Gruber bhnf Gruber v Backhouse, the Commonwealth of Australia and Cotterill [2003] ACTSC 18

3. The plaintiff in the course of these interviews made certain confessions, and he was accordingly charged with sexual assault on two young girls. The confession was, in the course of the subsequent legal proceedings, subject to challenge and expert evidence was lead by the plaintiff, particularly from Dr Y Lucire, a consultant psychiatrist, to the effect that the plaintiff's confession was unreliable. The confession was admitted in his committal, and he was accordingly brought to trial in the ACT Supreme Court. The confession was again attacked in the course of his trial before a jury, but was admitted into evidence. The jury in that case, which lasted from 18 to 25 June 1990, was unable to agree on a verdict. The plaintiff again went to trial before a jury on 5 December 1990, and the admissibility of the confession was again in issue. On that occasion the learned trial judge ruled that the confession was not admissible. The consequence of this was that there was no further case against the plaintiff, and he was acquitted on 12 December 1990. The transcripts of the committal and both trials were tendered in evidence before me.

4. The case against the defendants was pleaded in negligence. Allegations of wrongful arrest, false imprisonment and malicious prosecution were also pleaded, but counsel for the plaintiff in his written submissions says that in light of the evidence at the trial the causes of action of wrongful arrest, false imprisonment and malicious prosecution were not pressed. This seems to me to have been an appropriate concession. The concession by counsel that a claim for wrongful arrest, false imprisonment and malicious prosecution does not lie, is of some real significance as there is recent high authority against allowing the law of negligence to expand to subsume these well-established torts.

5. The hearing of this matter commenced before me as Master on Monday, 10 December 2001 and continued over four days to Thursday 13 December 2001. It was then adjourned, and the parties given leave to relist the matter. It resumed on Monday, 15 April and Tuesday, 16 April 2002. A combination of difficulties with counsel and witnesses then lead to the matter being further stood over to Monday, 2 September and Tuesday 3 September 2002 when the evidence was concluded. A timetable for written submissions was then set which would have seen the matter concluded before the end of 2002. Difficulties arose in relation to this timetable, and at a directions hearing on 15 November 2002 a further timetable was set which required the plaintiff to file written submissions by 29 November 2002 and the defendants to file written submissions by 17 February 2003 and a further period for submissions from the plaintiff in response. This was an unfortunately long time frame, but counsel for the defendants submitted that, while he would have been able to comply with the earlier time line, he had commitments which meant that he would not be able to respond over December and January to submissions received at the end of November. The revised timetable was complied with, and so the matter effectively became reserved when the plaintiff's submissions in response were received on 4 March 2003. In the interim I had of course been appointed a Judge of this Court. It is my view that there is no difficulty in me delivering reasons as Judge in a matter that I heard as Master, as the jurisdiction of the Master is wholly subsumed within the jurisdiction of a Judge, and in any event s 60A of the Supreme Court Act 1933 provides that a part-heard matter may be finalised by a judicial officer whose term of office has otherwise ended.

6. In order to understand the nature of the claim brought by the plaintiff against the defendants it is necessary to go into some events that occurred before the plaintiff came to the attention of the police. In 1988 there were a series of sexual assaults in the Weston Creek area of the Australian Capital Territory, in particular the suburbs of Chapman and Warramanga. On 2 July 1988 two young girls, who I shall identify in these reasons as K and S, both then aged 10 years were sexually assaulted near the Warramanga shops by a lone male offender whose identity was disguised. There was a police task force established to investigate these assaults, but the matters were not resolved.

7. On 12 February 1989 one of the victims of the assault referred to above, S, attended a childrens disco function at a club in Weston Creek. The plaintiff also attended the club that evening. He had recently turned 18 years of age. He said in his evidence (T 19), "All I wanted to do was have a drink and watch the disco - watch the disco because the girls dance, that's all I wanted to do." The plaintiff was then asked (T 20):

And what happened when you were there?---Well when I walked into the club, I went to the toilet and walked over to the bar and I walked up and I was looking around and the girls were there, and then I went in back - I went outside the club and all these girls were talking, these people were talking, then I went back inside the club and I walked in the door. And after that, after I ran around the side to the door and I saw this girl and she screamed and she called her father and I ran away.

8. One of the young children who the plaintiff was looking at was S, and she became hysterical. Her father and other adults, apparently concerned at the plaintiff, an 18 year old male, taking an interest in a young childrens disco, sought him out. One of the adults saw where the plaintiff ran to, and police were subsequently called.

9. Two constables attended at the plaintiff's home address, where he lived with his parents. Their evidence, given at the first trial, was that when they first spoke with him they asked him where he had been that evening, and he claimed to have been at a video shop at Chapman. He specifically denied being at the club. It was put to him that he was not being truthful, and he agreed. He was then asked to accompany the uniformed officers to the Woden Police Station, and it is common ground that he agreed to this request.

10. Detective Cotterill was at the time involved in the task force investigating the sexual assaults in the Weston Creek area in 1988. He was called into the Woden Police Station on the evening of 12 February 1989, and there he first met the plaintiff. His evidence is that as he spoke with the plaintiff he had concerns about the way the plaintiff was answering his questions, and as a consequence of this concern he arranged to have Mr Backhouse, who was the police psychologist, called in to interview him. He said in his evidence (T 460):

The reason I asked Mr Backhouse to talk with this Mr Gruber was to establish if Mr Gruber was suffering from some sort of a mental illness or if he was fit to be interviewed.

11. The entire course of the police interviews, occurring as they did in 1989 before the practice developed of video taping police interviews, is now only able to be reconstructed by way of the oral evidence of those present, and the later record of interview. The evidence relating to the interviews before me for these purposes comprises the evidence given orally at this hearing, as well as the transcript of the evidence at the committal and the two trials.

12. Detective Cotterill said that he had over the course of his police career conducted many interviews, probably thousands. His evidence at the first trial (T 183) is that the plaintiff's parents did not advise him that the plaintiff had any psychiatric or psychological disability, and this fact is not in issue. In cross-examination he said that it was the content of the plaintiff's answers to the questions that he was asking that gave rise to his concerns. He acknowledged in cross-examination (T 472) that he may have said to Mr Backhouse, "this guy is different". Detective Cotterill said that this was the first time that he had stopped an interview in order to call in the police psychologist (T 473).

13. When Mr Backhouse had arrived and been introduced to the plaintiff, Detective Cotterill remained for part at least of the discussion between Mr Backhouse and the plaintiff. He says that he cannot now recall whether he requested to stay or whether Mr Backhouse requested him to stay, but agrees that he remained present while Mr Backhouse asked the plaintiff a series of questions, until the point where Mr Backhouse asked him to leave. It is not in contest that during the period when Detective Cotterill was present Mr Backhouse asked the plaintiff about personal matters including sexual matters. In a report dated 26 April 1989, Mr Backhouse said:

The discussion about his "problem" was open and frank, as far as it went. The "problem" included not only a discussion about his inability to relate to girls his own age but also the fact that he followed young girls around the shopping centres on his excursions. This behaviour included "fantasy" and masturbatory behaviour in public toilets.

14. It seems to me that this is a matter of some significance, in that regardless of the events of 12 February 1989, an adult male who adopted the practice of following young girls in shopping centres and then masturbating in public toilets is, inevitably, going to come to police attention.

15. Detective Cotterill in cross-examination said that he did not think that there was anything inappropriate in his remaining present while Mr Backhouse interviewed the plaintiff. The interview was conducted with the consent of the plaintiff, and after it concluded Mr Backhouse advised Detective Cotterill that there was, in his opinion, no reason why the plaintiff could not be interviewed in relation to any offences. In cross-examination of Mr Backhouse in this hearing the following exchange occurred (T 586):

And if I understood your evidence-in-chief correctly, the primary reason that you formed the opinion that he was fit to be interviewed was that he didn't exhibit overt signs of psychosis during the interview?---I used that in a broad-based term, but I saw no signs of a psychiatric illness that would preclude him from being interviewed.

Because you saw no signs at that time of delusional behaviour, correct? ---- That's right, no delusional, no auditory hallucinations, he's - no confabulation, his thought was well ordered, well structured, flowed, so no thought disorder at all.

16. Detective Coterill decided not to proceed with an interview of the plaintiff in the early hours of 13 February, and he was sent home with his parents who had attended at the police station. Detective Cotterill made further inquiries over the next days, and on 15 February attended at the plaintiff's premises with a search warrant. The plaintiff agreed to accompany police back to the Woden Police Station and to take part in a further interview. His parents accompanied him to the police station, but were not present during the interview. The plaintiff was at this time an adult, and the advice Detective Cotterill had from Mr Backhouse was that he was fit for interview. In these circumstances Detective Cotterill followed the normal practice of interviewing a person of interest without the presence of his parents.

17. The police interview with the plaintiff commenced with questioning him about his whereabouts on the day of the attack on the two girls. He denied being in Canberra on the day, saying that he had been at the coast with his parents. Police established from his family that they were not at the coast on this day, and this was put to the plaintiff, and it was suggested that he had been at the Warramanga shops. The plaintiff then admitted to being involved in the assaults. The false alibi given by the plaintiff of being away from Canberra with his parents and refuted by his parents in a separate discussion with police, indicates why it would not normally be appropriate to have the parents present during the interview. During the course of the interview he provided details which Detective Cotterill maintained (T 464) could only have been known to the offender.

18. After making the admissions the plaintiff signed the handwritten record of interview, and was then advised that he was under arrest for the sexual assault. Bail was granted on 16 February 1989, and in June and October 1989 he was involved in committal proceedings that resulted in him being committed for trial in this Court.

19. It is the plaintiff's case that both Mr Backhouse and Detective Cotterill breached their duty of care to the plaintiff in the conduct of the interviews, and that the consequence of this breach of duty of care has been that it has caused the plaintiff's present psychological difficulties. It is appropriate to consider both the question of breach of duty of care and causation separately. The consideration of causation will require extensive discussion of the medical evidence given in this case.

20. The causes of action pressed after the hearing of this matter have been limited to the counts of negligence against Mr Backhouse and Detective Cotterill, and against the Commonwealth on the basis of its vicarious liability. The Commonwealth does not contest that it would be vicariously liable for the conduct of Mr Backhouse and Detective Cotterill, but denies the existence or breach of a duty of care.

21. Counsel for the plaintiff in written submissions source the duty of care owed by the defendants to the plaintiff to the common law duty to exercise reasonable care for the safety of a plaintiff detained in custody recognised by the High Court in Howard v Jarvis [1958] HCA 19; (1957) 98 CLR 177. The defendants do not dispute this authority, but point out, it seems to me correctly, that the plaintiff here was not being held in custody during either the interview with Mr Backhouse, or the record of interview with Detective Cotterill. Nevertheless, a police officer must owe a general duty in relation to the exercise of reasonable care when interviewing a suspect, and a person who slips and falls in a police interview room due to the negligence of the police officer in asking the person to walk on a wet floor may well have a good cause of action.

22. The defendants' case, based on recent authority of the High Court in Sullivan v Moody (2001) 183 ALR 404 and the New South Wales Supreme Court in Wilson v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407 is that there is no duty of care on investigating police to avoid inflicting psychological harm on a person being investigated for a crime.

23. The courts have always adopted, for sound public policy reasons, a cautious approach to actions against the police. It does not follow that the consequence of an acquittal is an action in damages against police. In Howard v Jarvis itself, which involved the death of a person in custody due to a fire, the High Court (Dixon CJ, Fullagar and Taylor JJ) acknowledged (at 183) that a duty of care was owed to the deceased because he had been deprived of his liberty, and:

it necessarily followed, in our opinion, that he came under a duty to exercise reasonable care for the safety of his person during the detention.

24. The Court rejected the proposition that the claimed failure by the detaining police officer to detect matches on the person of the deceased before he was placed in the cell amounted to a breach of the duty.

25. The defendants' case is that Detective Cotterill was investigating a potentially very serious matter, being the assault on the two young girls. The plaintiff came to police attention due to his unusual behaviour at the childrens disco, and the impact that this had on one of the victims. The plaintiff at first lied to police as to his whereabouts on the evening of this incident. When Detective Cotterill began to speak with the plaintiff, he says that he felt that something was not right, and he arranged for Mr Backhouse, at that time a police psychologist, to come to the station and provide advice on whether the plaintiff could be interviewed.

26. Detective Cotterill acknowledged that he had never done this before. There were criticisms in these proceedings, and in the earlier criminal trials, about a police regime where a psychologist undertakes an interview with a potential suspect in a police station. Higgins J (as he then was) at the second trial was quite critical of this process, and it was a factor that lead his Honour to the view that the confession was not reliable. There are clear ethical dilemmas when an interview is conducted with an employee of the police in circumstances where the person being interviewed is lead to believe, or could reasonably be expected to believe, that it is a clinical interview being undertaken by a health professional. A psychologist's relationship with his or her patient can give rise to expectations of confidentiality, which, although they may not find a firm foundation in the law, could nevertheless be expected to elicit a different response from an interviewee than a series of questions from a detective. These were no doubt facts that were influential in the rejection of the record of interview, and it is inappropriate to re-open this issue.

27. The question before me is not whether the conduct of Mr Backhouse in conducting the type of interview that he did, at least partially in the presence of Detective Cotterill, meets the highest standard of contemporaneous professional ethics for a psychologist. The question is whether there was a breach of a tortious duty of care.

28. Mr Backhouse was employed by the police as a staff psychologist, and he saw it as part of his duty to assist in providing advice to police as to whether it was appropriate to interview a suspect. In his view, as a psychologist, and not as a person with medical qualifications, it was appropriate to conduct the interview. For Detective Cotterill, his primary duty as he saw it was to investigate a serious crime.

29. In Sullivan v Moody a person who had been the subject of criminal charges following allegations of child sexual assault, sought to bring an action in negligence against certain doctors and child welfare employees who he said had been negligent in concluding that sexual assault had occurred. The Court said at [60]:

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

30. It seems to me that the proposition that a police officer may be sued due to psychiatric distress suffered by a person who has been interviewed by the officer in relation to investigations into a serious crime raises significant public policy concerns, and would give rise to precisely the type of inconsistent obligations referred to by the High Court above. There is a long line of English authority for the proposition that there is no such duty of care imposed on investigating police. In Hill v Chief Constable of West Yorkshire [1989] AC 53 Lord Keith said at 63:

"In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. ...A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendances of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."

31. The common law has developed the distinct tort of malicious prosecution, and it has been observed by judges in both England and Australia that an action for negligence on the part of investigating police would entirely subsume this tort. In Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228, Lord Bridge said at 1238:

Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation .... it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.

32. In Emanuele v Hedley [1997] ACTSC 13; (1997) 137 FLR 339, Higgins J rejected a claim for negligent prosecution and investigation following the dismissal of a very long-running criminal matter. His Honour said at 359:

There is no tortious liability towards an accused person for negligently investigating or prosecuting that person. If there was such a cause of action, a prosecutor would be liable for damages notwithstanding that there was no malice and no lack of reasonable and probable cause for the investigation and prosecution in question. That would make malicious prosecution and misfeasance in public office and, indeed, international infliction of harm by an unlawful act, otiose. It would also by-pass the torts of defamation and injurious falsehood.

33. The Court of Appeal in this Court has recently upheld, in Mensinga v Director of Public Prosecutions (2003) ACTCA 1, a decision to strike out a cause of action brought against the Director of Public Prosecutions for claimed negligence in failing to bring a matter to court by way of a prosecution, and, it seems to me, reinforced the proposition that such a duty of care is inconsistent with the established law in relation to malicious prosecution. Higgins CJ and Gray J said at [34]:

There is no authority for the existence at common law of a duty of care by those who institute prosecutions. Indeed, the existence of the specific tort of malicious prosecution indicates the private law remedy in respect of the action of improperly instituting criminal proceedings.

34. A similar view has emerged in New South Wales. Wilson v State of New South Wales was a claim brought by the parents and grandparents of a child, who had allegedly been sexually abused, against the police for alleged negligence in the investigation of the alleged offence. In rejecting the proposition that the police owed a duty of care, O'Keefe J said at 417:

The common law traditionally provides a limited remedy in respect of prosecutions instituted by police which arise out of their investigations. The action for malicious prosecution is the recognised remedy of the common law. For a plaintiff to succeed in such an action two conditions must be fulfilled. The first is absence of reasonable and probable cause; the second, malice. If police officers were to be liable to actions for negligence in connection with investigations which resulted in prosecutions that were unsuccessful, the tort of malicious prosecution would be unnecessary. It would be bypassed by the law of negligence. Malice would be irrelevant, yet it has always been an essential element to be proved by those seeking redress in respect of an unsuccessful prosecution. As a matter of principle this suggests that an action for negligence in relation to investigations that produce prosecutions does not lie, in much the same way as a barrister's immunity from malicious in-court slander suggests immunity from liability for the negligent conduct of a case in court, as Wilson J pointed out in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 573.

There are questions of public policy that militate against the extension of the law of negligence to investigations, prosecutions and other actions taken for the suppression of crime in the community.

35. In Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449 the High Court rejected a nervous shock claim brought by Mrs Tame based on an erroneous police recording of her blood alcohol level following a traffic accident. Although the decision is of primary significance for its discussion of the extent of liability for psychiatric injury claims, members of the High Court addressed the question of the existence of a duty of care owed by investigating police to a person under investigation. Gleeson CJ said at [26] that the primary duty of an investigating police officer:

is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.

... It would be incongruous and, perhaps, give rise to incompatible duties if a person charged with the investigation of a possible offence were to owe a duty of care to the person whose conduct is the subject of that investigation.

My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. If material is recorded honestly but carelessly, no action for defamation will lie, and I see no reason why the law of negligence should alter that balance.

It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question.

Police officers investigating possible contravention of the law do not owe a common law duty of care to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties.

40. Callinan J, at [335], also rejected the existence of a duty of care, citing with approval the remarks of the Full Court in Sullivan v Moody that:

In Hill v Chief Constable of West Yorkshire the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.

41. It seems to me that the duty of care sought to be established in this case in respect of Detective Cotterill is precisely the duty of care rejected unanimously by the High Court in Tame v New South Wales and by O'Keefe J in Wilson v State of New South Wales. Mr Backhouse was not a police officer, but he was an employee of the Australian Federal Police engaged in his duties. It seems to me that in this respect he is in a similar position as a police psychologist to other professionals who are engaged by a police service to assist investigating officers. It would be incongruous if an action lay against a civilian police employee who, say, negligently failed to notice that a fingerprint did not match when an action would not lie if the person was a sworn police officer. The public policy basis for the absence of the duty of care does not turn on the status of the person as a sworn police officer, but rather on the nature of the public duty being exercised by the police service. Similar public policy considerations have lead to the decision that no action lies against a prosecution lawyer: Mensinga v DPP.

42. In my view there was no breach of a duty of care by either Mr Backhouse or Detective Cotterill, and accordingly no vicarious liability can be shown to lie with the Commonwealth. There shall be judgment for the defendants.

43. The plaintiff was seen by Dr Lucire on the reference from his defence lawyer, on 22 May 1989, and her report of 24 May 1989 is the earliest expert report on the plaintiff's mental state. This report seems to me to be of some significance, particularly as it is at variance with more recent material that has been put forward in the plaintiff's case. It is the plaintiff's case that his present condition has been caused by the interview with Detective Cotterill and Mr Backhouse, or at least substantially aggravated by the stress of this process. In order to advance this case, evidence was given by his parents and family. His father gave evidence that during primary school and high school the plaintiff was "all right" (T 304). He said that the plaintiff became very worried after being charged by the police and he has been "no good ever since" (T 323). His mother said that he was quite bright as a little boy, and was just a normal child at primary school (T 341). She said he was a little more withdrawn and shyer than other children. She said that he had to go to special classes for about four subjects at school. His brother, Mr David Gruber, said of him (T 358) that in the few years before his arrest he was just a normal teenage kid:

a little bit shy, not a real lot of confidence in himself but he's not - he was just - he was quite well - did quite well at school.

44. Both his mother and brother said that the plaintiff changed after the arrest.

45. Dr Lucire's report indicates that she interviewed both the plaintiff and members of his family. Her report states:

Shane was the 5th out of 6 children. His mother had wanted a girl. He was timid and shy early in life and was dressed in girls clothing until he went to high school. He used a security blanket until the age of 11 or 12 years. He preferred to stay with his mother; he was a loner, not interested in mixing, not interested in sport and was never particularly encouraged to participate.

At the age of 9 or 10 he was noted to be refusing physical contact with his younger brother, his father and men in general.

When he started high school he was noted to be associating only with younger children. His parents seemed to be confused but showing little interest in his problems. He went to a normal high school. His intelligence quotient was said to be 80 (this would be concordant with what I saw) and this is the bottom of the normal range. In years 9 and 10 he was put into a sheltered workshop environment for children with various disabilities. He is emotionally disturbed.

He left school in year 11 knowing how to read and write but with little prospect of ever working and he claimed the dole at the age of 18 and got it.

46. This picture, from the May 1989 report of the consulting physiatrist, is very different from the evidence given by his family. Significantly, Dr Lucire continued:

I did some metal state examination and learnt that Shane had suffered ideas of reference, that is feelings that people were looking at him and talking about him, for about ten years. He had always been bullied at school.

As far as I can gather this young man has a borderline personality and is possibly somewhat autistic.

47. At the committal hearing on 1 June 1989 Dr Lucire said (T 85):

... Shane has a very tenuous reality testing because of his mental disturbance. He is what one would call schizoid or schizo typal - what used to be called autistic. He has - he exhibits a number of psychotic features and on the history they've been there a very long time. That is, long before last year. And that's what's really worrying, if somebody under normal circumstances, cannot have the judgment to assess reality as well as one would hope then under stress this could be exaggerated and it could be quite dangerous to assume that anything he said was reliable.

48. Dr Lucire was giving evidence is support of the proposition that the confession contained in the police record of interview was unreliable and to develop this proposition she asserted that in 1989 the plaintiff had "a number of psychotic features and on the history they've been there a very long time". This is quite inconsistent with the pleaded case.

49. Those doctors who support a diagnosis of schizophrenia have referred to episodes of the hearing of voices - auditory hallucinations, which have been reported since the plaintiff's dealings with the police. Although he has denied this occurring before the police interview, he gave evidence in cross-examination (T 46) that he had heard voices that may have been from Mars when he was at school. He identified this as happening when he was behind a lab building at school. It is significant that no doctor had been aware of this version of the plaintiff's history.

50. The plaintiff saw Dr WE Mickleburgh, consultant psychiatrist, at Calvary Hospital on 23 October 1989 and was diagnosed as having an anxiety state, mild intellectual handicap and an inadequate personality. On 10 November 1989 Dr Mickleburgh changed the diagnosis to paranoid schizophrenia, and he was committed to Kenmore Psychiatric Hospital at Goulbourn. In January 1990 Dr Mickleburgh expressed the view that he was not then fit to stand trial. He was examined by Dr R Milton, a forensic psychiatrist, for the Director of Public Prosecutions, in February 1990, and found to be fit to stand trial, and the issue of his fitness to plead was not raised again.

51. The diagnosis of schizophrenia with a degree of intellectual handicap has been made by other doctors who have treated the plaintiff. Dr Tony CT Lee is a psychiatrist who has been involved in the plaintiff's treatment from 1991 to 1996. In a report of 5 October 1996 he gave a diagnosis of schizophrenia (paranoid type) superimposed on mild mental retardation. He felt the condition would be lifelong.

52. Since the family moved to the Batemans Bay area in the late 1990's Dr Tony Williams has been his psychiatrist. He provided an ongoing review of his medication, and in a series of reports from October 1997 has maintained the diagnosis of schizophrenia with mild intellectual disability.

53. In a report of November 2001 Dr Lucire cast doubt on the diagnosis of schizophrenia, saying:

I now wonder if Shane indeed suffers from schizophrenia or if he has posttraumatic stress disorder.

I believe that Shane is an adult, partially autistic and adult of low borderline intelligence suffering from posttraumatic stress disorder.

The trauma which has caused this condition was, on her report, due to the interview with the police.

55. In cross-examination it was put to Dr Lucire that her diagnosis of Post Traumatic Stress Disorder was at odds with the consistent diagnosis of schizophrenia. She said (T 227):

... I think we're talking semantics ... Shane has definitely had bouts of psychosis. Some psychiatrists might call it schizophrenia, some might call it schizophrediform psychosis and it's equally likely to be psychosis as part of a post traumatic state - Post Traumatic Stress Disorder, if you like.

56. I found this a quite extraordinary proposition, as the conditions of schizophrenia and post traumatic stress disorder, commonly before the courts, are to my understanding, quite distinct in diagnosis. The plaintiff has been under medication for schizophrenia for many years.

57. The defendant had the plaintiff examined by Dr Milton and Professor R Finlay-Jones. Dr Milton, in his first report of 1990 where he expressed the view that the plaintiff was fit for trial, disagreed with the diagnosis of schizophrenia, and suggested that some of the more florid features displayed by the plaintiff may be less than genuine. In an extensive report of March 2001 Dr Milton maintained that the plaintiff did not have schizophrenia, and that he had never had this condition. He explained the plaintiff's presentation as "an unusual genetically determined personality disorder involving restlessness and severe anxiety." This is consistent with Dr Finlay-Jones' diagnosis in his report of 30 July 1995 where he said, "I thought he had a severe anxiety state, but was not suffering from schizophrenia".

58. In a subsequent report of December 2001, Dr Milton was very critical of Dr Lucire's new diagnosis of post traumatic stress disorder.

59. Taking all the medical material into account, I am satisfied on the balance of probabilities that the plaintiff suffers and has suffered for a long time from the conditions described by his treating doctors, Drs Mickleburg, Lee and Williams, over the years of schizophrenia and a degree of intellectual disability. I prefer the evidence of the treating doctors to the medico-legal consultants, Drs Lucire, Milton and Finlay-Jones. I do not accept Dr Lucire's diagnosis of Post Traumatic Stress Disorder.

60. On this finding, the evidence of causation is, it seems to me, somewhat limited. As I have found on the balance of probabilities that his condition is as described by Drs Mickleburg, Lee and Williams, I must look to their opinion on the link between the plaintiff's present condition and the conduct of Mr Backhouse and Detective Cotterill. In a report of August 1991, Dr Mickleburg said:

It is generally agreed that there is a genetic predisposition to schizophrenia which makes the person vulnerable to breakdown in this way. Any sufficient stress can then precipitate the schizophrenic episode. Questioning by the Police might well precipitate a relapse. On the other hand, if the Police had some reason to suspect that Mr Gruber might be implicated in the assault, it would seem to be their duty to question him. Whether or not the questioning went beyond the bounds of proper practice I do not know."

Your enquiry about whether the questioning of Mr Gruber (that was dragged out at length in a gruelling way, without the presence of any support from his relatives, in a person deficient in intellectual capacities, and I guess probably at a time when he was already starting to disintegrate slowly with psychosis) could have any connection with his current condition?

The most probable answer is that it would have been traumatic, stressful, confusing and frightening to this person. Whether it could have deteriorated and hastened his mental decompensation is difficult to assess, as the history suggests that he was already emotionally disintegrating, but it is possible. At the least it acted as an extremely stressful factor to hasten his deterioration.

As you are aware, I did not see Shane Gruber either prior to or after his interrogation by the Police in 1989. As discussed in my report of November 2001, I first saw him in 1997.

There is some indication that his mental state may have been deteriorating prior to his interrogation.

In my opinion the interrogation, taking part over a period of time without any support by his relatives, would have been severely stressful, whether or not he had begun to deteriorate emotionally, and would have had a significant negative effect on him and either precipitated or made his condition worse.

63. In an earlier report of November 2001 Dr Williams had expressly agreed with Dr Lee's opinion in relation to the link between the present condition and the contact with the police.

64. The evidence of Dr Mickleburgh and Dr Lee, it seems to me, raises only the possibility of a connection between his present condition and his dealings with the police, which is the subject of this litigation. The high water mark of the plaintiff's evidence, it seems to me, is the view of Dr Williams. In his evidence-in-chief Dr Williams said (T 394):

... there is anecdotally some evidence that his mental state may have been deteriorating prior to the incident. However, certainly the incident seems to have - you know, made it worse or precipitated it. But in hindsight, it's fairly difficult to get a clear picture.

65. On all the medical evidence I am not satisfied on the balance of probabilities that the contact with the police in February 1989 caused the plaintiff's psychiatric condition. Nor am I satisfied that it has materially contributed to the aggravation of the condition.

66. It seems to me that this is not an appropriate case to go into a detailed consideration of the quantum of damages that I would have awarded if I had held that there had been a breach of a duty of care, and if I had been satisfied that the breach of the duty of care had caused the damages complained of. The plaintiff's claim for general damages was based on his present psychiatric condition being solely caused by the conduct of the defendants. I am satisfied that the evidence would simply not make this out, and to the extent that it was said by certain doctors that it was possible that there had been an aggravation of a pre-existing condition, the extent of the aggravation was not quantified. The economic loss claim was based on a total absence of earnings due to the conduct of the defendants, but I note that Dr Lucire, who now supports the plaintiff's claim that it was the conduct of the defendants that has given rise to his difficulties, said at his committal hearing (T 87):

I mean, he is a boy who took - has never worked, he's not likely to work, he couldn't wait to get the unemployment benefit so functionally he's a lot less than people with an IQ of 80.

67. This is consistent with the plaintiff's evidence in this hearing where he said in relation to what happened after school and before his contact with police (T 136):

Yes I did, I got a disability pension, I knew I was going - I knew I was going on the pension.

68. If I was wrong as to duty of care and causation, and was satisfied that the plaintiff's present condition was attributable wholly to the tortious conduct of the defendants, damages would have been substantial, but that is not the case.

69. There will be judgment for the defendants, with costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Counsel for the plaintiff: Mr P Neil, SC with Mr G Brady

Solicitor for the defendants: Australian Government Solicitor

Dates of hearing: 10, 11, 12 and 13 December 2001, 15 and 16 April 2002, 2 and 3 September 2002

Plaintiff's written submissions received on: 29 November 2002 and 4 March 2003

Defendants' written submissions received on: 19 February 2003