Hrdavec v State of New South Wales

HEADNOTE [This headnote is not to be read as part of the judgment] On the evening of 21 June 2015, a young woman was sexually assaulted in an outside toilet on private premises in Blacktown. There had been two women (including the victim) and four men (including the appellant) drinking on the premises that night. Later that night, the victim gave a statement to police that four men were present in the toilet during the assaults. The second woman, Ms Patricia Tejada, gave a separate statement that the appellant had been looking after her in the backyard for about an hour that night. The detective in charge of the investigation, Sergeant Pietruszka, arrested the appellant on 1 July 2015. In an interview, Sergeant Pietruszka told the appellant that Ms Tejada had not mentioned him in her statement. Sergeant Pietruszka also told the appellant that a co-accused, Mr BJ Alcazar, said he had entered the toilet. The appellant was charged with aggravated sexual assault in company and aggravated indecent assault. On 3 July 2015, the victim gave a second statement in which she stated that the appellant did not take part in the assaults. On 7 July 2015, Sergeant Pietruszka notified the appellant's barrister of the victim's changed position but did not explicitly state that he would not oppose a bail application. The appellant did not apply for bail at his next mention in the Local Court. Sergeant Pietruszka continued to be involved in the matter after the Director of Public Prosecutions was briefed around 7 July 2015. With Sergeant Pietruszka's agreement, the Director decided to terminate the proceedings against the appellant on 6 October 2015 and formally withdrew both charges on 11 December 2015. The appellant brought proceedings against the State of New South Wales, alleging it was vicariously liable for unlawful arrest and imprisonment and malicious prosecution by Sergeant Pietruszka. The trial judge dismissed the proceedings, finding that Sergeant Pietruszka did not arrest or prosecute Mr Hrdavec for a malicious purpose and that the appellant's arrest was not unlawful. On appeal, the primary issues were whether: (1) at the time of the arrest, Sergeant Pietruszka suspected on reasonable grounds that the appellant had committed an offence; (2) Sergeant Pietruszka had maliciously misrepresented to the appellant statements given by Ms Tejada and Mr Alcazar; (3) Sergeant Pietruszka had reasonable and probable cause to charge Mr Hrdavec; and (4) Sergeant Pietruszka maliciously maintained the prosecution of the appellant after further exonerating statements were obtained. The Court held, dismissing the appeal: Issue 1 - lawfulness of arrest and imprisonment (1) A police officer can arrest without a warrant if the officer suspects on reasonable grounds that the person has committed an offence. That test has a subjective and an objective element. A suspicion is less than a belief that a person has committed an offence. A police officer must show some factual basis that is acceptable to a reasonable person as providing support for the suspicion: [16]-[17]. George v Rockett (1990) 170 CLR 104; [1990] HCA 26; State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46, referred to. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 (2) Sergeant Pietruszka suspected on reasonable grounds that the appellant had digitally penetrated the victim. On 22 June 2015, the victim had given multiple accounts to police officers that four men had participated in the assault. She had named the appellant and gave a matching physical description. Ms Tejada's first statement did not expressly provide the appellant with an alibi. Mr Alcazar stated that the appellant went into the toilet after he had left: [31]-[33], [36]-[37], [39], [41], [50], [52], [57]. Issue 2 - malicious misrepresentations (3) To establish malicious prosecution, a plaintiff must show that the defendant initiated the criminal proceedings; the proceedings terminated favourably; the defendant acted maliciously in initiating or maintaining the proceedings; and the defendant acted without reasonable and probable cause. Malice involves acting for an improper or extraneous purpose. Whether a prosecution was commenced or maintained without reasonable and probable cause must be assessed in light of the material available to the prosecutor at the relevant time: [20]-[22]. A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10, referred to. (4) The trial judge's finding that Sergeant Pietruszka made an honest mistake in representing to the appellant that Ms Tejada's first statement did not mention him was not in error. Her evidence lacked useful detail and was inconsistent with the victim's evidence; it was unlikely to have been at the forefront of Sergeant Pietruszka's mind in the interview. If the misrepresentations had been deliberate, Sergeant Pietruszka would not have promised to re-interview Ms Tejada: [78], [83]-[85]. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, distinguished. (5) Sergeant Pietruszka did not clearly misrepresent Mr Alcazar's statement to the appellant. Mr Alcazar's statement suggested that the appellant was in the bathroom for some 15 minutes: [91]. (6) Sergeant Pietruszka's conceded errors did not support a finding of malice: [92]. Issue 3 - lawfulness of charges (7) A police officer must show that he or she held an honest belief in the guilt of the accused based on reasonable grounds to demonstrate reasonable and probable cause for laying charges: [17]. A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10, applied. (8) Sergeant Pietruszka had reasonable and probable cause for laying charges. The conceded errors did not suggest that Sergeant Pietruszka knowingly acted without reasonable and probable cause. Although some statements in the Fact Sheet in support of the charges were untrue, Sergeant Pietruszka genuinely believed them at the time of charging: [92], [94]. Issue 4 - malicious maintenance of prosecution (9) Sergeant Pietruszka did not maliciously maintain the prosecution after obtaining further statements. It was open to him to place less reliance on Ms Tejada's second statement that the appellant was looking after her because it was inconsistent with Mr Alcazar's statement that the appellant entered the toilet after he left. It was also open to Sergeant Pietruszka to maintain the prosecution after the victim withdrew her allegations against the appellant. Sergeant Pietruszka's experience working with sexual assault victims informed his view that victims commonly change their evidence: [98], [103]-[104]. (10) It was implicit in Sergeant Pietruszka's email to the appellant's barrister that bail would not be opposed. There was no basis for inferring that a bail application was not made due to the content of the email, nor that Sergeant Pietruszka had intended to discourage the making of a bail application. On the same day, he advised the Director that bail should not be opposed. In any event, it would not have been appropriate for Sergeant Pietruzska to make explicit representations about the Director's position on the bail application: [111]-[113].

Judgment

1. THE COURT: On the evening of 21 June 2015 a young woman was sexually assaulted in the backyard of a home in Blacktown. Four men and two women were present and had been drinking during the evening. One of the men was the appellant, Valentino Hrdavec. Ten days later he was arrested and charged with two offences, being aggravated sexual assault in company and aggravated indecent assault. The matter did not proceed to trial, the charges being formally withdrawn on 11 December 2015.
2. The appellant brought proceedings against the State in the Common Law Division seeking damages for unlawful arrest and imprisonment, and malicious prosecution. After a trial of 9 days, the hearing of which extended over 18 months, Walton J dismissed the proceedings. [1] By a notice of appeal filed on 17 August 2021 Mr Hrdavec (the appellant) sought to set aside the judgment, obtain a judgment against the State in the amount of $8,000 for false imprisonment and a further amount by way of damages for malicious prosecution.
3. The notice of appeal included a certificate under r 51.22 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the amount in issue exceeded the amount of $100,000, being the threshold under which leave to appeal is required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). There was no affidavit filed in support of that claim, which is not self-evidently correct. The trial judge made a contingent assessment of damages in an amount of $8,000 for false imprisonment (which the appellant did not challenge) and $25,000 for malicious prosecution, which was challenged as inadequate, but limited evidence supporting that challenge was before the Court. However, no point was taken by the State as to the competency of the appeal and, to the extent necessary, it is appropriate to grant the appellant such leave.

Overview of events

1. That the victim was sexually assaulted was not in dispute: the issue was whether the appellant was involved in the assaults.
2. The assaults took place at the home of Loyd Bandao. Apart from the victim, the other woman present, Patricia Tejada, was Mr Bandao's girlfriend. The other men present were James Bruce (a cousin of Mr Bandao) and "BJ" Alcazar (a close friend of Mr Bandao) and the appellant. Ms Tejada, having drunk a significant quantity of alcohol, went outside the house, to a small outhouse with a toilet, where she vomited. The victim went to her assistance. Shortly thereafter, the four men came out of the house. Ms Tejada was brought out of the toilet and lay on the grass outside, while the victim was assaulted in the toilet.
3. Later that evening the victim returned home and, at 11pm, contacted police. At about 4am the following morning (22 June) officers attended at Mr Bandao's residence. An hour later Detective Sergeant Pietruszka was informed of the complaint and the investigation. From then on, he was in charge of the investigation. [2] Sergeant Pietruszka was responsible for the decision to arrest the appellant and charge him. He was also responsible for the prosecution, at least until a brief was provided to the Director of Public Prosecutions. The appellant's case at trial was that from 1 July 2015 (the date of the appellant's arrest) up to 11 December 2015 (when the charges were withdrawn) Sergeant Pietruszka was in charge, was the relevant decision-maker and therefore the prosecutor. The evidence focused upon the information available to him at various times and whether he honestly and reasonably believed that the prosecution of the appellant should be maintained.
4. The appellant's case may be addressed by reference to four periods, namely (i) from the time of the assaults on the night of 21 June 2015 to 11.30pm on 1 July 2015 when he was arrested; (ii) from his arrest to approximately 2am on the following morning (2 July 2015) when he was charged (and during which period he was interviewed by Sergeant Pietruszka); (iii) from 2 July until 31 July 2015 when the appellant obtained bail; and (iv) from 31 July 2015 to 11 December 2015 when the charges against the appellant were withdrawn. As will be noted, none of the grounds of appeal relied on any activity after 31 July, so the fourth period may be disregarded.
5. Two important events took place in the third period. One was the taking by Sergeant Pietruszka of a further statement from the victim on 3 July 2015, in the course of which she said that the appellant did not take part in the sexual assault. The second was the provision of a brief to the Director of Public Prosecutions on or about 7 July 2015. The State submitted that thereafter the Director was the party responsible for prosecuting the proceedings and not Sergeant Pietruszka. The decision to terminate the proceedings against the appellant was taken (with Sergeant Pietruszka's agreement) on or about 6 October 2015.

Issues on appeal

1. The appellant did not challenge any aspect of the judge's articulation of the relevant legal principles. Rather, his challenges related to findings of fact, as to the knowledge, beliefs and motivation of Sergeant Pietruszka. The factual challenges may be divided between the first three periods identified above. Thus, with respect to the time of the appellant's arrest, ground 1 alleged error in the judge's findings that: a Sergeant Pietruszka believed that the appellant had in fact had sexual intercourse with the victim, and b there were reasonable grounds for believing that the appellant was guilty of the offence of sexual assault of the victim.
2. With respect to the second period, four findings were challenged, namely that: c Sergeant Pietruszka had been honestly mistaken when he told the appellant during the interview that he was not mentioned at all in the statement of the witness Tejada; d Sergeant Pietruszka had been honestly mistaken when during the interview he misrepresented to the appellant information supplied by the co-accused Alcazar; e Sergeant Pietruszka had not been motivated by malice during the interview with the appellant; and f there had been reasonable and probable cause for charging the appellant.
3. With respect to the third period, two findings were challenged namely that: g the victim's withdrawal of the allegation against the appellant on 3 July 2015 did not cause there to be an absence of reasonable and probable cause from that moment onwards, and h Sergeant Pietruszka had not demonstrated malice in communicating with the appellant's barrister on 7 July after the victim withdrew her allegation against the appellant.
4. Two other findings challenged in ground 1, namely (i) and (j), related to matters relevant to the assessment of damages, as did ground 2 which alleged that the provisional assessment of damages for malicious prosecution was manifestly inadequate. Prior to the hearing of the appeal the appellant filed a notice of motion seeking to call further evidence in relation to the assessment of damages for malicious prosecution. Following discussion at the commencement of the hearing, that material was not pressed, the appellant accepting that, in the event he was successful in establishing liability for malicious prosecution, and in challenging the provisional assessment, it would be necessary for the matter to be remitted to the trial court to redetermine damages.
5. For the reasons explained below, the challenge to the liability finding should be rejected. In that circumstance it will be neither necessary to address grounds relating to damages, nor appropriate because that exercise would turn on different findings as to the prosecutor's state of mind which cannot be identified hypothetically.

Legal principles

1. It is necessary to state succinctly the uncontroversial principles applicable to claims for false imprisonment and malicious prosecution. This may be done briefly because the relevant elements of the causes of action were not in dispute.
2. The challenge to the lawfulness of the arrest was pleaded as a wrongful arrest and false imprisonment. The wrongfulness of the conduct was sought to be established by an absence of justification under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("Law Enforcement Act"). Section 99 confers power on a police officer to arrest a person without a warrant if the officer "suspects on reasonable grounds that the person … has committed an offence" and the officer "is satisfied that the arrest is reasonably necessary" for a specified purpose. The challenge to the arrest in the present case turned on the first limb, namely whether the officers who arrested the appellant in fact suspected on reasonable grounds that he had committed an offence.
3. It has been pointed out on many occasions that the long-standing test of a suspicion based on reasonable grounds involves both a subjective and an objective element. A suspicion is something less than a belief that the person has committed an offence. [3] If challenged, the officer must be able to demonstrate some factual basis for holding the suspicion, being a basis which a reasonable person would accept as providing support for the suspicion, whether or not such a person would necessarily draw the relevant inference.
4. In State of New South Wales v Robinson [4] the High Court accepted that the purpose of an arrest must be to bring the person before an authorised officer as soon as practicable to be dealt with according to law, an obligation found in s 99(3). The State had submitted that, because that purpose involved the more demanding test of reasonable and probable cause, that is, an honest belief in the guilt of the accused based on reasonable grounds, [5] before a charge could be laid, it was not consistent with permitting arrest based on suspicion. Therefore the officer must be entitled to arrest without having an intention to charge the person with an offence. That argument was rejected by the majority in Robinson in the following terms: [6] "[115] Reasonable suspicion requires an arresting constable to have reasonable grounds for suspicion of guilt. This is less than reasonable and probable cause for prosecution. The former is the necessary intention at the time of arrest. The latter is the necessary intention when making a decision to prefer a charge and then preferring it. Contrary to the submissions of the State of New South Wales, the requirement of an intention to charge at the time of arrest does not import, to the time of arrest, a requirement to have the mental state required at the time of charging. All that it means is that there is an intention to meet the requirements for charging at the time of charging, which is to take place as soon as is practicable after the arrest, unless it emerges after the arrest that there is not sufficient basis to bring a charge. And in that circumstance, the arrest should be discontinued pursuant to s 105."
5. The Law Enforcement Act provides for a person who has been arrested to be detained for an "investigation period", during which the officer may investigate whether the person committed the offence for which he or she was arrested: s 114(2). If the officer is unable to form the belief sufficient for the laying of a charge the arrest may be discontinued and the person released: s 105.
6. Accordingly, the first issue in the present case in relation to the time of arrest was whether Sergeant Pietruszka held a suspicion that the appellant had committed a sexual assault on the victim and whether he had reasonable grounds to hold the suspicion. The second issue was whether at the time of laying the charge he believed the appellant had committed the offence and had reasonable grounds for that belief. The third issue was whether subsequent events removed the basis for such a belief.
7. In A v New South Wales [7] the High Court stated: "[1] … For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause."
8. In the present case, as in A v New South Wales, the outcome turned on the third and fourth elements. The State accepted that, if Sergeant Pietruszka acted maliciously and without reasonable and probable cause, he committed a wrong for which the State was vicariously liable. Those elements were further articulated in A v New South Wales as follows: "[55] For immediate purposes it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word 'malice'. It also suffices to refer for the moment to what the prosecutor 'made' or 'should have made' of the available material without pausing to explore what is meant by those expressions. It will be necessary to return to these topics. [56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. … [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light."
9. There was another important distinction drawn in A v New South Wales in relation to proof of the absence of reasonable and probable cause. "[71] … If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff. … [73] In a case where a police officer prosecutes a person on the basis of statements by third parties, there are evident difficulties in applying a test of reasonable and probable cause which would be satisfied by demonstrating only that the subjective state of mind of the prosecutor fell short of positive persuasion of guilt. A test of that kind would presuppose the need for a police officer to have some degree of personal commitment to a case. That would, or at least would often, not be consistent with what should desirably be the objective assessment and analysis of material provided by others. … [76] The absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty. In particular, references to belief in guilt, or more properly, the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. A case where the prosecutor acts on the statements of others is one example of such a case."
10. This was a case of the latter kind, namely a case in which proof of guilt would turn almost entirely upon by statements by third persons based on their contemporaneous perceptions of what happened on the evening in question.

Factual challenges on appeal

1. Before dealing with each of the periods involved in the grounds of appeal, three broad observations should be made.
2. First, the trial judge made findings favourable to Sergeant Pietruszka with respect to his evidence concerning his state of mind at various times. Given that Sergeant Pietruszka gave evidence, and was cross-examined by counsel for the appellant over several days, there were difficulties in challenging those findings. Indeed, of the eight grounds of appeal relevant to the finding of absence of liability, six related to the state of mind of Sergeant Pietruszka; the other two addressed the absence of reasonable and probable cause at the time the charges were laid and following the victim's withdrawal of her allegation against the appellant.
3. Secondly, much of the cross-examination of Sergeant Pietruszka was designed to demonstrate that he had acted improperly and vindictively towards the appellant in pursuing the criminal charges. However, such conduct was potentially capable of demonstrating that he had a firm view that the appellant was implicated in the undisputed sexual assaults. If there were some contrary explanation, it was neither explored in cross-examination, nor demonstrated by the evidence. That is, other than a belief in the legitimacy of the prosecution, there was no explanation as to why Sergeant Pietruszka should have acted with malice towards the appellant.
4. It is of course plausible that a person who has embarked upon a particular course of conduct will find it difficult to desist when the basis for the original course falls away. However, such an explanation depends upon a degree of certainty at a particular point in time that the initial justification has fallen away, together with an unduly tardy recognition of that certainty. For reasons explained below, both those elements were missing in the present case.
5. Thirdly, there were times when counsel's challenge to the judgment under appeal slid into pejorative accusations against Sergeant Pietruszka expressed in terms which were not put to him in cross-examination, confrontational as parts of the cross-examination were. No doubt anxious to distinguish substance from rhetoric, the judge asked, in the course of oral argument, whether he was being asked to make a finding that Sergeant Pietruszka lied on his oath. [8] The response from senior counsel was, "Yes, definitely and frequently." [9] The submission was flatly rejected and it is difficult to find a reasonable basis to challenge that rejection in the material before this Court.

Period 1 - from incident to arrest

1. The grounds of appeal with respect to the lawfulness of the arrest, supported by the written submissions, got off on a false step: they were formulated entirely in terms of Sergeant Pietruszka's belief, rather than his suspicion. The submissions were reworked in reply, once the problem was identified by the respondent.
2. In oral argument, counsel for the appellant began with the concession that "there was at the start on Mr Pietruszka's first acquaintance with this matter an adequate basis for suspicion on reasonable grounds." [10] He clarified that he was referring to the time when Sergeant Pietruszka "first became aware of the incident early on the morning of 22 June 2015, and throughout that day where he interviewed the victim". [11]
3. Sergeant Pietruszka's first contact was a telephone call from Detective Houldin who was one of two officers who had responded to the initial complaint by the victim. She told Sergeant Pietruszka that "[a] victim has been gang-raped by four persons. I am at the crime scene in Blacktown and all offenders are no longer here. There has been penile, oral and digital penetrations." [12]
4. It may be inferred that that was the first account given to police by the victim. Detective Houldin and her partner, Detective Singh, had searched the outside toilet and found the victim's bra (minus a strap), hair extensions and underwear in the toilet waste bin. The missing bra strap was later found under the bathroom door. Sergeant Pietruszka identified the outside area as "littered with bottles that were predominantly various brands of alcohol spirits and there was evidence of vomit. [13] At a debriefing at Blacktown Police Station, Detective Houldin confirmed the victim's account that "there were four males involved in the assault" and that she (the victim) had given the sexual assault counsellor exactly the same account. [14] Two other constables had attended the crime scene and spoken to the victim. Constable Bayzidi told Sergeant Pietruszka: [15] "We attended her house. We spoke to the victim. She was really emotional. She told us that she was raped by four males. It was James, BJ and two other guys". Constable Boyd reported that the victim had said to her: [16] "Trish [Tejada] was there at first then Loyd [Bandao] took her outside onto the grass. James [Bruce] came in and so did Loyd. BJ [Alcazar] and Valentino also came in. They took turns."
5. In a recorded interview conducted at the victim's home, the victim gave the names of each of the men who were present, from which it is clear that she knew three of them better than she knew the appellant. She stated that she knew them as Loyd Bandao's friends, continuing: [17] "One was James, he is Loyd's cousin. I remember BJ and I think the other one is Valentino." She gave descriptions of them including of the appellant, which Sergeant Pietruszka said matched the man he saw when he arrested him. The interview with the officer continued: [18] "I said: 'When you say you were sexually assaulted, what do you mean by that?' [V] said: 'They had sex with me.' I said: 'How did they have sex with you?' [V] said: 'With their penis and fingers in my vagina. My vagina still hurts.' I said: 'How did this happen?' [V] said: 'When I was being sick in the toilet they all came in and started assaulting me.' I said: 'How many people were in the toilet at the time?' [V] said: 'Trish was at first then Loyd took her outside onto the grass. James came in and so did Loyd. BJ and Valentino also came in. They took turns.' I said: 'Were they all in the toilet at the same time.' [V] said: 'At least two to four at one time.'"
6. The police records indicated that the call to attend at the victim's home was received at 11pm on the evening of 21 June.
7. Detective Houldin also took a statement from Ms Tejada, who was interviewed by police on the morning after the attack. Ms Tejada was 17 years of age and was, on her own account, drunk and vomiting, both in the toilet and on the back lawn. Relevant parts of her account of 22 June read as follows: "10. When l was in the bathroom James and the boys were checking up on us to make sure we were ok. They knocked and we opened the door. Loyd took me outside and l sat on the grass and I was vomiting there as well. My other friend, Valentino was looking after me. He came a bit later but I don't remember exactly what time he got there. I know Valentino as he is a friend of Loyd's. 11. I was sitting on the grass just outside the back door to the main house and l heard [the victim] moaning. She was still in the toilet. I think James was in the toilet with her because Valentino and BJ were looking after me when l was sitting on the grass. Loyd went to the bathroom to get [the victim] out, I wasn't looking and I'm not sure if he went inside the bathroom or not. She didn't come out and Loyd came back over to me. A few minutes after that James went out of the bathroom and sat down on a chair near where I was sitting. [The victim] was still in the bathroom and Loyd went and got her. The next thing I remember was Loyd saying he was taking [the victim], James and BJ home. He told Valentino to stay and look after me. He stayed for half an hour or an hour and then he left. 12. l didn't see [the victim] when she came out of the bathroom. I was on the ground and I didn't see anyone leaving. … 15. When [the victim] was in the bathroom and I heard her moaning, I didn't hear any complaining or screaming. I would have gotten up but I was too drunk on the floor. I thought her and James were probably having sex. I don't know if anyone else went into the bathroom whilst her and James were in there. I think Loyd and BJ checked on her but I don't know. I was surprised by what was going on. 16. When James came out of the bathroom he said, 'She sucked my dick bra,' to the guys. They were asking 'really?' He was agreeing that's what happened. 17. I didn't see [the victim] when she came out of the bathroom and I don't remember her talking to me."
8. Although, when arrested, the appellant asserted that Ms Tejada would give him an alibi, the statement given to police on 22 June 2015 did not expressly support that claim. However, the statement did give some indication that the appellant and Ms Tejada were friends, so that he may have expected her to provide him with support.
9. At about 7:40am on the morning of 22 June Sergeant Pietruszka and Detective Singh attended at the victim's home and conducted a recorded interview in her bedroom. She gave a more detailed account than had been given some hours earlier when the police first spoke to her, but in most respects it was consistent with the earlier version, including her description that "at first it was just someone fondling like with fingers, and then like they all took turns. There was like four of them." [19] She was asked if she remembered who put their penis inside her and identified BJ and Loyd. She was asked if she could name the other two people, and named James, though she did not know his family name, and said, "I don't know one of them at all". However, she had named him as Valentino in her first account to the police.
10. At 11:20am the victim attended Blacktown Police Station and Sergeant Pietruszka conducted an interview with Detective Megan Oxley. When the interview came to the point of talking about the assault, Detective Oxley took over, Sergeant Pietruszka left the room and a second female detective senior constable took his place.
11. The victim described the events when the men came into the toilet, stating: [20] "I'm pretty sure it was Loyd and BJ at first and then the other guys came around and they all, like they all started carrying on. …" She then described BJ forcing her to have oral sex and "all the other guys were there too, they were just watching." She described the men taking her clothes off. She said she remembered being penetrated, "like several times and like, fingers, not just, like, not just penises, they also touched me with their hands".
12. Although most of the description related to the conduct of Loyd and BJ, she said she could "see and hear the other guys" and agreed that she could see James' penis. She said, "I'm not sure about the other guy", [21] referring to the applicant.
13. It is clear that, although the victim was non-specific about the role played by the appellant, there was ample evidence upon which to base a suspicion that he was involved in the sexual assaults. With respect to the material resulting from the interviews on 22 June, so much appeared to be conceded.
14. However, in oral submissions, counsel submitted that "things changed", beginning with the interviews conducted at the victim's home at 7:40am and at the police station at 11:20am. However, there was no basis in the later interviews to remove the reasonable grounds for the suspicion in relation to the appellant arising from the earlier material.
15. Sergeant Pietruszka was cross-examined at some length as to the inferences he drew from the answers given by the victim in the recorded interviews on 22 June.
16. The trial judge, in dealing with this material, found that Ms Tejada's statement did not sustain a finding that Sergeant Pietruszka subsequently acted "without reasonable or probable cause", nor did it support an inference that he acted with malice "in initiating, maintaining or continuing the prosecution". [22] Although this language did not relate specifically to the formation of the suspicion in relation to the arrest, that may have been a reflection of the manner in which the case was presented. In any event, having considered the two records of interview with the victim, the judge noted: "[186] … For present purposes, the issue is whether, on the basis of all the material before Inspector Pietruszka, he formed the suspicion (and reasonably formed the suspicion) that the plaintiff had been one of the victim's assailants. There was ample material - both in what the victim told Inspector Pietruszka and the other accounts that Inspector Pietruszka received from police officers - to support the formation of that suspicion."
17. It may be that the appellant's submissions at trial did not extend to challenging the fact that Sergeant Pietruszka formed the relevant suspicion, but only challenged the grounds for it, or that, at least by implication, the trial judge accepted that such a suspicion had been formed.
18. The cross-examination of Sergeant Pietruszka then turned to the fact that the victim was immediately taken to the hospital so that standard sexual assault procedures could be followed. One purpose was to obtain DNA which might identify an assailant. Sergeant Pietruszka agreed that he did not think that the appellant had had penile intercourse with the victim, but did suspect that he had been involved in digital penetration. He accepted that a DNA match would be unlikely to provide useful information in that regard.
19. The relevance of that cross-examination to his state of mind on and shortly after 22 June is by no means clear. However, the trial judge dealt with the cross-examination and submissions in this context. [23]
20. The judge then moved to the cross-examination as to the charges laid against the appellant. [24] The judge concluded: "[204] The plaintiff also contended that Inspector Pietruszka's rationale of 'they' and 'all' being a reference to all four males was 'a fraud, created to defend what he must recognise as indefensible'. It was submitted that on a consideration of his evidence during cross-examination, it is clear, that 'he did not really believe it'. Notwithstanding his appropriate concessions that at times [the victim] made specific reference to individuals which did not include the plaintiff, it was submitted that he maintained a 'bizarre' and improbable position that the victim's references to 'they' and 'all' included the plaintiff. … [205] The plaintiff described the above evidence as 'an invention designed to provide a desperate defence for the indefensible'. It was contended that Inspector Pietruszka did not subjectively have reasonable and probable cause."
21. Similar language was used in submissions to this Court. They were rejected by the primary judge. [25]
22. It was not entirely clear whether the appellant relied on other events between 22 June and his arrest on 1 July as removing existing reasonable grounds for a suspicion of his involvement in the sexual assaults on the victim. As noted by the primary judge, Sergeant Pietruszka subsequently reviewed photographs of the crime scene and obtained, on 28 June, a written statement from Constable Boyd which recorded the earlier briefing she had supplied on 22 June. In that statement the appellant had been identified by the victim as "Valentino". The judge noted that, although the victim did not identify the appellant by name in the recorded interviews, in all three records she described him in a manner which matched a photograph of the appellant obtained by Sergeant Pietruszka on 30 June 2015. [26]
23. The other men at the party were arrested; Mr Bruce on 22 June, Mr Bandao on 25 June and Mr Alcazar on 29 June 2015. Mr Alcazar (and only he) participated in a recorded interview.
24. Mr Alcazar confirmed the presence of the other men at the party on the evening of 21 June and that he had gone into the toilet cubicle whilst the victim was there. When asked to say "what had happened when you were in there", he merely stated: "I got in there, all the boys were in there." [27] He also said that the appellant was not in the toilet initially but came in after he left.
25. On one view, this statement tended to confirm that part of the victim's complaint which identified the appellant as one of those who had assaulted her in the toilet. On another view, it was neutral. The appellant contended that Mr Alcazar did not implicate him and to some extent "undermined" the victim's account. The trial judge rejected that submission. [28]
26. Having reviewed the evidence, the judge then formulated the issue with respect to the arrest in the following terms: "[225] Each aspect of the evidence with respect to the investigation into the aggravated assaults, for the purposes of the torts before the Court, must be considered through the lens of what was known to Inspector Pietruszka at the relevant time; in particular, that assessment is not to be done in isolation, nor is it assisted by relying upon extracts of material devoid of context. Whether or not Inspector Pietruszka's formation of a suspicion that the plaintiff had committed a sexual assault on the victim was reasonable must be assessed in light of the totality of what was known to him."
27. The judge then summarised the material available to Sergeant Pietruszka, his knowledge derived from that material and concluded: "[230] On that basis (and upon the basis of the material referred to above), in his first statement, Inspector Pietruszka stated that the level of satisfaction was further informed by the following matters: (1) He was of the view that he needed to arrest the plaintiff to ensure that he appeared before a court in relation to the offence. Inspector Pietruszka was aware from his conversation with Detective Sergeant Condon that there had previously been problems in securing the plaintiff's attendance at Court and securing his cooperation with a police investigation. He was also aware that he suspected the plaintiff of committing a very serious offence, which carried with it a greater risk of abscondment. (2) He was of the view that he needed to arrest the plaintiff to avoid the risk that he would harass or interfere with witnesses. He was aware that the plaintiff lived in the same area as the victim. He was aware that sometimes sexual assault offenders harass or intimidate the victim. It had occurred on previous cases in which he had been involved. (3) He was of the view that it was necessary and appropriate to arrest the plaintiff because of the nature and seriousness of the offence. The offence was aggravated sexual assault in company, a gang rape. That is a serious offence, and the victim of the offence was a vulnerable female."
28. In short, the trial judge was satisfied that the requirements of both limbs of s 99(1) (being pars (a) and (b)) were satisfied. [29] There was no challenge to the finding at [230] with respect to par (b).
29. The focus of the appellant's case in this respect involved a close reading of the language used by the victim in her recorded interviews and answers given by Sergeant Pietruszka in cross-examination. The substance of the submissions has already been addressed in considering those matters above. Although the grounds of appeal did not identify the precise language used by the trial judge in making findings, ground 1(a) (that, at the time of arrest, Sergeant Pietruszka, believed that the appellant had had sexual intercourse with the victim) should be understood as referring to digital penetration. That was Sergeant Pietruszka's evidence. The judge made no finding that Sergeant Pietruszka had any suspicion that the appellant had had had penile intercourse with the victim. On that basis, there was no error in the finding as to Sergeant Pietruszka's suspicion, nor was there any substance in the challenge to a finding that there were reasonable grounds for the suspicion. (The error in referring to what Sergeant Pietruszka "believed" might have been avoided had the grounds of appeal identified precisely the passages in the judgment which were being challenged.)
30. A careful analysis of the precise language used by a witness in recounting events to the police, together with any changes in language and in content in later statements may provide valuable material for a cross-examiner in a criminal trial, seeking to raise a reasonable doubt as to the truthfulness of a complainant. The proposition underlying the appellant's submissions was that Sergeant Pietruszka should have accepted the later material at face value and, in reliance upon that material, rejected the information supplied in the earlier statements. However, for the purpose of determining whether he held a suspicion sufficient to justify an arrest, he did not need to undertake such an exercise. It follows that the information in the earlier statements could form reasonable grounds to maintain the suspicion.
31. Grounds 1(a) and (b) dealing with the lawfulness of the arrest, must be rejected.

Period 2 - from arrest to charge

1. Four grounds of appeal challenged findings made by the trial judge in relation to this period of one night. The events of the day commenced with the arrest of the appellant at 11:30pm on the evening of Wednesday, 1 July 2015 at Blacktown railway station and the recorded interview conducted some two hours later.
2. Two findings of fact were challenged, both relating to misinformation supplied by Sergeant Pietruszka to the appellant in the course of the interview. Each was relied upon by the appellant as demonstrating malice; the judge declined to draw that inference. Further, the misinformation was said to provide a basis for establishing that Sergeant Pietruszka had no probable and reasonable cause to charge the appellant, an event which occurred shortly after the interview, at about 2:10am on 2 July 2015.
3. As to the events between the arrest of the appellant and the laying of charges, the trial judge had conflicting evidence from the appellant and Sergeant Pietruszka. In broad terms, he accepted the evidence of Sergeant Pietruszka and rejected that of the appellant. [30] On the appeal, no reliance was placed upon the evidence of the appellant. However, the appellant did say in his statement that, whilst under arrest and walking to the police station he had said to Sergeant Pietruszka: "I was helping Trisha who was sick. I am innocent. I have nothing to hide. I will tell you everything at the police station." [31]
4. In responding to a particular in the statement of claim, Sergeant Pietruszka said in his statement that the appellant said to him at the railway station, "I have an alibi. I was in the yard with Trish. I will tell you everything." [32] The judge provided reasons for accepting the evidence of Sergeant Pietruszka in preference to that of the appellant in the course of discussing respective aspects of the accounts given by each.
5. The judge noted that Sergeant Pietruszka had examined the appellant's phone and noted a Facebook message sent by Mr Bandao on the night of the sexual assault which read: "Come Yallah pussys gonna close."
6. An interview was conducted with the appellant that evening over approximately 40 minutes after the appellant indicated that he wished to hear the allegations against him. [33]
7. The allegations put to the appellant in the course of the interview included the assertions that (i) when the victim was in the toilet vomiting, Alcazar and Bandao were in the bathroom and "were joined by it is alleged yourself and another person … James Bruce"; [34] (ii) Bandao and Alcazar indecently assaulted the victim and were assisted by the appellant and James Bruce; [35] (iii) the victim's clothing was removed and she was digitally penetrated by various people including Bandao and Alcazar; [36] (iv) at this time, others in the room "yourself included had their penises exposed and were … masturbating"; [37] (v) after the digital penetration, Alcazar had penile intercourse with the victim; [38] (vi) Bandao then had penile vaginal intercourse, [39] and (vii) whilst these assaults were occurring, the appellant was "fondling her and grabbing her breasts and her vaginal area." [40]
8. The following exchange then took place after the appellant had indicated he understood the allegations: "Q51 … Whilst we were at the ah, train station tonight you said you have an alibi and you said that person is ah, … A Trisha. … Q55 Trisha. You stated and tell me if l'm wrong that she was sick on the grassed area and you were with her comforting her. Is that correct? A Do I have to answer that? Q56 No you don't but I'm just saying did you tell me that at the train station? A Can't remember. Q57 O.K. Um, I will say that we have a statement from Trisha and she doesn't mention you being there at all with her. We have obtained an interview with a person named as Alcazar who states and again this is the allegation he states that yes he was in the room with yourself he was at, and when I say room I mean bathroom, he was in the bathroom with yourself. Ah, ah, Bruce and um, Loyd um, Bandao so, the four of you were in the room with [the victim]. And he states that ah, things were occurring but he can't really recall what he states he left that room and he was outside and whilst he was outside he states you went back into that bathroom and you stayed in there for fifteen minutes. Do you wish to comment about that? … A No, I've got nothing to say."
9. The appellant was advised that the victim was "not saying that you placed your penis in her vagina". [41] The appellant inquired as to why the police needed his fingerprints because he didn't touch her. [42] He was then asked to clarify that he was saying that he did not touch her and responded, "I didn't even see her there." [43]
10. When asked if he wished to present any evidence to the contrary of the allegations, he said "Trisha". [44] Sergeant Pietruszka repeated that he had taken a statement from Ms Tejada and that "you are not included in that statement". The appellant then asked: "So, can I ask her again?" Sergeant Pietruszka responded: "Q75 No, well. We took a statement from her on the night it happened O.K. the day it happened she is stating that you weren't with her whilst she was being sick she said she was on the ground by herself she doesn't mention you. If you are saying that you were there and you were with her l can go and canvas it with her again. Is that what you are saying? A Yes. Q76 O.K. All right. I will speak with Trisha and again but again a statement was obtained from her and you weren't mentioned."
11. The appellant then asked the officer to contact Mr Bandao's father whom he said, "saw me taking care of Trisha." [45] He also asked that they speak to Loyd's sister. The interview continued: "Q85 Loyd's sister. And what did she see? A Um, she me helping Trisha. Q86 While she was on the grass. A Ah, no, no, no this was all in the house I. Speak to her." Sergeant Pietruszka then said he would speak with them but the appellant withdrew the request to speak with the sister.
12. Sergeant Pietruszka then noted how the incident commenced and that Tejada had been vomiting in the toilet, Bandao had entered and removed her and "placed her on the grass where she continued to vomit." He then asked: "Q90 … So, if you're saying you looked after her yes you did but it was inside the house that goes against her statement where she said she was sick on the grass. O.K. Do you understand that? A (NO AUDIBLE RESPONSE) Q91 So, I can speak with her but unless she is going to change her location where she was and the vicinity of where it all occurred I don't know how she is going to cover off on that but I will speak with her again and talk with her about it. Do you understand what I'm saying there? A Yeah. Q92 O.K. So, she is saying she is somewhere different to where you are saying you were. Do you understand that? A O.K."
13. The appellant was then given an opportunity to ask further questions or "to speak freely." The following exchange took place: "A Can you ask Loyd's dad to agree I was in the house taking care of Trisha he saw me. Q97 When what was occurring? A Can you just ask him that? Q98 Yeah, but how do I know you were in there looking after Trisha when this was occurring … "
14. Sergeant Pietruszka noted there had been some Facebook chat he had seen on the appellant's phone, and asked on a number of occasions whether the appellant had spoken to the others in relation to the events of that night. The appellant agreed he heard "something about it" but otherwise did not respond. [46]
15. All of the material set out above was addressed by the trial judge. [47] The judge then noted Sergeant Pietruszka's evidence in chief as to the inferences he drew from this material: "[279] In Inspector Pietruszka's first statement, he identified a 'number of things said (or not said)' by the plaintiff that were of 'particular importance to my subsequent decision to charge [the plaintiff]' (at para 44). That passage is extracted below: (a) I put the allegations in their entirety to Mr Hrdavec and he declined to comment: A59. See also A71. (b) Mr Hrdavec denied speaking to any person involved in the matter (A67, A105), but this was inconsistent with what was subsequently said to me by Ms Tejada later on 2 July 2015 (see A142 in Ms Tejada's 2 July 2015 statement). (c) Mr Hrdavec offered 'Trisha' as evidence to exclude his involvement in the offence: A 72. (d) Mr Hrdavec claimed that Jenka BANDAO saw him looking after Ms Tejada (A84), but this was inconsistent with what Jenka Bandao had said to Detective Houldin on 22 June 2015 as reported to me by Detective Houldin on that day. (e) Mr Hrdavec asserted that he was with Ms Tejada inside the house, not outside (A86). (f) Mr Hrdavec changed his mind on having police speak with Jenka BANDAO but offered no comment as to why (A111). The plaintiff offered Jenka BANDAO as an alibi witness in question 84, 85 and 86 of the interview with the plaintiff on the 21 July 2015. He quickly changed his claim about speaking with Jenka BANDAO in question 88 when he said, 'Yeah, not the sister, don't worry.' When asked in question 111 why he no longer wanted Police to speak with Jenka BANDAO, the plaintiff said, 'No comment'. [280] It was Inspector Pietruszka's perception during the interview that the plaintiff's demeanour and approach to answering questions 'were consistent with a person who had been involved in the offence'. He further noted: 'When presented with facts, information and assertions, he refused to comment. This was, in my experience, unusual and aroused my suspicions'. At the completion, the interview did not cause Inspector Pietruszka to change his 'suspicion as to [the plaintiff's] involvement in the offence'."
16. At trial, the appellant alleged that Sergeant Pietruszka knowingly made five misrepresentations which were said to be "very prejudicial to the plaintiff, and likely to produce fear and shake his confidence". [48] In this Court, the focus was upon two matters, namely (i) the several statements that Ms Tejada had provided a statement which did not include reference to the appellant, and (ii) the representations that Mr Alcazar had not said he had been in the room with the appellant, but rather that the appellant had entered after he had left, and did not say that the appellant had stayed in the toilet for 15 minutes.
17. In discussing reasonable and probable cause to lay charges, the judge referred, correctly, to the passage in the judgment in A v New South Wales at [80], which was in similar terms to [73], set out above. So far as the subjective element was concerned, it required the proof of a negative, which was dealt with by the trial judge in the following passage: "[424] In my view, there is no proper basis to find that, as at 1 July 2015, Inspector Pietruszka knew there was no reasonable or probable cause to prosecute. That is so because as at that date, Inspector Pietruszka had available to him the following information: (1) Detective Houldin had informed him of a gang rape of a victim by four males. (2) Constable Boyd had informed him that the victim had named the plaintiff. (3) There were only four males present at the party. (4) Ms Tejada had identified the four males present at the party by name in her statement. (5) The victim had advised that there were four males who had assaulted her and they all took turns. (6) The victim gave identifying information that matched the description of the plaintiff. (7) Photographs of the plaintiff obtained from a social media account. (8) Further, I have found that the victim's references in her interview to 'they' could be properly understood, in substantial part, as a reference to the four males in the toilet engaged in the conduct she described. Further, in the context of a violent sexual assault, where the victim had identified four males as being involved, it was reasonable to interpret 'they' as a reference to four males. (9) Ms Tejada had said that the plaintiff had sat with her on the grass while she was being sick, but she was not sure who had gone into the bathroom because of her intoxication. (10) Mr Alcazar had indicated that the boys present had been in the toilet and, while the plaintiff was not initially in the toilet, had gone into the toilet afterwards. [425] These matters were amply capable of establishing a proper case to prosecute as at 1 July 2015."
18. Referring to the content of the recorded interview with the appellant, otherwise than dealing with the misrepresentations, the judge found: "[426] On 2 July 2015, and before charging, Inspector Pietruszka conducted an ERISP of the plaintiff. I accept the submission of the State that during the ERISP the plaintiff did not offer any cogent or consistent explanation as to his alibi. He had offered Mr Bandao's sister and father as alibi witnesses but subsequently, at least with respect to Mr Bandao's sister, withdrew part of his account without further explanation. He did offer an alibi with respect to Ms Tejada, which placed him with Ms Tejada the 'whole time' and, additionally, placed him inside the house, which sat ill with Ms Tejada's recollection that she was on the grass at times with the plaintiff (that information came out of the statement from Ms Tejada). Further, the plaintiff expressly rejected the possibility that he assisted Ms Tejada whilst she was on the grass: 'no, no, no this was all in the house' (A86). Otherwise, the plaintiff largely refused to comment on allegations made against him. An additional consideration arising prior to the charging was that Ms Tejada did not say that the plaintiff was not involved or could not have been involved in the offence. She was unable to say who went into the toilet because she was intoxicated. …"
19. It was undoubtedly incorrect for Sergeant Pietruszka to describe Ms Tejada's statement as not mentioning the appellant. She did mention him in the three paragraphs, the last of which was irrelevant, merely describing the time at which she went to sleep, namely after the appellant had left. [49] In paragraph 10 she had said that "James and the boys" came to the toilet, that "Loyd took me outside and I sat on the grass and I was vomiting there as well. My other friend, Valentino was looking after me." She said that whilst she was sitting on the grass she thought that James was in the toilet and that the appellant and Alcazar were looking after her. She recalled Bandao saying he would take the victim home and "told Valentino to stay and look after me." The evidence was imprecise, was inconsistent with statements made by the victim and was uninformative as to whether any sexual activity had taken place at all.
20. Sergeant Pietruszka was cross-examined with respect to this material as follows: [50] "Q. Then question 57 you said this, 'I will say that we have a statement from Tricia [Tejada] and she doesn't mention you being there at all with her.'? A. Yes. Q. We've just seen Tricia's statement and she certainly does mention him being there with her three times, doesn't she? A. Yes, absolutely. Q. So that was a completely wrong statement, wasn't it, by you? A. Sorry, sir, absolutely. Q. You accept that that was seriously wrong? A. Well, it's factually wrong and seriously wrong. Q. It's a serious error, isn't it? A. It is, absolutely."
21. The cross-examiner returned to the issue a little later, suggesting that by contradicting the appellant he was seeking to "put pressure on him", "to destabilise him", or at least "to have some effect on him". He rejected the first two propositions and repeated in response to the third that he was presenting a "fact" and did not know what to expect. [51]
22. At [306], the trial judge summarised in 10 subparagraphs the plaintiff's submissions. The judge's conclusions in respect of the misstatements is set out in the following passages: "[308] For the following reasons, in my view, the third representation (including the contentions advanced with respect to Q118) does not support a finding of malice and/or that Inspector Pietruszka knowingly charged the plaintiff, notwithstanding an absence of reasonable and probable cause: (1) First, whilst I accept that the representation made by Inspector Pietruszka that the plaintiff was not mentioned by Ms Tejada was plainly erroneous, Inspector Pietruszka accepted that error. I do not find that Inspector Pietruszka knowingly sought to mislead and/or 'trip' the plaintiff up by providing a false account of the evidence. On the evidence before the Court, I accept that Inspector Pietruszka made a mistake in his recollection of that evidence at the time of the interview. (2) Secondly, notwithstanding the admitted error, Inspector Pietruszka made correct reference during the ERISP to Ms Tejada's statement that upon exiting the bathroom, she made her way directly to the grass area, where she was subsequently sick again. Several answers by the plaintiff were at odds with that statement: (a) At Q55, Inspector Pietruszka sought clarification with respect to a statement made by the plaintiff at or around the time of his arrest at the train station: 'You stated and tell me if I'm wrong that she was sick on the grassed area and you were comforting her. Is that correct'. In reply, the plaintiff initially answered 'Do I have to answer that?' and, subsequently, 'Can't remember'. (b) At A96, the plaintiff volunteers the following statement: 'Can you ask Loyd's dad to agree I was in the house taking care of Trisha he saw me'. (c) At Q99-Q101, Inspector Pietruszka sought clarification as to timing of the plaintiff's movements due to an inconsistency, namely, Ms Tejada has stated she was outside and 'now you're saying no, no you were inside with her'. The plaintiff provided 'no audible response' to those series of questions. (d) At Q102-Q104, the plaintiff told Inspector Pietruszka that he had been inside with Ms Tejada '[d]uring the whole night… Loyd had saw me with her that's my witness for the alibi… Speak to Trisha'. Thus, whilst the representation that Ms Tejada had not mentioned the plaintiff in her statement was erroneous, the context in which submissions as to malice or absence of reasonable cause must be considered in the light of all of the material available to Inspector Pietruszka and his dealing with it during the course of the ERISP. The alibi was affected by inconsistent accounts by Ms Tejada and the plaintiff as to whether the plaintiff was in the toilet, the house or outside the house and at what time relative to the assault. (3) Thirdly, turning to Q118, in context, that question arises out of a discussion of the contents of several 'Facebook Chats' attributed to the ownership of the plaintiff. Whilst those chats are not shown to the plaintiff, at this stage, the plaintiff is aware that the police had taken possession of his phone at the time of arrest and the content that caught the attention of Inspector Pietruszka was put to him (see for example, at Q109 'In your Facebook chat it mentions I think someone calls you a rapist. That's there isn't it?', which is a reference to the Facebook chat between 'Brad Harvey' and the plaintiff, which included a message sent to the plaintiff that stated: 'Ok my little rapist Hahahahaha'). As earlier set out, those Facebook chats reveal that prior to his arrest (and after the date of the incident), the plaintiff had engaged in contact with, relevantly, with Ms Tejada (and others). Thus, the reference to 'put alibi's in place' is not entirely informed by the fact Ms Tejada's statement was taken at an earlier juncture. It is not unreasonable for Inspector Pietruszka to infer that the plaintiff was potentially discussing matters with Ms Tejada in light of evidence of continued contact since the assault and his repeated request that police 'speak to Trisha [again]'. His consideration of the possibility and relevance of potential contact with Ms Tejada after the taking of her first statement is further indicated by Inspector Pietruszka's answer in cross-examination, 'What about afterwards?' in response to a question by senior counsel for the plaintiff, 'So if the plaintiff had set up an alibi, he had to contact Tricia before 4 o'clock that morning [on that day], didn't he?'. [309] In the result, I do not accept the third representation supports a finding of malice and/or a finding that there was an absence of reasonable and probable cause when Inspector Pietruszka ultimately charged the plaintiff. In particular, the reasonableness of the questions asked by Inspector Pietruszka, including his erroneous reference to the statement of Ms Tejada in the context of the plaintiff's alibi, are informed by the context of the interview. It is erroneous to consider the questions in isolation, devoid of context."
23. On appeal, the appellant submitted that, while recounting the various arguments made at trial, the judge concluded that Sergeant Pietruszka made a mistake at the time of the interview, but reached that conclusion "without any examination of how it was possible in the face of [the appellant's submissions]". [52] The appellant further relied upon Sergeant Pietruszka's answer to the question in cross-examination, "So it wasn't as though you had to stretch your memory about what was Trisha's statement, was it?", the answer being "No, sir, not at all."
24. Sergeant Pietruszka, in his second statement, denied that the representations to the appellant in the course of the recorded interview were deliberate lies. The trial judge accepted the denial. Neither the contextual evidence (being the circumstances surrounding the interview) nor Sergeant Pietruszka's evidence under cross-examination provides any basis for interfering with what is patently a credit finding by the trial judge. In the language of Fox v Percy, [53] the judge's conclusion was far from "glaringly improbable", was not "contrary to compelling inferences", nor was it inconsistent with any incontrovertible fact or uncontested testimony. Rather, the statement of Ms Tejada was lacking useful detail, was inconsistent with the victim's evidence and may well not have been in the forefront of the officer's mind when he was conducting the interview. The misrepresentations may have been careless and even inexcusable, but they did not carry the hallmark of deliberate misrepresentations. They were not corrected by Sergeant Mahony who had also been working on the investigation and was present at the interview. Had they been deliberate, it is most unlikely that Sergeant Pietruszka would have promised on several occasions to reinterview Ms Tejada, a step he in fact took the following day.
25. The appellant submitted that the judge was in error in giving weight to Sergeant Pietruszka's acceptance that he had made errors, in circumstances where the representations were patently erroneous. However, a witness may accept an obvious mistake in different ways. The credibility of the acceptance is very much a matter to be weighed by the trial judge who heard the evidence, in the context of how the witness dealt with many other challenges to his reliability and honesty. The appellant relied upon the failure of Sergeant Pietruszka to provide any explanation for the mistake. However, that fact does not necessarily demonstrate that the mistake was deliberate. He did not try to justify it. The appellant accused him, in other aspects of his evidence, of taking unrealistically extreme positions "to defend the indefensible." [54] That could not have been said of this material.
26. A reading of the transcript of Sergeant Pietruszka's evidence provides no sufficient basis for rejecting the findings of the trial judge as to credibility: rather the contrary.
27. The decision to dismiss this ground of appeal should not be understood as in any way endorsing or excusing the fact that Sergeant Pietruzska made an inaccurate statement to the appellant as to what Ms Tejada had said or, more accurately, what the Sergeant said Ms Tejada had not said about the appellant in the course of the interview with her. On any view, what Sergeant Pietruzska said was misleading. On the other hand, it did not result in the appellant making any inculpatory statement or admission as to his conduct, and it was not, as the primary judge held, a deliberate deceit but a mistake in his recollection.
28. Ground 1(d) challenged the finding that Sergeant Pietruszka was honestly mistaken in misrepresenting information supplied by Mr Alcazar. However, the representations were less clearly wrong and were, in some respects, quite equivocal.
29. Mr Alcazar was interviewed on the evening of 29 June 2015 by Detective Houldin and Detective Jorgenson. His interview, including the formal parts, ran to 445 questions. He was asked if he went into the toilet cubicle while the victim was there and said "Yeah". [55] He was asked what happened when he was in there as said: [56] "I got in there, all the boys were in there."
30. There followed a number of specific questions relating to what happened in the toilet to which he either answered that he did not know, or "nothing", or denied the allegations. Some questions later, the following exchange took place: "Q249 OK. And that was when all of you were in there together except for Patricia? A And Tino wasn't in there. Q250 OK. Valentino wasn't in there? A (No audible reply) Q251 OK. So is it correct if I say that [the victim] was in the toilet, [Loyd] and James went in, and then you went in? A Yep. Q252 OK. And Patricia and Valentino were not in the toilet at that point in time? A Not yet. Q253 OK. Did Valentino come into that toilet cubicle? A When I left."
31. Mr Alcazar denied further allegations as to what he had done in the toilet and denied that he could see what was happening. The questioning continued: "Q291 Um, after you left the toilet cubicle what happened? A I stayed for 5 or 10 minutes, maybe 15 and then I left. Q292 OK. Who was, were there when you left? A They were all there still. Q293 OK. Everyone was still there? A Yep. Q294 OK. At what point did Valentino enter the toilet cubicle? A When I left. Q295 OK. A ..... still there. Q296 And what did you do after you left the toilet cubicle? A Just sat down where I was."
32. The supposed misrepresentations as to what Mr Alcazar had said were not clearly incorrect. Mr Alcazar had first said, "All the boys were in there", and then had said that Valentino was not in there until later. As to the timing, Mr Alcazar said in the second stage of the questioning set out above that the appellant went into the toilet when he came out and that he (Alcazar) stayed outside for some 15 minutes. On the assumption that he was saying that the appellant entered the toilet when he (Alcazar) left the toilet, and suggested that they were all still there in the toilet when he left the premises, that placed the appellant in the toilet cubicle for some 15 minutes.
33. The trial judge dealt with these representations briefly, noting that Sergeant Pietruszka had accepted that an error was made, but upheld the State's submission that the point "goes nowhere". [57] The judge further accepted that, with respect to "those conceded errors" he was not satisfied that they sustained the allegation of malice or suggested that Sergeant Pietruszka was knowingly acting without reasonable and probable cause. He described the plaintiff's reliance upon those matters as carrying "little weight." [58]
34. The challenge to these findings on appeal was somewhat muted, which was understandable. Ground 1(d) must be rejected.
35. The trial judge also had regard in relation to the charging of the appellant to the "Fact Sheet" prepared by Sergeant Pietruszka on the morning of 2 July 2015 setting out material to be placed before the court in support of the charges. As the judge noted, the appellant contended that the Fact Sheet contained "untrue statements", which were intended "to show that the plaintiff was in fact guilty of the charges." [59] If Sergeant Pietruszka believed the statements made in the Fact Sheet, they provided probable cause for the charges. For the reasons set out above, the appellant's challenges to his state of mind were rejected by the trial judge and those rejections have not been shown to be erroneous. It follows that ground 1(e) and (f) must be rejected. The case for the appellant involving unlawful arrest was properly dismissed, as was the case of malicious prosecution up to the point at which the appellant was charged.

Period 3 - further investigation

1. Following the charging of the appellant, the custody manager at Blacktown Police Station refused bail. Later that morning the appellant appeared before a magistrate at Parramatta Local Court, bail again being refused.
2. Sergeant Pietruszka stated that, when laying charges, he ticked a box on the system indicating that the matter was for the Director of Public Prosecutions. On 9 July 2015 an officer of the Director appeared for the prosecutor at that mention in the Local Court. [60] It may be accepted, however, that Sergeant Pietruszka continued to have a significant role to play in the prosecution of the charges for some weeks after 2 July.
3. On the evening of 2 July, and consistently with his undertaking to the appellant, Sergeant Pietruszka conducted a further interview with Ms Tejada. The further interview with Ms Tejada did not take matters much further and was not given weight on the appeal. There were reasons why it did not assist a claim of malice.
4. Sergeant Pietruszka's understanding of Ms Tejada's second statement was explained in the course of re-examination. First, his attention was drawn to part of the statement in which she said, "I remember still that I was like the one sitting down on the ground because I was like, I was intoxicated. Also I remember that my friend, Valentino and Loyd was looking after me." [61] Sergeant Pietruszka said that he had an inconsistent statement from Mr Alcazar which placed Loyd in the bathroom participating in the sexual assaults. He therefore had reservations about Ms Tejada's evidence. [62] He also had reservations based on the fact that she was focusing on "the person, Bruce, as being a particular offender and not the involvement of the other parties." Further, she was in a relationship with Loyd at the time of the incident and "made it known that she did not like the person, Bruce who was older and hanging out with the younger crowd." He considered she was being protective of Loyd. [63]
5. The following afternoon, namely Friday 3 July, Detective Houldin conducted a further interview with the victim. Ground 1(g) noted that the victim withdrew her allegation against the appellant in her further statement on 3 July. The appellant alleged that to the extent that Sergeant Pietruszka had, prior to the taking of that statement, reasonable and probable cause to lay and maintain the charges, thereafter he did not. The further interview between Detective Houldin and the victim was therefore significant.
6. In interviewing the victim on 3 July 2015, Detective Houldin directed the victim's attention to the last time, on the evening of 22 June, that she last remembered seeing the appellant. She said it was "right before I got into the bathroom." [64] She was asked if she remembered seeing him in the bathroom and said, "No, no." [65] She also denied that there were more than three persons, including herself, in the bathroom at any one time. [66]
7. In his evidentiary statement, Sergeant Pietruszka said: "56 This evidence from the victim did not cause me to form a definite view that Mr HRDAVEC was not involved in the sexual assault. I had information that four offenders had been present in the bathroom during the offence. I also had information suggesting there were only four males at the party, one of whom was Mr HRDAVEC. 57 Also, it has been my experience that victims of sexual assault commonly change their evidence at various points in the investigation, including as to the identity of the offender or offenders. I had had previous experience in victims asserting that a person was involved, then denying their involvement and then re-asserting that the person was involved. I had also had experience in victims denying that a person was involved and then asserting that the person was involved. 58 The evidence from the victim nevertheless caused me to form a view that the prosecution case had weakened considerably. I formed the view that bail should not be opposed at the next mention of Mr HRDAVEC's matter. I communicated this view to Mr HRDAVEC's barrister, Peter LINEGAR, by email on 7 July 2015. I also communicated to him that the victim had changed her story, but that there were aspects of the evidence which continued to cause me concern as to Mr HRDAVEC's involvement. Copies of my communications with Mr LINEGAR from 7 July 2015 and onwards are [attached]. 59 On or around 7 July 2015, I also communicated these views to a representative of the DPP by telephone. I do not now recall the name of the person I spoke to. It was a female. I said words to the following effect: 'The victim has made a statement where she states only three people were involved. Valentino HRDAVEC is not one of them. I have told his barrister this. I still have concerns that he had involvement in the offence due to what she had told others at the scene. This is obviously an issue. In my view, bail should not be opposed.'"
8. In cross-examination counsel for Mr Hrdavec suggested to Sergeant Pietruszka: [67] "Q. Now, it wasn't just that the case has considerably weakened was it Mr Pietruszka, his [it ?] had disappeared? A. No I disagree sir. Q. Well the evidence you had came from three people didn't it? A. Sir it also came from the crime scene. Q. The crime scene? A. Sir, the crime scene I think it was telling as well. And you haven't mentioned it but the crime scene does depict a version consistent with what the victim had told at the time. So there was a crime scene, she had a number of bruises on her body which again indicated that something had occurred in that bathroom so there was aspects of her version that was consistent but it had weakened considerably with that but it hadn't - what word did you use? Q. Disappeared? A. It hadn't disappeared, no. Q. It had Mr Pietruszka, it had? A. No I disagree."
9. All of this material was set out by the trial judge. [68] The judge noted the submission that Sergeant Pietruszka's evidence was "an invention designed to provide a desperate defence to the indefensible", and that Sergeant Pietruszka "did not subjectively have reasonable and probable cause." [69] The trial judge dealt with the submission briefly at that point, stating: "[363] Notwithstanding that fact, it was contended, that the plaintiff was falsely imprisoned for a further four weeks. By the new evidence, Inspector Pietruszka had formed the view that the prosecution case had weakened. However, on the basis of [the victim's] initial accounts of 'four males' being present, combined with his experience working with victims of sexual assault commonly changing their evidence, it did not cause Inspector Pietruszka to form a definite view that the plaintiff was not involved in the sexual assault."
10. Although the appellant suggested that the judge had either not dealt with the issue raised in his reasons, or had given no reasons for rejecting it, it is clear from this last passage that the judge accepted the Sergeant's explanation as to his state of mind following the further statement obtained from the victim. That finding was briefly stated because the judge then proceeded to consider the evidence of the steps taken by Sergeant Pietruszka immediately following receipt of the statement from the victim.
11. Sergeant Pietruszka did not conduct the interview with the victim, but agreed that he would have been sent the statement by Detective Houldin. The statement was taken on a Friday afternoon; Sergeant Pietruszka gave evidence that he did not believe he was on duty that afternoon, nor the following weekend. He believed he obtained a copy of the statement and read it either on Monday 6 July or Tuesday 7 July. There was no submission that that evidence should not have been accepted.
12. On 7 July Sergeant Pietruszka said he communicated the views set out above, namely that the prosecution case had been considerably weakened and that bail should not be opposed, both to the barrister representing the appellant, Mr Linegar, and to an officer of the Director. As the Sergeant knew, the matter was to be mentioned in the Local Court on 9 July. There was no application for bail, but the Sergeant said, "I do not know why he [Mr Linegar] did not [apply for bail]." [70]
13. The full text of the email to Mr Linegar was set out by the trial judge and was in the following terms: "[365] On 7 July 2015, Inspector Pietruszka sent an email to the plaintiff's counsel, [Mr Linegar], about a forthcoming mention of the plaintiff's matter. In the email, Inspector Pietruszka said: As discussed. On Friday 3rd July 2015, a statement was obtained from the complainant in this matter where she states that she cannot confirm if your client, Valentino HRDAVEC was in the room when the sexual assault occurred. I will raise this with the prosecutors on Thursday should a bail application be made. Despite this statement from the complainant, there is evidence that is at odds with that statement such as evidence obtained from a co-accused person which puts your client in the bathroom with the complainant and comments made immediately following the alleged offence to Police, the 1st complainant and treating hospital staff where she maintained that four persons including 'Valentino' were in the bathroom committing the mentioned offences. However, if the complainant now cannot recall if your client was present when this offence occurred, it is important that you and the courts be made aware of this."
14. At trial, counsel for the appellant submitted that the communication with Mr Linegar was not a full and frank account of what the victim had said, and did not expressly state that the Director would not oppose bail.
15. Sergeant Pietruszka was cross-examined to the effect that several aspects of the email to Mr Linegar were misleading, namely that it was misleading to say that (i) the victim "cannot confirm" if the appellant was in the room, in circumstances where she said he was not, and (ii) he would "raise this with the prosecutors" should a bail application be made, in circumstances where, in his view, a bail application should not be opposed. It was put to him that he did not say that in so many words. The rest of the email set out his understanding of the evidence, but did not, as the cross-examiner noted, say what evidence had been obtained from which co-accused. Sergeant Pietruszka rejected the submission that he was misleading Mr Linegar and said that the last sentence, stating that the complainant, "now cannot recall if your client was present when this offence occurred", and stating that the Court would be made aware of it, was a sufficient indication that bail would not be opposed. He accepted that what Mr Linegar knew was "not something I was thinking about at the time." [71]
16. At trial, counsel for the appellant submitted that the communication with Mr Linegar was not a full and frank account of what the victim had said, and did not expressly state that the Director would not oppose bail. It demonstrated malice.
17. The judge accepted that the email did not expressly state that Sergeant Pietruszka would not oppose bail, but considered it "implicit on the face of the email". [72] The judge did not accept that the email sent by Sergeant Pietruszka sustained a finding of malice; [73] not only was that conclusion consistent with the face of the communication and its content, but it was an entirely reasonable inference to draw in the circumstances. Had a bail application been made, it is likely that it would have been granted and the appellant released from custody. There was no basis for a finding, or even an inference, that the bail application was not made because of the content of the email. Far less could it be inferred that Sergeant Pietruszka was intending to discourage the making of a bail application.
18. The appellant's assertion as to the existence of malice was and is strongly negatived by the final sentence of the email reproduced at [107] above which is also entirely consistent with the terms of Sergeant Pietruszka's evidence as to his telephone conversation with the representative of the Director on the day on which the email was sent. That conversation, the terms of which are extracted at [101] above, and, in particular Sergeant Pietruszka's advice to the representative of the Director that "bail should not be opposed" is quite inconsistent with the allegation of malice.
19. In re-examination, Sergeant Pietruszka indicated that he was liaising with the Office of the Director throughout the period from 1 July until 31 October 2015. [74] He understood that an officer of the Director would appear on the bail application for the prosecution. [75] It seems unlikely in such circumstances that the police officer in charge of the investigation would make explicit representations to the barrister for an accused as to how the Director would deal with the bail application.
20. There was no substance in the allegation that, between 3 July and 10 July, any step taken by Sergeant Pietruszka evidenced malice or lack of reasonable and probable cause in the relevant sense. The appellant's submissions in relation to this period must be rejected. Ground 1(g) and (h) must be rejected.

Conclusions and orders

1. The rejection of ground 1(a)-(h) disposes of the appeal with respect to liability. Grounds 1(i) and (j), together with ground 2, related to the assessment of damages. Those issues do not arise.
2. The Court should make the following orders: 1. To the extent necessary, grant the appellant leave to appeal from the judgment of Walton J given on 18 May 2021 and the orders entered on 16 June 2021. 2. Dismiss the appeal. 3. Order that the appellant pay the respondent's costs in this Court.

Endnotes

1. Hrdavec v State of New South Wales [2021] NSWSC 560 ("Hrdavec").
2. Detective Sergeant Pietruszka was promoted to Inspector in late 2015, and was referred to by that rank by the trial judge. However, throughout the period relevant to the claims he was a Sergeant and will be referred to by that rank in these reasons.
3. George v Rockett (1990) 170 CLR 104 at 115; [1990] HCA 26.
4. (2019) 266 CLR 619; [2019] HCA 46.
5. A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [83].
6. Unhelpfully, the primary judge relied upon the reasoning of the minority in Robinson in Hrdavec at [26].
7. See fn 5 above.
8. Trial Tcpt, 12/02/20, p 636(1).
9. Trial Tcpt, p 636(5).
10. CA Tcpt, 14/02/22, p 2(10).
11. CA Tcpt, p 2(25).
12. Evidentiary statement of Jason Pietruszka, 20 July 2018, par 20.
13. Statement, par 23(d).
14. Statement, par 23(e).
15. Statement, par 23(k).
16. Statement, par 23(l).
17. Statement, Const Boyd, 28 June 2015, par 4.
18. Statement, Const Boyd, par 5.
19. First ERISP, 22 June 2015, p 2.
20. Second ERISP, 22 June 2015, p 20.
21. Second ERISP, p 28.
22. Hrdavec at [157].
23. Hrdavec at [188]-[190].
24. Hrdavec at [195]-[202].
25. Hrdavec at [206].
26. Hrdavec at [208]-[212].
27. ERISP, 29 June 2015, Q231-232.
28. Hrdavec at [224].
29. Hrdavec at [443].
30. Hrdavec at [232].
31. Statement, 15 July 2018, par 8.
32. Statement of Sergeant Pietruszka, 20 July 2018, par 78; oral evidence, Tcpt, 16/12/19, p 436(35).
33. Hrdavec at [260].
34. ERISP, 2 July 2015, Q38.
35. ERISP, Q43.
36. ERISP, Q44-45.
37. ERISP, Q46.
38. ERISP, Q47.
39. ERISP, Q48.
40. ERISP, Q50.
41. ERISP, Q66.
42. ERISP, Q63-65.
43. ERISP, Q70.
44. ERISP, Q72.
45. ERISP, Q77-78.
46. ERISP, Q107.
47. Hrdavec at [264]-[278].
48. Hrdavec at [288].
49. Statement, Patricia Tejada, 22 June 2015, par 14.
50. Trial Tcpt, 17/12/19, p 498(35).
51. Tcpt, p 502(17)-(38).
52. Appellant's written submissions, par 46.
53. (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).
54. Appellant's written submissions, par 17.
55. ERISP, 29 June 2015, Q231.
56. ERISP, Q232.
57. Hrdavec at [313].
58. Hrdavec at [314].
59. Hrdavec at [321].
60. Evidentiary statement, 20 July 2018, pars 52, 53.
61. Trial Tcpt, 18/12/19, p 606(45).
62. Tcpt, p 607(33).
63. Tcpt, p 607(45)-(50).
64. ERISP, p 3.
65. ERISP, p 3-4.
66. See evidence extracted in Hrdavec at [359].
67. Tcpt, p 565(5).
68. Hrdavec at [361].
69. Hrdavec at [362].
70. Evidentiary statement, par 61.
71. Tcpt, p 570(45).
72. Hrdavec at [373].
73. Hrdavec at [370].
74. Tcpt, p 609(10).
75. Tcpt, p 609(37). 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: 07 April 2022