibility that he could be charged with murder. He was not obliged to provide the police with information that might have incriminated him and there is nothing to exclude the possibility that his refusal to provide information was for fear that whatever he said might be used against him on a murder charge. In these circumstances there is nothing to establish that he did not have a reasonable excuse for not providing information about the incident.
The matters to which I have referred as providing an excuse for Mr Elwasfi to decline to provide information to police, must all have been known to Sergeant McLennan and there is nothing to suggest that he had any contrary information. It follows that there was no reasonable and probable cause for Mr Elwasfi to have been charged on 23 August 2002 with conceal serious offence.
Mr Elwasfi was arrested and charged with murder on 6 November 2002. At that time the incriminating evidence against him, in addition to that to which I have just referred, was Ms Holland's statement of 4 November 2002.
However, although in terms that statement implicated Mr Elwasfi, what I have said about it and Ms Holland leads to the conclusion that it provided no reasonable basis upon which to bring a murder charge against Mr Elwasfi.
The lack of reasonable and probable cause in respect of both charges continued until Mr Elwasfi was acquitted. Ashley Saad
Ashley Saad was arrested on 9 August 2002 and charged with conceal serious offence and a number of other offences. At that time the evidence of him having knowledge of information that might be of material assistance concerning Mr McPherson's murder consisted of:- 1. (i) (Possibly) Listening Device tape 57bjl. (ii) Ms Holland's statement of 6 August 2002 to the effect that that when Danny Saad confessed to the murder of Mr McPherson and that "we were all in the laneway" Ashley Saad was present and, by laughing and not denying, implicitly admitting, involvement.
Again there was also the evidence of Danny Saad's involvement in the murder and that Ashley Saad was Danny Saad's brother. Again, this evidence was not incriminating of Ashley Saad but it was calculated to make easier acceptance of the evidence and inferences that were incriminating.
There is no direct evidence that Ashley Saad never provided information to police concerning Mr McPherson's death, but a statement by Constable Adam in Exhibit U records a request made on 9 August 2003 to Ashley Saad to provide information and a response, "Go fuck yourself". Other remarks of Ashley Saad that day reinforce a conclusion that any co-operation by him with police was highly unlikely to have occurred.
If there was nothing more, I would regard the evidence to which I have referred as providing reasonable and probable grounds on 9 August 2002 upon which to charge Ashley Saad with concealing. Despite Ms Holland's subsequent repudiation of the contents of her statement of 6 August, that statement was incriminatory of Ashley Saad insofar as it referred to actions or other conduct of Danny and Ashley Saad and, as I have said, Lee's case did not render it inadmissible as against Ashley Saad. The problems with Ms Holland's credibility that later appeared had not then emerged.
However, again there was need to consider the requirement in s 316 of "without reasonable excuse" and whether because of fear of self-incrimination Ashley Saad might have been justified in saying nothing. There is not in the material before me any direct evidence of Ashley Saad having participated in the murder. However, the evidence clearly indicates that there were some offenders unidentified. Ashley Saad is Lebanese, Danny Saad's brother and an associate of those who frequented the lane, two of whom were charged along with Danny with murder in 1998. There was no evidence that excluded Ashley Saad as an offender. As at 9 August 2002 he had already acquired a substantial criminal record, his arrest on 9 August was for a number of offences and it would not be surprising if he believed that there was a distinct possibility that he could be charged. He was not obliged to provide the police with information that might have incriminated him and there is nothing to exclude the possibility that his refusal to provide information was for fear that whatever he said might be used against him on a murder charge. In these circumstances there is nothing to establish that he did not have a reasonable excuse for not providing information about the incident.
Although in light of the conclusion just expressed, I need not do so. I may perhaps add that I do not regard the familial relationship between Danny and Ashley Saad as providing the latter with a reasonable excuse for not providing such information as he was aware of concerning Danny's involvement in an offence as serious as murder - see Sykes v DPP [1962] AC 528. That was a misprision of felony case so it is not on all fours but at p564 and p569 Lords Denning and Goddard severally contemplated that in a very serious case family relationships would not provide an excuse for silence. That said, given the way s 316 is expressed, there is much to be said for the view that whether there is reasonable excuse is ultimately a question for a jury.
The matters to which I have referred as providing an excuse for Ashley Saad to decline to provide information to police, must all have been known to Sergeant McLennan and there is nothing to suggest that he had any contrary information. It follows that there was no reasonable and probable cause for Ashley Saad to have been charged on 9 August 2002 with conceal serious offence. That remained the situation until he was acquitted. Mr Pound
No reliance is placed in these proceedings on Mr Pound's arrest in 1998.
On 11 April 2003, Mr Pound was arrested and charged with murder pursuant to an ex officio indictment issued on 4 April 2003 by the DPP under the authority of Mr Kimble. At the time the evidence bearing on Mr Pound's guilt consisted of:- (i) Mr Roth's statement of 1 April 1998 where he claimed that Mr Pound had confessed to breaking a baseball bat over Mr McPherson's head; (ii) (Possibly) Listening Device Tape 57bjl; (iii) Ms Holland's statement of 6 August 2002 to the effect that that when Danny Saad confessed to the murder to the murder of Mr McPherson and that "we were all in the laneway", Mr Pound was present, laughing and did not deny involvement; (iv) The evidence of Ms Holland given before Magistrate Orchiston denying the significant elements of her statements; (v) The evidence of Ms Holland saying on 26 March 2003 during the committal proceedings that the admission detailed in her statement of 4 November was made by Mr Pound.
Sergeant McLennan believed that evidence of Mr Pound's involvement in Mr McPherson's murder is also included in tape 214bjl but, as I have already indicated, I see nothing incriminating of Mr Pound in that Listening Device material or in tape 32/45 when he was also apparently present. Of course there was also the background of Mr Pound's friendship with Danny Saad and the other Plaintiffs.
And although it was not incriminatory evidence at the date of arrest, there was also available to be taken into account in considering the weight to be afforded to Mr Roth's evidence, Magistrate Gilmour's remarks concerning Mr Roth's credibility. Even putting aside those remarks and the statements and evidence of Ms Holland, I am satisfied that on the evidence of Mr Roth that there were reasonable and probable grounds for instituting proceedings for murder against Mr Pound in April 2003 and then maintaining those proceedings. In that conclusion I place weight on the support of Mr Roth that the Listening Device tapes provide, even if that support has no direct connection to Mr Pound.

Reasonable and Probable Cause - The Subjective Test and Maintenance

In what I have said in this section of these reasons, I have concentrated on the objective test of reasonable and probable cause. I do not regard it as necessary to detail here the information available to Sergeant McLennan and his reactions to it, but I am also satisfied that at all relevant times Sergeant McLennan believed that the Plaintiffs were guilty of the offences with which they were charged and that the evidence available warranted the institution and maintenance of proceedings. Some reasons for these conclusions appear when I deal with the question of malice.
I have also tended to concentrate on the times of arrest. The Plaintiffs' claims are also concerned with the maintenance of the prosecutions and it is necessary to consider the situation at subsequent major stages at the end of the committal proceedings, at the end of proceedings before Newman AJ and after Sully J's rulings excluding the Listening Device evidence and refusing leave to cross-examine Ms and Mr Holland.
Although there was substantial cross-examination at the committal proceedings and lack of credibility of many of the witnesses apparent and emphasised, the only changes of major significance that occurred during the currency of those proceedings, were Ms Holland's statement of 4 November 2002 which, as I have indicated, virtually destroyed her credibility, and Ms and Mr Holland's repudiation of their statements. In accordance with Lee's case the allegations of express admissions in those statements could no longer be relied upon.
There was a deal of other evidence against Mr Kassas so these events did not remove the reasonable and probable cause for maintaining the charge against him.
I have already indicated that there was no reasonable and probable cause for the concealing offence charged against Mr Elwasfi and that after Ms Holland's 4 November statement, there was no reasonable and probable cause for continuing a charge against him for murder.
I have also indicated that there was no reasonable and probable cause for the concealing offence charged against Ashley Saad so later events had no presently relevant impact on the charge against him.
The damage to Ms Holland's credibility occasioned by the matters to which I have referred, weakened the case against Mr Pound. Mr Holland's repudiation of his statement, in effect denying the admission implied by Mr Pound's presence and, one may infer, non-denial, effected some further weakening, but given Mr Roth's evidence and the Listening Device evidence, there remained reasonable and probable cause for maintaining the proceedings against him.
Apart from Newman AJ's comments to which I have already directed attention, I do not see anything that occurred before his Honour as reducing or removing any reasonable and probable cause that previously existed.
I do not see in Sully J's ruling concerning Ms and Mr Holland any weakening of the significance of Ms and Mr Holland's evidence below my assessment of it. His Honour's rejection of the Listening Device material did however weaken the Crown case against those affected by it or by the support it provided for Mr Roth. These were Messrs Kassas and Pound. Effectively the evidence against them, apart from that against Danny Saad and their relationship with him was reduced to that of Mr Roth. Was that reasonable and probable cause? Although I think the answer hangs on a knife-edge, I am not persuaded that there was not reasonable and probable cause remaining. In so deciding, I do not take into account the stage of the prosecutions when Sully J made his decision. However, I do think that that is relevant and provided some support for continuing the prosecution.
Before I move on, there is another argument to which I should refer. It was submitted that reasonable and probable cause for the institution or maintenance of proceedings exists if a judge or magistrate says the case presented is fit for submission to a jury. Despite the superficial attraction of such an argument, I cannot accept it. It makes no allowance for the existence of matters of which the particular magistrate or judge might not be aware but more importantly it substitutes for the judgment of, in this case, myself, the judgment of another person.
Finally in this section, I should make the point that although in what I have said I have commonly considered whether there was reasonable and probable cause for the proceedings, I am conscious that there is an onus on the Plaintiffs to prove the absence of such reasonable and probable cause. Malice - Sergeant McLennan
Without retreating from the idea that in this field malice exists if the dominant purpose of the prosecutor is a purpose other than the proper invocation of the criminal law, the case advanced on behalf of the Plaintiffs was that Sergeant McLennan and Messrs Kimble, Roser and Thorpe pursued the prosecution of the Plaintiffs with a closed mind, their dominant motive was to secure convictions at all costs, that they pursued the Plaintiffs and other accused without reasonable and probable cause, and that each was guilty of wilful blindness in: 1. (i) wilfully shutting eyes to the obvious; 2. (ii) wilfully and recklessly failing to make enquiries as an honest and reasonable prosecutor would make; 3. (iii) with knowledge of circumstances which would indicate the facts to an honest and reasonable prosecutor particularly the fact of the unreliability of the principal Crown witnesses; and 4. (iv) With knowledge of the circumstances which would put an honest and reasonable man on enquiry; 5. (v) With wilful blindness or reckless indifference to the innocence or guilt of the plaintiffs. (sic)
I am by no means persuaded that all of this conduct answers the description of malice in this area of the law, but I am prepared to assume that it does. I do not however accept a further submission that was advanced to the effect that a prosecutor would need to be absolutely satisfied that evidence would stand up. That is neither a test of reasonable or probable cause nor of malice.
As an incident of his contention that the prosecution of the Plaintiffs was inspired by malice, counsel for the Plaintiffs provided a 98 paragraph summary setting out matters on which he relied. I have considered them all although I do not regard it as necessary to deal with them individually. Many are dealt with in what I have already said. Others reflect what strikes me as an unreal view of prosecuting. 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.
Nor are prosecutors required to give significant weight to exculpatory evidence. They should of course given it due consideration, make anyone charged aware of it and, generally at least, ensure that that evidence is adduced. But prosecutors are not required to assume exculpatory evidence is true as seems to be assumed in some of the Plaintiffs submissions, e.g. where reliance is placed on Messrs Mazzeo, Clemm and Shepherd. 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.
The Plaintiffs' submissions were expanded by detailed reference to the evidence and in particular to those parts of it as argued against the credibility of particular witnesses. Again, it is unnecessary that I repeat my earlier remarks.
However, it is appropriate to say more concerning Sergeant McLennan. He was the only witness called on behalf of the Defendants before me, his credibility was attacked and he had been the subject of very sustained attack in the proceedings that followed the Plaintiffs and others being charged.
I accept Sergeant McLennan's evidence that he had never dealt with the Saads before. He added that he had no reason to approach the case with other than an open mind. Subject to the qualification that it seems to me likely that he must have had some knowledge that at least some of the Saad family and their friends had a reputation within the Redfern police station for illegal behaviour, I am disposed to accept that statement also. But whatever be the situation in those respects, it seems to me inevitable that a consideration of the material available at the time of Sergeant McLennan's first involvement would inevitably have led to a firm and not unjustified view that Danny Saad and Mr Kassas were two of the participants in the attack on Mr McPherson, that the other participants were relatives, friends or acquaintances of Messrs Danny Saad and Kassas and possibly included Mr Pound and that others including Mr Elwasfi and Fred Saad at least had information as to the identity of persons who had been participants in the attack. Particularly significant in this connection was the evidence against Danny Saad, the destruction of Fred Saad's Falcon, the Listening Device material, Mr Roth's statements, his evidence at the first committal proceedings and the Magistrate's remarks at the conclusion of those proceedings.
I have referred early in these reasons to the evidence implicating Danny Saad, most of which did not involve issues of credibility. What can be heard on the Listening Device tapes must also be regarded as objective. I also see no reason why Sergeant McLennan should have regarded the voice identification as suspect even though its quality could have been improved. Indeed that he allowed the deficiencies in that identification to continue as they did tend to favour the Plaintiffs in the proceedings against them and argues against the proposition that Sergeant McLennan sought to obtain a conviction at any cost. Of course, in September 2002 Detective Hollingsworth purported to confirm the earlier voice identification and it is likely that his further consideration of the material was at the instigation of Sergeant McLennan. Later Mr Roth provides some further, albeit weak, voice attribution.
Perhaps the strongest aspects of the attack on Sergeant McLennan concerned his reliance on witnesses of doubtful credibility, particularly Mr Roth, Ms Holland and Mr Byrne, and what was suggested to be Sergeant McLennan's concealment of, or failure to timeously produce, information adverse to their credibility.
Sergeant McLennan conceded that informers have to be treated with scepticism, that he had a responsibility to investigate the value of Mr Roth's evidence and that Mr Roth needed to be corroborated. He asserted that corroboration was provided in the Listening Device material. I have said enough to indicate that to a not insignificant extent I agree.
Earlier in these reasons I have detailed a number of features of Mr Roth and of Sergeant McLennan's dealings with him which were not disclosed as they should have been. In that connection counsel for the Plaintiffs placed into evidence The Prosecution Policy and Guidelines issued by the Office of the DPP in March 1998 and October 2003. It is not necessary that I refer at length to these documents. The flavour of them becomes apparent in a few references. Clause 15 of the 1998 Guidelines provided, inter alia:- 15 … … There should also be disclosure of any information in the possession of the prosecution that reflects materially on the credibility of a Crown witness and where cross-examination based upon it might reasonably be expected to materially affect that credibility. … Any immunity (indemnity or undertaking) - granted or approved in principle, or inducement provided to a Crown witness should be disclosed to the accused in advance of the trial.
Clause 16 provided that there should be disclosure by the DPP to the Defence of, any informer's criminal record or information relevant to evaluating an informer's credibility including information as to motivation, mental health and whether any monetary or other benefit had been offered.
Appendix D to those guidelines provided that the police should notify the DPP of all information, including that concerning any proposed witness which might be of relevance and certify that the DPP had been so notified. Appendix G to those guidelines contain further guidelines for the taking by investigators of induced statements. The second of the paragraphs indicating the persons where the guideline applies suggests that it may apply to persons such as Mr Roth and Mr Byrne although the formality provided for - prior advice from the DPP - suggests that it may not have been intended to apply to their precise situations. Be that as it may it seems clear that the procedures contemplated by Appendix G were not followed.
Other evidence provides guidance to what should occur. A Witness Informer Report, Exhibit 7, signed by Detective White apparently in standard form but filled out to relate to Mr Byrne invites reference to an informer's motivation, mental health, reliability and the extent to which public officers have given evidence or written reports on the informer's behalf. An undated Disclosure Certificate referring to "Danny Saad/Sam Kassas" signed by Sergeant McLennan certifies that he was aware of his duty to disclose information that might reasonably assist the prosecution or defence and that there was no such information not contained in the brief of evidence presented to the DPP. There was an undertaking in the document to provide additional information of that nature if the officer signing became aware of it.
A similar Certificate referring to Mr Elwasfi and signed by Detective White on 5 September 2002 was also in evidence.
Certainly Sergeant McLennan did not comply with the letter of the DPP Guidelines and he provided no comprehensive explanation for not doing so. Indeed, surprisingly, he seems not to have been asked. However, particularly in any consideration of the topic of malice, his omissions need to be considered against the background of what he did do and what other information was provided or available. Given that Sergeant McLennan was the officer in charge, it is to be inferred that Sergeant McLennan directed the obtaining by Detective Donohue of Mr Roth's 5 November statement. The terms of that document could not but have put anyone who read it on notice of Mr Roth's potential for unreliability. Of course the substance of the contents should have been disclosed earlier, particularly by an experienced detective.
So far as Mr Roth is concerned, sufficient as to the circumstances of his 1 April and 16 April statements, and his criminal and mental history was revealed in the course of the committal proceedings against Mr Pound, to put everyone concerned on notice that there was much to be said against his credibility. Included, was the fact and many details of his criminal record, that he had a disposition towards violence, that he had been committed to the care of a psychiatrist and been in Rozelle Hospital. Recorded in the transcript also was the fact that Mr Roth's statement of 1 April was made after he was arrested and a charge against him then dropped or reduced.
Mr Roth was also an associate of most, if not all, of the Plaintiffs. It is an almost inevitable inference that, without being told anything by the police or DPP, they would have had some significant knowledge of Mr Roth's past. On its face any willingness of Mr Roth to give evidence against the Plaintiffs in 2002 when he had declined to give evidence against Messrs Danny Saad and Kassas in late 1998 would raise questions as to why but that said, not revealed were details of the inducement Sergeant McLennan given or offered to Mr Roth or of which he was made aware. As I have said Sergeant McLennan provided no explanation why this information was not provided.
At least as a general rule, I can accept Sergeant McLennan's evidence that police training does not include referring to a witness' motivation in statements although clearly there is an exception to that approach in the case of what are traditionally known as "induced statements". However the guidelines to which reference has been made require that factors bearing on such motivation be brought to the attention of the DPP for passing on to an accused or his legal representatives.
Ms Holland also possessed some attributes that required disclosure. The first steps in the disclosure of her medical or psychiatric problems to the then Defendants seem to have been in late 2002 or early 2003 between the commencement of the committal proceedings before Magistrate Orchiston in November 2002 and their resumption in January 2003 and after Sergeant McLennan was cross examined about Mr Roth's mental problems. It was only after that cross examination that the subpoenae were issued to the Port Macquarie Base Hospital and the Kempsey Health Service and advice was sought as to her condition.
On the other hand, in Ms Holland's statement of 6 August she disclosed that she and Mr Holland had attended on the Saad premises to buy heroin and to buy and sell stolen goods. In his statement, Mr Holland disclosed he had been a heroin addict and "in a fair bit of trouble with the law". Obviously such information is not disclosure of any psychiatric problems but it would be surprising if it did not result in exploration of any topic that might have borne on the witness' credibility. That said, there can be no doubt that, given Sergeant McLennan was aware that Ms Holland's condition was such as to lead her to being in a psychiatric hospital or ward and to result in her being treated by one or more psychiatrists, information to that effect should have been provided to the defence once a decision was made to call her, in other words, appreciably prior to the committal proceedings in November 2002.
In that connection, Sergeant McLennan gave evidence that he had informed Mr Kimble that Ms Holland was in hospital - he possibly said psychiatric hospital or ward. However that falls well short of the information he should have provided. Whether Sergeant McLennan may have provided more information is not apparent. There is no evidence of what inspired Mr Kimble's request that led to Dr Scott-Orr's letter of 24 January 2004.
Criticism was made of Sergeant McLennan because he did not seek to examine Ms Holland's medical files after they were produced. However, I see no reason why he should have done so. Whatever the files said, he had formed his own opinion of her when taking her statement and when he visited her in hospital. He said, and I accept, that at the time the matter was in the hands of the DPP, he had seen a request from Mr Kimble and a report from a psychiatrist in respect of Michelle Holland's medical condition and thus, effectively, taking the matter out of his domain.
Sergeant McLennan agreed that Mr Spicer had mental difficulties and an extensive criminal history but agreed that there was nothing in his statement, taken by Detective Donohue, concerning these matters.
In support of the proposition that Mr Byrne was a witness who should not have been put forward unless there was independent corroboration of his evidence, attention was drawn to his criminal record, to the circumstances in which he came to make his statement and to his criminal activities in the period during which his statement was being made.
Reliance was also placed on the difference between the injuries established to have been inflicted on Mr McPherson and those in the conversations attributed by Mr Byrne to Danny Saad. Undoubtedly this difference provides grounds for arguing that Dannny Saad is unlikely to have said the words attributed to him but it is by no means unknown for those who rejoice in violence - and given what the Listening Device tapes reveal that is not beyond the realms of possibility in the case of the Plaintiffs and the others who were charged - to exaggerate what has occurred. The difference was but one factor to be borne in mind.
I have indicated that once Mr Byrne's criminality during the period of his statement making became known, his credibility was negligible and those prosecuting wold have been well justified in not relying further on Mr Byrne. That said, given the other evidence that was available, and notwithstanding the matters bearing on Mr Byrne's credibility, it does not seem to me that once the DPP became involved it was for someone in Sergeant McLennan's position to decide not to rely on someone who apparently could give important evidence.
On the question of malice, it is also appropriate to bear in mind the continuation and indeed what might be described as the exacerbation of proceedings against Mr Elwasfi following on Ms Holland's statement of 4 November 2002. I have already indicated that I do not regard that statement as entitled to any appreciable weight in favour of the prosecution and indeed it throws doubt on Ms Holland's credibility and thus on her earlier statement that formed the basis of the concealment charges against Mr Elwasfi and Ashley Saad. There is much to be said for the view that after the 4 November statement, Ms Holland should not have been relied upon. However if, as Sergeant McLennan asserted, and I am disposed to accept, the fresh charge against Mr Elwasfi was on the instruction of Mr Kimble, I would not infer that that event was evidence of malice on the part of Sergeant McLennan.
Consideration must also be paid to the fact that no attention seems to have been given (by anyone) to the issue of reasonable excuse and whether Mr Elwasfi and Ashley Saad might have been justified in not making statements to the police.
Reliance was also placed on Sergeant McLennan's refusal to accept the possibility of an innocent explanation for the terms of the Listening Device recording 57bj. However it follows from my remarks concerning that recording that I am not persuaded that Sergeant's McLennan's opinion concerning that recording was wrong. It was certainly not unreasonable.
Reliance was placed on the annexure to the police "Facts" sheet dated 23 August 2002 in respect of the charge against Mr Elwasfi for concealing a serious indictable offence recording that "The following persons are known to have exited from those vehicles and attacked Mazzeo and McPherson". Mr Elwasfi being one of the persons then named. I have adverted to the fact that Sergeant McLennan said that he could not explain why Mr Elwasfi was included.
However to anyone holding the view that the conversation recorded on tape 57bjl, or at least part of it, related to the incident in which Mr McPherson was killed and believing that the conversations were correctly attributed, the tape provides evidence of Mr Elwasfi's involvement in Mr McPherson's murder and thus was likely to have been one of those who Mr Mazzeo described as having exited from the vehicles at the scene.
Sergeant McLennan's refusal to accept that the major part of the conversation recorded on tape 57bjl related to a fight between Mr Elwasfi and Mr Roth was relied on as indicating that he had a closed mind. In support of that claim, Mr Wheelhouse drew attention to the efforts Sergeant McLennan had made in having the Listening Device installed for some months, other Listening Devices on phones, in having Mr Elwasfi charged with drug supply, having him called before the Crime Commission to answer questions concerning Mr McPherson's death and to the fact that, as was claimed, none of these steps produced any evidence of involvement in or knowledge of the murder. Mr Wheelhouse submitted that the failure of these efforts and Sergeant McLennan's trap argued for Mr Elwasfi's innocence. I do not agree.
It was also submitted that, given their poor quality, reliance on the Listening Device tapes was also an indication of malice. However, there was incriminating material able to be heard and the fact that there were other parts that could not was not a reason for disclaiming use of the material that could be heard, certainly in the absence of some reason to think that there was some significant possibility that what could be heard was qualified by what could not. Thus, I do not regard the poor quality or the use of the tapes or, I might add, acceptance of the method of attribution, as arguing for the existence of malice.
There were some other aspects of Sergeant McLennan's evidence that were less than satisfactory.
Although in a statement of September 2003 and in other places he said that he had read the transcript of the committal proceedings before Magistrate Gilmour - and, having been brought in to head a fresh investigation into Mr McPherson's murder, it is in the highest degree unlikely that he did not - he said on two occasions in evidence that he could not remember doing so.
Sergeant McLennan said that he did not know that Mr Roth had made a deal with police on 1 April 1998 police although later he said that a deal was logical. In fact in the course of his evidence at the committal proceedings before Magistrate Gilmour, Mr Roth had agreed that he had been arrested on the day he made his first statement concerning Mr McPherson's murder and that the police had dropped one of the charges. The inference of a deal having been made is very strong. Mr Roth's evidence before Magistrate Orchiston made the fact of a deal certain.
There were, at least arguable, inconsistencies in Sergeant McLennan's evidence. He accepted that Mr Roth was in the class of witnesses that need to have his evidence independently corroborated. There was the following evidence:- Q I put to you that Mr Duncan Spicer was an inherently unreliable witness whose evidence require corroboration before it could be accepted as reliable? A No, I disagree with that. Q That corroboration would require independent objective fact to establish his reliability? A No. Q Mr Roth is a witness of the same class, isn't he? A No, I think he's a witness of - he's credible and reliable.
Given the potential for the witness' mind to have been concentrating on "inherently reliable witness" as distinct from "corroboration" or the combination of these concepts, I am not persuaded that this evidence demonstrates deliberate falsehood. It does however display an opinion of Mr Roth with which, in its apparent generality, many would disagree. That said, one should also not forget what Magistrate Gilmour had to say.
Another particular attack on the credibility of Sergeant McLennan concerned evidence he gave to the effect that some attempt was made to have scientific voice recognition. Sergeant McLennan responded by referring to a statement by Detective Beehag about discs being taken to an audio enhancing place in Pyrmont and that a "sound bite from that compact were emailed to an expert in Canberra who determined that the samples weren't big enough, large enough to carry out a comparison".
A statement of Constable Beehag of 11 October 2003 does refer to two CDs being forwarded to Digital Video Mastering Pyrmont and later receiving a third containing enhanced material but neither in that statement or any other does Detective Beehag or anyone else refer to material being forwarded to an expert in Canberra. It was submitted that Sergeant McLennan's evidence to which I have just referred was "clearly a fib".
Certainly the evidence of attempted scientific analysis seems to be unsupported by any other statement and on that basis I would conclude it was wrong. However, it is an odd thing to lie about if, as might be expected, Sergeant McLennan knew that what he said would not be supported by any other statement and I am not prepared to infer that he deliberately lied on the topic.
Sergeant McLennan was at times defensive of Mr Roth. One of the documents indicated that Mr Roth drank up to 10 litres of alcohol a day. There was the following question and answer:- Q. A person who drinks up to 10 litres of alcohol a day is not a person who engages in the normal consumption of alcohol wouldn't you agree? A. It is a lot of alcohol, it's not impossible, 10 lutes of beer isn't impossible.
It was submitted that Sergeant McLennan had selective amnesia. An example given was his purported recollection of speaking to a psychiatrist at Port Macquarie Hospital, evidence that was contrasted with Sergeant McLennan saying that he had no recollection of speaking to Mr Roser.
I do not find this difference in recollection significant. One suspects that Sergeant McLennan would have had far more conversations with officers of the DPP than trips to Port Macquarie in the intervening 13 years.
Indeed that passage of time has to be borne in mind when consideration is given to much of Sergeant McLennan's evidence including in respect of some of the topics referred to in this part to these reasons. Many persons might have difficulty in explaining why they did or did not do something 13 years ago. I certainly did not form the view at any time that Sergeant McLennan was deliberately lying.
It was submitted by Mr Temby that the inclusion in the Crown brief of statements that were or tended to be contradictory, e.g. those Mr Spicer and Mr Olivera as to Mr Spicer's presence was an indication of lack of malice. Certainly the inconsistency does not indicate malice but there are so many possible factors which may have led to the inclusion that I am not able to accept Mr Temby's submission.
It is apparent from what I have said that a number of criticisms can fairly be made of particular aspects of the conduct of the prosecution. However, there is no doubt Mr McPherson was murdered. There was a deal of evidence Danny Saad and some of his associates were responsible. There was independent evidence in the form of listening device tape 4bjl which indicated Sam Kassas and Mr Elwasfi at least had knowledge of what had occurred and were interested in concealing evidence.
Certainly all or virtually all of those who seem to be able to give material oral evidence of the guilt of those charged possessed many attributes of unreliability. But given what could otherwise be proved, I do not see in a decision to rely on Mr Roth or, prior to 4 November 2002, Ms Holland anything to be criticised. Nor given the other evidence that existed was it unreasonable for the police to place some reliance on what Mr Byrne had to say until it became apparent that he was re-offending during the period he was making his statement.
So far as Mr Roth is concerned, there is no doubt that there was a great deal to be said against his credibility. However, what he had to say had to be considered against the background of the more or less objective evidence to which I have referred. The contents of his statements of 1 and 16 April 1998 were so incriminating of Messrs Kassas and Pound that it would have been a gross dereliction of duty on the part of Sergeant McLennan not to try hard to have Mr Roth give evidence and not to leave the question of whether Mr Roth should ultimately be believed to a jury. It is impossible to regard Sergeant McLennan's doing so as any evidence of malice.
That does not account for all of the faults that I have referred to in Sergeant McLennan's conduct or in the prosecution of the Crown case. I see no or no adequate explanation for some. That may be because of the passage of time. Some are likely to be the product of negligence or incompetence.
In that category, I place the apparent failure of all involved, including three trained lawyers employed by the DPP, to give consideration to the requirement in s 316 of "without reasonable excuse". But one must recognise that mistakes happen. Although these are not matters presently relied on, it is appropriate to bear in mind that some of the objections upheld by Sully J were not even taken before Newman AJ and in the application of Lee's case no-one seems to have recognised the distinction between express admissions and those not within the hearsay rule.
I return to the actions of Sergeant McLennan that strike me as most inexplicable - his concealment of, or failure to timeously produce, information concerning incentives of which Mr Roth was advised and information concerning Ms Holland's mental issues and hospitalisation. As I have indicated, Sergeant McLennan provided no explanation as to why this information was not provided, or provided earlier.
Given the extent of disclosure that did occur and what Sergeant McLennan must have known would be likely to emerge, I am hesitant to infer that he practised deliberate concealment but if he did, the most likely reason was to increase the chances of conviction of persons he thought guilty and who should be convicted and against whom there was some appreciable evidence. Even if that conclusion be drawn, I am satisfied that it was not, so far as he was concerned, a dominant purpose in the commencement and maintenance of the prosecution and thus did not constitute malice - A v State of New South Wales at [91].
I am certainly not persuaded that Sergeant McLennan had a closed mind, that he had any purpose or motive, dominant or otherwise, to secure a conviction at all costs or was guilty of any of particulars of malice set out at the beginning of this section of these reasons. Malice - DPP Prosecutors
In evidence, each of the Plaintiffs acknowledged that outside the context of the court proceedings with which I am concerned he had had no contact with any of the DPP prosecutors. Unless one is to find it in the way the prosecutors conducted themselves in connection with the prosecutions, there was no evidence that any of them had a motive to adopt viz-a-viz the Plaintiffs any approach other than that of a Crown Prosecutor acting in the normal and appropriate way in which Crown Prosecutors conduct themselves.
It was submitted in the case of Mr Kimble that malice was demonstrated by a number of factors. One was the rapid charging of Mr Elwasfi with murder on Mr Kimble's advice without due consideration of the material, particularly that emanating from Ms Holland. A second was that due attention was not given to Ms Holland's mental situation including, that she suffered from a bipolar disorder, to the fact that her treating psychiatrist said that she would require corroboration on matters of great importance and to her own evidence in the committal proceedings. A third was that Mr Kimble had not conferred with Sergeant McLennan concerning Ms Holland's demeanour at the time she made her statements. A fourth was that, although she had been cross-examined as an unfavourable witness, the Crown could not establish that the contents of her statements of 6 August and 4 November were reliable and thus any prosecution based on them must fail. A fifth was that in his post committal summary and checklist of 24 April 2003, Mr Kimble had not referred to these matters, or to the suggested deficiencies in the Listening Device evidence and attribution, or to the possibility and evidence that tape 57bjl referred to events other than the attack on Mr McPherson, or to matters impinging on the evidence of Mr Roth.
Mr Kimble's recommendation of 2 April 2003 contains similar omissions. In neither document is there any significant attempt to identify or analyse the weaknesses in the evidence the Crown proposed to rely on.
Without evidence as to the standards Mr Kimble's checklist was supposed to meet, there is some difficulty in making a judgment as to the significance of omissions That said, it is impossible to avoid the conclusion that the checklist was a very superficial document if, as may reasonably be inferred, it was intended to fairly or comprehensively reflect the strength and weakness of the prosecution case. It is difficult to pick the document's greatest failings but perhaps they include the inherent unbelieveability of Ms Holland's second statement and her explanation for not having mentioned Mr Elwasfi in her first statement, the impact of Lee's case in light or her repudiation of her statements and the issue of "without reasonable excuse".
On the other hand, if the document should have recorded all the weaknesses to which attention has been given, it presumably should also have echoed some strengths such as my remarks to the effect that there were in the medical and hospital records and doctors' opinions, some grounds for not abandoning reliance on Ms Holland, to the effect that there was significant support for some of what Mr Roth had said and reason to think that the account Mr Elwasfi and Mr Roth gave of a fight between them did not explain the remarks attributed to Mr Kassas on tape 57bjl.
Mr Kimble was also criticised by counsel for the Plaintiffs upon the ground that he never seems to have spoken to Sergeant McLennan or Detective White to obtain their response to the material produced by the hospital or medical service or doctors concerning Ms Holland and had not taken reasonable steps to investigate the consequences of Mr Roth's drug, alcohol and mental problems, that he was an informer, and had received incentives. It was submitted that a prudent and reasonable prosecutor would only call Mr Roth if his evidence was independently corroborated.
While undoubtedly Mr Kimble could have taken the additional steps just referred to, I do not regard Mr Kimble as having been bound to take the steps suggested prior to the committal proceedings where the topics were likely to be fully explored. In making that judgment, I have in mind that Mr Kimble was apparently as capable of understanding the medical and hospital notes and reports concerning Ms Holland as Sergeant McLennan who saw them at about the same time. Mr Kimble might also reasonably have assumed that an experienced detective as Sergeant McLennan was unlikely to have obtained a statement from someone who was obviously unfit to give one, and in the case of Mr Roth, a person who was significantly supported in respects to which I have earlier referred. In Mr Kimble's defence, it should be remembered that in January 2003, presumably in response to requests, he received a medical report by a Dr Skinner concerning Mr Roth's mental state and capacity to give evidence and one by Dr Shaw concerning Ms Holland. While these reports do not contain any endorsement of the reliability of their subject, and direct attention to warning signs, they do not lead to the conclusion that reliance on the witnesses the subject of the reports should have been abandoned.
But even putting aside the matter referred to in the immediately preceding paragraph, the matters of which complaint is made do not persuade me of the existence of malice on the part of Mr Kimble. Rather do they argue far more convincingly of incompetence by him and/or in the setting of standards for documents such as he prepared that than of wilful or reckless failings. Indeed the tenor of a large portion of the 16 or so pages of the Post-committal Summary and Checklist, if that was what it was intended to be, argues in that direction.
The concurrency of the committal proceedings is a not unlikely reason Mr Elwasfi was charged so quickly after Ms Holland's statement of 4 November and I do not infer from that the wilfulness, recklessness or blindness for which the Plaintiffs contend.
Given the problems with Ms Holland's statements and her evidence at the committal proceedings and subsequently, the likely impact of Lee's case, and the requirement for an absence of reasonable excuse in the case of Messrs Elwasfi and Ashley Saad, Messrs Roser and Thorpe should also have addressed the issues to which I have referred. However again incompetence rather than wilful or reckless failings or a determination to secure convictions at any cost seems to me a more likely explanation for the continuation of the prosecutions without examination of the issues.
The written submissions by Mr Roser of 4 November 2003 upon which reliance is placed on this issue of malice were during the voir dire hearing before Newman AJ and the tenor of the submissions is that the evidence of the Listening Device tapes and transcripts, and of the various witnesses mentioned in these reasons was admissible. The preparation of the submissions should clearly have directed Mr Roser's mind weakness in the Crown case but again I am not prepared to infer from their terms or the fact that proceedings were not then, at least partly, withdrawn that the, or a, significant reason was malice in any of the ways advanced.
The Plaintiffs also rely on a recommendation by Mr Roser in July 2004 that an ex-officio indictment be preferred against Fred Saad for murder. It was submitted that the statement from a Mr Kalaitzis relied on for that recommendation was so "extraordinarily unreliable" as to demonstrate that Mr Roser was prepared to accept any testimony adverse to the Plaintiffs. It demonstrated, according to the submission, a wilful closing of the mind or reckless indifference to the Plaintiffs' guilt or innocence. The absence of Mr Kalaitzis' statement from the evidence before me makes it impossible to accept this submission (which may well have been prepared before the hearing and before the tender of Kalaitzis material was withdrawn).
In the case of Messrs Roser and Thorpe, reliance was also placed upon evidence indicative of Mr Roth's, Ms Holland's and Mr Byrne's unreliability. In the case of Mr Roth, specific mention was made of, inter alia, bipolar disorder, manic depression, schizophrenia, addiction to paint thinners and alcohol, hallucinations, telling lies because he did not to want to go to gaol, Mr Roth's admission of not having at the time informed police of being assaulted in Wollongong and of the evidence of Messrs Shepherd and Clemm. In the case of Ms Holland, specific mention was made of, inter alia, her evidence that she was still mentally ill, on medication and that she should not be in court, of what she said about her memory and that she would not recognise Mr Pound.
It was submitted inter alia, that the evidence Mr Roth gave before Newman AJ would have persuaded any honest prosecutor to abandon use of him to establish that any of Messrs Kassas, Elwasfi or Pound was guilty of murder; that if the success of a prosecution of Elwasfi for murder was dependent on the evidence of Ms Holland it was doomed to fail; that it would have been clear to an honest prosecutor that Byrne could give no evidence probative of guilt of any of the Plaintiffs and that, having the benefit of more information to consider, certain failure of the prosecutions was or must have been more obvious to Mr Mr Thorpe.
I have said enough to indicate that I do not see in the continuation of a prosecution dependent on the evidence of Mr Roth and the Listening Devices any evidence of impropriety or malice, even on the expanded explanation of that term relied on by the Plaintiffs. Given the other evidence, that of Mr Byrne tended to support, I do not infer malice from continued reliance on him even though many, possibly most, would not have continued any reliance.
Continued reliance on Ms Holland after the statement of 4 November was unjustified, even more so after she had repudiated her statements. I do not base those conclusions on the evidence of her medical condition but on the lack of credibility demonstrated by the 4 November statement and her evidence given in the committal proceedings and later. However the questions remain whether and why one should infer malice from this reliance.
As I have indicated, none of the three Crown prosecutors gave evidence and Jones v Dunkel [1958-1959] 101 CLR 298 was relied on in support of the proposition that I should therefore more readily draw the inference of malice. However, I am not inclined to do so. I see no reason why the prosecutors should have pursued any of the Plaintiffs for an improper purpose and no evidence of any such purpose other than that the suggested weaknesses in the Crown case (assuming those weaknesses can be such evidence). Quite apart from the continued reliance on doubtful evidence and witnesses, there are sufficient indications of incompetence, negligence, lack of attention to evidentiary difficulties or lack of appreciation of the law on the part of each of the DPP prosecutors to incline me to the view that such factors are far more likely explanations for what occurred than malice, even on the Plaintiffs expanded definition of that term.
I have also considered the conduct of Mr Thorpe in continuing the proceedings after Sully J had rejected the Listening Device evidence. From that time, the only significant evidence against Messrs Kassas and Pound consisted of what I have referred to as the evidence against Danny Saad, the evidence of association and the uncorroborated evidence of Mr Roth. The Crown case was weak. However, even if one takes the view that the further continuation of the proceedings against Messrs Kassas and Pound was without reasonable and probable cause, it does not inspire me to conclude that the continuation was motivated by malice.
Thus the claims of all of the Plaintiffs for malicious prosecution fail. Wrongful Arrest
As has been said, Messrs Elwasfi and Pound also sue for wrongful arrest - Mr Elwasfi for his arrest on 23 August 2002 for conceal serious offence and Mr Pound for his arrest for murder on 11 April 2003. Despite paragraph 11 of the Third Amended Statement of Claim, no claim of wrongful arrest is made in respect of Mr Elwasfi's arrest for murder on 6 November 2002. In both cases the arresting officer was Sergeant McLennan.
I have set out the relevant terms of s 352 of the Crimes Act 1900 above. The issue presently for determination is whether either of those Plaintiffs has established that at the time of his arrest he was not someone whom the arresting officer "with reasonable cause, suspect(ed) of having committed" the relevant crime.
I have also set out above the evidence available to police at the time of Mr Elwasfi's arrest on 23 August 2002 and recorded my view that that while there was reasonable evidence of Mr Elwasfi having material information and declining to provide it there was no basis for concluding that he had no reasonable excuse. There was thus no reasonable cause for concluding that he had committed the offence charged and hence Mr Elwasfi was wrongfully arrested.
In the case of Mr Pound's arrest on 11 April 2003, the evidence against him and known to the police was, as I have said, the evidence against Danny Saad, the evidence of association, and (i) Mr Roth's statement of 1 April 1998 where he claimed that Mr Pound had confessed to breaking a baseball bat over Mr McPherson's head; (ii) (Possibly) Listening Device Tape 57bjl; (iii) Ms Holland's statement of 6 August 2002 to the effect that that when Danny Saad confessed to the murder to the murder of Mr McPherson and that "we were all in the laneway", Mr Pound was present, laughing and did not deny involvement; (iv) the evidence of Ms Holland given before Magistrate Orchiston denying the significant elements of her statements; (v) The evidence of Ms Holland saying on 26 March 2003 during the committal proceedings that the admission detailed in her statement of 4 November was made by Mr Pound.
Recognition must also be afforded to Ms Holland's statement of 4 November 2002 and its impact on her credibility. I have indicated that I regard the evidence in paragraph (i) as evidence worthy of credit, particularly in light of the support afforded by some of the Listening Device material. Sergeant McLennan did also. The evidence the subject of the other sub-paragraphs was not exculpatory and nor was there any other to that effect. Thus at the time of Mr Pound's arrest there was reasonable cause for Sergeant McLennan suspecting him of having committed murder.
Accordingly Mr Pound's claim for wrongful arrest fails.

Damages

Mr Elwasfi gave evidence before me. Although his past and the matters hereafter mentioned throw doubt on his credibility, it is appropriate to record that my general impression from his demeanour was that he was endeavouring to be honest.
He seemed to be saying that the statement he made prior to 23 August 2002 contained all the relevant knowledge that he had. Given the terms of the conversation on tape 4bjl, I do not regard such a statement as correct or that Mr Elwasfi can have thought it was. I have no doubt that Mr Elwasfi knew more. He said also that he never saw drug dealing going on from the garage. Given what a number of other witnesses said, it seems likely that this statement is also a lie but the limits I put on the use of evidence means that I cannot so conclude.
Mr Elwasfi was charged with the conceal offence on 3 August. He was admitted to bail on the following day. He was charged with the murder offence itself on 6 November 2002. Bail was refused on 27 March 2003 when Mr Elwasfi was committed for trial but granted by Levine J on 5 March 2004. On 5 January 2005 the DPP directed that there be no further proceedings in respect of the concealment charge.
Mr Elwasfi's evidence as to how he felt when charged was:- 23 August, by that time I sort of come to the end of my tether. I was being arrested for numerous breaches of bails, but I was always come to Court the next morning and the Magistrate would give me continuation all the time, so every time I went to report to Campbelltown Police Station, there was always something in the back of my mind, what is next, what is next, and lo and behold, I went to go and report this time, that is when the alarm went off. I didn't know what they were coming for but I was aware that some police officers from Redfern wanted to speak to me. How I felt could be, simply put, angry, sad, frustrated, powerless and helpless.
The records do not support these allegations of numerous arrests, but I am disposed to accept Mr Elwasfi's evidence on that topic. I have no doubt that the police were applying pressure
Mr Elwasfi was born in July 1976, so he was 26 at the time of arrest. He had left school part way through year 12 in 1993 and then for a time participated in a course in landscaping and horticulture. He had some employment in that industry, in a recycling business and in 1995 in a watch factory. In 1997 he was involved in a motorcycle accident suffering considerable damage to this shoulder. In consequence, and perhaps because he failed to undertake some physiotherapy, he was unemployed for at least 4 years and possibly 7 years.
After finally being acquitted in November 2004, he secured other paid employment driving vehicles.
He gave evidence that he had used marijuana heavily from age 16, alcohol heavily from soon after and began using heroin from about age 20. Thereafter he commenced to use methadone. There is an issue I do not feel it necessary to resolve whether this commenced in 2000 or 2002. In a Second Evidentiary Statement, Mr Elwasfi said that he had been on a methadone program up to January 2009. He said after commencing on methadone there have been times when he has been able to work although the need to obtain methadone commonly daily sometimes prevented this and a delay in obtaining it has been liable to inhibit him in undertaking physical tasks.
He said that his arrests over Mr McPherson's death and his treatment by the authorities thereafter had increased his dependence on drugs, made him feel very paranoid and subject to flashbacks. In his Second Evidentiary Statement he said that since July 2002 due to pressure from police he became addicted again. However his past record, drug taking, drug offending in July and tendency apparent in the totality of his evidence to simply blame the police without accepting any responsibility of his own lead to the view that this bald proposition is simply unpersuasive.
Mr Elwasfi said that at the time of arrest in August 2002, he was working as a part-time cleaner but because of bail restrictions, he could not continue that employment. However he provided no details such as hours of work, or the magnitude of restrictions which would enable this claim to be evaluated. There is no evidence that the arrest on the concealing charge itself led to a loss of income. He said that he had paid, or had paid on his behalf, various amounts arising from "my wrongful arrest" but again no details of treatment or cost were provided which would allow assessment or quantification.
There were before me medical reports concerning Mr Elwasfi from Doctors Godsall (23 May 2008) and Champion (19 July 2008) neither or whom was cross-examined. Dr Godsall expressed his conclusion in the following terms: Apart from an uncertain employment future if this crisis had not occurred, on the basis of his pre-2002 history, his Adjustment Disorder and Mood disturbance now significantly inhibit his effectiveness and competence. This is very much compounded by drug misuse. One has to be very guarded with respect to his prognosis, and in the absence of successful treatment and the removal of the Chronic Situational Stress, I would suggest it is poor. With successful treatment and appropriate social changes it will very much improve, particularly with permanent employment. EMPLOYMENT IS NOT LIKELY IN THE IMMEDIATE FUTURE as at this point he is unable to persevere with the task in hand and he would not attract an employer. I believe I have answered your enquiry and addressed all the questions in your letter of 7/4/08. I reiterate a causal relationship between the presenting distress and the trauma described.
A difficulty with giving operation to this opinion, is that Dr Godsall attributed many of the symptoms from which he regarded Mr Elwasfi as suffering to the totality of events of 2002 or his arrest for murder and it is not possible to deduce from what Mr Godsall has said that there were or remain any, certainly any significant, consequences of his arrest for concealing a serious offence. What Dr Godsell intended to refer to as "trauma" is not clear. It certainly was not, although it may have included, Mr Elwasfi's arrest for the concealing offence. A further difficulty with accepting Dr Godsall's conclusions is that he noted "that prior to arrest (Mr Elwasfi) had cooperated with investigations". Despite the limitations which I think much of the evidence in the case must bear, there is so much information to the contrary of this, that I cannot accept it.
Dr Champion opined that Mr Elwasfi suffered from an anti-social personality disorder and may have suffered from a minor adjustment disorder with depression and anxious mood in relation to being charged with murder but any reactive disorder related to that event has long since resolved. Dr Champion continued: Currently Mr Elwasfi does not receive any form of psychiatric treatment and in my view there is little that could be done to assist Mr Elwasfi apart from continuing monitoring of his drug use and continuance on the methadone program which he finds of help. The long term prospect for those who exhibit the antisocial behaviour patterns and drug programs experienced by Mr Elwasfi is that of a slow progressive resolution of excesses in the behaviour and the drug use as time passes. There is often some improvement in the 4th and 5th decades of life.
Dr Champion recorded that at the time of his report Mr Elwasfi was facing further imprisonment but that at the time of examination was not suffering any diagnosable psychiatric disorder. He said that Mr Elwasfi's prognosis was for: … a continuation of the dysfunctional activities and behaviours present prior to being charged with murder and being acquitted. I have indicated above that generally there is a tendency of the antisocial personality to moderate as life progresses into the 4th and 5th decades.
Also relevant to the assessment of damages for the wrongful arrest of Mr Elwasfi, is the fact that he had previously been convicted in the period 1995 to 23 August 2002 of something over 30 offences ranging from offensive language to breaking, entering and stealing. The nature and number of the offences leads to the conclusion that many would have resulted in Mr Elwasfi's arrest. His first sentence of imprisonment commenced in June 2000. There followed a number of others some of which were suspended, until on 30 July 2002 he was charged with supplying drugs on an ongoing basis. For that offence he was, in September 2003, sentenced to imprisonment for 2 years 3 months including a non-parole period of 14 months.
Given the number of occasions Mr Elwasfi had been arrested previously and the severity of some of his prior offences it is the highest degree unlikely that he suffered any reputational damage in consequence of his wrongful arrest. This conclusion is strengthened if one has regard to the 2 year maximum penalty prescribed for the offence and compares it with the penalties prescribed in respect of some of the other offences Mr Elwasfi committed. His prior history leads also to the view that any subjective consequences, e.g. mental suffering, are liable to have been very substantially less than in the case of a person who had not been arrested before. I am prepared to infer he suffered some mental stress through being arrested but it is likely to have been far less than that which flowed from the far more serious charge of ongoing drug supply and I am not persuaded that in consequence of the concealing charge he in fact suffered any mental distress after being charged with murder on 6 November 2002.
It was common ground that the period in respect of which any damages can be awarded for wrongful arrest ceases upon the arrested person being remanded in custody by a magistrate and that, in the case of Mr Elwasfi this occurred at some unknown time on the day following his arrest - see Diamond v Minter (1941) 1 KB 656 - a case cited as authoritative in Macgregor on Damages, 19th ed. Para 40.021. See also Clerk and Lindsell on Torts, 20th ed., para 15-42.
The nature of the wrong Mr Elwasfi suffered means that damages are at large. The consequences to him of the tort committed by Sergeant McLennan were arrest, deprivation of liberty for about 24 hours and, according to him, "feeling angry, sad, frustrated, powerless and helpless". I accept that to some degree these emotions were likely, and were likely to have been at least heightened by Mr Elwasfi's arrest. However, given Mr Elwasfi's criminal past, his lack of legitimate success in life and his arrest on 30 July 2002 for the ongoing supply of drugs, an offence to which he later pleaded guilty, it is very likely that he was experiencing these emotions to a not insubstantial degree before his arrest for the concealing offence.
Although I am conscious that substantially higher amounts have been awarded in some, but not all, other cases, albeit on radically different facts - see the cases cited in Beckett v State of New South Wales [2015] NSWSC 1017 at [672] et seq, it seems to me that an appropriate award by way of compensatory damages in Mr Elwasfi's case is $2,000.
Mr Elwasfi also claimed aggravated and exemplary damages. The former are compensatory in nature, given for injury "resulting from the circumstances and manner of the wrong doing - see New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31]. Differently expressed, they are appropriate "for the injured feelings of the plaintiff where his sense of injury is resulting from the wrongful physical act is justifiably heighted by the manner in which or the motive for which the defendant did it" - Cassell & Co Ltd v Broom [1972] AC 1027 at 1124, quoted with approval in Spautz v Butterworth (1996) 41 NSWLR 1 at 15.
There is no evidence indicating that Mr Elwasfi's arrest was conducted in other than the usual and appropriate manner of arrest or inspired by a motive other than a belief that Mr Elwasfi was guilty of the offence for which he was arrested. I do not see in the fact that, for some time up to and including immediately before Mr Elwasfi's arrest, Sergeant McLennan was endeavouring to induce Mr Elwasfi to provide information which a deal of information indicates he possessed anything which would justify aggravated damages.
Sergeant McLennan's error was in not having regard to the requirement in s 316 that the failure to provide information be "without reasonable excuse" or not recognising that Mr Elwasfi had or might well have had such an excuse. However, there is no evidence, and it is in the highest degree unlikely that Mr Elwasfi knew of these matters and in any event I am unpersuaded that he suffered in consequence of them rather than from the arrest itself. Accordingly, I see no basis for an award of aggravated damages.
So far as exemplary damages are concerned, I do not see in Sergeant McLennan's actions in arresting Mr Elwasfi any contumelious disregard of Mr Elwasfi's rights or any reckless indifference to the guilt or innocence of Mr Elwasfi. Nor do I see in Sergeant McLennan's prior efforts to persuade, perhaps pressure, Mr Elwasfi to provide information any basis for such damages. Despite that prior conduct, I am not persuaded that Mr Elwasfi's arrest was not because Sergeant McLennan thought Mr Elwasfi guilty of the concealment offence. Accordingly, I see no justification for awarding exemplary damages.

The Use of Evidence

I indicated early in these reasons that questions arose as to the use that some of the material that came into evidence could be put.
The vast majority of the evidence consisted of statements made previously and summarised in the usual form of witness statements prepared by police officers or the transcript record of evidence given during committal or trial proceedings against the Plaintiffs and persons said to be their co-offenders. Some of the other evidence took a more primary form and included affidavits of the Plaintiffs, reasons for judgment delivered by judicial officers who had been involved in proceedings, discs recording conversations heard via Listening Devices, Listening Device logs, Criminal Antecedent Reports, reports to or by officers of the DPP, and medical records. The vast majority of such documents were photocopies. Principally, because of the great variation in the circumstances of the evidence and to avoid the trial becoming bogged down in evidence rulings, the course was adopted, with the consent of counsel, that all decisions concerning limits to which pieces of evidence could be put, should be left until the end of the hearing, or as was finally agreed, until either these reasons or I had a fairly full knowledge and understanding of all of the evidence.
Both counsel addressed on the topic both orally and in written submissions. Unsurprisingly, they did not agree.
The only witnesses who gave evidence were the Plaintiffs and Sergeant McLennan, who was also the author of a small proportion of the witness' statements and evidence to which reference has been made. Criticism was made of the Defendant on the ground that the DPP prosecutors and more witnesses should have been called and while the Plaintiffs are fairly entitled to such benefits as may fairly flow from the absence of the DPP prosecutors, the large extent of the case as it was presented, argues against an approach that involved a large number of witnesses called during the criminal proceedings, being called yet again. That is not to say that some were not more important than others or that all were available.
In his written submissions on the topic, counsel for the Plaintiffs sought eight separate rulings. Given they are so recorded, I need not set them out but there is certainly something to be said for the Defendant's counsel's criticism that the submissions "distinguish between the evidence not by reference to its apparent reliability, but simply based upon whether or not it suits their case". Certainly some distinctions are required but it seems to me that they should be more principled. The nature of the issues assists in that regard.
Furthermore, given the thousands of pages, a ruling as suggested by the Plaintiffs' counsel that:- All evidence the plaintiffs have specifically referred to that contain evidence of representations by police officers White, McLennan, Hollingsworth, Rudens and Scott that are adverse to the defendant's interest in the proceedings, being admissions, be admitted under section 81(1) of the Evidence Act as truth of the facts contained in the assertions. would be unfair and perhaps impossible to practically implement and because of that "might be unfairly prejudicial or misleading or confusing".
There is inconsistency in some of the evidence. An example is the medical condition of Ms Holland and even putting aside what she has said on the topic, not all of the medical reports and notes agree. In no circumstances might it have been possible to come to any reliable conclusion as to that condition but certainly one could not without seeing and having cross-examined the authors of those documents.
To generally accept what documents there are as evidence of the truth of what is said in them is calculated to be unfairly prejudicial or misleading or confusing. I include in that observation the statements of Ms Holland and Mr Holland. However, it was accepted that those acting for the Plaintiffs had made all reasonable efforts without success to find Ms and Mr Holland and in those circumstances s63 of the Evidence Act excludes the operation of the hearsay rule. That said, the inconsistencies in their evidence still remain as do the dangers of which s135 speaks. Nevertheless, I am sufficiently confident in my ability to weigh their evidence that in the circumstances I believe I should allow their statements into evidence without restriction.
The issues are principally what were the states of mind of Sergeant McLennan, possibly other arresting officers, and the prosecutors mentioned, and whether the information available to them, judged objectively, amounted to a reasonable cause for suspicion of the commission of the offences for which Messrs Elwasfi and Pound were arrested and for the institution or maintenance of the prosecutions. Obviously to some of these issues the apparent or possible reliability or unreliability of the information they had is relevant but its accuracy in fact is not.
In these circumstances it seems to me that I should:- (i) Regard the evidence of the Plaintiffs and Sergeant McLennan given before me as in evidence for all purposes; (ii) Regard the representations of the Plaintiffs and Sergeant McLennan in documents or transcripts as in evidence for all purposes - vide Evidence Act s 64; (iii) Regard statements contained in any document appearing to be prepared by any of the three prosecutors as evidence of the author's belief at and about the time of preparation of the document. And insofar as the statement appears to be of matters within the author's knowledge, as in evidence for all purposes; (iv) Regard letters from doctors as in evidence for all purposes; (v) Regard the representations made by Ms and Mr Holland in their police statements or recorded in transcripts of proceedings as evidence of the truth of the facts asserted; (vi) Subject to the foregoing; (a) regard business and hospital records, not being witness statements or evidence given during court proceedings, as in evidence for all purposes, providing however that insofar as a business record reproduces or summarises a witness statement or apparently does so, it is not evidence of the truth of what is asserted; and (b) Otherwise regard statements in documents, including transcripts, so that they are not evidence of the truth of what is asserted; (vii) For the reasons set out in s 136 of the Evidence Act, limit the use of evidence accordingly.

Orders

Leaving aside the question of costs about which there was no debate, what I have said leads to the conclusion that the appropriate orders are:- In proceedings 2007/265163 (i) Verdict for Mr James Elwasfi in the sum of $2000; (ii) Otherwise proceedings dismissed; (iii) Judgment accordingly. 1. In proceedings 2008/289620 (i) Suit dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2016

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