Irving v Pfingst [2020] QSC 280

TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - GENERALLY - where first defendant arrested plaintiff for accessory after the fact for an armed robbery on 18 May 1993 - where two other armed robberies occurred in in late-1992 and mid-1993 - where plaintiff contends first defendant abused process in taking body samples - where plaintiff contends first defendant mislead court during bail application - where plaintiff contends first defendant did not honestly believe guilt of accessory charge - whether reasonable and probable cause in prosecuting accessory charge - whether first defendant actuated by motive other than proper invocation of criminal law in prosecuting accessory charge

TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - GENERALLY- where first defendant arrested plaintiff for the armed robbery on 25 May 1993 - where plaintiff contends exculpatory evidence omitted from evidence - where plaintiff contends first defendant gave false evidence at committal - where plaintiff contends first defendant only made inculpatory evidence into statements - where plaintiff contends first defendant embellished and manipulated evidence to strengthen case - whether first defendant prosecutor in maintaining armed robbery charge - whether reasonable and probable cause in prosecuting armed robbery charge - whether first defendant actuated by motive other than proper invocation of criminal law in prosecuting armed robbery charge

TORTS - INTERFERENCE WITH THE PERSON - FALSE IMPRISONMENT - GENERALLY - where plaintiff was arrested for accessory to armed robbery - where plaintiff imprisoned for three days prior to a bail application - where magistrate denied bail - whether there was lawful justification for imprisonment

A v State of New South Wales (2007) 230 CLR 500, followed

Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 432, cited

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, considered

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, cited

Ferguson v The State of Queensland [2007] QSC 322, considered

McFadzean v Construction, Forestry, Mining and Energy Unit [2007] VSCA 289; [2007] 20 VR 250, cited

Mitchell v John Heine & Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466, followed

Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597, considered

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, considered

Nguyen v Cosmopolitan Homes [2008] NSWCA 246, considered

Nye v State of New South Wales [2003] NSWSC 1212, considered

Onassis v Vergottis [1968] 2 Lloyd's Rep 403, cited

Sahade v Bischoff [2015] NSWCA 418, considered

Seabrook v Asher [2006] QCA 238, considered

Skrijel v Mengler [2003] VSC 270, considered

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, considered

Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, considered

Watson v Foxman (1995) 49 NSWLR 315, cited

Wood v State of New South Wales [2018] NSWSC 1212, followed

K Mellifont QC, S McLeod QC and M Wilkinson for the Defendants

• [1] An armed bank robbery took place at the ANZ Bank in Cairns (the Bank) on 19 March 1993 (the Robbery). On 18 May 1993 Terry Irving, the Plaintiff, was charged with being Accessory after the fact in relation to the Robbery (the Accessory Charge). That charge was withdrawn. On 25 May 1993, Mr Irving was subsequently charged with the offence of armed robbery in relation to the Robbery (the Armed Robbery Charge). Ms Pfingst, the First Defendant, was the officer in charge of that investigation. She was a Detective Senior Constable with the Cairns CIB at the time. Mr Irving was committed for trial in October 1993. On 8 December 1993, he was convicted of one count of armed robbery by a jury in the District Court in Cairns. He was sentenced to eight years imprisonment, inclusive of 7 months already spent in custody.
• [2] Mr Irving's appeal to the Queensland Court of Appeal in 1994, which was dismissed. In August 1997, his special leave application was heard before the High Court, at which time the High Court ordered legal aid be provided to Mr Irving and that Ms Pfingst provide an affidavit explaining her absence from the District Court trial.
• [3] In December 1997, the High Court ordered that Mr Irving be granted special leave to appeal, that the appeal be heard instanter and the appeal be allowed. The Crown conceded before the High Court that it was difficult to contend that what occurred was a fair trial.[1] The Crown characterised the error as arising from to a combination of factors, the principal of which was that the summing up by the learned trial judge misled the jury.[2] No reasons were given by the High Court. Mr Irving's conviction was quashed and a new trial was ordered. On 2 October 1998, he was advised that the Crown would be entering a nolle prosequi on the Armed Robbery Charge, which was subsequently entered into on 25 January 1999. Mr Irving remained in custody from the time of his arrest on 17 May 1993 until his release in December 1997.
• [4] As a result of the termination of the proceedings against Mr Irving in respect of the Accessory Charge and Armed Robbery Charge, Mr Irving contends that Ms Pfingst is liable for damages for two malicious prosecutions and false imprisonment. The State of Queensland is the Second Defendant, and is alleged to be vicariously liable for the actions of Ms Pfingst. The Defendants deny any liability. The Court must determine whether Mr Irving has established either claim.

(a) The relevant legal principles with respect to malicious prosecution and false imprisonment;

(b) The nature of the investigation and the standard of proof;

(c) The investigations carried out leading to Ms Pfingst laying the Accessory Charge, which is the subject of the first alleged malicious prosecution (the First Alleged Malicious Prosecution), in which I make findings of fact;

(d) Whether the Defendants are liable for the First Alleged Malicious Prosecution. In particular:

(i) Whether the First Alleged Malicious Prosecution was instituted without reasonable and probable cause;

(ii) Whether there was malice in the circumstances in which the First Alleged Malicious Prosecution was instituted and/or maintained;

(e) The investigations carried out leading to Ms Pfingst laying the Armed Robbery Charge, which is the subject of the second allegation of malicious prosecution (the Second Alleged Malicious Prosecution), in which I make findings of fact;

(f) The events after the Armed Robbery Charge was instituted;

(g) Whether the Defendants are liable for the Second Alleged Malicious Prosecution. In particular:

(i) Whether Ms Pfingst was a prosecutor for not only instituting the prosecutions but maintaining them;

(ii) Whether the Second Alleged Malicious Prosecution was instituted without reasonable and probable cause;

(iii) Whether there was malice in the circumstances in which the Second Alleged Malicious Prosecution was instituted and/or maintained;

(h) Whether Mr Irving was falsely imprisoned, which was not actively pursued in this hearing; and

(i) What the relevant damages are in the event the Court determines that Mr Irving is successful in establishing either or both the First Alleged Malicious Prosecution and Second Alleged Malicious Prosecution were malicious.[5]

• [9] In order to succeed in an action for damages for malicious prosecution, Mr Irving must establish that:

(a) the criminal proceedings, were instituted or maintained by Ms Pfingst against Mr Irving, such that she can be relevantly regarded as the prosecutor of the proceedings;

(c) Ms Pfingst, in initiating or maintaining the criminal proceedings, acted maliciously; and

(d) the prosecution was commenced or maintained without reasonable or probable cause.

• [10] The first, third and fourth elements are the subject of some dispute in these proceedings. The second element is not in issue between the parties in relation to either of the alleged malicious prosecutions.
• [11] Commonly, courts consider reasonable and probable cause before considering malice and I will adopt the same approach in this decision.[6]

• [12] The High Court relevantly in, A v State of New South Wales (A's Case),[7] noted that:

"The identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. 'To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion'." (footnotes omitted)

• [13] It follows that for the Defendants to be liable, Mr Irving must show that Ms Pfingst was the prosecutor of the criminal proceedings, either because she was the actual prosecutor or because she was instrumental in initiating and later maintaining the proceedings. In order to be a "prosecutor" relevant to the tort of malicious prosecution, Ms Pfingst need not be the "prosecutor" in the formal sense. Holmes J (as her Honour then was) in Seabrook v Asher,[8] observed that:

"[12] Malicious prosecution is an action for "setting the criminal law in motion". It has long been established that a defendant to such an action need not be the prosecutor in a formal sense:

'... the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge ...'

Provision of information to investigating authorities in good faith cannot occasion liability, but

'... if the [prosecutorial] discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible.'" (footnotes omitted)

• [14] Gleeson JA (with whom Basten JA and Beech-Jones J agreed) in Sahade v Bischoff,[9] referred to:

"The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false."

• [15] Nettle J in Skrijel v Mengler:[10]

"...being 'actively instrumental' means either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking that action through them."

• [16] As was noted by Fullerton J in Wood v State of New South Wales (Wood),[11] the question is of some importance since, as the High Court noted in A's case:[12]

"For the reasons explained by the House of Lords in Glinski v McIver, justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect."

• [17] Fullerton J also referred to the decision of Brook LJ (with whom other members of the House of Lords agreed) in Mahon v Rahn (No 2),[13] where his Honour paraphrased the passage from Lord Keith in Martin v Watson,[14] as a series of tests.
• [18] The Defendants do not dispute that Ms Pfingst was the prosecutor of the criminal proceedings, insofar as she was responsible for the laying of the charges. The Defendants, however, contend that after the laying of the charges, the matter was in the hands of the Queensland Police Service (QPS) and the Director of Public Prosecutions (DPP), such that Ms Pfingst ceased to maintain the prosecution in any sense relevant to a malicious prosecution action. Mr Irving, however, contends that Ms Pfingst's role was significantly greater than that, and that she was the prosecutor for the purposes of maintaining the proceedings. Mr Irving further contends that Ms Pfingst was the only person who had comprehensive knowledge of all of the evidence and, to a large extent, it was evidence that was withheld, rather than that which was produced that was significant. Mr Irving also contends that she was actively involved in the prosecution after committal and beyond Mr Irving's sentencing.

• [19] Mr Irving must show that the proceedings of which he complains have been terminated in his favour. The termination of prosecution proceedings by the entry of a nolle prosequi is sufficient to establish that the proceedings have been terminated in favour of Mr Irving.[15]
• [20] As stated above there is no issue that the criminal proceedings arising out of Accessory Charge and the Armed Robbery Charge were both terminated in favour of Mr Irving.

• [21] In Mitchell v John Heine & Son Ltd,[16] (John Heine) Jordan CJ identified five conditions which must be satisfied for a prosecutor to have reasonable cause, namely:
  1. The prosecutor must believe that the accused is probably guilty of the offence;
  2. This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise;
  3. The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true;
  4. This belief must be based on reasonable grounds; and
  5. The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.
• [22] In A's Case, the majority emphasised that, in relation to malicious prosecution, the plaintiff must establish a negative, namely the absence of reasonable and probable cause in an action for malicious prosecution. That would depend on the forensic nature of the case being considered, particularly whether it is a private or public prosecution.
• [23] In the case of malicious prosecution, it is for the plaintiff to prove that one or more of those conditions did not exist. The conditions referred to by Jordan CJ in John Heine were not however intended to, directly or indirectly, provide a list of elements to be established at the trial of an action for malicious prosecution.[17] The High Court in A's Case noted that the conditions identified by Jordan CJ were more apt to where the prosecutor had personal knowledge of the facts rather than relying on third party material.
• [24] In A's Case, the High Court commented on the forensic difficulty of proving a negative. The High Court stated that:[18]

"It is important to recognise that, in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to institute criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise.

Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross-examination." (emphasis in original)

• [25] The absence of reasonable and probable cause can be established by satisfying a subjective test or the objective test (or both), namely:[19]

(a) That Ms Pfingst, as prosecutor, did not "honestly believe" the case that was instituted or maintained (the subjective test); or

(b) That Ms Pfingst, as prosecutor, had no sufficient basis for such an honest belief (the objective test).

• [26] The majority in A's Case said that in order to decide whether or not the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways: [20]

• [27] The relevant time to consider the question is when the prosecution was commenced, or when the prosecutor is alleged to have maintained the prosecution.[21] The High Court majority noted the temporal dimension 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.[22]
• [28] In A's Case, the majority recognised that the absence of reasonable and probable cause will not be established in every case where the prosecutor had no positive belief that the accused person was, or was not, probably guilty. In particular, the majority in A's Case stated that where a police officer prosecutes a person on the basis of statements by third parties, there are evidential difficulties in applying the 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 a positive persuasion of guilt. That would often not be consistent with what should desirably be the objective assessment and analysis of material provided by others.[23]
• [29] The High Court summarised the relevant approach to be:

"Where a prosecutor has not personal knowledge of the facts underlying the charge but acts on information received the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. ...it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution or proves that the prosecutor formed the view on an insufficient basis."[24]

• [30] Where a prosecutor relies on third party material a relevant question in determining whether the subjective test is established in respect of the absence of reasonable and probable cause will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion.[25]
• [31] The majority stated that in deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In that regard, the High Court stated:[26]

"In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established."

• [32] In order to prove a subjective absence of reasonable and probable cause, Mr Irving must establish that, at the time the proceedings were instituted or maintained against him, Ms Pfingst did not honestly believe or conclude that there were reasonable grounds to justify prosecuting him. Given Ms Pfingst largely relied upon third party material, a relevant question is whether an examination of Ms Pfingst's state of persuasion as to the sufficiency of the evidence as warranting setting the criminal process against Mr Irving in motion, shows that she did not honestly conclude that such material warranted the initiation of a criminal prosecution.[27]
• [33] In the absence of some admission by Ms Pfingst, Mr Irving must make the case that the subjective test has been established by inference and by cross-examination.[28]

• [34] As to the objective aspect of reasonable and probable cause, the question for the court to decide is whether "the grounds which actuated the [prosecutor] suffice to constitute reasonable and probable cause".[29] The High Court noted that the objective element is sometimes couched in different terms such as, by reference to the "ordinarily prudent and cautious man placed in the position of the accuser" or "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty".[30] Regardless of the formalisation, the High Court stated that what is plain is that the appeal is to an objective standard of sufficiency.[31]
• [35] The majority noted that the question is ultimately one of fact and the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient upon the material upon which the prosecutor acted in instituting or maintaining the prosecution. That is an assertion which may depend upon evidence demonstrating a further inquiry should have been made.[32]
• [36] Importantly, the absence of reasonable and probable cause is not demonstrated by showing only that there were further enquiries that could have been made before a charge was laid.[33] The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case.[34]
• [37] In Wood, Fullerton J stated that[35]:

"The objective test for an absence of reasonable and probable cause will be met where, in the Court's assessment, a prudent and cautious prosecutor in the prosecutor's position would not have come to that view, there being insufficient grounds for it."

• [38] As to the prosecution being without reasonable or probable cause, Mr Irving alleged that:

(a) Ms Pfingst did not honestly believe, based on information and evidence in her possession, or on reasonable grounds, that Mr Irving was guilty or likely to be found guilty of the charges as executed and maintained;[36] or

(b) A person of ordinary prudence and caution could not have honestly believed, based on the information and evidence in the possession of Ms Pfingst or on reasonable grounds that Mr Irving was guilty or likely to be found guilty of the charges as instituted and maintained.[37]

• [39] The plaintiff's formulation in (a) above mixes the subjective and objective, however counsel for Mr Irving, in their closing submissions adopts the formulation in A's Case.

Maliciously instituted or maintained the prosecution

• [40] In A's Case, the High Court described malice "as acting for purposes other than a proper purpose of instituting criminal proceedings".[38]
• [41] The High Court in A's Case explained that:

"[89] Fleming rightly said that "'[m]alice' has proved a slippery word in the law of torts". It will be recalled that Lord Davey, in the passage of his speech in Allen v Flood set out earlier in these reasons, had spoken of the law giving protection to prosecutors even where there is no reasonable and probable cause for the prosecution, but losing that protection "if the person abuses his privilege for the indulgence of his personal spite".

[90] No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism - like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause - may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated.

[91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor.

[92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose...

[93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law." (emphasis added and footnotes omitted)

• [42] The element of malice therefore requires a focus upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.[39]
• [43] Malice may be proved by showing what the actuating purpose of the prosecution was and that it was not a proper purpose. It may also be demonstrated by the "indirect" route namely, "proving that the conduct is not to be explained by the existence of a right motive". The indirect route of establishing malice was recognised by Kitto and Taylor JJ in Trobridge v Hardy[40] adopting the judgment of Cave J in Brown v Hawkes, whereby malice could be proved by showing that the circumstances are such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. In the present case, Mr Irving relies on both routes to establish malice.
• [44] In A's Case, the High Court majority commented that the organisational setting in which a decision to prosecute is decided could be of factual importance in deciding the issue of malice.[41] In particular, the High Court stated that it may be more difficult to prove malice in a case of a prosecution instituted in a bureaucratic setting where the prosecutor's decision is subject to layers of scrutiny and to potential review.[42]
• [45] Mr Irving alleges that Ms Pfingst was actuated by malice or improper purpose amounting to malice in bringing and maintaining the Accessory Charge and the Armed Robbery Charge by reason of:

(a) The matters set out in the particulars in [50] of the 7FASOC relied upon in respect of the lack of reasonable and probable cause;

(b) Ms Pfingst seeking to improve her reputation as a detective in the Cairns Criminal Investigation Bureau (Cairns CIB);

(c) Her endeavour to secure a conviction in an operation described as Operation 3-UP;

(d) Her endeavour to obtain kudos or recognition within the Cairns CIB for obtaining a conviction in respect of the Robbery; and

(e) The context of her arresting, causing to be restrained in custody and obtaining the conviction of Mr Irving, ensuring a term of several years of imprisonment.

• [46] The Defendants in the present case contend that Mr Irving's case has not risen above conjecture or suspicion, given that the inferences sought to be drawn by Mr Irving are not available on the evidence.

• [47] Mr Irving pleads that he was falsely imprisoned by Ms Pfingst and the State of Queensland from the time of his arrest until the time of his first bail application on or about 20 May 1993. This allegation was not the subject of submissions by Mr Irving, although it was not formally abandoned.
• [48] The essence of the tort of false imprisonment is compelling a person to stay at a particular place against their will.[43] Mr Irving must prove the imprisonment. Any total restraint of the liberty of the person by confinement is an imprisonment.[44]
• [49] To establish false imprisonment, it is not necessary that there be actual force involved. An arrest which initiates detention may be effected without the application of any force or violence, but may nonetheless attract damages if the other elements of the tort are made out.[45] Mr Irving does not need to establish malice or any improper motive on the part of the alleged tortfeasor in order to establish false imprisonment. The imprisonment must, however, be intentional.[46]
• [50] The imprisonment must be directly caused by the Defendant.[47] If imprisonment is proved, it is for the Defendant to prove a lawful justification for the imprisonment in order to escape liability.[48] The usual defence to an action for false imprisonment is that the Defendant has not acted unlawfully because the arrest was authorised or justified by law.[49]
• [51] A period of false imprisonment which arises from wrongful arrest commences with the arrest of the Plaintiff, but will not extend beyond a decision by a Magistrate to remand a person in custody. Being remanded in custody as a result of the decision of a Magistrate is a judicial act and no liability can be attached to the police officers for that.[50]
• [52] At the time Mr Irving was arrested, s 546 of the Criminal Code Act 1899 (Qld) provided that, to be a lawful arrest, the police officer must believe on reasonable grounds that an offence had been committed, and that any person has committed it. The police officer must make it plain to the person being arrested that they are under arrest. The police officer must also, if practicable, give notice of the cause of arrest to the person arrested.

"False imprisonment arising from an improper arrest of a suspect bears a resemblance to the tort of malicious prosecution, which consists in maliciously and without reasonable and probable cause instituting a groundless criminal prosecution. The distinction between them lies in whether the restraint of the plaintiff's liberty is directly imposed by the defendant, acting either personally or by his or her agent, or whether there is interposed the exercise of an independent discretion. A person who brings about an arrest by merely setting in motion the formal process of law, as by making a complaint before a justice of the peace or applying for a warrant, is not liable for false imprisonment, because courts of justice are not agents of the prosecutor and their acts are not imputable to the informer. There is liability, if at all, only for the misuse of legal process by procuring an arrest for an improper purpose, for which the appropriate remedy is an action for malicious prosecution. This rule provides a valuable protection against liability for mere error in the course of legal proceedings." (emphasis in original and footnotes omitted)

• [54] False imprisonment and malicious prosecution both involve the abuse of power.[54] A finding as to either has serious consequences.
• [55] The allegations made against Ms Pfingst as to the carrying out of her duties while she was a police officer are very serious. It was accepted by both parties that the principles in Briginshaw v Briginshaw[55] applied in the present case. There is some disagreement, however, as to when those principles should apply.

• [56] As stated, Mr Irving relies upon 21 evidentiary facts from which he contends inferences should be drawn[56] about Ms Pfingst's state of mind. In particular, it is said these events demonstrate that Ms Pfingst was embellishing and manipulating evidence, omitting exculpatory evidence and gave misleading evidence from which it is to be inferred that she knew the case against Mr Irving was weak and that she did not honestly believe that such material warranted the initiation of the prosecution. Mr Irving also relies on inadequacies in the evidence to contend there was insufficient evidence for the prosecution and that the absence of reasonable and probable cause is established on the basis of the objective test. In summary,[57] Mr Irving contends that:

(a) That on 19 March 1993, a description was obtained of the Robber and checks were made of a criminal history of Mr Irving and references made to a previous conviction for an armed hold-up and that Ms Pfingst strongly suspected him of committing the Robbery;

(b) That on 17 May 1993, Ms Pfingst and Mr Sturgess went to the Commonwealth Bank and arrested Mr Irving and conversations occurred at Atherton and on the return journey to Cairns, which were the subject of contemporaneous notes written by Ms Pfingst and Mr Sturgess that night (the Laptop Notes). The Laptop Notes are in some respects disputed by Mr Irving, which he contends were secretly recorded and doctored by Ms Pfingst, and further that the tapes were not disclosed. That is said to be supported by other instances where Mr Irving was not informed of the recordings and an expert opinion;

(c) That a conversation occurred on the way from the Cairns CIB to the Cairns watch house where Ms Pfingst indicated that she was going to ensure he was convicted;

(d) That Mr Irving was charged with the Accessory Charge when Ms Pfingst believed that he was the Robber;

(e) That an application for body samples obtained was made by Ms Pfingst on 19 May 1993 pursuant to s 259 of the Criminal Code, which is said to have been brought to establish that he was the Robber and where subsequent events cast doubt upon Ms Pfingst's credit;

(f) That there was an incorrect criminal history relied upon in the objections to bail document and the evidence of witnesses is said to be overstated, which are said to be embellished, by Ms Pfingst in the objections to bail document and court brief to strengthen the Crown's case;

(g) That there had been non-disclosure of Operation 3UP, which was formed on 18 May 1993 by the Cairns CIB to investigate three robberies in Cairns of the National Australia Bank (NAB) in December 1992 and May 1993 and the Bank. Mr Irving contends that there were 11 similarities between of the robber in the 1992 NAB robbery and the Robbery. Mr Irving contends that he was not linked to the other NAB robberies and that it should be inferred that a prosecutor would say it was not a proper case for prosecution given the likelihood of the same person having committed the robberies and that the information was improperly held;

(h) That Ms Pfingst had undisclosed visits with Cindy Parker, Mr Irving's former partner, in which either Ms Pfingst or other police officers obtained photographs of Mr Irving;

(i) That photographs were shown to witnesses by Mr Hogan and Officer Reid, said to be the photographs taken by Ms Parker and those witnesses later viewed the photoboard, which Ms Pfingst must have known about;

(j) That there was a strengthening of identification evidence of both a shirt, owned by Mr Irving said to have been worn in the Robbery, and arising out of a photoboard between the record of interview and the statement when prepared;

(k) That statements from witnesses who did not identify the shirt and/or Mr Irving on the photoboard were not prepared by Ms Pfingst, from which it is said it is to be inferred that Ms Pfingst stopped investigating and was only pursuing evidence to convict Mr Irving and not evidence that was exculpatory;

(l) That Ms Pfingst overstated evidence in the second bail application to strengthen the case against bail being granted;

(m) That there was an absence of a statement from Carla Paynter and Ms Pfingst stated at the committal that Ms Paynter had not seen the Robber's face when there were circumstances from which it is to be inferred she would have;

(n) That Ms Pfingst gave false evidence at the committal hearing to bolster the prosecution case;

(o) That Ms Pfingst did not attend at the District Court trial in order to avoid giving evidence and being exposed for manipulating evidence; and

(p) That Ms Pfingst did not provide a fulsome affidavit to the High Court in order to ensure that the full story was yet again, not revealed to Mr Irving.

• [57] Some of the matters ultimately submitted were not pleaded nor was Ms Pfingst cross-examined about them, which will be dealt with below.
• [58] Mr Irving bears the onus of proving each of the elements of malicious prosecution and false imprisonment. In the case of malicious prosecution that includes proving a negative, "the absence of reasonable and probable cause", which is generally regarded as more difficult than proving a positive and will usually be established by inference.[58]

• [59] The relevant standard of proof is the civil standard, namely the balance of probabilities. Given the nature and seriousness of the allegations, the principles in Briginshaw v Briginshaw,[59] will apply. Dixon J in Briginshaw v Briginshaw,[60] stated:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of the two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."

• [60] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[61] (Neat Holdings) the majority elaborated on the statement by Dixon J in Briginshaw as follows:

"The ordinary standard of proof required of the party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even when the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statement often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found' Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct...."

• [61] Counsel on behalf of Mr Irving takes issue in relation to the Defendant's application of the Briginshaw test, insofar as the Defendants had considered whether each of the factual matters relied upon by Mr Irving had been established and in some cases contended that given the serious nature of the fact which Mr Irving seeks to prove that the Briginshaw standard would apply. Counsel for Mr Irving submits that his case is circumstantial and that the Court should only consider the effect of the facts relied upon cumulatively in determining whether the relevant element of the tort, or the ultimate fact, is established and only at the point the Court should apply the Briginshaw principles.
• [62] Mr Irving submitted that the proper approach was set out in the decision of Transport Industries Insurance Co Ltd v Longmuir (Longmuir),[62] where the Victorian Court of Appeal warned against the danger of compartmentalising facts in a circumstantial case. In particular in that case, in determining whether the ultimate fact that the respondent lit the fire had been proved, Winneke P stated:[63]

"The task of the learned judge was to consider the weight of the culmination of facts proved to his satisfaction and then to determine whether the combined weight of those facts and circumstances supported the inference, as a matter of probability that the respondent lit the fire. The onus of proof is only to be applied at the final stage of the reasoning process. It is erroneous to divide the process into stages and at each stage apply some particular standard of proof. To do so destroys the integrity of the circumstantial case."

• [63] The above was referred to with approval by Ward J in In the matter of Idyllic Solutions Pty Ltd - Australian Securities Investment Commission v Hobbs.[64] In that case, her Honour also referred to Ipp J (with whom Tobias and Basten JJA agreed) in Palmer v Dolman[65] where his Honour stated that:

"The more recent authorities to which I have referred, and s 140 of the Evidence Act (1995) (NSW) make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities."

• [64] I accept that the above approach is generally correct and will adopt that approach. However, as is evident from the statement of Winneke P, the Court must still be satisfied of individual facts relied upon which are in issue before determining whether their cumulative effect supports the inference sought to be drawn. In the present case, some of the circumstances relied upon to raise a more probable inference in favour of what is alleged are serious allegations, such as the giving of false evidence. The serious nature of an allegation is still a relevant consideration to which the Court will have regard in order to determine whether it is reasonably satisfied, on the balance of probabilities, of the occurrence of an event or existence of a fact in issue, based upon the evidence presented to prove the facts that is consistent with the statement of the majority of the High Court in Neat Holdings referred to above. Ultimately little turns upon the application of Briginshaw to the facts in the present case.
• [65] Mr Irving seeks to have the Court draw inferences based on circumstantial evidence. O'Keefe J in Nye v The State of New South Wales (Nye)[66] discussed when inferences could be legitimately drawn from circumstantial evidence as opposed to speculation, stating:[67]

"...In Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Dixon, Fullagar and Kitto JJ said:

'The test to be applied in determining ... whether circumstantial evidence sufficies to support a finding ... was restated recently by this court in Bradshaw v McEwans Pty Ltd ((1951) unreported) and for the purposes of this case it is enough to set out the following passage from the judgment: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise'

The distinction between a legitimate inference on the one hand and conjecture on the other is often difficult to determine. This is recognised in the cases, the more important of which have been authoritatively gathered together by Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262. Although that case was concerned with a question of causation and arose in the context of an appeal from the Dust Diseases Tribunal, nonetheless the principles concerning the distinction between conjecture on the one hand and inference on the other are of general application; causation as a fact to be proved, can, like any other fact that requires proof, be established by a process of inference. Spigelman CJ with whom Davies AJA agreed, said:

'The law in Australia is, in my opinion, as stated by Glass JA in this court in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197:

"... The evidence will be sufficient if, and only if, the materials offered justify an inference of probable connection. This is the only principal of law. Whether its requirements are met depends upon the evaluation of the evidence."

It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists......

The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, eg, Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358." (footnotes omitted)

• [66] McDougall J (with whom McColl JA and Bell JA agreed) in Nguyen v Cosmopolitan Homes[68] considering the discharge of proof neatly summarised the position:[69]

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."

• [67] However, the present case, in a number of respects, is not a circumstantial case. There was direct evidence in relation to some matters in issue which were the subject of evidence-in-chief and cross-examination and it is a matter of whether the Court accepts that evidence or not. In other respects, the circumstances relied upon by Mr Irving to support his case must be weighed against the direct evidence of Ms Pfingst and others.

• [68] Significant time has passed since the events which form the relevant factual basis for the causes of action before me.
• [69] It is appropriate to bear in mind the dictum of McLelland CJ in Eq from Watson v Foxman:[70]

"Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

• [70] The present case is not one simply of a credit contest between Mr Irving and Ms Pfingst, however, there are some matters in issue which turn upon findings of credit. Lord Pearce's dissent in Onassis v Vergottis[71] is useful to bear in mind regarding some of the factual disputes in the present case. Lord Pearce stated:[72]
  • [71] "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
• [72] As Keane J in stated:

"The rational resolution of an issue involving credibility of a witness will require reference to and analysis of any evidence independent of the parties which is apt to cast light on the probabilities of the situation."

• [73] In that respect, it may be relevant for the Court may also have regard to the failure of a witness to make a complaint in assessing their credibility.[74]

• [74] Mr Irving gave evidence at this trial and was subject to extensive cross-examination. Ms Birchley, the scientific officer at the Cairns CIB at the time of the investigation was called by Mr Irving in relation to conversations that she had with Ms Pfingst and evidence given to the CJC. Mr Kelly, of the CJC, gave evidence as to the record of interview with Ms Pfingst. Mr Hogan, who was a plain clothes detective senior constable at Cairns CIB at the relevant time, gave evidence as to his involvement in the investigation.
• [75] Ms Pfingst was called on behalf of the Defendants and was subject to lengthy cross-examination. Mr Sturgess, who was a Detective Sergeant at the Cairns CIB after being promoted and transferred from Mareeba Police Station on the day of the Robbery , gave evidence of his attendances with Ms Pfingst and his subsequent appearance at the District Court trial. Mr Hartwell, who was acting officer in charge of the Cairns CIB at the time of the investigation and put Ms Pfingst in charge of the investigation into the Robbery, also gave evidence in relation to the set up within the Cairns CIB in relation to investigations.
• [76] Detective Senior Sergeant (DSS) Kinbacher, who was a detective senior constable in the Cairns CIB at the time of the investigation of the Robbery, also gave evidence. He attended with Ms Pfingst on Ms Parker and was also the investigating officer in charge of the investigation of a robbery at the NAB in Hannam Street in Cairns on 8 December 1992.
• [77] Expert opinions were admitted as evidence in respect of a linguistic analysis of the Laptop Notes made by Ms Pfingst and Mr Sturgess by Dr Heydon,[75] which is the subject of some controversy. Opinions were obtained from Dr Chalk and Dr De Leacy, who gave evidence as to the extent of the injury suffered by Mr Irving as a result of his imprisonment, which was largely the subject of agreement.
• [78] The Defendants have raised, particularly in the context of allegations that Ms Pfingst influence witnesses in the course of giving their statements, that none of the witnesses were called by Mr Irving and it was open for the Court to draw a Jones v Dunkel inference. Mr Irving however submitted that no such inference should be drawn as the witnesses were not in either party's camp. The Defendants ultimately submitted that the Court should consider the matter in the context of whether Mr Irving has met the evidential threshold.

The investigations relevant to the Accessory Charge

• [79] The Robbery occurred on 19 March 1993. Ms Pfingst was then a Detective Senior Constable in the QPS. She had significant experience, having joined the police force in October 1980. Although she had previously dealt with serious crimes, such as rapes and fraud, the Robbery was the first time she had been a primary investigator for an armed hold-up offence. Mr Hartwell, Ms Pfingst and several other Cairns CIB officers attended the ANZ Bank (the Bank) on 19 March 1993 in response to the report of the armed robbery. Ms Pfingst was made the primary investigator for the investigation. A number of other officers were also involved in the investigation.
• [80] Ms Pfingst sought the Bank's security tape. It was subsequently ascertained that the Bank's security camera was not operating at the time of the Robbery and no footage of the Robbery or photographic evidence was obtained. Therefore the only identification of the robber that could be made was by witnesses who had seen him on that day. Ms Pfingst spoke to three bank officers: Ms Adkins, Ms Redgen and Ms Oastler. Only one person was said to have entered the Bank (the Robber). Descriptions of the Robber were taken by Ms Pfingst from those bank officers. Ms Pfingst did not take formal witness statements on that day, but did so the following day. Mr Hogan took a statement from Keith Kerr[76] and Mr Cooper, who was a detective sergeant in the Cairns CIB at the time, took a statement from Ann Kerr[77] later in the day on 19 March 1993.
• [81] In her statement of 23 June 1993, Ms Pfingst stated that upon her arrival at the Bank, she spoke to three female tellers and they told her some things. She stated that she had obtained a description of the male who had robbed the Bank and she broadcast it over the police radio. She also obtained details of the vehicle seen leaving the block of units and broadcast the registration number over the police network, which was 682BUI.[78] In cross-examination, she clarified that she had broadcast that information over the police network.
• [82] Witnesses who had followed the Robber after he had left the Bank provided information relating to the description of the Robber and registration details of a vehicle suspected to be involved in the Robbery. Mr and Mrs Kerr worked in a nearby takeaway business known as "Ginger and Pickles". According to the statement of Mr Kerr, he had followed a male with Ms Adkins, the Manager of the Bank, and his wife. He had seen the male walking into a set of units on Kidston Street. He then saw him come out of those units and run into another set of units on Kidston Street. He then saw a grey coloured sedan leaving that unit block at speed, with the male person "that I previously had followed lying across the back seat". He made a mental note of the registration number of the vehicle as 682BUI. In his statement of 19 March 1993, Mr Kerr described the person he followed as a male with a brightly coloured long sleeve shirt made up of different colours and had a dark pair of trousers on. The person had a dark complexion. The driver of the vehicle was said to be in his early 20s and of fair complexion.

"DECSCRIPTON: Australian, 20's, olive complexion, 6', black hair with a 6" pony tail. Wearing a long sleeve pastel shirt with cark grey trousers, medium build, shoes (description unknown.) Had a black beret on his head (pony tail later seen to fall from under beret) a dark grey scarf/handkerchief tied around his face under the eyes and reaching down to chest level. Carrying a pale yellow vinyl bag. It was seen that he had small curls at the base of his neck. He was wearing a pair of sunglasses.

• [85] On 19 March 1993, point 6.7 of the ANZ Running Sheet had an entry "All computer checks in all states. Has previous for armed hold ups in NSW. Not wanted in any other states pervious [sic] for fraud in SA."[83] That would appear to refer to the criminal history of Mr Irving, although the entry does not appear to be made by Ms Pfingst.
• [86] A further entry was made on 19 March 1993 which stated:

"8. Inquiries made with Cindy PARKER of 45 Best St. Advised they broke up some 3 months ago no info re current whereabouts. KINBACHER"

• [87] On 20 March 1993, a number of entries were made in the ANZ Running Sheet which referred to "the suspect".[84]
• [88] Ms Pfingst took a statement from Ruth Oastler, one of the bank officers on 20 March 1993.[85] She described the male who robbed the Bank to be about six feet tall, medium build, olive complexion and black hair. He had an Australian accent.[86] According to her, he had a dark grey men's handkerchief covering his face and it came up to underneath his eyes and down into a peak below chin level. She saw he had sunglasses on, a pastel shirt with a yellow and black pattern on it, and a pair of trousers. She saw the shirt had long sleeves. She thought the trousers were "like a faded black colour". He was carrying a large faded yellow vinyl bag. She stated that she saw him pull the scarf down as he walked out of the bank, which must be a reference to the handkerchief earlier described.
• [89] Ms Pfingst took a statement from Julie-Anne Redgen on 20 March 1993, the day following the Robbery.[87] In that statement, Ms Redgen described the Robber as about "six foot tall, medium build, olive complexion, black hair" and stated she saw "little curls on the base of his neck".[88] She was sure he had an Australian accent. She described him as having a dark grey men's handkerchief covering his face, which came up underneath his eyes and down to a peak below his chin. She noticed a black cap "or something" on his head. He was wearing gold ringed sunglasses, a grey long-sleeved shirt with black orange, red and yellow swirls through it, and a pair of trousers. He was carrying a large faded yellow vinyl bag. She saw him put the gun into the bag as he exited and pull the scarf down and turned right and walked along Hartley Street. She saw Ms Adkins also going down the street.
• [90] Ms Pfingst also took a statement of Marjory Adkins on 20 March 1993.[89] Ms Adkins was the Manager of the Bank. She saw that the male had a mask over his face, but he had pushed it up high so that it came below his eyes. She stated it came into a peak at chest level. She described him as "six foot tall, medium build, olive complexion, black hair" with an Australian accent. She noticed a black beret on his head. She recalled he had sunglasses on, a peachy long-sleeved shirt with pink and purple swirls through it and a pair of dark grey trousers. She described it as a "trendy style shirt". She stated he had dark shoes on. She stated he had a large faded yellow vinyl bag. She saw him pull the scarf down and put the gun into the bag as he exited and turned right along Hartley Street. She walked out after him and followed him along Kidston Street. She saw him pull the beret off his head and stick it in his bag when he was past a new set of flats. She said she saw his ponytail fall down onto his shoulders. When he got to a second set of flats, she stated that he saw her following him and started to run. She started to run as well and then saw Mr Kerr run past her. She saw the Robber run into the driveway of a third set of flats and then saw a small grey car coming out of the driveway. She could not see the driver.

• [95] Mr Irving gave evidence in this trial as to his whereabouts on the day of the Robbery.
• [96] Mr Irving was living at 307 Draper Street, Cairns at the time of the Robbery. He had broken up with his partner, Ms Cindy Parker in January 1993. The first night after his relationship with Ms Parker ended he had slept in his car after having too much to drink. He was subsequently charged with failure to supply a specimen of breath (which he says was due to him having asthma) and unlicensed driving. Mr Irving stated that he appeared in the Magistrates Court represented by Myles Thomson on 11 February 1993 and was due to appear again on 6 April 1993. He subsequently went and stayed with Frank Catelan at 307 Draper Street, Cairns.
• [97] According to Mr Irving, he had gone to the Oceanic Hotel on 19 March 1993 to procure some marijuana. He stated that he had lent his car to two individuals, Wayne and Allan in order for them to obtain some cannabis for him, after he had indicated he wished to purchase some. Wayne and Allan were gone for some time, described as a few hours. Mr Irving had Wayne's bag and keys as a surety. He played pool while they were away. According to Mr Irving, Wayne and Allan had "just said they were waiting" to explain the length of time they were away. According to Mr Irving, he was driving home from the Oceanic Hotel at about 5.00pm when he heard a report of the Robbery. Initially, when he heard the report and description of the Robber and vehicle involved in the Robbery over the radio, he did not associate it with his vehicle. It was only when he got out of his vehicle that it dawned upon him that the registration that had been read over the radio was his car's registration and he had to check the RACQ card. He thought it was a mistake and did not think much more about it. He stated that the description of the Robber given on the radio was "Filipino, early 20s, skinny, long black hair and driving a purple Toyota."[97] Given the description was of no one he knew, in particular that it was not Wayne or Allan, he was unconcerned.[98] Mr Irving parked his car at 307 Draper Street.
• [98] According to Mr Irving, he did not go to the police because he did not think either he, or his car, were involved in the Robbery. Further, Mr Irving stated that from his life experience, he had no confidence in the police. Mr Irving, walked back to the Oceanic Hotel that night, but he did not see Wayne or Allan. He said he hoped he would see them to ask where they got the marijuana from.

Cindy Parker interviews and photographs of Mr Irving

• [101] Cindy Parker was the ex-partner of Mr Irving. They separated on 28 January 1993. Mr Irving alleges that Ms Pfingst conducted interviews with Ms Parker on a number of occasions in which Ms Parker gave evidence that was exculpatory of Mr Irving and no record of interview was provided to Mr Irving. It is also alleged that photographs of Mr Irving were obtained from Ms Parker by the police and/or Ms Pfingst. It is admitted in the Defence that interviews occurred with Ms Parker on 19 March 1993 and 20 May 1993.
• [102] At this trial, Mr Irving identified two photographs, Exhibit 4, as having been taken by Ms Parker. Those photographs were not disclosed until these proceedings.
• [103] Mr Irving alleges that the two photographs that were obtained from Ms Parker, which were likely Exhibit 4 in this trial, were subsequently shown by Officer Reid and Mr Hogan to Mr and Mrs Kerr, Ms Lovell and Ms Andrews, who worked at the takeaway store and post office respectively.
• [104] The Defendants admit photographs were obtained from Ms Parker during one of the interviews between 19 March 1993 and 23 June 1993.[100] However, the photographs obtained, and when they were obtained, was in issue throughout the trial. Ms Parker was not called to give evidence.
• [105] According to the ANZ Running Sheet, DSS Kinbacher made inquiries of Ms Parker at 45 Best Street on 19 March 1993.[101] Detective Kinbacher, however, could not explain that entry because he was on leave on 19 March 1993 and his recollection was that they did not talk to Ms Parker for some time.[102] He accepted, however, that contemporaneous records made on 19 March 1993 were probably more accurate than his recollection, but he had no recollection of any of the matters contained in the ANZ Running Sheet at that time.[103] He did not recall obtaining any photographs from Ms Parker at that time. Exhibit 4 was not shown to him in cross-examination.
• [106] Mr Hogan gave evidence. He was a Plain Clothes Senior Constable at Cairns CIB in 1993. There was a reference in his police diary to having attended 45 Best Street, Yorkeys Knob on 19 March 1993 and speaking to Ms Parker regarding the Robbery. He had no recollection of obtaining anything from Ms Parker, particularly photographs, nor of taking any statement. On 22 March 1993, his diary referred to his attending 45 Best Street, "spoke to female re location of suspect for armed robbery". He did not have any recollection of showing photographs to suspects. The photographs that Mr Irving identified as having been taken by Ms Parker (Exhibit 4) were not shown to Mr Hogan to ascertain whether he had seen them. He could not recognise entries on a special occurrence sheet referring to "Conduct inquiries at Post Office and Take Away shop Kidston St re possible suspect. Series of photographs shown, however, unable to identify the suspect" and thought it was likely to have been made by Officer Reid. That was tendered as Exhibit 12 in this trial but not as evidence of the truth of its contents.

• [113] On 14 May 1993, Mr Irving's vehicle was located at Severin Street. A statement was subsequently taken from Frank Catelan, with whom Mr Irving had stayed at 307 Draper Street, and where he had left his car while travelling for work.[116] That statement was taken by officer Egart. Ms Pfingst could not recall whether she saw it prior to going to Atherton. On 14 May 1993, police were informed Mr Irving had been at the Commonwealth Bank in Atherton with a female who made a deposit who claimed she was Ms Parker. Ms Pfingst stated she faxed a photograph of Mr Irving to confirm it was him.[117] The ANZ Running Sheet refers to Ms Pfingst and Detective Gough interviewing Ms Parker who stated that she was at work at the time.[118] Detective Pfingst had no recollection of that attendance.

Arrest of Mr Irving and 17 May 1993 conversations in Atherton and Cairns

• [114] On 17 May 1993, Ms Pfingst received information that Mr Irving was at the Commonwealth Bank in Atherton. Ms Pfingst and Mr Sturgess travelled there to speak with Mr Irving. That was Mr Sturgess' first day at the Cairns CIB following his transfer from Mareeba. He had never worked with Ms Pfingst before, although he had stated that he probably had met her.[119]
• [115] Ms Pfingst and Mr Sturgess met Mr Irving at the Commonwealth Bank. Mr Irving stated he was with a female companion who was waiting outside the Bank, Simone Vdelli. He informed Ms Pfingst that he had travelled there from Port Douglas in a hire car. Mr Irving was asked questions by Ms Pfingst and Mr Sturgess in the Atherton Police Station. Ms Pfingst and Mr Sturgess took Mr Irving to Cairns in a police car. As a result of conversations which occurred in Atherton, they went to Draper Street and Mr Irving showed Ms Pfingst and Mr Sturgess the location of the registration plates to his car (682BUI) which were in the ground underneath a concrete slab underneath the house. Subsequently, Mr Irving was taken to the Cairns CIB.
• [116] Mr Irving declined to participate in a formal interview. According to Mr Irving, Ms Pfingst said to Mr Hartwell, "I got him. I got him." He stated that Mr Hartwell said "Are you sure that's him? Are you sure that's him."[120] Mr Irving then stated Mr Hartwell and four to five detectives entered an interview room and demanded that he participate in an interview. He said that he was clipped under the ear by one detective when he said he wanted a lawyer. That was denied by Mr Hartwell and Mr Sturgess. It is not alleged that Ms Pfingst was in the room. He was subsequently charged with possession of marijuana and a failure to appear. He then said that between the Cairns CIB and the Cairns Watch House, Ms Pfingst said certain things to him, which is discussed below.

• [117] Notes were produced on a laptop in the early evening of 17 May 1993, which according to Ms Pfingst and Mr Sturgess recorded the conversations that occurred between Mr Sturgess, Ms Pfingst and Mr Irving on 17 May 1993 (the Laptop Notes). Ms Pfingst typed the notes with Mr Sturgess and they were subsequently signed by both Mr Sturgess and herself, with some handwritten corrections.[121] They were subsequently transferred to Ms Pfingst's police notebook the next day and signed by both of them.[122] The Laptop Notes were set out in a sworn statement of Ms Pfingst that was tendered at Mr Irving's committal.[123] Ms Pfingst stated that the conversations were not recorded and there was no video or audio record or tape which was not disclosed to the QPS prosecutions.[124]
• [118] There is no substantive difference between the Laptop Notes, the record in the police notebooks and the statement of Ms Pfingst of 23 June 1993. I will therefore refer to the records of the conversation generically as "17 May 1993 Record of Conversation".
• [119] Evidence was given in relation to the discussions that occurred between Mr Irving, Ms Pfingst and Mr Sturgess by Mr Irving, Ms Pfingst and Mr Sturgess. A number of aspects of the 17 May 1993 Record of Conversation were not the subject of controversy between Mr Irving, Ms Pfingst and Mr Sturgess. Other aspects were controversial. Mr Irving claimed that the 17 May 1993 Record of Conversation included things he had not said and omitted things he had said. In particular, he stated that when he was showing Ms Pfingst and Mr Sturgess where the number plates were, he had told them that he had secured the car because he was going up North to work and did not want the car driven or taken away while he was not there.[125] Both Ms Pfingst and Mr Sturgess deny that was said. In support of the submission that the 17 May 1993 Record of Conversation was partially fabricated, an expert report was provided by Associate Professor Heydon on behalf of Mr Irving.
• [120] Mr Irving alleges that Ms Pfingst maliciously and with the intent to secure the conviction of Mr Irving, fabricated the 17 May 1993 Record of Conversation.

(a) Ms Pfingst most likely used a micro cassette recorder to record the conversations between Mr Irving, Mr Sturgess and Ms Pfingst and used that recording to create the "lap top notes";

(b) The tape of the conversations was never disclosed;

(c) Ms Pfingst's denial that she recorded the conversations was false;

(d) The failure to disclose the tape recorded interview was because the lap top notes were inaccurate and contained false statements and, omissions and the sequence was altered; and

(e) The record of the interview produced in the statement of Ms Pfingst was equally false and framed in a manner to inculpate Mr Irving in a crime which he did not commit or was not otherwise involved.

• [122] The Defendants submit that the Court should reject the findings sought on behalf of Mr Irving and contends that Mr Irving has not proved that[128]:

(a) That the record of conversation contained in the Laptop Notes and in Ms Pfingst's and Mr Sturgess' statements was not an honestly made record of the conversation;

(b) That the record of conversation contained in the Laptop Notes and in Ms Pfingst's and Mr Sturgess' statements was not an accurate record of the conversation;

(c) That the notes were transcribed from a recording; or

(d) That Mr Irving's version of the conversation is truthful and accurate;

• [123] As the Defendants submit, the guilt or innocence of Mr Irving is not relevant to malicious prosecution.
• [124] The Laptop Notes are said to record the conversations that occurred between Mr Irving, Ms Pfingst and Mr Sturgess from the time that they intercepted him at the Commonwealth Bank in Atherton on 17 May 1993. The records of conversation are written in the first person from Ms Pfingst's point of view, "I said" and otherwise refers to "he said" referring to Mr Irving and "Detective Sturgess said". The 17 May 1993 Record of Conversation also has interpolations such as "IRVING cuts in and says, "No tapes, I've been through this before, no tapes. I'll talk to you about it but not on record" and "There was a pause and then he said "Suthers"". [129]
• [125] The 17 May 1993 Record of Conversation is a nine page record[130] which begins with Ms Pfingst and Mr Sturgess arriving at the Commonwealth Bank in Atherton, and then includes conversations at the Atherton Police Station, the police vehicle on the trip to Cairns, the visit to Draper Street in Cairns, the drive in the police vehicle from Draper Street to Cairns, and the Cairns CIB up until Mr Irving was taken to the Cairns watch house. The notes cover a period of some three and a half hours.[131]
• [126] Mr Irving gave evidence. His counsel took him through the 17 May 1993 Record of Conversation. He agreed that he had received a copy of the statement of Ms Pfingst containing the 17 May 1993 Record of Conversation before the committal.[132]
• [127] Mr Irving gave evidence that the 17 May 1993 Record of Conversation was not accurate. In evidence-in-chief, Mr Irving stated:[133]

"Yes. It - it is not an accurate or true account of over four hours of conversations that occurred between Detective Pfingst, Detective Sturgess and myself and others. There's a - there's a lot of omissions of things that I said. Some of the things I've said have been shortened. There's some inclusions of things that I did not say and, in regards to some of these warnings, they were definitely not in a sequence that were there. The time and place are - are not accurately recorded."

• [128] Mr Irving then gave evidence by reference to the notes as to what he said occurred in the 17 May 1993 Record of Conversation.[134] He denied that he made a number of statements, which are set out, by way of example at paragraph 114 of his counsel's submissions. The particular point of dispute have not been particularised.
• [129] Mr Irving was subject to extensive cross-examination in relation to the 17 May 1993 Record of Conversation. In a number of respects, his evidence was inconsistent and changed between what he stated in the evidence-in-chief and cross-examination, and indeed on occasion during cross-examination itself.
• [130] I found Mr Irving's evidence in relation to the 17 May 1993 Record of Conversation to be unreliable in a number of respects. First, there was no real explanation as to how he could recall contents of the conversation some 26 years later without having made any written record of the conversation himself. Secondly, to the extent that he stated that some of the matters in the 17 May 1993 Record of Conversation were out of sequence, the sequence with which he contended did not logically accord with what was then discussed subsequently. Thirdly, his evidence changed during the period from him giving evidence-in-chief to being cross-examined. I will discuss some examples.
• [131] During his evidence-in-chief, Mr Irving disputed that he had said in relation to the person who he said had borrowed his car for ten minutes, but he was gone for hours that, "I was really pissed off with him. When he came back, I asked him where he'd been and he said there was a hold up at the hospital. He said he had been at the hospital seeing his mrs".[135] In his evidence-in-chief, he said that what he had said was, "that I loaned by [sic] car to Wayne and he was gone for a couple of hours".[136] His evidence in cross-examination changed from that given in chief insofar as he did not raise a dispute with having said "I was really pissed off with him".[137] In any event, the suggestion that Ms Pfingst had altered what he said in the way suggested when, on his own version of events, he had said that he had loaned his car to Wayne and he was gone for a couple of hours would be nonsensical as there was nothing to be gained by the addition. The detail about visiting his "missus" in the hospital would not inculpate Mr Irving and assist the prosecution case.

"Now, it's just a bit unclear to me are you disputing that you said, "Don't know. Don't know anything else about him"? Do you agree that you said that, or are you disputing that you did not say that? - I did not know where he lived or anything like that, sir.

No, but if we just focus upon what is stated in - ? - Uh-huh.

• Ms Pfingst' statement. She's saying in her statement:

'Don't know. Don't know anything else about him.'

So she's saying that you said this to her, and my question is did you say that in response to the questioning that Ms Pfingst was directing at you? - Wait. I'm just - I'm blurry, sir. I can't remember what happened last Tuesday.

Well, perhaps if we just move on from last Tuesday. I suggest to you that you did say to Ms Pfingst:

'Don't know. Don't know anything else about him.'

So what I'm suggesting to you is that you responded by saying that statement. Do you agree with me or not? - No, I - no, I don't know.

HER HONOUR: So - sorry, Mr Irving. Is your answer that you don't agree that you said that, you don't recall that you said that or what is your answer? - I answered -

Mr McLeod is asking you whether you can recall saying that, having that exchange at the bottom? - No, your Honour. I don't recall that now.

MR McLEOD: So when you say you don't recall are you saying that you never made that statement? - No, sir. I'm saying I can't recall that now. Sorry.

Right, okay. If you disputed that statement - ? - Yes, sir.

• I suggest to you that because you have had this statement for many, many years and many opportunities to go through the statement to identify which aspects of the statement you say were incorrect or out of sequence, for example. I suggest to you that it would be pretty clear to you what aspects of this statement you either agreed with or disagreed with, and if you disagreed with that statement at the bottom of page 126, that would have stuck in your mind? - Yes, sir. Well, I did not know anything else about him.

Okay. So could - even though you say, "I did not know anything else about him," the statement says:

is it the case that you would have said that statement and you're not disputing what's recorded there? - Yes, sir.

So you agree you would have said that statement? - I did not know anything else about him."

• [146] Mr Irving disputing fine points of detail about a conversation, which he did not record himself 26 years ago even though it was a significant event in his life, is not credible. When tested in cross-examination, his evidence was unconvincing.
• [147] Further, while he agreed with the majority of what was recorded in the 17 May 1993 Record of Conversation, the statements with which he disagreed with were almost exclusively those that were harmful to him either because they were in the nature of admissions or were matters which were subsequently found by the police to be untrue, such as "Wayne Suthers" not existing. An example is his denial that when asked by Ms Pfingst why he took the registration plates off and put a tarpaulin over it, he said "So youse wouldn't find the car". The absence of any complaint being made in relation to the 17 May 1993 Record of Conversation until these proceedings suggests that Mr Irving was either consciously or unconsciously reconstructing events rather than recollecting those events. While one may wonder why he would have made such admissions, it must also be recalled that he was caught unaware, insofar as the police turned up at the Commonwealth Bank in circumstances where he knew that his car had been associated with the Robbery.
• [148] Mr Irving agreed that he had the statements of Ms Pfingst and Mr Sturgess prior to the committal hearing, and that as part of that hearing he would have thought to himself whether aspects of those statements might be right or wrong, and provided instructions to his solicitor.[162] Despite the fact that he contends that the 17 May 1993 Record of Conversation was fabricated, Ms Pfingst was not cross-examined to that effect at the committal, nor was Mr Sturgess cross-examined to that effect at the District Court trial. According to Mr Irving, in the District Court trial, his solicitors did not follow instructions.[163] He did not suggest, however, that was the case at the committal. In cross-examination, his evidence was as follows:[164]

"All right. Okay. Now, when you got Ms Pfingst's statement prior to the committal - and that statement's at page 122 of the bundle, Mr Irving. I don't want you to read it, but it's at page 122 and it goes through - in the bundle - to page 151? - Mmm.

Now, when you got this statement did you undertake the task of reading it and attempting to identify matters that you thought were just wrong in the statement? - I believe so, yes, sir.

And can I assume you would have provided those instructions to Mr Magoffin? - I did give him some instructions in regards to the statement, yes, sir.

All right. And would - those instructions would have been along the lines of aspects of Ms Pfingst's statement that you considered were incorrect or wrong or not accurate? - The ones that I was aware of, yes, sir.

All right. Okay. So you've had Ms Pfingst's statement many, many years, haven't you? You got it sometime prior to the committal hearing in October 1993 - ? - Yes, sir.

• and you've had the opportunity to go through it - I assume - on more than one occasion to identify aspects you consider that are incorrect? - At - at different times over the last 27 years, yes. And there's been times where I did not have access to it. So -

No. But you've certainly had - I suggest to you - many opportunities to go through the statement and identify aspects of the statement you consider are just plainly wrong or inaccurate? - Yes, sir.

And I suggest to you that in doing so you were very - it was important in your own mind to identify what you considered was wrong in the statement; is that correct? - As best I could, yes.

Because - is it fair to say that you are of the view that Ms Pfingst was setting you up for this armed robbery charge way back when you were first charged with the matter; is that correct? - That's correct, yes.

And, effectively, did you form the view that she was framing you? - Yes.

Now, on the day of the committal which occurred on the 26th of October 1993 were you paying close attention to the evidence that Ms Pfingst was giving and the evidence that was being tendered during the committal hearing? - As best I could, sir. I couldn't recall it all off the top of my head now."

• [149] While Mr Irving was self-represented in his appeal before the Queensland Court of Appeal and in the High Court, he did have some legal assistance in the High Court. Mr Irving did not, in his affidavit for the High Court, suggest that the 17 May 1993 Record of Conversation had been fabricated. His complaint as to the trial was that "Detective Sturgess was permitted to give an unsubstantiated and uncorroborated account of the alleged conversation between himself, Detective Pfingst and me".[165] His complaints at the appeal before the Queensland Court of Appeal were said to have been directed to the identification evidence.[166] That was similarly the focus of the application for special leave before the High Court.[167] While, of course, lawyers determine what arguments to raise in the interests of their clients, the fact that at no stage were any specific allegations made by Mr Irving before the Queensland Court of Appeal or the High Court, identifying aspects of the 17 May 1993 Record of Conversation that he alleges were fabricated supports the fact that Mr Irving's evidence was not based on recollection after some 26 years rather than the failure of lawyers to act on his instructions. That is supported by the fact that the precise parts of the 17 May 1993 Record of Conversation that were the subject of dispute were never specifically pleaded.
• [150] Ms Pfingst gave evidence that she had put the notes of the 17 May 1993 Record of Conversation on a laptop because she went through it with Mr Sturgess to make sure that it was accurate and that it was easier to change on the laptop. She said she could also type quickly. The notes were printed out and checked. Hand written corrections were made. They were signed by both Ms Pfingst and Mr Sturgess. She stated that the conversation was not recorded. The next day, she transferred the Laptop Notes to her police notebook and the record of conversation is contained in her statement as part of the brief of evidence.[168] Ms Pfingst confirmed that the record of conversations recorded in her statement was to the best of her knowledge and ability an accurate reflection of what was said, and by whom.[169] She stated that Mr Irving did not at any time either in Atherton or Cairns, give a different reason for taking the registration plates off his car and putting a tarp over it. She further denied Mr Irving had said other matters which Mr Irving stated had not been recorded in the 17 May 1993 Record of Conversation, nor that matters were inserted that he did not say. It was not put to Ms Pfingst or Mr Sturgess that Mr Irving said he said to them that he took the registration plates off the car and put a tarpaulin over the car to avoid anyone using it while he went and worked up North at any point in the conversation.

"You then said, "Terry, the address you gave me is a block of flats. Which flat number are you living in?" And you say there was a pause and he then said "5". But I suggest to you that he said that he was staying at 32 Mudlo Street? - No. And the reason I know that's true because it'd be hard to guess what an address was in - where were they? Port Douglas - if it was not a block of flats. I wouldn't have known that so that's why it was true.

I suggest to you around this time you also called him a liar? - No.

And he said he did not want to speak any further without a solicitor? - No. That's not right. Actually, I was really quite fair to him because I did ring Myles - what's his name? Myles Thompson - and his office had actually told me that he was away in Brisbane that week. Then I offered to ring anyone else for him - Legal Aid. So I think I was very - being very fair to him."

• [152] Ms Pfingst, however conceded matters in her statement that were incorrect and that she had made a mistake. For example, she accepted that she had made a mistake in her statement where she referred to the bag of clothes said to be Mr Irving's being in the hire car.[172] She conceded that it was incorrect because the bag of clothing her affidavit refers to was retrieved from Sands Street.[173] In that regard, her evidence was:

"And do you accept that the bag of clothing was at Port Douglas, not in the back of the hire car? - Gee. I think the clothing - that bag of clothing - yes. I think you're correct. That was in - they retrieved that was Sands Street."

• [153] Ms Pfingst then referred to what she had said in her statement and said "Yes, I've said something incorrect there. Yes."[174] That does not, however, disprove that Mr Irving said that the bag of clothes on the back seat of the car was all he owned.[175] By the time the statement was made, Ms Vdelli had taken the car back to Port Douglas and Mr Irving was in Cairns.
• [154] Further, the fact that Ms Pfingst honestly believed that the 17 May 1993 Record of Conversation was accurate was supported by her actions. For example, consistent with Ms Pfingst telling Mr Irving she would get Port Douglas to verify the address he gave, she got police to attend Unit 5, 32 Mudlo Street, Port Douglas, which resulted in her being told it was a block of flats and asking Mr Irving what flat number he was staying in.[176] Further supporting the fact that he told Ms Pfingst and Mr Sturgess he was in Unit 5 is the fact he did not dispute she said "Terry, Port Douglas Police have spoken to the occupants of flat 5", consistent with the with the fact he said flat 5. There is no logical reason or advantage that would have been gained in the case against Mr Irving by that being fabricated. Similarly, while Mr Irving denied that he had said Wayne's surname was "Suthers" as recorded in the 17 May 1993 Record of Conversation, Ms Pfingst made enquiries to locate a Wayne Suthers, which were set out in her statement.[177] Wayne Suthers was similarly referred to in Mr Irving's charge as being an accessory after the fact.[178] Ms Pfingst was cross-examined at the committal, not on the basis Mr Irving had not said "Suthers", but as to the enquiries which had been made to locate Mr Suthers.[179] Similarly, although it is unclear when it was created, the document which Ms Pfingst created referred to "LIES",[180] which identifies matters that she was told during the course of the interview with Mr Irving, which she said were untrue.[181]
• [155] Even if Ms Pfingst's and Mr Sturgess' recollection was not perfect, I am satisfied that the 17 May 1993 Record of Conversation reflected their recollection of what they honestly thought he said and acted accordingly.

"And then you said, "You were supposed to appear in court on the 20th of April and you failed to appear". Now, I suggest to you that you said he was supposed to appear in court in April but did not mention the date; is that right? - No.

And then he said, "Well, I knew if I turned up for the drink driving charge you'd grab me for the holdup". I suggest to you he did not say that? - Yes. And just going back to the fail to appear, we already knew that he had a fail to appear so I knew what date he was supposed to appear in court."

• [157] While it would have been preferable for the police to have made notes on a continued basis throughout the day, the fact that they did not does not lead to a conclusion that they were tape recording the conversations as submitted by Mr Irving. While the failure to record notes on an ongoing basis throughout the day is unfortunate, it was not necessarily unusual. Mr Hogan in that regard noted that uniform police used pocket notebooks a lot more than plain clothes police officers.[183] Further, the detail in the 17 May 1993 Record of Conversation is consistent with the fact that the record was prepared relatively soon after the conversations had occurred on the same day.
• [158] Mr Sturgess, who was a retired detective and was with Ms Pfingst on 17 May 1993, confirmed that he believed that his statement was true and accurate at the time it was done and that continued to be the case.[184] In his statement, after setting out the 17 May 1993 Record of Conversation, he stated:

"I then returned to the CIB office where I spoke to Detective PFINGST and we recorded the conversation and events of that day. These notes were recorded on a lap top computer and the next day transferred into Detective PFINGST's official police notebook. I then read through them and signed them as being an accurate record."[185]

• [159] A similar reference was made in Ms Pfingst's statement.[186] Mr Sturgess confirmed that the signatures on the Laptop Notes were his and Ms Pfingst's. Mr Sturgess particularly commented on the fact that doing the notes on the laptop, while it was the same process as recording it in the police notebook, was novel because they did not have laptop computers at Mareeba.[187] When being cross-examined about the 17 May 1993 Record of Conversation, Mr Sturgess stated, when asked whether some matters were out of sequence, "Right here and now, I can't - this was made when it was fresh in our minds - my memory, so I can only go on that."[188] His evidence as to the veracity of the 17 May 1993 Record of Conversation was based on the fact that he had a clear recollection of how that record came to be created and the process that they went through, rather than him having any specific recollection after some 26 years. He did, however, recall certain matters in support of the conversation such as the fact the police went to 32 Mudlo Street after being told by Mr Irving that was where he was staying.
• [160] I found Mr Sturgess to be a candid witness who sought to answer questions to the best of his ability. Mr Irving submits that Mr Sturgess had no real recollection of events and therefore little weight should be attributed to his evidence. While his lack of recollection was affected by the passing of time, his evidence of how the notes were created was clear. In particular, he recalled that Ms Pfingst was very proficient with the computer, while he was not.[189] He had also signed the Laptop Notes and Ms Pfingst's police notebook, where the conversation was then recorded, and included it in his sworn statement.
• [161] While Mr Sturgess became frustrated with the process of going through each and every statement in the 17 May 1993 Record of Conversation, I consider that that was because he did not understand why it was necessary to go through that process, particularly when he said how the record was created.[190] The fact that Mr Sturgess was a candid witness is further supported by the fact that he made concessions when appropriate. For example, when it was pointed out to him that he gave evidence in the District Court trial where he said on 17 May 1993 he and Ms Pfingst had committed the conversations that they had with Mr Irving into her police notebook rather than saying it was recorded on the laptop and then recorded in the notebook, he accepted he had made a mistake in the course of giving his evidence in the District Court trial. Little can be made of that given that his affidavit referred to he and Ms Pfingst recording their recollection of the 17 May 1993 conversations on a laptop and it then being transferred to a police notebook. Similarly, when it was put to him that Mr Irving said, "I put them under a piece of concrete" referring to the number plates, rather than "I hid them under a piece of concrete", he stated, "Look, I can only go on what's written here". He also recalled that when he was told he had to attend the District Court trial that he had gone down to Court early because the prosecutor, Mr McCreanor, was a defence barrister, which he though was strange.

• [162] Mr Irving sought to tender a report of Associate Professor Heydon, who holds qualifications in linguistics. Her report was allowed to be tendered on a limited basis, following a ruling by the Court. Mr Irving relies on that report in particular to support his contention that the 17 May 1993 Record of Conversation was prepared from a recording. Associate Professor Heydon was asked to provide an opinion in relation to the Laptop Notes produced by Ms Pfingst in conjunction with Detective Sturgess.[195] The Laptop Notes were subsequently transferred to Ms Pfingst's notebook and deposed to in their respective statements. As stated above, they are substantively the same so they will be referred to consistently with the above as the 17 May 1993 Record of Conversation.
• [163] The Court allowed the opinion of Associate Professor Heydon to be admitted insofar as it provided an opinion as to the frequency of five features, which Associate Professor Heydon opined are most likely to be omitted or distorted in a written record. Those five features are turn attributions, discourse markers, non-standard forms of language, metalinguistic notes and non-standard sequences. She was not cross-examined.
• [164] Associate Professor Heydon's analysis disclosed a number of those features.[196] She stated that the five features are unlikely to be recalled accurately, as opposed to being readily available through the use of a recording to aid transcription. In particular, she comments on the 133 separate turn attributions as to when various speakers spoke. In her opinion, the way that each information unit is carefully attributed to a speaker in the sequence is the type of detail that is rarely accurate in notes taken shortly after an interview. She states that, most commonly, when conversation is represented in written form, utterances that occurred as a series of turns during an exchange with another speaker are grouped together as a single turn, eliminating the small interruptions or clarifications from the other speaker. Further, speakers do not generally recall the exact order in which they and their conversational partners took turns to talk. In other words, she contends that the turn attribution is usually greatly simplified when a conversation is recalled and recorded.[197]

17 May 1993 Corridor Conversation and the watch house

• [171] After Mr Irving was arrested for possession of a dangerous drug and failure to appear, he was taken to the Cairns watch house by Ms Pfingst and Mr Sturgess. According to the Statement of Claim, Ms Pfingst said to Mr Irving, after he refused to take part in a recorded interview, that (the Corridor Conversation):[201]

"I am glad you did not make a recorded statement. Now I can say and write anything I like, I will get you convicted. You will probably get 4 years. You'll probably get out in 18 months with parole or if you appeal, either way, that will be the end of it. I will get a feather in my cap-probably promoted. With your form, nobody is going to give a shit about you. Even if you did not do it, I will make the charge stick-near enough is good enough! That is how we do it in Queensland. You are not in New South Wales now smart arse."

• [172] Both Ms Pfingst and Mr Sturgess, who was with Ms Pfingst and Mr Irving at the time of the conversation, deny that was said.
• [173] In his evidence in chief, Mr Irving gave evidence that: [202]

"She said things like, 'I'm glad you did not make a statement. Now I can write up anything I want.' She said that I would probably end up getting four years in prison. She would get a conviction. I would end up with about four years. Probably get an 18-month minimum. And even if I appeal the decision and got out, she did not care because the matter would have been dealt with and wiped off the books. And that she would get a feather in her cap and probably a promotion. And before we got to the watch house, she advised me that I was not in New South Wales, I was in Queensland and near enough was good enough. And she also said 'You are not in New South Wales now, you smart arse"

• [174] According to Mr Irving, the Corridor Conversation was staggered over the journey from the Cairns CIB to the Cairns watch house. Ms Pfingst was beside him during the conversation. He said that Mr Sturgess was also alongside him. He did not recall Mr Sturgess offering anything in the conversation.[203]
• [175] His evidence differs from that pleaded in some respects. In particular, Mr Irving did not say in his evidence, "with your form, nobody is going to give a shit about you. Even if you did not do it, I will make the charge stick." Further, it was not pleaded that Ms Pfingst said that she did not care because the matter would have been dealt with and wiped off the books, as Mr Irving stated in evidence.
• [176] In her evidence, Ms Pfingst denied that any part of the alleged Corridor Conversation had occurred. In relation to the suggestion that she had said the matter would be dealt with and wiped off the books, she said "That's definitely not right. I don't even know what the books refer to in the police service".[204] In relation to the suggestion that she said that it would be a feather in her cap and that she would probably get a promotion, she responded "No. You wouldn't get a promotion just over an arrest."[205] As to the suggestion that she had referred to Mr Irving as a "smart-arse", she stated that that was not a word that she used.[206]
• [177] Mr Sturgess stated in evidence-in-chief that he had never heard Ms Pfingst making any of the statements attributed to her by Mr Irving. He stated that he and Ms Pfingst took Mr Irving to the Cairns watch house. He said that Mr Irving was right with him, very close. He stated that he heard none of the matters allegedly said by Ms Pfingst.[207]
• [178] The evidence of Ms Pfingst that the mere fact that Mr Irving was charged would not result in a promotion, was corroborated by the evidence of Mr Hogan. Mr Hogan stated "from memory it - it did not matter what type of arrest or anything you were getting as far as promotion was concerned".[208] He went on to state that when you were a plain clothes officer, the number of arrests were important in order to get your detective classification. Ms Pfingst was already a detective at the time the Accessory Charge and Armed Robbery Charge were laid.

"But my question was, that allegation of what you allege Mr Pfingst [sic] said to you, which now appears at paragraph 49.1 in your seventh amended statement of claim, did not appear until there was an amendment made to your statement of claim, which was filed on the 20th of June 2014. And my question is, why did it take some 15 years for this allegation to be first pleaded, from the first time you first filed your originating claim? Can you offer any explanation? - It might have opened the box.

And what box did you open, Mr Irving? - So many different events have occurred over this period of time, I developed a habit of compartmentalising things or putting them in a box. And I sit at home and it reflects the same thing. Everything's got a box. I don't have a [sic] immediate draw on things. And my only explanation is, I probably opened the box and got into that moment with clarity come back to me.

Right. Okay. So are you saying that the first time the clarity and the detail you allege in respect to the statements that Ms Pfingst made to you, first time it came back to you was around about sometime in early-2014; is that what you're saying? - No, sir, I'm not saying that.

MR McLEOD: Well, I'll put to you - I'll put to you, can you - was it the case, the first time the statements came back and you recall what Ms Pfingst allegedly said to you, and the statements that now you rely upon, did that come back for the first time sometime in early-2014? - No, sir. I believe that's probably the first time it was documented, and I was in a strong enough position in myself to revisit a lot of the issues.

Right. Okay. And the statements you allege Ms Pfingst made, for the first time did they come back in around about 2014 - early-2014? - No, I think I just said that it was probably the first time they were written out in full"

• [181] Mr Irving stated that he had told his solicitor, Mr Magoffin, of the conversation and agreed that his instructions to Mr Magoffin were reflected in the questions asked in cross-examination at the Committal. No questions were asked of Ms Pfingst about the Corridor Conversation in cross-examination by Mr Magoffin.[211]
• [182] According to Mr Irving, he was prompted to provide those instructions to his solicitors in early 2014 because he had opened up the box where he had "parked my head and stuck my head in it and the clarity came back then".[212] This is somewhat inconsistent with the fact that in relation to the first statement of claim provided in 1999, he had focused on the evidence that Ms Pfingst may have given at her committal and what was contained in her statement and recognised that it was important to identify each and every aspect of her evidence that was false or misleading.[213]
• [183] The reference to the Corridor Conversation in Mr Irving's High Court affidavit was contained at paragraph 27:[214]

"Pfingst told me that if I still refused to make a statement she would then write whatever she wanted."

• [184] While Mr Irving referred to the fact he had made mention of the Corridor Conversation in his High Court affidavit, that did not provide any real explanation as to why it was not raised in the statement of claim until 2014. His explanation for the lack of detail was that he thought that he would be making further submissions to the High Court.[215] In that regard, he referred to the fact he was being given some assistance by Mr O'Keefe from Legal Aid Queensland in Townsville. At the time, Mr Irving states that he was located at Lotus Glen Correctional Centre, which is approximately an hour and a half north of Cairns.[216] He stated that it was very difficult to exchange instructions and to get documents executed.
• [185] He agreed, however, that when he was preparing his affidavit for the High Court that Mr O'Keefe was asking him to provide as much relevant information as he could that might be put in the affidavit in respect of asking the High Court for special leave to overturn his conviction.[217]
• [186] In any event, according to his affidavit before the High Court, at paragraph 27, the context in which the statement referred to above was made by Ms Pfingst was as follows:

"At Cairns CIB, I was placed in a room. I asked to ring a solicitor. The next thing, I knew there were half a dozen detectives in their crowding me, yelling and carrying on trying to intimidate me into making a statement. I refused, giving my name, address and requesting legal counsel. Pfingst told me that if I still refused to make a statement, she could write whatever she wanted. They took me across to the watch house and booked me, taking my personal property including my shoes without permission. As I was being fingerprinted and photographed a detective came in and took four photos of me from different angles (I have since seen one of those photos on the photo I.D. board)."

• [187] The reference to Ms Pfingst's comment suggests that it was made in the context of him being in a room with a group of detectives, rather than in the corridor of the watch house. However, in evidence in this Court he said Ms Pfingst was not present in the room.[218]
• [188] At the present trial, Mr Irving also gave evidence that when he arrived at the Cairns CIB, he stated that Ms Pfingst, Mr Sturgess and he went upstairs and a detective, Mr Hartwell, came out from his office. Mr Irving gave evidence that Ms Pfingst walked in saying, "I got him. I got him" and then there was a discussion between Ms Pfingst and Mr Hartwell while he was sitting at the desk with Mr Sturgess. In that discussion, they were looking at photographs and Mr Hartwell was saying, "Are sure that's him. Are you sure that's him?" According to Mr Irving, he was then taken into an interview room and Mr Hartwell came into the room with four or five other detectives and they told him he had to participate in a formal interview. They demanded he make one and if he did not there would be consequences. He said that they stated they were going to put him into the watch house and keep him there until he did. It was during this part of the discussion that he got clipped under the ear by a detective who was standing behind him. Mr Irving said he had told Mr Hartwell that he wanted to see a lawyer and that he did not want to have an interview. [219]
• [189] The suggestion that he had been clipped under the ear was again a matter that had not been raised previously. It was not a matter that Mr Irving had referred to in the earlier trial of this matter.[220] Mr Irving's explanation of why he had omitted it was self-serving and lacked credibility: "Perhaps the clip under the ear was nothing compared to what I had to endure. It's a minimalisation of some brutality that I experienced."[221] It was a matter denied by both Mr Hartwell and Ms Pfingst. Notably, the suggestion that he had been hit by a detective was not a matter mentioned in his High Court affidavit. Nor was it the subject of any pleading in the Statement of Claim. Neither did Mr Irving complaint to the CJC about the Corridor Conversation or his being harassed and struck by a police officer, notwithstanding his other complaints about Ms Pfingst and Mr Sturgess for which he had no tenable explanation.

"And, in short, you're of the view, aren't you, that you were set-up - it was a stitch up. You never did the armed robbery, and you were set-up by the police and, in particular, Ms Pfingst? - That's correct.

So you've had a lot of time, I suggest to you, from the day the jury came back with their verdict finding you guilty of armed robbery, to think about matters, haven't you? - I had seven months in custody, on remand, thinking about things.

Thinking about how on earth could the Queensland Police and Helen Pfingst be stitching me up for a crime that I had not done? - Yes.

And that continued when you were in prison for those years for the armed robbery, did not it? - There was a lot of things happening in that time. Twenty-four hours was not a times focussed on that.

No, I'm not - ? - No, I - I beg your pardon, but it was not a continuous thing. There was other issues that I was dealing with throughout that period of incarceration.

Okay. But you spent a number of years in jail for an offence that - and I'm not being critical, but for an offence that you contend you did not take part in, and it was a miscarriage of justice - ? - That's correct.

• because of, effectively, the conduct of Ms Pfingst and other police officers in the investigation process and what they did to you during that investigation process? - Yes.

So my proposition I put to you is that you've had - then, you've had a long, long time to reflect upon how all this happened; how you were the victim of a miscarriage of justice. That's correct, isn't it? - Yes, without doubt.

And when you've been reflecting on how things got to where they ultimately got, I suggest to you, you were putting a puzzle together, weren't you, from day 1, when Helen Pfingst and Sturgess came to Atherton to ask you some questions, and what transpired on that day and thereafter, on the 17th of May 1993; that's correct, isn't it? - I wouldn't describe it as doing a puzzle.

Okay. When you - you've thought about a number of matters, I suggest to you, how the police, effectively, framed you; is that correct? - Yes, sir.

And you put each and every one of those points together, haven't you, in your own mind? - Based on the documents that I've received. Based on the unfolding of the documents that's been released. Yeah.

But, in addition, what occurred, for example, when you were taken back to - from Atherton, back to Cairns, that day on the 17th of May; the actions of the police officers and what certain officers were alleged to have said to you? - Yes, sir.

So it's more than just looking at documentary evidence, isn't it? - It's the combination, yes.

Of the actual interactions between Ms Pfingst and other police officers and the documents themselves? - And the actions, yes.

So you pieced them all together? - I did not piece them together, sir.

Well, who did? - I uncovered what had happened, yeah.

Right. Okay. But you pieced together certain matters - certain incidents - over a period of time, which you contend support your claim for a malicious prosecution; that's correct, isn't it? - Yes, sir.

Okay. So going back to - ? - That's based on legal advice as well, sir. You know -

I accept that, but you're the one, I put to you, that - and I don't want you to tell me what you told your legal advisers over a number of years? - Twenty, sir.

So you're the one who has gone to your legal advisors, and then you provided them with certain information so they can look at and make a determination about, effectively, what can support your claim, that brings you to court this week? - Based on the documents and everything, yes.

And the "everything" being conversations with respective police officers that occurred? - Relying upon the police information, yes."

• [194] Given the above evidence, and the fact that he had appealed to the Queensland Court of Appeal and the High Court seeking to have his conviction set aside, the failure to refer to the Corridor Conversation at any earlier point in time, does not accord with a man who was fighting his conviction, writing to the Attorney-General, complaining to the CJC, appealing, and who then sought to bring an action for malicious prosecution for it to not have been raised earlier if it had in fact occurred.
• [195] His explanation as to why the Corridor Conversation only came to light in his pleadings so late, was not one that I found was credible. While he had mentioned in his High Court affidavit that Ms Pfingst apparently said that she would make anything up, that came some years after his conviction and was in a very different context from that in which he now suggests it occurred. Further, the reference to the Corridor Conversation in his High Court affidavit lacked the detail as to what he now alleges was said.
• [196] I do not accept that the Corridor Conversation occurred.
• [197] I prefer the evidence of Ms Pfingst and Mr Sturgess. Ms Pfingst's statement that you would not receive a promotion as a result of an arrest was corroborated by Mr Hogan. Further, Mr Sturgess gave evidence that he had never heard the conversation. Mr Irving's counsel sought to attribute little weight to Mr Sturgess' evidence, submitting that he simply had no recollection of the events in May 1993. Mr Sturgess has limited recollection. While Mr Sturgess' evidence did not generally go beyond the 17 May 1993 Record of Conversation in terms of the detail of the conversations, he did clearly recall the process adopted in making the 17 May 1993 Record of Conversation and that he was walking beside Mr Irving going to the watch house. One would expect him to remember such a startling conversation if it had, in fact, occurred. Mr Sturgess is no longer in the police service and had no vested interest in supporting Ms Pfingst. Consistent with the fact the Corridor Conversation did not occur, no questions were asked of him or Ms Pfingst either at the committal hearing or at the District Court trial in relation to that conversation. This was notwithstanding Mr Irving had stated that he had relayed those instructions to Mr Magoffin and briefed counsel in the District Court Trial. While criticisms have been made by Mr Irving of how his defence was run in the District Court, some of which appear to have been validly made, no such suggestion was made in relation to Mr Magoffin who was responsible for the Committal hearing. Nor was Mr Magoffin called to rebut the suggestion of recent invention put to Mr Irving very clearly in cross-examination.

• [203] On 18 May 1993, Mr Irving attended the Magistrates Court in respect of the failure to appear and possession of dangerous drugs charges. Bail was opposed. The criminal history that was provided is admitted by the Defendants as having been incorrect. It contained a number of charges, particularly alleged failures to appear, which were wrongly attributed to Mr Irving. The bail hearing was adjourned until 20 May 1993.
• [204] Later on 18 May 1993, Ms Pfingst charged Mr Irving with one count of being an accessory after the fact to an offence of armed robbery by Wayne Suthers of the ANZ Bank, Portsmith. The Defendant was remanded to appear again on 20 May 1993 in respect of that charge.
• [205] The Accessory Charge was in the following terms:[233]

"On the 19th day of March 1993 at Cairns in the State of Queensland one Wayne SUTHERS stole from one Ruth Mary OASTLER with actual violence a sum of money namely $6100.00, the property of one Australia and New Zealand Banking Group and at the time aforesaid the said Wayne SUTHERS was armed with a dangerous weapon, namely a sawn-off shotgun AND THAT Terry IRVING between the 18th day of March 1993 and the 18th day of May 1993 at Cairns in the State of Queensland, knowing that the said Wayne Suthers had committed the said crime assisted him in order to enable him to escape punishment."

• [206] On 18 May 1993, Mr Irving refused the request of Ms Pfingst to participate in a line up and refused to provide samples of head and body hair, and blood.
• [207] On 19 May 1993, Ms Pfingst applied for approval under s 259 of the Queensland Criminal Code for examination of a person in custody by a legally qualified medical practitioner for the purpose of collecting body samples. That order was granted by a Magistrate. By virtue of granting the order, the Magistrate was satisfied that there were reasonable grounds that the taking of the samples may afford evidence of the said offence.[234]
• [208] Ms Pfingst provided an affidavit in support of the s 259 application.[235] The grounds for belief in the application were that:[236]

"The person IRVING is in custody charged with the above matter. Clothing used during the commission of the offence has been located by police. Amounts of hair are contained throughout that clothing and they have been taken possession of by police. These samples are required for comparison to those found on the clothing. IRVING has admitted to police that he hid the vehicle used in the commission of this offence. IRVING also admitted to removing the plates from the vehicle and hid the same under cement. IRVING has also admitted that he knew that the police were looking for the vehicle in relation to the armed robbery offence. IRVING has a similar build to the description of the offender supplied by bank staff. Clothing belinging [sic] to the offender has been identified as that being worn by the offender during the commission of the offence." (underlining added)

• [209] The "above matter" was the charge of being accessory after the fact.
• [210] Prior to the s 259 Application being made, Mr Irving was asked whether he was prepared to take part in a line up and prepared to provide specimens of his body. According to Mr Irving, he said he wanted to get legal advice. His lawyer was Allan Robinson. The discussion was recorded and a transcript made of the discussion.[237] According to Mr Irving, he did not know that the conversation was being recorded. However, the end of the transcript states:

"Okay. I now turn the tape off. It's 2.19pm and it's still Wednesday, 19 May 1993."

• [211] There was a further exchange on that day at approximately 4.00pm between Ms Pfingst, Mr Cooper and Mr Irving.[238] In that exchange, Ms Pfingst informed him that she had been to a Magistrate, and the Magistrate had given her authority to take specimens from his body and that samples would be taken by a doctor later that evening. She stated that she had advised his solicitor at 4.00pm that the specimens would be taken at 8.00pm.[239]
• [212] Mr Irving instructed his solicitor to oppose the s 259 Application. A letter was sent by his solicitor from Legal Aid Queensland and received by Ms Pfingst. In that letter, the solicitor stated he would be seeking an injunction to prevent the taking of samples and requesting that Ms Pfingst refrain from taking the samples until after his application for injunctive relief was heard.
• [213] The samples were taken that evening by a doctor in the presence of Mr Irving's solicitor under the supervision of Detective Sergeant Cooper.

• [214] On 20 May 1993, Mr Irving attended court. He pleaded guilty to the failure to appear, the possession of a dangerous drug and to driving unlicensed.[240] He sought bail which was opposed.
• [215] The court brief for the bail application was prepared by Ms Pfingst,[241] she completed the objection to bail details.[242] According to the document, Mr Irving had six failure to appear convictions, had an extensive criminal history, had a previous conviction for armed hold ups and was a suspect for three armed hold ups in the Cairns area since December 1992. It stated that a number of the witnesses are associates of his, and their whereabouts were known to him. It also stated, "[Mr Irving] is the subject of a number of other enquiries being conducted by the Cairns CIB. Further charges are pending at a later date".
• [216] Mr Irving submits that Ms Pfingst also prepared the court brief,[243] which stated that:

(a) The "offender was followed by one of the female tellers and a male person and the offender was seen to get into the back door of a grey Toyota sedan, and it will be alleged that the vehicle beared [sic] the registration number 682BUI". This is said to be an embellishment because the evidence of Mr Kerr and Ms Adkins was not that they had seen the Robber get into the back door of the grey Toyota sedan, but rather that he was in the back of the grey vehicle when it left the block units;

(a) Mr Irving had admitted to police that he had hidden the registration plates "to avoid them locating the vehicle" in circumstances where that admission had not been made; and

(b) Mr Irving admitted to the police that he knew the vehicle had been used in the Robbery when the admission had not been made.

• [217] The fact Ms Pfingst prepared the objection to bail and the Court brief is not in issue.
• [218] The criminal history that Ms Pfingst obtained came from the Information Bureau in Brisbane. According to Ms Pfingst, to obtain a person's criminal history, a police officer would provide the full name and date of birth of the person to the Information Bureau, the Information Bureau would then provide the persons criminal history to the requesting officer.[244] Ms Pfingst stated that she followed that process to obtain Mr Irving's criminal history, although an incorrect criminal history was provided.[245] She would have searched for Terry Irving and his date of birth. She did not search for "Terry James Irving" which was referred to on the search. That reference came from the Information Bureau. That criminal history then become part of the court brief that was given to the police prosecutor.[246] Ms Pfingst stated that she believed, at the time, that the criminal history obtained was an accurate record.[247] The details that were completed on the objection to bail document in relation to the failures to appear was based on the criminal history provided by the Information Bureau.[248]
• [219] The brief prepared by Ms Pfingst was given to Mr Hartwell and then provided to police prosecutions.[249] A police prosecutor appeared at the bail application.[250]
• [220] It is not in issue that the criminal history provided to the Magistrates Court on 20 May 1993 was incorrect, containing a number of offences Mr Irving had not been convicted of. Those errors were replicated in the Objection to Bail prepared by Ms Pfingst.
• [221] Mr Irving also states that associates of his and their whereabouts were known to him, however, the basis of that was uncertain and makes reference to him having "no fixed abode". Ms Pfingst was not cross-examined about the entry nor is it a matter complained of in the 7FASOC. That is similarly the case with reference to "no fixed abode". I will therefore not consider those matters further.
• [222] While Mr Irving accepts that the State of Queensland was represented by a police prosecutor at the First bail application. He, however, submits that all of the documents relied upon by the police prosecutor were prepared by Ms Pfingst, which included:

(a) Objection to bail details signed by Ms Pfingst on 19 May 1993 which were incorrect;[251]

(b) The QP9 with the relevant allegations signed by Ms Pfingst dated 19 May 1993, and which is said to not be an accurate reflection of the evidence;[252]

(c) A Criminal Offence Report completed by Ms Pfingst in respect of the breach of bail; and

(d) An incorrect six page criminal history.[253]

• [223] Mr Irving submits that the error and embellishments that appeared in the court brief and objection to bail documents, both alone and in the context of the matters complained of, lead to an inference that Ms Pfingst was prepared to embellish or manipulate the evidence in order to make the case against him look stronger than it truly was.
• [224] I will deal with each of the alleged embellishments in the QP9 in turn.[254]
• [225] Both Mr and Mrs Kerr had provided statements by the time of the first bail application on 20 May 1993.[255] Mr Kerr had given evidence that he had followed a male person after Ms Adkins had walked passed his shop and yelled something out at him. Mr Kerr's evidence was that, after following the male person he observed him to go into a driveway, and that he heard an engine car start. He stated that he then observed an old grey coloured sedan, driven by a different man, exit the rear of the car park of the units and drive slowly past him. He stated:

"As it drove past me, I glanced down inside the vehicle and I noticed the male person that I had previously followed lying across the back seat. I observed that the male person was face down. I noticed that he was wearing the same clothing to that when I was following him down Kidston Street."

• [226] He identified the car registration.
• [227] Mrs Kerr gave evidence that she had similarly followed the male and had seen the person run into a second set of units at Kidston Street. She stated that while she was standing at the driveway near her husband, she heard a car start. Her evidence was that that car was driven by another man as it came out of the units. She stated:

"I just assumed that this was not related to the incident at the bank and then my husband said something to me.

After thinking about things I do recall observing what I believe was a set of grey trousers on the rear seat of this vehicle, or dark coloured trousers."

• [228] She identified the registration number of the car.
• [229] Ms Adkins, the manager of the Bank said she saw the offender enter in the driveway of the block of units before disappearing and saw a small grey car exit the same driveway, but could not see the driver.
• [230] Mr Irving's submission is that they had not seen the offender getting into the back of the car as was set out in the QP9. That is strictly speaking, correct. However, it is difficult to say how the reference can be described as an embellishment of the evidence. Given the evidence of Mr and Mrs Kerr, the logical and obvious inference was that the offender entered the offender's car, and was at the back of the car while it exited the driveway. At this stage, he was not charged with being involved in the robbery itself.
• [231] In regard to the other complaints about the QP9 that Mr Irving had admitted that he had removed and hidden the number plates to avoid the police finding his car and that he had told the police he had lent it to Wayne "Suthers" at the time, I have accepted that the 17 May 1993 Record of Conversation was substantively an accurate record of what had occurred in the conversations with Mr Irving. That is also the case in relation to Mr Irving's admission to the police the he knew the vehicle had been used in the Robbery. Therefore, I do not find that it was an embellishment or manipulation of the evidence in the QP9 in these respects.
• [232] Regarding the incorrect criminal history, I accept Ms Pfingst's evidence as to the process that was adopted in obtaining Mr Irving's criminal history, that it was the usual process adopted by police officers and that it came from Information Bureau. Any errors were the result of errors by the Information Bureau. I accept that Ms Pfingst did not manipulate the criminal history tendered. I further accept that she had relied on that information in good faith in completing the information about failures to appear and was not aware of the errors in the criminal history. Mr Irving stated that he had informed his solicitor that the criminal history was incorrect, and it appears from Exhibit 5 that several entries had been struck through. I note a number of pages are missing, however, one failure to appear recorded on the last page of the document, which was a failure to appear at Lismore, had been crossed out, consistent with the fact that it had been corrected. The court file only recorded one failure to appear, namely on 17 May 1993, which was signed by the stipendiary Magistrate.

• [234] According to paragraph 50.12 of the 7FASOC:

"The taking of DNA samples from [Mr Irving] was a valueless exercise and carried out by [Ms Pfingst] solely for the purpose of endeavouring to make the case against [Mr Irving] appear stronger than it was and to assist [Ms Pfingst] in opposing [Mr Irving's] application for bail."

• [235] According to the submissions of Mr Irving, on any version of events, only one robber entered the bank. If the Robber was Mr Suthers, Mr Suthers was wearing the clothing "used during the commission of the offence", and not Mr Irving, the taking of the samples from Mr Irving was therefore a valueless exercise.
• [236] Mr Irving also submits that comparing DNA on the shirt in question to his DNA was "valueless". That was on the basis that he admitted that the shirt was his. However, Mr Irving had not admitted that the shirt was his until 20 May 1993, which was after the warrant and samples were obtained. In that respect, Ms Pfingst said there was a point to the warrant because Mr Irving had said he would not be interviewed and they could only test the shirt to prove that it was his.[257]
• [237] While Mr Irving conceded that he did not admit the shirt was his until after Ms Pfingst had obtained the s 259 warrant and samples had been taken, he maintained that the exercise was valueless.[258] This was on the basis that Ms Pfingst must have been certain that the shirt was owned by Mr Irving as the shirt had been acquired from Mr Irving's bag at Port Douglas on 17 May 1993. The fact that the shirt was in Mr Irving's bag would be some evidence that he owned it, but that did not prove that he owned it. Further, that was not put to Ms Pfingst in cross-examination. According to other evidence, the shirt was provided to Sergeant Nolan by Ms Bartlett after Mr Irving had left them at her residence.[259]
• [238] Mr Irving's submissions do not expand upon the basis on which it is alleged that the taking of the samples was carried out by Ms Pfingst "solely for the purpose" of making the case against him appear stronger than it was and to oppose Mr Irving's application for bail. Given the s 259 Application was only to obtain evidence to see if the DNA on the clothing in question matched the samples taken from Mr Irving, it is difficult to see how that could be argued. Mr Irving also submits that Ms Pfingst brought the application because she intended to use the samples to try and prove that Mr Irving was the robber, not an accessory after the fact. Mr Irving's counsel contends that such a course was a breach of s 259 of the Criminal Code. That is not a matter that was pleaded in the Statement of Claim, nor was it a matter upon which Ms Pfingst was cross-examined. No application to amend the Statement of Claim was made by Mr Irving, nor was it addressed in the oral closing.

Conclusions as to the first alleged malicious prosecution

• [249] Mr Irving submits that when Ms Pfingst laid the Accessory Charge on the afternoon of 18 May 1993, the charge was laid without reasonable and probable cause and actuated by malice in that:

(a) Ms Pfingst believed (without any adequate or reasonable foundation), that Mr Irving was the Robber, not an accessory after the fact, but believed she had insufficient evidence to charge him with the Robbery;

(b) There was no evidence that Wayne Suthers had committed the Robbery as was set out in the accessory Charge. Mr Suthers had not even been identified. No witness suggested that Mr Suthers had committed the Robbery. Mr Irving denies he said "Suthers" was Wayne's surname, as he did not know Wayne's surname. The only evidence that Ms Pfingst had was that Mr Irving had lent his car to Wayne Suthers and Mr Irving's car had been identified some distance from the scene of the Robbery;

(c) The limited evidence available to Ms Pfingst on 18 May 1993 suggested, without adequate reason or adequate foundation, that Mr Irving was the Robber, as any evidence relating to the motor vehicle was, at best, equivocal, in that it suggested that Mr Irving was protecting himself rather than protecting "Suthers"; and

(d) The purpose of the Accessory Charge was to ensure that Mr Irving did not get bail the following day with regard to the traffic offence (he pleaded guilty to the possession of cannabis, the traffic offence and the failure to appear) so that he could be held in custody. Further, so that Ms Pfingst could have ready access to him while she built a case against him as the Robber or for one of the other two robberies that were being investigated by Operation 3UP, rather than for the legitimate purpose of prosecuting him for the specified charge. Having Mr Irving in custody, for example, allowed Ms Pfingst to make the s 259 Application to take body samples.

• [250] The Defendants submit that Mr Irving has not demonstrated an absence of reasonable and probable cause for the Accessory Charge on 18 May 1993. The Defendants contends that the evidence supported the fact that Ms Pfingst honestly believed that there was sufficient evidence for a proper case for prosecution. Further, the Defendants submit that based on the information available to Ms Pfingst, and in particular the evidence that Mr Irving's car was used in the Robbery, the contents of the 17 May 1993 Record of Conversation and the fact that Mr Irving removed and hid the registration plates and his car with the knowledge of the Robbery having occurred at a time he said he had lent his car to Mr Suthers, there was certainly sufficient objective evidence to support Ms Pfingst's honest belief.
• [251] Further, the Defendants submit the element of malice is not made out on the evidence.

• [252] The Defendants accept that Ms Pfingst was the prosecutor for the Accessory Charge, as she was responsible for charging Mr Irving with accessory after the fact to the Robbery.

Was the prosecution terminated in favour of Mr Irving?

• [253] It is also conceded by the Defendants that this element is satisfied.
• [254] The 18 May 1993 charge was dismissed on the basis of no evidence after Ms Pfingst wrote to the officer-in-charge stating that Mr Irving was charged with armed robbery, and that the charge of accessory after the fact was not to be pursued. The accessory after the fact charge was later dismissed by the Magistrate on 2 July 1993.[269]

• [255] As to the charge of being an accessory after the fact, s 10 of the Criminal Code relevantly provided that:

"A person who receives or assists another who is, to the person's knowledge, guilty of an offence, in order to enable the person to escape punishment, is said to become an accessory after the fact to the offence. In order to determine that the principal offender has been assisted or received, some positive act must be found in an aspect of the behaviour of the person charged directed towards the principal offender, before it can be said that he principal offender has been assisted or received."[270]

(b) There must be a positive act by the accessory directed towards the principal offender which assisted the principal offender;

(c) The assistance be given to a person "who is, to the [accessory's] knowledge, guilty of an offence"; and

(d) After the principal offence was committed the assistance must be given "in order to enable the person to escape punishment".[271]

• [257] Mr Irving contends there were three pieces of evidence that possibly supported an accessory after the fact charge on 18 May 1993, namely:

(a) A witness had identified his vehicle leaving a block of flats a short distance from the location of the Robbery, with the person who appeared to be dressed in the same clothes as the suspected robber lying face down across the rear seat;

(b) The vehicle was registered in Mr Irving's name; and

(c) The statement of Mr Irving that he had secured the registration plates by placing them under concrete at 307 Draper Street and placed a tarp over the car, "So youse wouldn't find the car".

• [258] Mr Irving submits that Ms Pfingst's evidence relating to her belief of his guilt of the Accessory Charge establishes that she did not have an honest belief that he was guilty of the charge because, she admitted that:[272]

(a) The investigation she was pursuing at the time was that Mr Irving was the Robber;

(b) At the time she laid the Accessory Charge, she believed that Mr Irving committed the Robbery;

(c) She had no evidence that Mr Suthers committed the Robbery; and

(d) She believed that Mr Irving had hidden the registration plates in order to assist himself, not Mr Suthers.

• [259] The evidence that supported the Accessory Charge was stronger than submitted by Mr Irving. Further, Mr Irving mischaracterises the evidence which he relies on to establish Ms Pfingst did not have an honest belief.
• [260] First, the car registered to Mr Irving was not merely seen a short distance from the Bank. Both Mr and Mrs Kerr identified the vehicle by reference to the registration number which had been seen leaving a set of flats. Mr Kerr had seen the person he had followed lying down across the back seat of Mr Irving's car. Mrs Kerr saw dark trousers. Ms Adkins had also seen the male going into the set of flats and saw a car exiting out, but could not see into the vehicle.
• [261] In addition to the vehicle being registered to Mr Irving, no information had been received by the police to suggest that he did not have the vehicle at the relevant time.[273] For example, the police had not received information that the vehicle had been stolen.
• [262] Further, prior to 17 May 1993, the vehicle had been found.[274] Items had been found in the car linking it to Mr Irving, such as a receipt saying that he had bought the car for $1,200 and there were some personal papers "like a [sic] RACQ membership or something like that".[275]
• [263] A statement had been obtained from Mr Catelan,[276] who Mr Irving had been staying with. According to Mr Catelan, he had kicked Mr Irving out of his house in April 1993. Mr Irving was away at Innisfail and when Mr Catelan returned to his house, he saw the tarpaulin covering Mr Irving's vehicle in the front yard and the registration plates missing. He said that he rang Mr Irving's girlfriend and spoke to his girlfriend's flatmate and told her to tell Mr Irving to move his gear from the house. When he returned later, Mr Irving's gear was missing. He stated that on 10 May 1993, he asked Neil Perrin to take the car out of his yard. Mr Perrin lived at Severin Street where the car was later found. Mr Catelan had told Mr Perrin he wanted $350 for it, or whatever he could get so that Mr Catelan could get money back for what Terry owed him.[277]
• [264] Mr Irving agreed that he told Ms Pfingst on 17 May 1993, as recorded in the 17 May 1993 Record of Conversation, that he heard the police were looking for a car in connection with the Robbery. Although, it was denied by Mr Irving that he said to Ms Pfingst and Mr Sturgess he had hidden the registration plates by placing them under concrete at 307 Draper Street and placed a tarp over the car "So youse wouldn't find the car". I have found that the 17 May 1993 Record of Conversation was substantially accurate and an honest recollection of what Mr Irving said to Ms Pfingst and Mr Sturgess on that day. I also accept that Mr Irving did suggest to Ms Pfingst and Mr Sturgess that he covered the car immediately with the tarp in that conversation and did not suggest that the car was on the street for a week nor that he had put the tarp and number plates over it while he went up North to work to stop it being used.

"And so that's the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery? - At the time that he was charged, we knew that he had knowledge of the - that Terry Irving had knowledge of the armed hold up because he had heard it on the radio. He admitted that. We had his car/ We had his numberplates and he had nominated Wayne Suthers. So we were still doing inquiries on Wayne Suthers.

He had nominated Wayne Suthers as borrowing his car? - Yes.

You had no evidence that Wayne Suthers has committed the robbery? - No."

• [271] Much was made by Mr Irving as to the terms of the charge and the fact it identified Mr Suthers as the Robber, when Ms Pfingst accepted that there was no evidence that Mr Suthers was the person who had actually robbed the Bank, or had a gun, as stated in the charge. Ms Pfingst's evidence supports the fact that she was relying on Mr Suthers being involved in the Robbery, such that Mr Suthers would be liable for the offence by reason of s 7 or 8 Criminal Code rather than being the person who robbed the bank himself.
• [272] While Mr Suthers is said to be the principal offender in the Accessory Charge, it is apparent from the evidence given by Ms Pfingst that it is likely that she was acting on the basis that Mr Suthers was a party to the Robbery because he had Mr Irving's car and someone other than the Robber was observed driving the car when it was exiting the driveway after the Robbery. The evidence supported Mr Irving's car being used as the getaway vehicle, which would make Mr Suthers liable for the principal offence if he was driving the vehicle carrying the Robber.[290] It is apparent from Ms Pfingst's evidence that she was focused on the fact that Mr Suthers had Mr Irving's car at the time of the Robbery in identifying him as principal offender, rather than having committed the Robbery itself. That is consistent with the fact that she relied upon Mr Irving's knowledge the car had been used in the Robbery, and that he had hidden the registration plates and had put a tarp over the car as being the relevant evidence supporting Mr Irving being an accessory after the fact. I accept as correct, the submission of the Defendants that a person can be charged with being accessory after the fact, helping anyone of the principal offenders by the operation of s 7 of the Criminal Code and that the evidence of Ms Pfingst did not exclude, but in fact supported, the submission that she regarded Mr Suthers involvement in the Robbery as based upon the fact that he had Mr Irving's vehicle, which was used in the getaway. While the wording of the charge referred to Mr Suthers having the shotgun, I find that the most probable explanation is that was an incorrect particular in the wording of the charge. This was Ms Pfingst's first armed robbery as senior investigating officer.
• [273] Mr Irving further submits that the evidence of Ms Pfingst demonstrates that she considered that, by hiding the registration plates, Mr Irving was seeking to protect himself, not to protect or assist Mr Suthers, which was necessary to establish the Accessory Charge. When it was first put to Ms Pfingst that she had no evidence that Mr Irving had done anything to assist Mr Suthers, she stated that she believed he had. Ms Pfingst disagreed with the suggestion that she believed that Mr Irving had put the registration plates of his vehicle under the concrete at 307 Draper Street to help himself, not Mr Suthers. It was then put to Ms Pfingst that, when she had previously been asked the same question that Mr Irving never said he did anything to protect Mr Suthers, she had stated that "Well, he did. He heard it on the radio that his car had been used at the robbery. And he went and took the number plates off the car. And he hid the number plates and put the car under the tarp so that, in his own admission, so that we wouldn't find the car." Counsel for Mr Irving had previously asked a further question, namely "And was that to assist Wayne Suthers or to assist Terry Irving?", to which Ms Pfingst replied, "To assist himself". Ms Pfingst had agreed that was her evidence previously.

"To assist Terry Irving? - Because he did not want us interviewing him about the armed robbery.

Yes. That's not assisting Wayne Suthers, is it? - No, it's assisting himself.

I suggest to you that you charged Mr Irving with being an accessory after the fact when you did not believe that he was guilty of that offence? - Not correct.

And you had no evidence to support that he had committed that offence? - No.

And you did so because you wished to hold him in custody while you further investigated the robbery? - No. We still had to make inquiries to locate Wayne Suthers. And I still say that he did certain acts to protect himself and to blame Wayne Suthers.

Now, it's certainly the case, isn't it, that you believed that you had - you did not have enough evidence, certainly as at 17 May of 1993, to charge Mr Irving with the robbery? - The actual robbery, no."

• [275] Mr Irving relies upon the above passage to contend that Ms Pfingst agreed that he was only acting to assist himself and not Mr Suthers, and therefore lacked evidence of an essential element of the Accessory Charge and had no basis for charging him with the Accessory Charge. The Defendants however contend that a proper reading of the passage is that the reference to Mr Irving seeking to assist himself was in regard to him not being interviewed about the Robbery, not regarding Mr Irving hiding the registration plates, which Ms Pfingst had previously identified as being to assist Mr Suthers. While the evidence is not altogether clear, when read in context I consider that the Defendants' interpretation of Ms Pfingst's evidence is the more persuasive one. That is consistent with the fact that Ms Pfingst suspected Mr Irving of being the Robber and was continuing that investigation at the time. That interpretation is supported by the fact that Ms Pfingst rejected the proposition that she did not believe that Mr Irving was guilty of being an accessory after the fact and accepted that she did not have evidence to support the fact that he had committed the Robbery. While the hiding of the registration plates and the car was open to being interpreted as being done to hide the evidence that Mr Irving was the Robber, at the point in time when the Accessory Charge was laid and Mr Suthers was nominated as having the car, it was also capable of supporting the fact that Mr Irving hid the registration plates and the car to assist Mr Suthers to escape punishment for his part in the Robbery. At that time, it was assumed Wayne Suthers existed. It is sufficient for the laying of the Accessory Charge that the actions of Mr Irving assisted Mr Suthers and concurrently assisted himself.
• [276] Consistent with the fact that that was likely to be Ms Pfingst's view, is the fact that she gave a warning to him after he had informed Mr Sturgess and herself that he took the registration plates off of his car and put a tarp over it.[294] When asked why she issued the warning at that time, her evidence was:[295]

"Because he had knowledge. Because he'd heard on the radio that there'd been a hold up and his - the car with his registration plates had been used; that he did another action by taking the car back to Draper Street, taking the plates off it, digging down underneath the ground and putting the plates into there and also putting a tarp over it."

• [277] She also stated that she understood that Mr Suthers had Mr Irving's vehicle at the time of the Robbery.[296]
• [278] Based on the above analysis I do not accept the submissions of Mr Irving that Ms Pfingst had admitted either that:

(a) At the time she laid the Accessory Charge, she believed that Mr Irving committed the Robbery; or

(b) She believed that Mr Irving had hidden the registration plates in order to assist himself and not Mr Suthers.

• [279] I do not find that the evidence supports the fact that at the time the Accessory Charge was laid:

(a) Ms Pfingst believed without any adequate or reasonable foundation that Mr Irving committed the Robbery and was not an accessory after the fact, nor that there was insufficient evidence to support the charge;

(b) That while Ms Pfingst had conceded that there was no evidence that Mr Suthers had committed the Robbery, there was evidence that he was liable as a principal offender by virtue of the fact that he had the car used in connection with the Robbery, and she relied on that as supporting the Accessory Charge; or

(c) That the evidence did not support that Mr Irving did anything to assist Mr Suthers to escape punishment.[297]

• [280] I do not find that Ms Pfingst did not honestly believe that Mr Irving had done an act to assist Mr Suthers by removing the registration plates, placing them under concrete and putting a tarp over the car when he had knowledge that the car was suspected of being used in the Robbery.
• [281] I therefore do not find that the three facts which Mr Irving contends emerged from the evidence in respect of the Accessory Charge on the balance of probabilities. I do not find that she laid the Accessory Charge in order to keep him in custody to build a case against him for the Robbery or other robberies being investigated by Operation 3UP not having honestly formed the view that there was a proper case for prosecution. That is further supported by the fact that laying the Accessory Charge would not of itself lead to Mr Irving not being granted bail and being held in custody.
• [282] Mr Irving primarily relied upon Ms Pfingst not holding an honest belief that he was guilty of the Accessory Charge in contending that there was an absence of reasonable and probable cause in respect of the First Alleged Malicious Prosecution. To the extent that Mr Irving relies on the objective basis for establishing lack of reasonable and probable cause I do not find that that has been established. Objectively, there was sufficient evidence for charging Mr Irving with the Accessory Charge given that:

(a) The evidence of Mr and Mrs Kerr was that they had both identified a vehicle leaving the driveway of the block of units that they had seen the person that they were following enter. That was to a lesser extent, supported by Ms Adkins who had also followed the Robber once he left the Bank, saw him run into the driveway of the flats and then saw a vehicle exit shortly after;

(b) The registration of the vehicle Mr and Mrs Kerr saw matched Mr Irving's registration;

(d) Mr Irving had stated to Ms Pfingst and Mr Sturgess on 17 May 1993 that he was aware of the Robbery and had not reported the fact that the car registration was his car;

(e) That he had stated that he had lent Mr Suthers his car at the time of the robbery and that he had been gone for some time;

(f) That after he knew about the Robbery and that the registration of the vehicle that was being sought in connection with the Robbery was his car;

(g) Mr Irving had stated that he had put a tarp over the car and hidden the registration plates under concrete "So youse wouldn't find it";

(h) Mr Irving stated that he did not approach the police "because of the car and the description, it all pointed to [him]"; and

(i) That even though there was one Robber in the Bank and there was no evidence that Mr Suthers was that person, there was evidence that another person was seen to be driving the getaway vehicle. . Mr Suthers was nominated as having possession of the vehicle at the time of the Robbery.[298] Therefore, the evidence supported that he was a co-offender in the Robbery.[299]

• [283] I do not find that Ms Pfingst did not honestly believe at the time she laid the Accessory Charge that there was insufficient evidence to do so.
• [284] As set out above, I do not find that Ms Pfingst manipulated the criminal history of Mr Irving or made misleading statements in the objection to bail or QP9 because she knew that she had inadequate evidence to support the Accessory Charge. I also do not accept that Ms Pfingst believed that Mr Irving would get bail in respect of the charges for failing to appear and possession of cannabis unless she manipulated or embellished the evidence against Mr Irving.
• [285] Ms Pfingst gave evidence that she honestly believed there was sufficient evidence for a proper case for prosecution and that she believed at the time she charged him, that there was a proper case for prosecution of that charge. I accept that evidence. I do not find that Mr Irving has demonstrated an absence of reasonable and probable cause with regard to the First Alleged Malicious Prosecution.

• [286] Proof of malice requires Mr Irving to discharge the onus of demonstrating that, in prosecuting him, Ms Pfingst's sole or dominant purpose was for a purpose other than a legitimate purpose of the criminal law.
• [287] Mr Irving contends that the purpose of laying the Accessory Charge was to ensure that Mr Irving did not get bail on the initial charges laid so that Ms Pfingst could hold Mr Irving in custody while she built a case against him as the principal offender or for one of the other robberies that were being investigated by Operation 3UP, not for the legitimate purpose of prosecuting him for the specified charge. Mr Irving contends that Ms Pfingst was motivated to charge him with the offence either because he would not be interviewed and she wanted to keep him in custody while she investigated the Robbery, or on the basis that there was no other rational explanation for charging him with an offence for which she did not believe he was guilty. Counsel for Mr Irving submits that it follows that Ms Pfingst must have been actuated by an improper motive.
• [288] To establish malice, Mr Irving relies on inferences which he contends should be drawn from facts which he submits arise out of the making of the s 259 Application (and subsequent events in that regard), the First Bail Application and the alleged errors and embellishments that appear in the court brief and objection to bail documents. Counsel for Mr Irving states that those matters are a reflection of the fact that Ms Pfingst did not believe that Mr Irving was guilty of the Accessory Charge or, if she did so, she did not have reasonable grounds for so believing.
• [289] I have dealt with those matters above. I have not accepted a number of the primary facts Mr Irving has contended should be found from which inferences are sought should be drawn. There is little evidence to support such inferences.
• [290] The fact that, when Ms Pfingst laid the Accessory Charge that she did not consider that she had sufficient evidence to charge Mr Irving with armed robbery, does not indicate that the Accessory Charge was ill-fgrounded or laid for some motive other than in order to advance the criminal justice system by seeking a conviction of the charge. Ms Pfingst considered that there was sufficient evidence to support the Accessory Charge and that it warranted prosecution, and that based on the evidence at that time Mr Irving was guilty of that charge. Pursuing investigations based on the fact she suspected he was the Robber does not defeat the basis for laying the Accessory Charge, even though ultimately both charges were not pursued and the Accessory Charge was withdrawn. The Accessory Charge relates to events after the Robbery had occurred.

Subsequent events leading to second alleged malicious prosecution

• [300] Ms Pfingst interviewed various witnesses, which included an identification process and written statement. Allegations are made against Ms Pfingst, that she embellished or intentionally influenced the witnesses in preparing these statements.
• [301] On 25 May 1993, Ms Pfingst charged Mr Irving with the offence of armed robbery in relation to the Robbery.
• [302] Mr Irving submits that the evidence that he was the Robber (apart from the embellished evidence) was weak at the time the Armed Robbery Charge was laid. Mr Irving submits that evidence included:

(a) Of the three Tellers who witnessed the Robbery (Ms Redgen, Ms Oastler and Ms Adkins), one had identified other persons, one had identified Mr Irving and one had identified two possible suspects (including Mr Irving);

(b) As to the clothing, two of the eyewitnesses had failed to identify the shirt and the third had suggested the sleeves were similar;

(c) The trousers and the shoes could not be linked to Mr Irving; and

(d) Mr Irving's vehicle had been otherwise seen in the vicinity of the Robbery.

• [303] According to Mr Irving, the embellished or influenced evidence included:

(a) The alleged admissions by Mr Irving in the Laptop Notes of the interview on 17 May 1993; and

(b) The witness statements containing the identification evidence of Ms Adkins, Mrs Oastler and Ms Redgen.

• [304] Mr Irving submits that the only person who was aware of the contents of the transcribed records of interviews with the various witnesses relating to the identification of the shirt, trousers, shoes and the photoboard identification, was Ms Pfingst.
• [305] Mr Irving submits that,[306] at the time Ms Pfingst laid the Armed Robbery Charge she did not have an honest belief in his guilt founded upon reasonable grounds. The fact that she had:

(a) Embellished statements and influenced the witnesses evidence to strengthen the evidence in support of the charge; and

(b) Failed to prepare statements of witnesses that were exculpatory to Mr Irving;

leads to the inference that she did not believe the evidence, as a whole, was strong enough (or on reasonable grounds) to convict Mr Irving and that she needed to bolster the evidence including the suppression of any exculpatory evidence. She did not, according to Mr Irving, believe in his guilt on reasonable grounds.

• [306] The Defendants contend that Mr Irving's contentions are unfounded. In contrast to Mr Irving, the Defendants contend that the objective evidence as at 25 May 1993 that supported the reasonable and probable cause to charge Mr Irving with the Armed Robbery Charge was that:

(a) Mr Irving's car was used in the Robbery - the Robber was followed from the bank and seen to be laying face down in the back seat;

(b) Mr Irving said he knew about the Robbery and that the police were looking for his car;

(c) Despite that, Mr Irving did not approach police and tell them he was not involved. Instead, he removed the registration plates and placed them under concrete and covered his car with a tarpaulin. Mr Irving said he did these things to hide his car from police;

(d) Police inquiries showed that Mr Suthers did not exist, which suggested that Mr Irving had lied about Mr Suthers' involvement;

(e) Mr Irving lied to police about sleeping in the toilet block so that police could not find his clothes. In fact, he had slept at 9 Sands Street, Port Douglas on 16 May 1993, where his clothes were eventually found;

(f) Ms Adkins had identified the sleeves of Mr Irving's shirt (which, by then he had admitted was his) as the shirt worn by the Robber. Ms Adkins said she was "definite" about the sleeves. Ms Adkins supplied a signed statement; and

(g) Ms Adkins and Ms Redgen both identified Mr Irving on the photoboard as the Robber, and both provided signed statements to that fact.

• [307] By 1 June 1993, the Defendants submit further identification evidence supplemented the evidential basis for Ms Pfingst's honest belief, namely that:

(a) On 29 May 1993, Mrs Kerr identified Mr Irving on the photoboard as the man she saw standing adjacent to the post office and whom she followed down Kidston Street after the Robbery and provided a signed statement to that effect;

(b) On 29 May 1993, Ms Kerr was shown Mr Irving's shirt and said she could recall seeing the purples and the pink colours and the black pattern and provided a signed statement to that effect;

(c) On 1 June 1993, both Ms Lovell and Ms Andrews identified Mr Irving on the photoboard as the man they saw standing on the corner and whom Ms Andrews followed with Ms Adkins after the Robbery. They provided signed statements to that effect;

(d) On 1 June 1993, both Ms Lovell and Ms Andrews identified Mr Irving's shirt as the shirt worn by the man they saw standing on the corner and whom Ms Andrews followed with Ms Adkins after the robbery. They provided signed statements about it.

• [308] Subsequent to the Armed Robbery Charge, Mr Irving applied for bail in the Supreme Court on 26 May 1993, which was refused. Ms Pfingst swore an affidavit of 25 May 1993 for the purpose of that application.[307] Mr Irving alleges that there were multiple errors, overstatements and omissions in that affidavit, which is further evidence of Ms Pfingst exaggerating evidence because she believed the evidence against Mr Irving was weak or non-existent. The matters included:

(a) Ms Pfingst stated that a witness who followed the Robber saw him get into the back door of the grey Toyota sedan bearing the registration 682 BUI;

(b) A member of the bank staff identified clothing found in the possession of Mr Irving as the clothing was worn by the Robber on 19 March 1993,[308] which is said to overstate of the evidence of Ms Adkins; and

(c) Mr Irving was identified from a photoboard by two bank officers,[309] which is said to be an overstatement.[310]

• [309] According to Mr Irving, the evidence for which Ms Pfingst was responsible involved the deliberate setting aside of what might otherwise be critical matters consistent with his innocence and was deliberately skewed in favour of the prosecution so that he would not obtain bail on the Armed Robbery Charge.[311]
• [310] The description of the Robber having been seen to get into the back of the car has been dealt with in the context of the QP9. In that regard, I did not find that anything was to be inferred from the reference to seeing him get into the back of the grey car. That finding remains and I will not revisit it. Similarly, insofar as allegations are made in relation to the 17 May 1993 Record of Conversation of matters being included, which Mr Irving contends were not said, or excluded, that Mr Irving contends were said, I have found that the 17 May 1993 Record of Conversation was substantially accurate and an honest recollection of the conversations that occurred on that day by Ms Pfingst and Mr Sturgess.
• [311] As to the other two matters, they are best dealt in the context of after a consideration of the evidence of the bank officers in relation to which broader allegations are made.

• [312] Mr Irving refused to take part in a line up. As a result, a photoboard was used to identify the Robber in the Robbery.
• [313] The Queensland Police Manual at the time provided that, if a suspect refused to take part in a line up, a viewing or confrontation with a witness, consideration may be given to a photoboard. In that regard 4.203 of the Police Manual at the time stated that:

"Where a person has not been arrested for an offence, photographs may fairly be used for the purpose of ascertaining the identity of the offender, provided that in any such case the member of the Police Force concerned must not show any witness a shingle photograph, but must show such a witness twelve photographs, (where possible) simultaneously mounted on a Photo Line-Up Board (P.H.11) with a view to the witness selecting therefrom the photograph recognised by him as being that of the offender.

When exhibiting a photograph to any person for identification purposes any particulars concerning the subject of that photograph which may be recorded thereon or in any publication in which it is contained must be completely obscured from the view of the person to whom it is shown.

When a member of the Force has occasion to utilize a photo line-up board and facilities to produce such a board are not available locally, the member should contact Photographic Section via computer terminal HPH1.

The request for a photo line-up board should include the following particulars of the suspect -

The Photographic Section will select suitable photographs of persons of similar sex, age, height, build and general appearance for the line-up from their photo library. However, in the metropolitan and near metropolitan areas, the member in charge of the case is responsible for selecting the sequence and placement of the photographs on the board provided.

When requests are received from non-metropolitan areas, photo line-up boards will be completed by Photographic Section and forwarded to the appropriate country centre. It is essential that photographs are placed securely on the board and are not altered or re-arranged after particulars have been recorded by Photographic Section who shall keep a record of all particulars of photographs used for photo line-up boards. The member in charge of the case is responsible for presenting the photo line-up to the witness/es and retaining it as an exhibit for any subsequent court case.

(A) sign and date the reverse of the Photo Line-up Board;

(1) the number of the photo which resembles the offender; or

(2) the fact that no photograph resembles the offender."

• [314] Ms Pfingst stated that she followed that procedure.[312]
• [315] A Commissioner's Circular dated 7 December 1992[313] also addressed identification evidence, in particular photoboards, and that there was an increasing tendency on behalf of the Courts to reject that form of identification, citing Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395. Ms Pfingst could not recall seeing that circular stating that they were not circulated individually to officers but placed in a folder kept at the station.[314]
• [316] The vagaries of relying on photoboard identification evidence have often been the subject of decisions of Australian Courts. For instance, Mason J in Alexander v The Queen,[315] at 426, discussed as follows:

"The problems which afflict identification evidence have their origin in four principal sources: (a) the variable quality of the evidence much of which is inherently fragile; (b) the use by the police of methods of identification which, though well suited to the investigation and detection of crime, are not calculated to yield evidence of high probative value in a criminal trial; (c) the consequential need to balance the interests of the accused in securing a fair trial against the interests of the State in the efficient investigation and detection of crime by the police; and (d) the difficulty of accommodating the reception of certain types of identification testimony to accepted principles of the law of evidence.

Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.

The use of photographs by police, especially photographs of known or suspected criminals, is an essential aid to the detection of persons who have committed crimes. Yet the use of such photographs before a jury may tend to suggest that the accused is known to the police as a criminal who has committed offences of the kind charged. And, as I have said, once a witness has seen a photograph which he links with the person seen, he tends to substitute the photographic image for his recollection."

"The photographs used on the photoboard were not satisfactory for the purposes of procuring reliable identification evidence in that they did not contain adequate photographs of men with common features of the offender's physical description given by the witnesses including the offenders height and age in the circumstances where, whilst photographs were of male faces, the evidence was that the face of the offender was covered during the course of the robbery."

• [318] Ms Pfingst gave evidence that in preparing the photoboard,[316] she had sorted through photographs which were contained in draws at the Cairns CIB to find 12 suitable photographs. At that time, there was no electronic database which she could consult. She stated that she would aim for at least three or four features similar to the suspect when selecting the photograph to use on the photoboard. She then physically cut around the photographs with scissors to remove any identifying names or dates of birth.[317] Ms Pfingst said that she prepared a photoboard because Mr Irving refused to take part in a line up.[318]
• [319] Ms Pfingst, in cross-examination, stated that the system she used was the system commonly used throughout the QPS and that she could not remember how many side-on photographs were available at the Cairns CIB.[319]
• [320] Mr Irving's closing submissions do not contain any submissions about deficiencies in how Ms Pfingst compiled the photoboard and the respects in which the photographs used were unsatisfactory.
• [321] Ms Pfingst did caution witnesses to be careful about attributing significance to hair, which could have changed and to concentrate on skin colour and facial features.[320] Although the bank officers indicated that the Robber had covered his face up to his eyes and below his chin with a mask during the Robbery, the evidence was also that he removed that face covering when he left the Bank, thus permitting a side view of the face.
• [322] In all the circumstances, the allegation in [50.19] of the 7FASOC in relation to which no submissions were made, has not been substantiated.

Photoboard evidence and shirt identification by the bank officers

• [323] On 24 May 1993, Ms Oastler, Ms Redgen and Ms Adkins were each shown the photoboard prepared by Ms Pfingst. Further statements of Ms Redgen and Ms Adkins were prepared. No further statement was prepared of Ms Oastler.
• [324] On 29 May 1993, Mr Kerr was shown the photo board and could not identify Mr Irving. No statement was prepared for him. That same day, Mrs Kerr was interviewed as to the photo board, and she identified Mr Irving and a statement was prepared and signed.
• [325] On 1 June 1993, Ms Andrews was interviewed in relation to the photoboard and clothing. She identified Mr Irving on the photoboard and a statement was prepared and signed. Ms Lovell was also interviewed as to the photoboard and clothing. She identified Mr Irving on the photoboard and the statement was prepared and signed.

Evidence of Ms Adkin, Ms Redgen and Ms Oastler

• [326] Counsel for Mr Irving submits that the identifications of Mr Irving in the photoboard by Ms Adkin and Ms Redgen were flawed and that their statements had been embellished. The particular point relied upon by Mr Irving is that the statements of Ms Adkin and Ms Redgen, that were prepared by Ms Pfingst, were stronger than the recordings, particularly in relation to identification and both statements contained matters not mentioned in the recording.
• [327] The photographic identification based on the photoboard was recorded and/or videotaped in relation to each of the witness. Transcripts of those records of interview were created. It appears that the transcripts were not provided until close to, or the morning of, the trial. Mr Irving's evidence was also that no tapes had been tendered at the committal hearing, however, he conceded that that appeared to be incorrect when taken to the transcript of the committal hearing where a number of tapes and videotapes were tendered.[321]
• [328] Ms Pfingst spoke to Ms Oastler, Ms Redgen and Ms Adkins on 24 May 1993 asking whether they could identify the Robber who committed the Robbery from a photoboard of 12 males. They were also previously interviewed on 18 May 1993,[322] except for Ms Oastler who was interviewed on 19 May 1993,[323] and asked whether they could recognise a shirt that Ms Pfingst showed them.[324] Those interviews were also the subject of transcripts included in the court brief.[325]

• [329] On 18 May 1993, Ms Pfingst interviewed Ms Adkins and ascertain whether she knew about the shirt. Ms Adkins was asked whether there was any comment she wished to make about the shirt, to which she responded "Nothing". She was then asked:

"Is this the shirt the fellow was wearing the day that he went into the ANZ Bank and held it up? What are you saying? - The sleeves are the same.

• • As what you recall? - Yes."
• [330] Ms Adkins said the cuffs, however, were different. The exchange was recorded and the transcript produced.
• [331] Ms Adkins was later interviewed in relation to shoes and a pair of trousers.[326] At that time Ms Pfingst stated that "and earlier this afternoon I showed you a shirt that you have identified as being used in the armed hold up of the ANZ Bank at Portsmith; is that right? - Yes". That is said by Mr Irving to be an overstatement of her previous identification. That exchange was also recorded.
• [332] Mr Irving complains that the act of bringing an eye witness to a police station to identify a single shirt was an unsatisfactory method of identification. He further complains that Ms Adkins had been asked a leading question to illicit a response when she had previously made no comment. Mr Irving also complains that the summation of Ms Pfingst in the later interview was an overstatement of Ms Adkins' evidence. The latter two criticisms are fairly made. However, Mr Irving did not expand on why showing the single shirt was unsatisfactory. I do not consider that the criticism made has any weight and will not consider it further.
• [333] An addendum statement was prepared and signed by Ms Adkins which stated:[327]

"I can say that the shirt I was shown is the shirt that the male was wearing when he came into the bank and held us up on the 19th March 1993. I know the sleeves are exactly the same from the colour and the pattern because this pattern is stuck in my mind. I also recall seeing pink and purple colour.

In my original statement I described the colour as peachy. This is the colour I am referring to in the sleeves. The swirls I am referring to in my original statement is what I see on the front of the shirt.

I can also see that the cuffs are right. I recall the sleeves hanging loose. They were not done up."

• [334] Mr Irving refers to the fact that the addendum statement is strengthened by comparison to the transcript of interview by including several additions. Mr Irving submits that the Court can infer, based on the significant differences between the statement and records of interview, that the leading questions and influence of Ms Pfingst was an attempt to bolster the evidence of Ms Adkins in circumstances where Ms Pfingst believed that the evidence in the interview was inadequate.
• [335] On 24 May 1993, Ms Adkins was interviewed again. A transcript of interview was produced and included in the court brief.[328] A video tape and audio tape were made of the showing.[329]
• [336] Ms Adkins was shown the photoboard and asked to go through each photograph slowly and see if she could recognise the male Robber. Ms Adkins commented that she would "love a side-on shot".[330] She excluded a number of the individuals. The following exchange took place:

"Number 5 or number 7? - I'd like a side-on view.

What features do you remember the most? - He had a very - he had a prominent nose. He had shoulder length hair, about as long as mine - no, a bit shorter, bit shorter, fractionally, and it was dark.

Well, bearing in mind, you know, the hair could have changed, could have grown or he could have had it cut. So, the length of hair is really inappropriate (inaudible) you have a look at the colour and the facial features, and things like that? - I'd say 7

Number 7? And what features are you - say you believe it's number 7? Will I hold it up? Would that - want me to hold it up for you? - I'd say 7.

Do you want to use your fingers to - to cover hairs or - you know, the hair or the forehead or the neck, or something like that, which might help you? The colour of the hair? - (inaudible) they're all about the same colour.

Yeah? - we don't have any side-on shots do we? - No, unfortunately, see you've got to have 12 photographs and you just cannot get 12 side-on shots. Still number 7 you're going to? - Mmm."[331]

• [337] In Ms Adkins' statement signed on the same day, it states:[332]

"After looking at the photo board, I can say that I know the male shown in square number 7 was the male who held up the bank on 19 March 1993. I say this because of the shape of the nose, the shape of his face, the colour of his hair and his eyebrows. I can also say this because of the wave in his hair, because I saw his hair when it fell out from under the cap, it was still in a ponytail. I can also say that on the day he came into the bank he did not have a moustache, he was clean shaven."

• [338] Mr Irving relies on the fact that Ms Adkins said very few of the matters in the record of interview that were recorded in her statement. Counsel on behalf of Mr Irving submits that while he cannot identify the precise mechanism used by Ms Pfingst to embellish the statement or influence the witness, the use of the leading questions in relation to the shirt and overstating the effect of Ms Adkins' evidence when summarising it would suggest that that was the most likely means adopted.
• [339] Mr Irving submits that he Court should infer that Ms Pfingst inappropriately influenced Ms Adkins in the making of her statement because she knew that Ms Adkins' evidence was weak.

• [340] Ms Redgen was interviewed on 18 May 1993 and shown the shirt in question. She said that the shirt was not the shirt that the robber was wearing. No statement was prepared to reflect that interview. Mr Irving contends that is evidence of Ms Pfingst withholding exculpatory evidence.
• [341] Ms Pfingst, in her statement at the committal hearing referred to the fact Ms Redgen did not identify the shirt shown to her and also identified that the showing had been videotaped and audio taped.[333]
• [342] Ms Redgen was interviewed in relation to the photoboard on 24 May 1993.[334] Although it is not clear, it appears from the transcript of interview that Ms Redgen was pointing to number 7, which I infer from the way in which Ms Pfingst commented on her identifying photograph number 7. She then identified photograph number 7 on the basis of the shape of the nose and the face.
• [343] Ms Redgen's statement stated:[335]

"After looking at the photo board I can see that I belief [sic] that the male shown in square number 7 was the male that held up the bank. I say this because of the square top half of his face, the shape of his nose and the shape of his chin. I can also say I have this belief because of his skin colouring."

• [344] Mr Irving points to the differences between the statement and the interview. The statement referred to a square face and the shape of his chin, which was not referred to in the interview. Mr Irving also refers to the fact Ms Redgen had stated the robber had worn a handkerchief as a mask as well as to similar linguistic aspects of the statements of Ms Redgen and Ms Adkins, referring to the phrases "the shape of the nose" and "the shape of the chin" being used each of their statements in other respects.
• [345] Mr Irving submits that the Court should infer that Ms Pfingst influenced Ms Redgen in the preparation of her statement in a similar way to Ms Adkins because she knew that Ms Adkins' evidence was weak.

• [346] Ms Oastler was shown the shirt in question by Ms Pfingst. While she agreed that it was not the case that it definitely was not the shirt worn by the Robber she initially stated "mmm" when she was asked whether "It could possibly be the shirt".[336] When it was suggested that it was the colourings that she referred to in her original statement, she responded "I thought it was more lemon all the way through". She subsequently said of the trousers,[337] and shirt, shown to her "They are kind of the colour". She stated that the pattern on part of the shirt "sort of sits in my mind", but she could not say definitely whether it was or was not the shirt that was worn by the Robber.
• [347] Mr Irving contends that the Court should infer that Ms Pfingst did not prepare a statement for Ms Oastler because she intended to avoid converting any exculpatory evidence obtained into statements.[338] However, that was not a matter that was specifically put to Ms Pfingst in cross-examination. Further, Ms Pfingst's statement prepared for the committal hearing stated that Ms Oastler was unsure whether the clothing was the same as that worn by Robber and that "The showing was video-taped and audio-taped. It is contained on the tapes marked "2"."[339]
• [348] Ms Oastler did not identify Mr Irving in the photoboard when it was shown to her on 24 May 1993, but rather identified "somebody between four, eight, nine and ten". She also stated that she had only seen the Robber side on.[340] No addendum statement was prepared for Ms Oastler. Mr Irving contends that that supports the fact Ms Pfingst was withholding exculpatory evidence.
• [349] Ms Pfingst, in her statement prepared for the committal, stated that following the review of the photoboard, Ms Oastler could not identify the Robber. She also refers to the showings having been video-taped and audio-taped in the room.[341] Mr Irving however says Ms Pfingst omitted to say she identified four other persons.

• [350] Ms Pfingst described the process of taking a statement. She stated that she always tried to finalise the interview while she was in the interview room with the witness.[342] She stated that if a witness had started to provide further information just after the interview had finished, before she had walked out of the room, she would then have taken the witness back into the room to record it.[343] Ms Pfingst stated however that she did not necessarily take a statement from the witness immediately after the interview.[344] She stated that, if during the process of taking the statement, the witness provided further information, she would record that in the statement being prepared, which the witness would then sign.[345] Her evidence was that if a witness did say things they had not brought up before it was recorded in the statement. She noted that the statement provided for it to be sworn in accordance with the Oaths Act at the end of the statement.[346]
• [351] Counsel for Mr Irving submitted that Ms Pfingst's evidence at the committal hearing in relation to the process adopted in respect of Ms Adkins, Ms Redgen and Ms Oastler regarding the photoboard and the provision of a statement suggested that there was no time gap between the interview being finished and the statement being prepared. However, I consider that the evidence given was not inconsistent with their being a time gap between the end of the interview and the preparation of the statement.[347]
• [352] The process Ms Pfingst describes is unexceptional.
• [353] Ms Pfingst denied that she had embellished the evidence taken from Ms Redgen or Ms Adkins. Ms Pfingst also denied that she omitted to include exculpatory evidence of Ms Oastler and Ms Redgen. In cross-examination, Ms Pfingst denied that she had ever changed a witness statement to make identification evidence appear stronger than it was.[348]
• [354] Ms Pfingst's evidence was that, to the extent that the statement contained additional matters not in the records of interview, that was the result of what she was told by the witnesses.

• [355] There are clear differences between the records of interview and the statements, insofar as the statements of Ms Adkins and Ms Redgen contain additional detail, which, in some respects, strengthened their evidence inculpating Mr Irving. The fact that witnesses added detail that was included into their statements after the interview accords with the process described by Ms Pfingst.
• [356] Ms Adkins and Ms Redgen were asked by Ms Pfingst at the end of the interview whether a police officer or person in authority had influenced them in the decision that they had made and whether it was the first time they had seen the photoboard. That was also contained in the addendum statements. The statements and the addendum statements were signed by the witnesses. Ms Adkins' addendum statement was sworn before a justice of the peace.
• [357] The fact that Ms Adkins and Ms Redgen provided statements, which they each confirmed were the statements provided by them at the committal,[349] supports the fact that what was reflected in those statements was their evidence. It is not suggested that any of the evidence which they gave at the committal hearing or the District Court trial support the fact that their statements had been manipulated or embellished by Ms Pfingst.
• [358] As to the other matters which Mr Irving relies upon in contending that the Court should infer that Ms Adkins' and Ms Redgen's evidence had been embellished by Ms Pfingst, I will deal with each in turn.
• [359] In relation to the shirt identification, Mr Irving relies upon the fact that Ms Pfingst used leading questions (although she did not concede that they were leading) in asking Ms Adkins, "Is this the shirt the fellow was wearing the day that he went into the ANZ Bank and held it up? What are you saying?",[350] and in a later interview, "And earlier this afternoon, I showed you a shirt that you have identified as being used in the armed hold up of the ANZ Bank at Portsmith on 19 March; is this right?".[351]
• [360] Although the question to Ms Adkins was not a closed one in the sense of "This is the shirt worn by the Robber on the day he went to the Bank", the form of question was a leading question insofar as it connected the shirt with the Robbery and is not one appropriately used by a police officer in relation to identification. However, Ms Pfingst did not use leading questions to the extent that one could reasonably infer that she was seeking to influence or embellish Ms Adkins' evidence, as opposed to engaging with the witness. The statement in the second interview by Ms Pfingst did oversimplify the Ms Adkins' level of identification of the shirt as being that worn by the Robber, Ms Adkins' identification of the shirt was confined to the sleeves. The second statement in relation to the shirt was merely a summation rather than being directed to the eliciting the actual identification evidence which had already taken place in the earlier interview. In that respect, the addendum statement of Ms Adkins was confined to identifying the shirt on the basis of the sleeves.

"So - so when you do the tapes, then you'd go back to doing a statement and you say to them 'what can - what - what, like, I would have said something like, 'You've said number 7. Can you tell me why you believe it was number 7' and that's what she has told me.

Yes. Did you say to her or ask her when she was telling you about the shape of the chin, anything about the fact that he had a handkerchief over his face from his eyes down to below his chin? - No, this was her statement and that's what she has ... told me."

• [373] Mr Irving contends that the fact Ms Redgen had stated that photograph number 7's face from his nose down, including his chin, were similar to that of the Robber, suggests that some influence was exercised over her by Ms Pfingst. It was open to infer that Ms Redgen did see the Robber's chin. In her original statement, Ms Redgen stated that when the offender got outside she saw him put a gun into the bag and pull the scarf down. In her transcript of interview, she had commented on the shape of his nose, "like pointy" as well as his "broad face".[360]
• [374] The similarities in some of the language used in the statements of Ms Redgen and Ms Adkins in terms of the use of "shape of" in reference to facial features is hardly a basis to infer that the references are the result of Ms Pfingst influencing the witness or embellishing or contributing to the statement. It is a common way of referring to such things and is not evidence of Ms Pfingst exerting influence.
• [375] The likelihood is that Ms Redgen's statement was the product of her sitting down with Ms Pfingst while her statement was being prepared and adding further details which were included in her statement. The evidence does not bear out the suggestion that the differences between Ms Redgen's interview and her statement were the result of Ms Pfingst influencing Ms Redgen to strengthen her evidence.
• [376] Ms Redgen did not identify the shirt, nor did Ms Oastler. No statements were prepared by them, however transcripts of interview where they were asked about the shirt were tendered at the committal hearing.
• [377] When asked in cross-examination about why Ms Pfingst did not prepare a statement for Ms Redgen in relation to the shirt identification evidence, Ms Pfingst stated that she did not believe it was necessary because she included in her statement both the positives and the negatives. Further, Ms Pfingst stated that she had recorded the interview and a transcript was produced. In her statement prepared for the committal hearing, Ms Pfingst referred to the fact that the video and audio tape of the interview were marked "1".[361] The committal brief which she had prepared listed the tape recordings in the index,[362] and referred to Ms Redgen's evidence in the "Summary of Statements" as "says not the shirt, did not see the trousers or shoes." While it may have been preferable to include Ms Redgen's evidence as to the clothing in her addendum statement, little significance can be attached to the failure to do so given that there were a number of sources in the committal brief which disclosed the fact Ms Redgen did not identify the clothing.

(a) An overstatement of the evidence of Ms Adkins, as opposed to an oversimplification of her evidence in referring to her having identified clothing found to be in possession of Mr Irving. Ms Adkins had identified the shirt by reference to its sleeves, although she did not identify it from the main body of the shirt; or

(b) An overstatement insofar as she stated that two bank officers had identified Mr Irving as the person who had committed the Robbery. Whatever the weaknesses in that identification, the statement was accurate.

• [388] The Defendants admit that, yet again, the wrong criminal history was presented to the Court. However, unlike the case with respect to the first bail application, the criminal history attached to Ms Pfingst's affidavit omits a failure to appear in the Cairns Magistrates Court in April 1993, which is a factor which would have weighed against Mr Irving in an application for bail.
• [389] While Ms Pfingst's affidavit could have been more precise as to the basis of Ms Adkins identification and the lack of identification by Ms Oastler and Ms Redgen, the affidavit was not inaccurate or misleading. I do not find that the affidavit was deliberately skewed in favour of the prosecution such that Mr Irving would not obtain bail on the Armed Robbery Charge.

• [390] Mr Irving also submits that Ms Pfingst had failed to set out exculpatory evidence by other witnesses who failed to identify Mr Irving and further that she influenced the evidence of those who did. He also alleges that some witnesses had been shown a photograph of Mr Irving by Officer Reid and Mr Hogan which contaminated the photoboard identification process further and that there was a deliberate attempt to suppress the evidence by Ms Pfingst, which would have exposed that that was the case.

• [391] Mr Kerr followed the Robber when alerted by Ms Adkins as she was walking quickly along Hartley Street. He described the person in his original statement as wearing a brightly-coloured long-sleeve shirt made up of different colours and a pair of dark trousers. As stated above, Mr Kerr saw the person enter one set of units, exit and run to the next set of units and then an old model sedan leave driven by a man in his 20s with a fair complexion and the male person lying across the back seat, who he states he had previously followed. The person in the back seat was face down.
• [392] Mr Kerr had been unable to identify anybody when shown the photoboard. Mr Irving submits that the Court should infer the failure by Ms Pfingst to prepare a statement to that effect was because Ms Pfingst intended to avoid converting any exculpatory evidence obtained into statements.
• [393] Ms Pfingst's statement stated, "I then showed Keith Kerr the photo board, however he did not identify the offender."[368] This was also referred to in the summary of identification evidence in the committal brief.[369] A statement of Mr Kerr, which was provided shortly after the Robbery, but prior to the photo identification, was otherwise included in the brief.[370]
• [394] Ms Pfingst's statement referred to the fact that she had videoed and audio taped the identification by Mr and Mrs Kerr and marked the tapes "4".[371] Those tapes were tendered at the committal hearing. It was only put to Ms Pfingst in cross examination that she had not prepared a statement of Mr Kerr after the photoboard, to which she said "not that I recall, no.",[372] not that she had failed to do so deliberately.
• [395] In relation to Mr Kerr's evidence, no evidence was withheld by Ms Pfingst that was exculpatory of Mr Irving, even though no addendum statement was produced by Mr Kerr. His lack of identification was set out in Ms Pfingst's statement, as well as the summary of statements. Indeed, at the trial, Mr Kerr was asked in cross-examination about the fact that he had not identified anybody on the photoboard.[373]

• [396] Mrs Kerr had also followed the Robber with her husband and Ms Adkins down Hartley Street. She observed the car registered to Mr Pfingst leaving the units and saw dark coloured trousers on the back seat of the vehicle as it left at speed. She had described the person she followed as a tall person, approximately six feet, with dark hair tied up in a ponytail. She described the Robber as wearing a dark hat, a multi-coloured shirt and a dark pair of pants. She gave evidence that she had also seen him before the Robbery standing outside for some time.
• [397] Mr Irving submits that Ms Pfingst embellished Mrs Kerr's evidence in relation to the photoboard and the shirt identification.
• [398] Mrs Kerr identified Mr Irving in the photoboard identification. Mr Irving, however, contends that her statement was significantly stronger in terms of the identification than the record of interview.
• [399] Further, counsel for Mr Irving contends that Mrs Kerr had been shown photographs by Officer Reid and Mr Hogan on 22 March 1993, which, more probably than not, were photos of Mr Irving taken from Ms Parker. I have dealt with this matter above. The evidence supports the fact that a photograph had been obtained from Ms Parker by 1 April 1993 by a police officer. That photograph has not been identified. Mr Irving's evidence was that Exhibit 4 are photographs which had been taken from Ms Parker. Those photos were not shown to Mr Hogan by counsel for Mr Irving who called him, nor was it proven as a matter of fact that any photos were shown to Mr and Mrs Kerr. Exhibit 12, which made reference to photographs having been shown, was not admitted in relation to the truth of its contents. Nothing was said by Mrs Kerr to suggest that she had seen a photograph of Mr Irving before reviewing the photoboard. The reference to "The only one that looks familiar to me would be number seven" is equally consistent with the fact she had seen the Robber both before and after the Robbery.
• [400] It was put to Ms Pfingst that she would have been concerned if anybody shown the photoboard had been shown photographs of Mr Irving beforehand, to which she agreed.[374] However, Ms Pfingst stated that Ms Parker had not given the photographs to her and that she did not know what the photographs were that Mr Hogan and Officer Reid had shown to four of the identification witnesses. Nor could she recall seeing the reference on the Special Occurrences Sheet that photographs may have been shown to identification witnesses, such that she was on alert that it had occurred. As discussed above, the evidence does not establish that Ms Pfingst knew about any photographs produced by Ms Parker prior to 1 April 1993, or what, if any, photographs had been shown to four of the identification witnesses. Nor was that established as a fact by Mr Hogan. Notably, if an error had been made by showing witnesses a photograph of Mr Irving, it had not been made by Ms Pfingst, making it even less likely she would have sought to have suppress the photographs or the fact that an error had occurred.

(a) She could identify the person in number 7 because of the colour of his skin, whereas she states in her addendum statement that she stated "I say this because of the colour of his skin, his complexion was dark but olive, not Aboriginal"; or

(b) There is no reference to the fact that she covered his hair up on the photo board, whereas she states in her statement "I just know that when I covered number 7's hair up on the photo board and that that was the face that has stuck in my mind as being the male I saw on the 19th of March 1993 outside the shop and again the male I followed down Kidston Street".

• [403] Mr Irving also makes reference to Mrs Kerr's addendum statement in respect of the clothing, although he does not identify the respects in which it is said to be embellished. Mrs Kerr said, in relation to the clothing shown to her during the interview, that the pants were similar and that the shirt looked similar. However, by reference to her original statement provided the night after the Robbery, where she described the shirt as mauve and purple and those sort of colourings in them with long sleeves, she stated the shirt was similar. She also made reference to the black colours in the shirt as well.[376] Her statement in relation to the clothing was generally consistent with what she had stated in the interview.
• [404] Mr Irving contends that the Court should infer that Ms Pfingst inappropriately influenced Mrs Kerr in making the statement because she knew that Mrs Kerr's identification evidence was weak.
• [405] While Mrs Kerr did not, in the record of interview, state that the Robber was "not aboriginal" in terms of his complexion, she did state "He looks swarthy enough... I recall him being of dark olive skin".[377] That is consistent with what is recorded in the addendum statement. To the extent that there is a reference to "not aboriginal", it is likely to be a comment made by Mrs Kerr when the statement was being prepared. In any event, it does not suggest any influence being exerted over her or any embellishment of her evidence.
• [406] While Mrs Kerr did not refer to covering up the faces on the photoboard in the interview, Ms Pfingst had invited Mrs Kerr to cover any part of the photographs' face or hair.[378] Mrs Kerr made specific comment that the Robber had "a long - a face that looked like that shape."[379] That would have been recorded on the video tape which was not available by the time of trial. The fact it is being videoed however makes it unlikely that Mrs Kerr did not cover the hair and Ms Pfingst made it up, or in fact covered it herself.
• [407] When Mrs Kerr was asked whether "[Ms Pfingst] or any other person of authority or any person with knowledge influenced you in your thinking that it was number 7?", Mrs Kerr responded, "absolutely not, I haven't seen anybody." It was not specifically put to Ms Pfingst that she had altered, changed or strengthened Mrs Kerr's statement. Nor when she was asked about the photoboard evidence, although reference is made to the statement and the comment "not aboriginal".

• [410] Ms Andrews worked at the post office near the Bank. She was interviewed on 1 June 1993 and shown both the photoboard and clothing, which consisted of dark trousers, shoes and the shirt taken from Mr Irving's bag, which he admitted he owned.[385]
• [411] Mr Irving again draws a comparison between Ms Andrews record of interview and her statement. Her statement stated:[386]

"She then showed me a photo board and I picked the male in number 7 as the male who I think was standing on the corner. I say this because of the skin colouring, the colour of the hair and the shape of the face and neck."

• [412] Counsel for Mr Irving submits that no clear identification of photograph number 7 was made by Ms Andrews in the interview. Mr Irving also points to the fact that, in the record of interview, Ms Andrews said nothing about the shape of the Robber's face and neck. While Ms Andrews had commented on the similar skin colouring and the similar colour of his hair, she stated "I wouldn't say yes, that was him, not at all." Further, Mr Irving also states that Ms Andrews' statement did not refer to the fact that she said he was "a big man, tall".
• [413] Similarly, Mr Irving contends that the evidence as to the shirt was stronger in her statement than in her interview. In her statement she said "I can say that the shirt is a vision [sic] of the shirt that I saw him wearing that day. I say this because of the colour and the pattern". Whereas in her interview, "the colouring is there. It wasn't the pattern and it was this sort of look about it, but as I say, the swirly patterns, yes, I know..."[387]
• [414] Mr Irving contends that Ms Pfingst inappropriately influenced Ms Andrews in the making of the statement because she needed the identification evidence and because she knew that the identification evidence of Ms Andrews was weak and unlikely to support a conviction.
• [415] Mr Irving further makes the same contention as was made in relation to Mrs Kerr, that it is likely that Ms Andrews was shown the photographs by Officer Reid and Mr Hogan on 22 March 1993. For the reasons stated previously, I do not find that that was the case.
• [416] It was identified at the outset of the interview that Ms Andrews had seen a man standing on the corner for some time prior to the Robbery.[388] It is evident that that was who she was being asked to identify. Ms Andrews' statement did in fact refer to the fact that the Robber was "about 6 foot tall, solid build and he had big shoulders."[389]
• [417] In her original statement, Ms Andrews had also described a "long sleeve multi coloured shirt. The sleeves were floppy, flowing, not tailored." She also recalled that the main colours were "black, yellow and a purple."[390] It had a pattern on it but it was hard to describe. There were swirls and different patterns.

• [422] Ms Lovell was an Australia Post employee. She was interviewed on 1 June 1993.
• [423] Counsel for Mr Irving submits however that the Court should find, on the balance of probabilities, that Ms Lovell did see the photographs of Mr Irving prior to viewing the photoboard after being shown them by Officer Reid and Mr Hogan. I have addressed this above and do not make such a finding.
• [424] Mr Irving contends that Ms Lovell's statement is stronger than her record of interview because she had not mentioned anything about the shape of the face and neck in her interview when choosing photograph number 7. However, in her statement she stated that "I picked the male in number 7 as the male who I think was standing on the corner. I say this because of the skin colouring, the colour of the hair and the shape of his face and neck."[394]
• [425] Further, Ms Lovell's statement in relation to the shirt shown to her on that day stated that "I can say that is the shirt the male was wearing that day. I say that because of the colour and the pattern". Whereas after being shown the shirt in the interview, she stated that "it was colourful and they are colours are in the colours. But I couldn't be sure to say that this is the colour shirt. The sleeve - the sleeve yes, I would say, yes."[395] While Ms Lovell did not mention the pattern, she did mention the "colours" which could refer to a pattern of colours.
• [426] In her interview, Ms Lovell confirmed that she had not been influenced by anyone in choosing photograph number 7 and was also asked whether Ms Pfingst had influenced her in making her decision as to the shirt. Ms Lovell signed a statement confirming that no one had influenced her in making her decision.[396] The interview was video and audio taped.
• [427] When Ms Pfingst was asked about Ms Lovell's statement in cross-examination, she said that was Ms Lovell's statement and that is what she said and agreed that she had added something additional in her statement from the record of interview.[397] It was not specifically put to Ms Pfingst that she had changed Ms Lovell's evidence or sought to influence her.
• [428] While it was after the interview and when Ms Lovell signed the statement, the fact that Ms Lovell was not so influenced is given some support by the evidence she gave at trial. She confirmed in her evidence-in-chief that she had picked photograph number 7 as the person she saw standing outside the post office on 19 March 1993. In relation to the shirt, when asked if that was the shirt she was shown, she said "I would say yes" and in response to what she could say about that shirt, she said "what really got me was the colours and it was loose fitting. That's what drew my attention, the colours yes". When asked whether that was the shirt that the man on 19 March 1993 was wearing, she said, "I'd say yes". In cross-examination she had agreed that when she was shown the photo board, she was not quick to pick photograph number 7 and that she had commented on the skin colouring and the hair.

• [430] Given Mr Irving's case is a circumstantial one, it is appropriate to consider all of the circumstances surrounding the identification evidence.[399] I have considered the contentions of the identification evidence in its totality, as well as considering it separately as set out above. Even having regard to the fact that there are differences for a number of witnesses between the record of interview and their statements, I do not find that, on the balance of probabilities, it is to be inferred that the difference are the because Ms Pfingst embellished, changed or influenced their evidence when preparing their statements. I consider that the most likely reason for the difference is that during the statement taking process further detail was added by the witnesses. All of the witnesses confirmed that they had not been influenced in making their decision in the interview and in their signed statement. There was no common change between the records of interview and the statements suggesting that it was anything other than the fact that the individual was elaborating on their evidence.
• [431] That is particularly so given that the identification evidence by the witnesses was taped or, in a number of cases, videoed and audio taped which were tendered at the committal hearing. It was apparent from the comparison between the records of interview and the statements what the differences were. Ms Pfingst would have known that that was the case given she included the video and audio tapes in her statement for the committal hearing. Similarly, while those who do not identify either the shirt or Mr Irving, the non-production of a statement would have had significance if that evidence had not been referred to in Ms Pfingst's statement and a record of their response had not been made. It is evident that the video tapes and audio tapes were tendered at committal through Ms Pfingst.
• [432] There is no evidence that Ms Pfingst was in any way responsible for the fact that transcripts of the interviews appeared to be provided on the eve of trial. It appears from the evidence that the transcripts were received from the Crown and stamped as received by Mr Irving's solicitors on the morning of the trial, although it was submitted by Mr Irving's counsel at the High Court that it did not appear that they made it to court and that the transcripts were passed across the bar table. Ms Pfingst had, however, referred to those transcripts and the videos in her statement of 23 June 1993. While clearly the defence did not appear to get the relevant material until the last minute, whatever the explanation, it does not appear to be something that can be attributed to Ms Pfingst seeking to suppress evidence. None of the witnesses were called to give evidence in this trial in order to prove that Ms Pfingst had influenced or changed their evidence. In that regard, Mr Irving submitted that there was no inference because they were not in either Mr Irving's or the Defendants' camp.

• [434] Mr Irving submits that the Court should find that Ms Pfingst failed to take a statement from Carla Paynter and gave false evidence at the committal proceeding that she did not take a statement because Ms Paynter did not see the Robber's face. Mr Irving also contends that Ms Paynter was not asked to identify or look at the photo board by Ms Pfingst despite the fact that she saw that person ostensibly from the front.
• [435] It is uncontentious that Ms Paynter contacted police on the basis she may have relevant information about the Robbery. Ms Paynter was interviewed by Ms Pfingst on 8 June 1993. Ms Paynter stated that she had observed a person on the corner outside of the post office on 19 March 1993 when she was at the post office to post a letter. The time she estimated seeing him was some 35 minutes before the Robbery. She did not identify the shirt shown to her as the one worn by the person, she did not see the shoes and thought the Robber was wearing dark trousers. She was not shown the photoboard and no statement was taken.
• [436] Ms Pfingst, in her statement of 23 June 1993, stated that:[401]

"On the 8th of June 1993 I spoke to a Carla PAYNTER who had contacted the CIB Office on the 22nd of March 1993 stating that she had seen the male standing on the corner at approximately 1.45pm on Friday the 19th of March 1993.

Carla PAYNTER then came to the CIB Office where I showed her the clothing. This was videoed and audioed [sic] taped. She was unable to identify the clothing. As she had not seen the males face she was not shown the photoboard."

• [437] When asked about Ms Paynter in cross-examination at the committal hearing, Ms Pfingst stated:[402]

"I can't recall exactly - she was either going to the post office or to the bank and she recalled seeing a male person standing there. But then, when I asked her if she could describe him, she did not see his face."

• [438] However, in the recorded interview, when Ms Paynter had said that she could not identify the shirt shown to her by the police officer from the back, she stated that she only saw him from the front.[403] Mr Irving submits that that would suggest that she had seen his face. Further, Ms Paynter did not say in the record of interview that she did not see the person's face.
• [439] The suggestion by Mr Irving that Ms Paynter saw the Robber's face is based on the fact that when she was asked about whether she recognised the shirt, she said that she did not see the back of the shirt, and that she only saw the front of the shirt.
• [440] When it was put to Ms Pfingst in cross-examination that she was completely incorrect, when she gave the above evidence at the committal hearing, she stated, "No, because I'd already spoken to her on the phone. Then I asked her to come down to have a look at clothing".[404] She was however candid that she could not recall whether Ms Paynter had said in the phone conversation that she did not see his face.[405] Ms Pfingst rejected the suggestion that Ms Paynter's statement was inaccurate and that it was another statement from her that was an embellishment of what a witness said.[406]
• [441] Ms Pfingst's statement prepared for the committal hearing refers to Ms Paynter having contacted the Cairns CIB on 22 March 1993.[407] There is also a reference in the running sheet to:[408]

"Information received from Kahla [sic] ... who stated that she had seen the male standing on the corner on Friday lunch time. Couldn't assist with description, just recalls the floral shirt and that he was wearing sunglasses and a hat..."

• [442] Ms Pfingst gave evidence that she had misspelled Ms Paynter's name and that she had been responsible for that entry.[409] The entry is consistent with her evidence that Ms Paynter had volunteered information.
• [443] Consistent with Ms Pfingst's evidence that she had been told that Ms Paynter had not seen the Robber's face is the fact that when Ms Pfingst showed Ms Paynter the shirt, Ms Pfingst said "This is the back of it". It was in response to that that Ms Paynter said that she did not see the back of the shirt, and only saw the front. While Ms Paynter's response brought into question whether she had not seen the person's face, it doesn't mean she necessarily did. It does not establish that Ms Pfingst lied in her evidence at the committal when she stated that Ms Paynter did not see his face. Although not referred to in the record of interview Ms Pfingst's understanding that she had been told that Ms Paynter had not seen his face is consistent with the entry of 22 March 1993 that she could not give a description of the person. I do not find it is probable that she lied in the evidence she gave at the committal.
• [444] As to the lack of providing a statement, unlike the bank officers, Mr and Mrs Kerr, Ms Andrews and Ms Lovell, the person who Ms Paynter saw may or may not have been associated with the Robbery. Ms Paynter did not recognise the clothing. That was referred to in Ms Pfingst's statement. Ms Pfingst also referred to the fact that the interview was videoed and audio-taped, although it was not tendered in evidence. Ms Pfingst should have made further enquiries of Ms Paynter to clarify her comment that she saw the front of the shirt but had previously told Ms Pfingst she could not give a description of the person. . However, in all likelihood it was mere oversight not to enquire further, given that she had recorded in the telephone conversation entry on 22 March 1993 that Ms Paynter could not give a description of the person she had seen, and could only give details as to the person's clothing.
• [445] While Mr Irving submits that the failure to prepare a statement of Ms Paynter reflects Ms Pfingst's modus operandi to only prepare statements that were favourable to the prosecution, which presumes Ms Paynter's evidence was relevant and material to the case. That is not apparent on the basis of what Ms Pfingst was told by Ms Paynter. There is nothing to suggest Ms Paynter's evidence was necessarily relevant or material evidence, let alone exculpatory to Mr Irving. Further Ms Pfingst had disclosed in her statement that she had spoken to Ms Paynter and the fact that Ms Paynter had not identified the clothing and that she videoed the interview. Those factors weigh against such a given that it could have been requested by the Defence for review, which Ms Pfingst would have been aware of given her experience. In the circumstances, there is no proper basis to infer that Ms Pfingst did not prepare a statement for Ms Paynter as part of an overall strategy to withhold evidence exculpatory of Mr Irving. Rather the likely explanation is that Ms Pfingst did not consider Ms Paynter's evidence relevant.

• [447] I have discussed the samples taken from Mr Irving above as a result of the s 259 Application. Those samples were to be tested against trousers and shoes that were found several months after the NAB robbery on 10 May 1993,[410] as well as, the shirt found in Mr Irving's bag. Reference was made by Ms Pfingst in her s 259 Application to amounts of hair found throughout the clothing.
• [448] Counsel for Mr Irving submits that Ms Pfingst misled the Magistrate at the committal hearing as to the status of samples in circumstances where the samples had not been sent off to Brisbane for testing as Ms Pfingst had said under oath. Counsel for Mr Irving also submits that Ms Pfingst allowed the Magistrate to believe that the results of the samples sent away had been received, referring to the Magistrate stating that a document that was marked as Exhibit 12 at the committal hearing was the results of the samples taken, when the results had never been received.
• [449] At the committal hearing, Ms Pfingst was asked questions about the samples that were taken pursuant to the s 259 warrant. In that regard, she was asked:[411]

"And did you get any results from those samples or have you got any results? - No, there was nothing on the clothing after it was examined.

And how do you say that those samples were relevant to the accessory charge? - Well in relation to the shirt, any sweat or hair or anything like that, that would have been found on the hair, would have been useful to compare with the samples.

So, are there to be any further examination of those samples taken, at all? - Only if something else comes back on the shoes. Something obvious, but it doesn't look like it. I've only just sent it down for the comparison of the soles.

• [450] Mr Irving contends that the evidence of Ms Pfingst regarding the samples at the committal hearing was misleading.
• [451] Mr Irving contends that Ms Pfingst knew that there would not have been results because the bodily samples taken from Mr Irving under the s 259 Warrant had never been sent for analysis. Mr Irving also submits that Ms Pfingst's evidence that no results had been returned regarding the shirt or the trousers, and that there would be no further examinations of those samples taken unless something came back from the shoes, was misleading because the only item that had been sent for examination were the shoes. While the latter was pleaded in the 7FASOC,[412] the former was not.
• [452] At the present trial it was suggested to Ms Pfingst that she had no intention of getting the items of clothing and samples tested. She responded that the shoes had been sent away and that they had not received the results at the time of the committal hearing.[413] That was consistent with what she had stated in the committal. [414]
• [453] As to whether the hair samples taken from Mr Irving had been sent for testing, Ms Pfingst said that she could not recall what happened to them.[415]
• [454] As to Mr Irving's submission that Ms Pfingst allowed the Magistrate to make the results of the samples taken to be Exhibit 12, Ms Pfingst referred to Exhibit 12 correctly as "A receipt in relation to the exhibits taken as virtue of that warrant", to which the bench referred it as being "the results of the samples". In fact the document was a receipt signed by Mr Irving of the samples which were taken from him on 19 May 1993.[416] The misdescription by the Magistrate cannot be attributed to Ms Pfingst. It clearly was the result of a mistake by the Magistrate himself. A police prosecutor was appearing at the committal. If any correction was to be made it should have been made by the police prosecutor or Mr Irving's legal representative. The allegation is misconceived.
• [455] The evidence in relation to the status of the testing of the samples taken from Mr Irving and of the clothing at trial was unsatisfactory. It is uncontentious that no forensic evidence was led at the trial.

• [462] Mr Irving made a complaint to the Criminal Justice Commission (CJC) about the police conduct in the investigation of the Robbery, including the conduct of Ms Pfingst. That was the subject of an investigation in October 1994. The CJC determined further investigations were to be made by the QPS in relation to Ms Pfingst's evidence at the committal and the account of a Linda Birchley and for possible disciplinary action in the event she returned to duty in late April 1995. On 12 May 1995 Ms Pfingst retired from the QPS on medical grounds.[419]
• [463] Notwithstanding that the investigation occurred a considerable period after Mr Irving had been convicted in the District Court, Mr Irving contends that Ms Pfingst also gave false evidence to the CJC, which is a further part of the continuum of showing the propensity of Ms Pfingst to seek to cover up what she had done in relation to the evidence for Mr Irving's case. Mr Irving contends that Ms Pfingst gave false evidence to the CJC that some of the samples were not sent to Brisbane for testing because Ms Birchley, who was a scientific officer in the QPS, had said that the samples were dog hair. Mr Irving called Ms Birchley on the basis that she would say that conversation would never have occurred.

• [464] Mr Irving sought to tender a transcript of an interview between Ms Pfingst, Kerry Kelly, Detective Inspector John Flanagan and a union representative (the Pfingst Transcript).[420] Mr Irving also sought to tender a transcript of Mr Kelly talking to Ms Birchley dated 29 November 1994 (the Birchley Transcript).[421] Objections were made in relation to the admissibility of both transcripts. Evidence was given by Mr Kelly on a voir dire basis in order for a determination to be made at a later point in time as to the admissibility of the relevant evidence.
• [465] Mr Kelly was an investigator with the CJC in 1994. He retired in 2005. He stated that a transcript of an interview would be prepared by providing the audio tape to administration staff to transcribe and they would return the transcript to you for correction, or you would transcribe your own transcript and correct it.[422] Such corrections would be done by reference to the audio tape.[423] He believed that the reference at the end of the Pfingst Transcript, "1-Pfingst.SFS", may have been a reference to the administrative staff member who typed the transcript. He has no specific recollection of having corrected the transcript, but said it was his duty to correct all transcripts.
• [466] Mr Kelly stated that if he did check the transcript, he would make sure that the transcript was extremely accurate.[424]
• [467] There are a number of errors in the Pfingst Transcript, particularly in terms of the names of individuals, including Ms Pfingst, Ms Oastler and Mr Sturgess.[425] Mr Kelly agreed that if he checked the transcript he would have expected that he would have picked up those errors in the names. He further agreed that if the responses contained in the transcript did not make sense, he would have identified those and checked them against the audio tape had he reviewed the transcript.[426] He also agreed that an answer which did not make any sense would have been something he would have noticed if he had checked the transcript, but also conceded in re-examination that, on occasion, some things that were said that just did not make sense. However, in that circumstance, the tape integrity was maintained.

"The first defendant gave false evidence on 25 October 1994 to the Criminal Justice Commission Investigators Kelly and Flanagan that she had a conversation with Linda Berchley [sic] during which Birchley [sic] had stated to her that forensic samples were dog hair, when no such conversation had taken place."

• [472] Ms Pfingst gave evidence that, other than having a recollection of the fact of the discussions having occurred, she could not recall the content of the discussions.[435] She stated that she was not disputing the content of the conversation because she could not remember it.[436] She stated that she had read the transcript through and noted the inaccuracies in terms of people's names and things that did not make sense. Ms Pfingst said that she could vaguely recall a conversation with the CJC that Ms Birchley had told her that she had looked at the hair and it was dog hair and that she vaguely remembered telling the CJC that.[437] She said she was not denying that she told the CJC that she had a conversation with Ms Birchley about the samples on the clothing being dog hair, but that she could not recall the conversation.[438]
• [473] The Defendants contend that Mr Irving has not proven that the contents of the Pfingst Transcript were statements made by Ms Pfingst given Mr Kelly's evidence that it is likely administrative staff prepared the Pfingst Transcript and that he could not say positively that he had checked the it for inaccuracies. Further, some mistakes that were pointed out to him were matters which he considered he would have detected, suggesting that he did not, in fact, correct the Pfingst Transcript.
• [474] The Defendants submit that even if the Pfingst Transcript was admissible under s 92 of the Evidence Act, the Court has a discretion under s 98 of the Evidence Act to reject the statement on the basis that it is so long after the events in question, there is a lack of certainty as to its accuracy and the tapes are no longer available.

• [478] Operation 3UP was commenced on or about 18 May 1993. The Officer-in-Charge at the time, Mr Hartwell, established the operation to see if there was a link between three robberies in the Cairns area. A number of officers were nominated to be utilised for the operation which included the investigating officers in charge of the 1992 NAB robbery, the Robbery and the 1993 NAB robbery. A running sheet was established for the operation (the Operation 3UP Running Sheet), which included entries from the Robbery investigation, for which Ms Pfingst was the investigating officer. [448]
• [479] Mr Irving submits that Ms Pfingst failed to include, in her statement, or the brief for the committal proceedings, any reference to interviews and contact with Ms Parker or Operation 3UP. Mr Irving also submits that the material relating to Operation 3UP, particularly photographs[449] and descriptions of the robber in the 1992 NAB robbery, should have been disclosed. Mr Irving submits that the reason for that exclusion was that Ms Pfingst did not want to disclose that there was information suggesting that the same person conducted three robberies in circumstances where photographs were available of one of the robbers and that those photographs were not of Mr Irving. Mr Irving contends that that evidence would have provided the basis for a defence based on reasonable doubt.
• [480] It is well established that the prosecution owes a duty to disclose to the defence, on a timely basis, material that tends to reflect materially on the credibility of the prosecution witnesses and tends to weaken the prosecution or assist in the defence case.[450]
• [481] The Commissioner's circular updated 28 July 1988 stated in relation to committal briefs:

"The other major requirement of the guidelines is that of full disclosure of all evidence at the committal of the proceedings. Subject to the exceptions contained in the guidelines, all admissible evidence obtained by investigating police must be included in the brief of evidence..."

• [482] Operation 3UP was established shortly after the arrest of Mr Irving. As a result the Operation 3UP Running Sheet and an exhibit's book were established for Operation 3UP. The majority of the entries in the exhibits book and a significant number on the Operation 3UP Running Sheet related to the investigations for the Robbery. Mr Hartwell decided to establish Operation 3UP to determine whether the same offenders were involved in the 1992 NAB robbery, the Robbery and the 1993 NAB robbery. Mr Hartwell's evidence was that:[451]

"Okay. Now, in respect of the setup, can you explain to me whether the - how the investigations for the three robberies were done?‑‑‑From my recollection there were three separate investigators for each of the robberies, and they ran those investigations as individual investigations, so that the evidence of one robbery did not taint the evidence of the other robberies. They were kept as separate investigations. But when we established Operation 3UP, which was subsequent to the arrest of Mr Irving, it was to determine whether he may have been involved in the other two robberies without ignoring any other evidence implicating possible other suspects."

• [483] Mr Hartwell stated that he wanted to keep the investigations separate so that they did not taint each other, and that they did not focus on one suspect.[452] This was consistent with Ms Pfingst's understanding that she was only investigating the Robbery and not the NAB Robberies. Mr Irving submits that it was believed that he was likely to be the robber in all three robberies.[453] The evidence did not however support the fact that Operation 3UP acted on the basis of a belief that Mr Irving was the robber in all three robberies. It is an overstatement of the evidence to suggest that the police believed Mr Irving was likely to be the robber in all three robberies.[454] That was the matter being investigated. DSS Kinbacher, in his discussions with Ms Parker, stated that they suspected Mr Irving of the jobs, referring to all three bank robberies, but commented that possibly she could clear him as being a suspect in the Robbery and probably the NAB Robberies.[455] Having listened to the recording I consider that DSS Kinbacher was overstating the position to try and illicit assistance from Ms Parker. His evidence at trial was that they were merely investigating, as part of Operation 3UP, whether there was such a link. That is consistent with Mr Hartwell's evidence and I accept that to be the case.
• [484] There were some similarities between the descriptions of the robber and the modus operandi as identified by Mr Irving, at least insofar as the robber involved in the 1992 NAB robbery wore black shoes which had white on them, that the trousers were black trousers, that the man was wearing a beret-type hat and was using a yellow XXXX bag. There were also some similarities of the physical descriptions of the robber.[456] The robber in the 1992 NAB Robbery also had a shotgun.[457] Of course, the point of comparisons are difficult given that no photographic or video evidence of the Robber in the Robbery was available from the Bank, unlike the 1992 NAB robbery. A number of those similarities can only be regarded as generic.[458] Caution must be exercised insofar Mr Irving's submission suggests that there is a uniformity of the description of the robber in the 1992 NAB robbery in terms of height, complexion, hair colour and build, which was not in fact the case.

"Yes, correct. If Mr Irving proves that he's not the person in the photograph and is still assumed the same person who committed all three robberies, then Mr Irving is not guilty for the second robbery? - I couldn't make that assumption because all it says is he didn't do the first robbery, doesn't mean he didn't do the second or the third. My viewing of that, and I can't recall what Mr Irving looked like in 1993 and I can't say whether that photograph resembled him in 1993, but if that is not Mr Irving, then that excludes him from the first robbery, but it doesn't exclude him from number 2 or number 3.

No, but if that would certainly be relevant in that line reasoning to disclose, wouldn't it? - No, because he was never charged in relation to the first or third robbery. He was only charged in relation to the second where there was sufficient evidence to charge.

So you say that if he's subject of an investigation and you assumed that he was the robber in each robbery, which is the assumption we're proceeding on, but you don't have to disclose this information, because he wasn't charged with the first robbery or the third robbery? - I'm sorry, I'm not quite following your line of questioning. Because if he's excluded as a suspect in the first robbery, then he's no longer the suspect and it's no longer relevant to the second offence where the evidence has shown he was involved and, obviously, the third robbery where he wasn't charge, there wasn't sufficient evidence to show he was involved in that offence. So the only offence he was charged with was the evidence where - the offence where, obviously, the evidence indicated that he was involved in the robbery.

So are you saying the evidence, then, from the first and the third robbery is entirely irrelevant to his being charged with the second robbery? - If there's no connection to the three robberies, yes.

If there is no connection? - If there's no connection between the three robberies. And that was the purpose of 3UP was to establish whether there was a connection, because we had an armed robbery - an armed robbery where we have a suspect - a definitive suspect. Did he commit the other two? If it was proven that he had committed the other two, no doubt he would have been charged at the time.

Right. So you say because it was - so that is the reason Operation 3UP concluded, was it, because it was established there was no connection? - All I can say is that there's no evidence to implicate him in the robberies, so if he wasn't implicated and there's no evidence to prove it, then he wasn't charged."

• [496] I accept Mr Hartwell's evidence in that regard.
• [497] As a general rule, the evidence of other discreditable acts of an accused is generally inadmissible.[474] The Crown would not have been able to lead evidence of its other investigations in relation to Operation 3UP,
• [498] The present case is the converse of that considered in determining whether propensity evidence may be admitted. In this case, it is said that the evidence is relevant because by proving that Mr Irving did not commit another robbery, that would affect the probability of him having committed the Robbery with which he was charged.
• [499] Counsel for Mr Irving submits that:[475]

"The investigating officers had good reason to believe that the robber was the same person given the striking similarities in appearance and in particular the use of the "XXXX" bag for undertaking the robbery."

• [500] As was submitted by counsel for Ms Pfingst, that is not sufficient to make evidence admissible.
• [501] Further, while there were suspicions that Mr Irving may have committed the other robberies, I accept the Defendants' submissions that those suspicions never got to the level of belief. Nor is it correct to submit that Mr Irving had been positively excluded as fitting the description of the robber based on the photographs from the NAB Security Video. Ms Pfingst's evidence was that she thought it could have been Mr Irving in the photographs from the 1992 NAB robbery.[476] Further, while Ms Parker did not identify Mr Irving as the person in the photographs from the NAB Security Video, she did not definitively state that the photographs were not of Mr Irving, although she said that the only thing that she could see that was similar was the nose. It is highly unlikely that Mr Irving would have sought to tender the photographs of the NAB 1992 Robbery and risk the jury drawing their own conclusions about whether or not he was in the photographs or involved with the 1992 NAB Robbery. It would have been prejudicial to do so.
• [502] Mr Irving states that Ms Pfingst must have had a strong suspicion after taking the statement from Ms Lovell that the person who carried out the 19992 NAB Robbery carried out the ANZ robbery particularly after taking a statement from Ms Lovell.
• [503] Ms Pfingst acknowledged that there were similarities between the two and that she thought the photographs from the 1992 NAB Robbery could have been Mr Irving, however she stated her focus was the ANZ Robbery and not the 1992 NAB Robbery. That was consistent with the set-up of Operation 3 UP as described by Mr Hartwell.
• [504] Mr Irving did not establish that Ms Pfingst had knowledge of the material relating to the 1992 NAB robbery which was put into evidence through DSS Kinbacher, which he contends should have been disclosed as part of Operation 3UP. Other than the photographs, Ms Pfingst did not recognise the material put to her. That material was largely tendered through DSS Kinbacher who was responsible for the 1992 NAB robbery investigation. Ms Pfingst's evidence that the majority of her knowledge was obtained through meetings in Operation 3UP as to the status of investigations with respect to the NAB robberies is consistent with Mr Hartwell's evidence that he wanted each investigating officer of the Cairns robberies to continue to be responsible for the investigation of their robbery notwithstanding Operation 3UP.

Ms Pfingst did not give evidence at the District Court trial

• [518] The Defendants admit the allegation that Ms Pfingst did not give evidence at the District Court trial. The Defendants also admit the allegation that Ms Pfingst was present on the day of sentencing on 9 December 1993, the day after the trial. However, Mr Irving alleges that he saw Ms Pfingst outside the District Court on the day of the trial on 8 December 1993. He claimed that as he entered the foyer of the court house on 8 December 1993 and he saw Ms Pfingst talking to Ms Bartlett and Detective Nolan in the foyer of the court house.[490] That was denied by Ms Pfingst. Further, Mr Sturgess denies that Ms Pfingst was at the court on that day. Ms Bartlett was not called to give evidence.
• [519] Mr Irving's evidence in this regard was not credible. Although he stated that he was distressed when he heard Mr Sturgess agreed during his evidence at the trial that the Ms Pfingst was "having an operation or something",[491] when cross-examined as to whether he told his lawyers he had seen Ms Pfingst outside, he responded that while he was pretty sure that his lawyers had seen him, he had not instructed them that he had seen Ms Pfingst in the court precinct that morning because he was feeling rail-roaded by the whole system.[492] Even though Mr Irving had experienced a last minute change of counsel and his solicitors had changed, it defies belief that he would not have informed them that Ms Pfingst was outside when he heard Mr Sturgess was saying that Ms Pfingst was having an operation, in circumstances where he had wanted Ms Pfingst called to give evidence.[493] Mr Irving had shown himself to be active and capable in the preparation of his case.[494] He had also called on his lawyers to object to the s 259 Application, as well as challenging the criminal history for his bails. Mr Irving had shown himself to be somebody capable of defending his rights, and indeed in his evidence, it was apparent that he was a man with intelligence.
• [520] Ms Pfingst explained that she had throat surgery on 1 December 1993, which was the second occasion on which she had such surgery.[495] Her evidence was that when she applied for leave in October 1993, she did not know when the trial would begin. That is supported by the fact that there would have been a running list operating in Cairns CIB. Ms Pfingst stated that she had gone into work on 6 December 1993 because she had been requested to find a witness list, which they could not find, and contact a witness. The suggestion that that demonstrates that Ms Pfingst was capable of interacting with witnesses is a significant leap. Ms Pfingst's evidence was that she was at work for a very short period of time and did not do anything else at work that day but returned home. She said that, at that time, she was having trouble speaking and eating.

• [531] Mr Irving contends that the Crown failed to provide transcripts of the audio tapes of the identification evidence until the first day of trial when they were provided to the defence at the bar table. Accepting that that is what occurred, there is no evidence to indicate that it could be attributed to a failure by Ms Pfingst. By that stage the matter was being dealt with by the Director of Public Prosecutions (DPP). There is no evidence she was responsible for the preparation of the transcripts.
• [532] Mr Irving further submits that contrary to the obligations to provide documents in a timely manner, Ms Pfingst did not provide the tape-recorded records of interview and they were only tendered in court at the committal hearing. The evidence, namely the tapes, were referred to in the index to the committal brief as well as being tendered at the committal. The committal brief was provided to Mr Irving's solicitor. While Mr Irving stated that he did not see the tapes tendered at the committal hearing, the transcript of the committal hearing plainly shows that they were tendered. The police prosecutor confirmed at the committal hearing that s 110A of the Justices Act 1886 (as it then was) had been complied with.[514] There is no evidence that they were withheld by Ms Pfingst. Mr Magoffin, Mr Irving's solicitor did not raise any issue about the late provision of that material before the Magistrate at the committal hearing.[515] I am not satisfied that the tapes were withheld from Mr Irving. It is clear from Ms Pfingst's statement and the index to the committal brief that they were in existence and Mr Irving and his solicitor were aware of them prior to the committal hearing, even if the physical tapes had not been provided. Given Mr Magoffin was not called to give evidence in that regard I do not find that the physical tapes were not provided.

• [533] Mr Irving submits that Ms Pfingst interviewed him on 18, 19, 20 and 25 May 1993 where the conversations were recorded on a microcassette tape recorder. According to Mr Irving, Ms Pfingst did not inform him he was being recorded and he did not know that he was being recorded on any of those occasions.[516] Mr Irving submits that the fact that the transcripts had "inaudible" in part supports the fact that the microcassette tape recorder was hidden.
• [534] Ms Pfingst denies that she surreptitiously recorded any of the conversations with Mr Irving. She stated that when she used the microcassette recorder in the field, it would be in her hand and not concealed. She also stated that as a plain clothes detective, she wore skirts and tops to work and generally did not have clothes with pockets in order to conceal any such microcassette recorder.[517] She further stated that if a table was available during the interview, her microcassette recorder would be on the table and that for each of the interviews recorded with Mr Irving,[518] the microcassette recorder was visible on the table.[519]
• [535] Mr Sturgess' recollection in this regard was very vague, but he considered that the recording device would have been plainly obvious. He also noted that the quality of the microcassette recordings were hopeless and of very poor quality, consistent with the poor quality of the transcripts.[520] I accept Mr Sturgess' evidence in that regard, and infer that the poor quality of the transcripts produced were due to the poor quality of the microcassette recorders, rather than the fact that the microcassette recorder had been hidden. Nor, having regard to the content of the conversations, would it make sense for the microcassette recorder to be hidden by Ms Pfingst. The recordings were of straight forward matters, such as asking him about whether items in a bag were his, asking him whether he would take place in a line up and give body samples, informing him about the s 259 Application and then informing him after the s 259 warrant had been obtained and the process that was going to be adopted. The subject matter was uncontentious and no probing questions were asked such that it was unlikely to have led to any admissions being made by Mr Irving. Indeed, he did not dispute the accuracy of the transcripts produced from the taped conversations.

• [538] There are a number of matters the subject of the 7FASOC which were not the subject of submissions by Mr Irving. Some were not the subject of any evidence. I address two matters very shortly for the sake of completeness:

(a) First, it is alleged that Ms Pfingst omitted reference to the Robber's height and age in her statement.[524] That was admitted. It is further alleged that Ms Pfingst omitted to ask witnesses the age of the offender including of Mr Kerr whose statement was taken by Mr Hogan.[525] It was admitted that Ms Pfingst did not obtain the Robber's age from witnesses. The statements were included in the brief. The statements did include descriptions with varying detail which were in varying degrees consistent with Mr Irving's description and support reasonable and probable cause. Ms Pfingst was not cross-examined about the omissions, nor have any submissions been made to these facts. The omission to obtain the Robber's estimated age either alone, or in combination with other factors, does not establish absence of reasonable and probable cause given the other evidence supporting his identification as the Robber; and

(b) It is alleged that the broadcast description of the Robber that he was in his early 20's, had olive or dark complexion and black hair were different from Mr Irving's description. The evidence did not establish what the content of the broadcast was although Mr Irving gave evidence of what he heard. Ms Pfingst's evidence that she was responsible for a broadcast over the police network but was not responsible for the media broadcast went unchallenged. I accept her evidence. The evidence does not establish that Ms Pfingst was responsible for the broadcast description.[526]

Conclusions as to the second alleged malicious prosecution

• [539] Mr Irving contends that Ms Pfingst was the prosecutor for the second alleged malicious prosecution. In particular, Mr Irving relied on the fact that she had:

(a) Instigated the proceedings by laying the Armed Robbery Charge;

(b) Set in motion many of the steps involved, including preparing the material for opposition to bail, the Court brief for the first and second bail applications and the s 259 Applications; and

(c) She was responsible for interviewing witnesses and preparing their statements.

• [540] According to Mr Irving, Ms Pfingst was the only person who had a comprehensive knowledge of the strengths and weaknesses of the case against him. He contends that no other person had such a comprehensive knowledge of the case. Mr Irving emphasises that Ms Pfingst was the only person who was aware of what was not in the brief.
• [541] The Defendants accept that Ms Pfingst was the prosecutor insofar as she was responsible for laying the Armed Robbery Charge on 25 May 1993. They submit however that once the committal brief had been prepared she no longer was the prosecutor of the action. The Defendants contend that Ms Pfingst ceased to maintain the action and be a prosecutor of the action from the point the brief was accepted by the brief checker, signed by the officer-in-charge and provided to the police prosecutor and was subsequently taken over by the DPP.[527]
• [542] Mr Irving relies on the following matters in particular in contending that, because Ms Pfingst was the only one who had knowledge of particular evidence, she was the prosecutor not only for initiating the proceeding but for continuing and maintaining the proceeding. I set out my findings in respect of each matter below:

(a) Ms Pfingst would have known that photographs of Mr Irving were obtained from Ms Parker and shown to Ms Andrews, Ms Lovell and Mr and Mrs Kerr prior to them looking at the photoboard.

I am not satisfied, for the reasons set out above, that Ms Pfingst did know of the photographs obtained from Ms Parker,[528] or that they were shown to any of the witnesses prior to their viewing of the photoboard, even though she did have a photo of Mr Irving from Ms Parker on 1 April 1993;

(b) That Ms Pfingst knew about the visits to Ms Parker and despite that, there was no reference to obtaining photographs from her or visits to her and that she knew that they had not been disclosed.

I do not accept that Ms Pfingst was aware of what photographs were obtained from Ms Parker, save that one was attached to the crime circular on 1 April 1993.There is no evidence that it was disclosed. I accept that she was aware of the visits, although she was only involved in two of those visits. She was aware that those visits had not been disclosed.

Ms Pfingst was not obliged to disclose those visits given the fact that Ms Parker did not provide any evidence relevant to the Robbery;

(c) That Ms Pfingst knew of operation 3UP and had seen photographs of the robber in the 1992 NAB robbery;

It is uncontentious that Ms Pfingst knew of Operation 3UP and that she had seen the photographs. However, I do not find that the evidence establishes that Ms Pfingst had a good working knowledge of the NAB Robberies, since Ms Pfingst was charged with investigating the Robbery. Ms Pfingst had some knowledge of the 1992 NAB robbery, although the evidence does not establish that that knowledge was detailed, even though she and DSS Kinbacher had visited Ms Parker to discuss both the 1992 NAB robbery and to a lesser extent the Robbery. I accept that Ms Pfingst had some knowledge about the 1992 NAB robbery but not that it was not a detailed knowledge. Ms Pfingst gave evidence, I accept her evidence in that regard, that she had little knowledge of the 1993 NAB robbery. Her evidence of her limited knowledge is consistent with the evidence of Mr Hartwell that the investigations into the three robberies were kept separate to avoid evidence from one investigation tainting evidence from another investigation.

(d) There is no evidence that the police prosecutor or prosecutor had knowledge of Operation 3UP.

(e) There is no evidence as to what the police prosecutor or prosecutor knew other than what is contained in the committal brief and the transcripts of the committal hearing and trial. The committal brief and transcripts do not make any reference to Operation 3UP or Ms Parker. For the reasons I have set out above, the material in relation to Operation 3UP or Ms Parker did not have to be disclosed as part of the brief for the Robbery.

• [543] The Defendants rely on the following evidence of Mr Hartwell, who had been the acting officer-in-charge at the time, in support of their contention:

(a) After the brief was prepared by Ms Pfingst it would have gone to the officer-in-charge, Mr Hartwell. The brief would have been examined by a brief checker. A brief checker system was in place in Cairns CIB at the time whereby an officer who had undergone an intensive two week intensive law study course, convened by senior prosecutors in Brisbane, would check the brief. The brief checker's role was to review the brief to ensure that it contained sufficient evidence to prove the prima facie case of the brief;[529]

(b) After the brief went to Police Prosecutions, they then had conduct of the prosecution;[530] and

(c) After committal, the DPP would take over sole control of the brief which could involve contacting the investigating officer for further information.[531]

• [544] Ms Pfingst's evidence was that she was not a decision-maker in relation to the proceedings once it went to Police Prosecutions and the DPP.[532] I accept that evidence. There is nothing to suggest she had an integral role in the prosecution of the matter after the matter went to committal.
• [545] Mr Irving contends, in his reply submissions, that Ms Pfingst was actively involved in the prosecution after committal and beyond Mr Irving's sentencing insofar as: she spoke to a potential alibi nominated by Mr Irving at the DPP's request; she attended the office on 6 December 1993 to find a witness list; she provided information to the CJC when investigating Mr Irving's complaint; she attended court on the day of Mr Irving's sentencing; and she provided an affidavit to the High Court when asked to explain her absence at District Court trial. In my view, none of these matters establish that she was a prosecutor in the sense of playing an active role after she had provided the brief to Police Prosecutions.
• [546] Ms Pfingst interviewed the alibi witness at the behest of Police Prosecutions and prepared a statement and recorded the interview, which she stated was then provided the DPP.[533] According to Ms Pfingst, the alibi witness refused to provide a statement. That request is, in fact, consistent with the fact that it was the DPP who was the prosecutor at that point in time. The provision of a witness list is an administrative act. The other matters identified by Mr Irving are not roles in which she was actively instrumental in continuing the proceeding. The provision of information to the CJC and the affidavit to the High Court were not acts by which the prosecution was continued or maintained. While Ms Pfingst gave evidence at the committal hearing, I have not found that she gave evidence in support of the prosecution which was known to be false,[534] to support or maintain the the prosecution. Even if, contrary to what I have found, Ms Pfingst's evidence in relation to the testing of samples was false, it was not a positive act to maintain the prosecution. For the reasons set out above, it had no bearing on the prosecution such that she could be regarded as having an active role in the conduct of the proceeding. Nor have I found that Ms Pfingst was at Court on 8 December 1993 and deliberately avoided giving evidence at the District Court trial to ensure some evidence did not come to light.

Termination of the prosecution in favour of Mr Irving

• [550] Given that a nolle prosequi was entered in relation to the Armed Robbery Charge, the prosecution was terminated in favour of Mr Irving.

Was there an absence of reasonable and probable cause?

• [551] Mr Irving submits that if the Court finds:[539]

"(a) That the first defendant charged the plaintiff with accessory after the fact in circumstances where the first defendant did not believe he was guilty of that charge;

(b) The first defendant recorded the conversation at Atherton in Cairns on 17 May 1993 and failed to disclose that recording and subsequently told untruths about that recording;

(c) The first defendant was reckless or careless or exaggerated the evidence about the information she provided to the Court on the first and second bail application;

(d) The first defendant embellished or influenced the eyewitnesses in the provision of their identification statements;

(e) The first defendant deliberately withheld the information obtained from Cindy Parker and the information relating to Operation 3UP as she knew that evidence may have been used by the plaintiff's legal team in order to establish a good defence to the charge of armed robbery;

(f) The first defendant misused her power to obtain samples under section 259 of the Criminal Code;

(g) The plaintiff [sic] misled the Magistrates Court at the Committal proceedings in relation to the exhibits, the CJC in relation to their investigation and the High Court in respect of her presence at the Court on 8 December 1993.

the Court will find that the first defendant has repeatedly engaged in conduct designed to ensure the plaintiff was convicted of the offence of armed robbery."

• [552] Based on those findings, Mr Irving submits that the Court will infer that Ms Pfingst behaved in such a way, including failing to disclose evidence that was exculpatory of Mr Irving, because she knew the evidence against him was weak. Having drawn those inferences, Mr Irving submits that the Court should find that Ms Pfingst did not have an honest belief in his guilt. To frame it in accordance with the majority of the High Court in the context of the present case, the question is whether she did not "honestly believe" the case that was instituted or maintained.[540]
• [553] In relation to those matters:

(a) I have not found that Ms Pfingst charged Mr Irving with the Accessory Charge in circumstances where she did not believe he was guilty of that charge;

(b) I have not found that Ms Pfingst tape recorded the conversation at Atherton in Cairns on 17 May 1993 and failed to disclose that recording and subsequently told untruths about that recording;

(c) I have not found that Ms Pfingst was reckless or careless or exaggerated the evidence about the information she provided to the Court on the first and second bail application;

(d) I have not found that Ms Pfingst embellished or influenced the eye witnesses in the provision of their identification statements;

(e) While the information about the attendances upon Ms Parker and information relating to Operation 3UP was not disclosed,[541] I have not found that Ms Pfingst deliberately withheld the information obtained from Ms Parker and the information relating to Operation 3UP as she knew that evidence may have been used by Mr Irving's legal representatives in order to establish a good defence to the Armed Robbery Charge;

(f) I have not found that the evidence established was that Ms Pfingst misused her power to obtain samples under s 259 of the Criminal Code; and

(g) I have not found that Ms Pfingst "misled" the Magistrates Court at the committal proceedings in relation to the exhibits with respect to the "results of the samples". I consider that the Magistrate mischaracterised the document when it was, in fact, a receipt of the samples of Mr Irving. In relation to the remainder of the evidence I have found that it was not misleading. I have not found that Ms Pfingst misled the CJC in relation to their investigation and the High Court in respect of her presence at the Court on 8 December 1993.

• [554] As a result of the above, Mr Irving has not established the factual foundation for the Court to find that Ms Pfingst repeatedly engaged in conduct designed to ensure that Mr Irving was convicted of the Armed Robbery Charge and that it is a reasonable inference that she behaved in such a way because she knew the evidence against him was weak. Nor do I find that Ms Pfingst failed to disclose exculpatory evidence because she believed that it was likely to lead to a finding of not guilty. In cross-examination, Ms Pfingst denied that she considered that the evidence against Mr Irving was weak, which I accept. That is supported by the objective evidence available to support the Armed Robbery Charge.
• [555] Ms Pfingst further gave evidence that she believed she had sufficient information to put before a Court and that she believed it was a proper case for prosecution.[542] I accept that evidence and do not find that Mr Irving has not established the matters from which he contends the Court should draw the inference that she did not hold an honest belief in his guilt of the Armed Robbery Charge.
• [556] I do not find that Ms Pfingst did not have an honest belief in the guilt of Mr Irving, or to phrase it in a different way, that she had an absence of belief in the guilt of Mr Irving or believed that it was a case that should not be instituted or maintained[543] Thus the subjective test of the absence of reasonable and probable cause is not satisfied.
• [557] Mr Irving further submits that the Court should find that the entirety of the evidence, including the investigations relating to Operation 3UP and Ms Parker's evidence, would not lead an ordinary prudent and cautious person placed in the position of Ms Pfingst to the conclusion that he was probably guilty of the alleged offence.
• [558] The objective evidence as at 25 May 1993 supported the fact that there was reasonable and probable cause to charge Mr Irving with the Armed Robbery Charge. In particular, the evidence:

(a) That Mr Irving's car was used in relation to the Robbery;

(b) Mr Irving knew of the Robbery and that police were looking for his car, which he had told Ms Pfingst and Mr Sturgess on 17 May 1993;

(c) Of Mr Irving's conduct after he became aware of the Robbery and that the police were looking for his car, particularly in placing the registration plates under the concrete and covering the car with a tarpaulin, which was to hide his car from police based on admissions which I have accepted that Mr Irving told to Ms Pfingst and Mr Sturgess;

(d) The fact that Mr Suthers, who Mr Irving had nominated as having his car at the relevant time, was not found to exist when inquiries were made by the police, suggesting that Mr Irving had lied;

(e) That Mr Irving had not told the police that he had slept at 9 Sands Street, Port Douglas on 16 May 1993, but rather told police that he was sleeping in a toilet block, after having first stated he had stayed at Mudlo Street, from which it was open to infer that he was seeking to avoid the police finding his clothes. The bag with his clothes, including the shirt in question, was found at the Sands Street address;

(f) Ms Adkins had identified the sleeves of Mr Irving's shirt (which by then he had admitted was his) as the shirt worn by the Robber. Ms Adkins said that she was "definite" about the sleeves. Ms Adkins supplied a signed statement; and

(g) Ms Adkins and Ms Redgen both identified Mr Irving on the photoboard as the Robber, and both provided signed statements in that regard.

• [559] In addition, by the time Ms Pfingst was preparing the committal brief there was additional evidence to support reasonable and probable cause that:

(a) Mrs Kerr, Ms Lovell and Ms Andrews identified Mr Irving on the photoboard and provided signed statements;

(b) Mrs Kerr, Ms Andrews and Ms Lovell identified features of the shirt of Mr Irving they recognised and provided a signed statement.

• [560] The identification evidence was exposed to suffering from the difficulties that are well recognised as accompanying identification evidence, but that did not mean it was weak. It was a reasonable case based on the evidence gathered. I do not find that the entirety of the evidence would not lead an ordinary, prudent and cautious person placed in the position of Ms Pfingst to the conclusion that Mr Irving was probably guilty of the alleged offence, or to put it differently, that Ms Pfingst had an insufficient basis or lacked reasonable grounds for her belief that Mr Irving was probably guilty.[544] Nor do I find that an ordinary, prudent and cautious person who considered, not only the evidence disclosed in the committal brief, but the evidence in relation to Operation 3UP and the "Cindy Parker evidence" would not be led to the conclusion that it was unlikely that Mr Irving had committed the Robbery on the basis of similarities with the robber in the 1992 NAB robbery and that Mr Irving was probably not guilty of the alleged offence. While Mr Irving submits that the significant similarities between the perpetrator of the NAB robberies suggested that the person depicted in the photographs of the NAB Security Video was likely to be the person who committed all three robberies, such that if it was established that Mr Irving did not commit one of the robberies, he did not commit all three, that was not established by the evidence before this Court and is based on flawed logic. While there was an investigation to see whether one person was linked to all three robberies and whether that person was Mr Irving, the evidence in the present case shows that it never rose beyond the point of investigation. Nor that it was concluded or should have been concluded that the same person committed all three robberies and that person could not have been Mr Irving.
• [561] It may be accepted that the circumstances of Mr Irving's trial were unsatisfactory, as was conceded by the Crown before the High Court, but the reasons for the trial being unsatisfactory cannot be attributed to Ms Pfingst's conduct.
• [562] Mr Irving submits that the evidence establishes that Ms Pfingst knew of the true nature of the evidence and the extent of her influence on the evidence was such that, unless the prosecutor had listened to the tapes and understood the relatively weak nature of the identification evidence, the prosecutor would never have known of the weakness of the evidence. In that regard, while the transcripts of the audio and video taped interviews were not provided to the Defence until 6 December 1993 or the morning of the trial, Ms Pfingst exhibited the video and audio tapes to her statement and they were tendered at the committal stage. What occurred between the time of the committal and the time of trial was not the subject of evidence before me. However, the evidence does not support any inference that Ms Pfingst was responsible for not disclosing the relevant evidence or for the late disclosure of the transcripts. Indeed, the prosecution must have been aware of what had occurred during the identification process and what was subsequently reflected in the statements given that they had possession of the statements and transcripts of interview were prepared, at least by 6 December 1993 when the letter was sent to the Defence enclosing the typed transcripts of interview. Ms Pfingst did not assert in her statement that the statements mirrored exactly what had occurred in the records of interview. I do not accept that the prosecutor would never have known of the weaknesses in the evidence given those matters, or if they did not know, it was not due to the fact that Ms Pfingst had withheld that evidence.

• [565] Proof of malice requires Mr Irving to discharge the onus of demonstrating that, in prosecuting him, Ms Pfingst's sole or dominant purpose was for a purpose other than a legitimate purpose of the criminal law. In the present case, Mr Irving seeks to ask the Court to draw the inference that, based on Ms Pfingst's work situation she pursued the case against Mr Irving having identified him early as a suspect, only compiling evidence against him regardless of the facts that presented themselves in terms of his guilt or innocence in an effort to prove herself and get ahead at the Cairns CIB.
• [566] Mr Irving submits that the court should find that Ms Pfingst was actuated by malice in respect in to the second alleged malicious prosecution in that, in the context of the harassment she was then being subjected to at the Cairns CIB, she was determined to prove to the other officers that she was competent. Mr Irving submits that that was the catalyst that led Ms Pfingst to pursue and charge Mr Irving and seek to secure a conviction by manipulating evidence and ignoring exculpatory evidence. Mr Irving otherwise submits that the Court should infer malice through the indirect route.
• [567] If a substantial purpose in Ms Pfingst laying the Armed Robbery Charge against Mr Irving was simply to bolster her own position, regardless of the status of the evidence against Mr Irving, that would capable of constituting malice.
• [568] Mr Irving relies on the fact that this was the first time she had been appointed as the investigating officer for an armed robbery. In particular, Mr Irving contends that Ms Pfingst was experiencing harassment and victimisation from certain members of the Cairns CIB and that the Robbery presented an excellent opportunity for her to prove herself as a competent police officer, particularly in the eyes of her colleagues at the Cairns CIB and to obtain a conviction. Mr Irving contends that Ms Pfingst had decided early that Mr Irving was the likely Robber and that after he was apprehended, she was interested only in compiling evidence to convict him and not in undertaking an investigation.
• [569] Mr Irving contends that the inference to be drawn from the evidence and the circumstances in which Ms Pfingst found herself in at the time, is that it is more probable than not that she pursued this course in order to constantly prove herself to some male officers in the Plain Clothes PC at Cairns CIB. In that regard, Mr Irving relies in part on Ms Pfingst's separation interview form. When asked in the separation interview form to list those aspects of her present position which she liked least, Ms Pfingst stated, "I hated the feeling that I had to constantly prove myself to some male officers in the plain clothes PC" and "I only wanted to be treated as an equal".

• [586] Mr Irving has had many years to consider this matter. Having commenced these proceedings in 1999 he has had a large amount of time to dwell on what has occurred and, as I have found above, he has reconstructed many events in response to his perceived unfairness in a way which was favourable to his case.
• [587] I have made findings of credit in relation to specific issues above. Although as I stated at the outset the present case did not turn on the credit of Mr Irving, his credit was relevant to a number of issues. Accepting the passage of time and the pain of incarceration and troubles rebuilding his life after leaving custody, Mr Irving's evidence was unreliable, lacking credibility and on a number of occasions was self-serving, evasive and on occasion untruthful. His evidence suffered from the fact that much of it was recent reconstruction, rather than it being a recollection of what had actually occurred.
• [588] There are a number of examples where Mr Irving's evidence has changed significantly over time and indeed seemingly his recollection has improved in his favour. For instance, in evidence before this Court as to his returning to the Oceanic Hotel on the night of 19 March 1993 after he had heard about the Robbery changed from his wanting to bump into Allan and Wayne to ask them about marijuana to meeting them to see a strip show.[580] In his affidavit presented to the High Court he had stated he returned to the Oceanic Hotel to ask them whether they had anything to do with the Robbery.[581] His evidence as to how he had gotten into the house at 307 Draper Street after returning from the week away before going away for a month again also changed between the first trial and the second.[582]
• [589] Similarly, Dr Leacy's report does not reveal that he was told that Mr Irving had a history of using speed when asked whether he had a history of substance abuse. His evidence as to whether he told that to Dr Leacy was evasive and self-serving insofar as he reverted to talking about the fact that he had suffered a lot of pain.[583]
• [590] In terms of Ms Pfingst, Mr Irving submitted should find she was not a credible witness and her evidence should be rejected where it conflicted with his evidence. I have set out above the reasons as to why I considered Ms Pfingst's evidence should be accepted over Mr Irving's evidence.

• [592] Mr Irving's pleaded case is that he was falsely imprisoned by Ms Pfingst and the State of Queensland from the time of his arrest on 17 May 1993 to the time of his first bail application on or about 20 May 1993.
• [593] No submissions were made by Mr Irving in support of this claim, either in writing or orally, although it was not formally abandoned.
• [594] From 17 May 1993 to 20 May 1993, Mr Irving was arrested in relation to:

(a) On 17 May 1993 for a failure to appear on 20 April 1993;[584]

(b) On 17 May 1993 for a dangerous drug charge - possession of cannabis;[585] and

(c) On 18 May 1993, for accessory to armed robbery charge.

• [595] Allegations are only raised in relation to the absence of reasonable and probable cause to arrest Mr Irving for the charge of being an accessory after the fact on 18 May 1993. I have found that there was not an absence of reasonable and probable cause. In those circumstances, Mr Irving's imprisonment was lawful and justified and not wrongful.
• [596] Mr Irving's false imprisonment claim fails.

• [597] By reference to the matters which the Mr Irving submits that the Court should find in its ultimate findings:[586]

(a) I do not find that Ms Pfingst did record the conversations between Mr Irving, herself and Mr Sturgess on 17 May 1993, nor was the 17 May 1993 Record of Conversation inaccurate as a result of manipulation by Ms Pfingst;

(b) Given the finding above, I do not find that Ms Pfingst did not disclose the tape of the 17 May 1993 Record of Conversation because she was aware of inaccuracies in the Laptop Notes;

(c) I do not find that Ms Pfingst charged Mr Irving with the Accessory Charge on 18 May 1993 in circumstances where she did not believe he was guilty of that charge and knew there was inadequate evidence to support the charge;

(d) I do not find that Ms Pfingst brought the s 259 Application to take body samples from Mr Irving on 19 May 1993 in circumstances where she intended to use those samples to try and prove that he was the Robber. To the extent that it is alleged that it was in breach of s 259 of the Criminal Code, Mr Irving did not plead that alleged breach nor directly cross-examine Ms Pfingst that she had acted in breach of the Criminal Code but in any event the submission is incorrect at law;

(e) I do not find that Ms Pfingst made misleading statements on the first and second bail applications, and that she exaggerated the description of the evidence that was available because she believed that the evidence that Mr Irving committed robbery was weak or non-existent. Although errors were made in those documents, and the summation of evidence was too broad-brush in some respects and did not reflect precisely the evidence given, I do not find that they were deliberate acts because Ms Pfingst believed the evidence was weak or non-existent in relation to the Accessory Charge or the Armed Robbery Charge;

(f) While there were differences between the records of interview and the statements of Ms Redgen, Ms Adkins, Mrs Oastler, Mr Kerr, Mrs Kerr, Ms Lovell and Ms Andrews, and the statements were stronger in some respects than the records of interview, even when I considered the effect of all of those changes together and had regard to statements not being prepared where witnesses did not identify the relevant person, I do not find that the probable inference in all the circumstances relied upon is that the witness statements were produced in stronger terms as a result of Ms Pfingst influencing those witnesses;

(g) In relation to Ms Paynter, I do not find that Ms Pfingst failed to take a statement from her or gave false evidence that she did not take a statement because Ms Paynter did not see the male suspect's face. I accept that Ms Pfingst had been told she could not give a description of the person she saw, as opposed to the clothes, prior to her meeting with her and recording an interview. While a further enquiry could have been made of Ms Paynter in light of her statement that she saw the front of the shirt, the evidence does not support an inference that the failure to enquire further was more than an oversight or that she made a deliberate decision not to produce a statement as a result of any modus operandi to discard facts that were favourable to Mr Irving;

(h) I do not find that the omission of reference to the interviews and contact with Cindy Parker or Operation 3UP in Ms Pfingst's statement of 23 June 1993, or the brief for the committal hearing, was done for the reason that Ms Pfingst did not want to disclose to Mr Irving's criminal defence lawyers that there was information suggesting that the same person had conducted the three robberies, where photos were available in relation to the 1992 NAB robbery. While Ms Parker did not identify the photograph as being Mr Irving from that robbery, her evidence was not as strong as to assert that the photograph was clearly not Mr Irving. In any event, while there were similarities between the NAB robberies and the Robbery that does not establish the fact that the same person was carrying out all three robberies and that Operation 3UP was established for that purpose. The fact Mr Irving was not charged with the NAB robberies does not give rise to a defence to the Robbery. In particular the circumstances do not support an inference that Ms Pfingst believed the one person committed all three robberies and that as he was not charged with the other robberies he could not be guilty of the Robbery;

(i) The evidence as to what occurred in relation to the testing of samples taken from Mr Irving and the comparative testing of clothing was unsatisfactory and insufficient to establish that Ms Pfingst misled or lied to the Magistrate in relation to the status that testing which was the subject of evidence by Ms Pfingst;

(j) I do not find that Ms Pfingst was present at the District Court trial on 8 December 1993; and

(k) I do not find that Ms Pfingst gave misleading evidence to the CJC (or to the High Court in her affidavit).

• [598] Given that I have not been satisfied that Mr Irving established the facts set out above or find the probable inference is that the fact exists, the inference which he seeks to have drawn from those facts, namely that the conduct of Ms Pfingst was consistent with her not having an honest belief in the guilt of Mr Irving and that the evidence did not warrant prosecution.[587] Nor do I find that there was an absence of reasonable and probable cause in respect of either charge on the basis of insufficient evidence given the available evidence to support the charge. In that regard, the evidence relied upon to support the inference of a lack of honest belief of Ms Pfingst was tenuous and did not rise anywhere near the necessary evidential threshold required to be met to draw such an inference, or to cause the Court to reject the direct evidence of Ms Pfingst.
• [599] It must be said that the evidence relied upon to support an inference of malice was in some respects even more tenuous and did not rise anywhere near the necessary evidential threshold required to be met to draw such an inference or to cause the Court to reject the direct evidence of Ms Pfingst
• [600] The evidence does not establish that the sole or dominant purpose actuating Ms Pfingst in prosecuting the Accessory Charge or the Armed Robbery Charge was for a purpose other than the proper invocation of the criminal law, in relation to either charge. Nor does the evidence support a finding of malice based on the indirect route on the basis that there was no other rational explanation for charging Mr Irving with either the Accessory Charge or Armed Robbery Charge, such that the Court should conclude she must have been actuated by an improper motive. In any event, I accept Ms Pfingst's evidence as to her motivations and beliefs, the fact she did not lack an honest belief in the charges brought and that she believed that there was a proper case which warranted prosecution in relation to both charges. I do not accept Mr Irving's evidence as to the Corridor Conversation and consider that it was a matter of recent invention by him to bolster his case.
• [601] The claim for false imprisonment was effectively abandoned but in any event I do not find that Mr Irving was falsely imprisoned.

• [602] I therefore order that:
  1. The plaintiff's claim is dismissed.
  2. The parties provide submissions as to costs within 7 days of the delivery of judgment.

[2] Exhibit 1 at 378. Brennan CJ however, referred to other matters giving rise to misgivings about the circumstances of the case, particularly the photoboard identification evidence, including the Crown not calling Ms Pfingst and the Court being misinformed about her condition.

[3] A previous hearing in 2018 had to be abandoned after a number of days hearing.

[5] The parties agreed that, in the event that the Court dismissed the claim in its entirety, the Court was not required to determine what damages would have been if Mr Irving had been successful.

[6] Bailey v Director-General, Department of Natural Resources [2015] NSWCA318 at [17] per Basten JA.

[7] (2007) 230 CLR 500 at [34].

[8] [2006] QCA 238 at [12].

[9] [2015] NSWCA 418 at [121].

[10] [2003] VSC 270 at [200].

[11] [2018] NSWSC 147 (Wood) at [580].

[13] [2000] 1 WLR 2150.

[14] [1996] 1 AC 74 at 84.

[15] Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 432.

[16] [1938] NSWStRp 33; (1938) 38 SR (NSW) 466 at 469.

[18] A's Case (2007) 230 CLR 500 at [60]-[61].

[20] A's Case at [58] and [70]. The former enquiry is subjective and the latter is objective.

[35] Wood at [235]. The New South Court of Wales dismissed the appeal ([2019] NSWCA 313), indicating that there was no dispute her Honour had correctly identified the relevant legal principles.

[40] [1955] HCA 68; (1955) 94 CLR 147.

[43] McFadzean v Construction, Forestry, Mining and Energy Unit [2007] VSCA 289; [2007] 20 VR 250 at [41].

[44] Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597.

[45] Nye v State of New South Wales & Ors [2003] NSWSC 1212 (Nye) at [28].

[46] Ferguson v The State of Queensland [2007] QSC 322 at [13].

[47] Ruddock v Taylor [2003] NSWCA 262; [2003] 58 NSWLR 269 at [30].

[48] Carnegie v The State of Victoria (unreported, VSC, Full Court, No 998 of 1976, 14 September 1989) referred to by Lyons J in Ferguson v The State of Queensland [2007] QSC 322 at [14].

[49] Ferguson v The State of Queensland [2007] QSC 322.

[51] Dellit v Small; Ex parte Small [1978] Qd R 303.

[52] Criminal Code Act 1899 (Qld) sch 1 (Criminal Code), s 255(2) as it then was in 1993.

[53] 10th Ed, J. G Fleming, (2011), The Law Book Company Pty Ltd, Sydney at 40.

[55] [1938] HCA 34; (1938) 60 CLR 336.

[56] Some of these are directly pleaded, while others reformulate what is pleaded.

[57] In a number of cases, multiple circumstances are relied upon and inferences are asked to be drawn.

[59] [1938] HCA 34; (1938) 60 CLR 336.

[60] [1938] HCA 34; (1938) 60 CLR 336 at 361- 362.

[61] [1992] HCA 66; (1992) 67 ALJR 170 at 170-171.

[62] [1997] 1 VR 125, particularly the statements by Winneke P.

[63] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 (Longmuir) at 129.

[64] [2012] NSWSC 1276 at [1533].

[65] [2005] NSWCA 361 at [47].

[66] [2003] NSWSC 1212.

[68] [2008] NSWCA 246.

[69] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55].

[70] (1995) 49 NSWLR 315 at 319.

[72] Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431.

[73] [2007] QCA 136 at [34].

[74] Hintze v Tsering [2018] NSWSC 1190.

[75] Subject to rulings of admissibility made by me.

[92] Cf 7FASOC at [50.14] and [50.15].

[106] T5-18/30-35; Exhibit 12 which was tendered on the basis that it was an occurrence sheet, but not on the basis of it being the truth of the contents: T5-18/44 and T5-19/12.

[108] T7-63/7-8 and T7-63/45-46; T7-64/22-28.

[117] T6-86/14-22; Exhibit 2, Entry 59, 60 and 61.

[127] Plaintiff's Outline of Submissions at [100].

[128] Defendants' outline of submissions at [122] and [182].

[129] Exhibit 1 at 126; Exhibit 17 at 2.

[130] As set out in Ms Pfingst's affidavit found at Exhibit 1 at 124.

[145] Exhibit 1 at 129 - 130; T2-22/15-20.

[165] Exhibit 1 at 354-355; Exhibit 9 at [35].

[176] Mr Sturgess made a similar point in confirming that Ms Pfingst did say "Okay, I'll get Port Douglas to verify that", stating she "She - she did say that because we sent Port Douglas Police around to check it out": T9-52/41-46.

[198] It was not apparent from her note of instructions that she had been briefed that was the case: [15] - [21].

[199] Although I note Associate Professor Heydon's familiarity with police interviews.

[213] T6-4/22-28. As well as having the evidence of Mr Sturgess: T6-4/30-40.

[227] Plaintiff's submissions at [331].

[231] Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431.

[233] Exhibit 1 at 5 and 7, QPS Court Brief date of Report 19 May 1993.

[243] Exhibit 1 at 5, T6-89/12-18; A Court Brief also referred to as a QP9.

[253] An incomplete version of which is Exhibit 5.

[254] Plaintiff's submissions at [152].

[255] Exhibit 1 at 156 - 158 and 178 - 179.

[258] Plaintiff's submissions at [143].

[260] Plaintiff's submissions at [3(d)].

[262] Plaintiff's submissions at [147(a)].

[264] R v R [2003] QCA 71; [2003] 2 Qd R 544 at [29] per Jerard JA, although his Honour raised whether it may be a breach of duty.

[266] T8-21/33-35 consistent with what she had said at the committal, Exhibit 1 p 53.

[268] 7FASOC at [50.52] and [50.53].

[270] R v Winston [1995] 2 Qd R 204.

[271] Carter's Criminal Law of Queensland, ss 10.25 and 10.35.

[272] Plaintiff's submissions at [128].

[273] T6-85/10-14. This was a matter Ms Pfingst had checked.

[276] Ms Pfingst stated she could not recall whether she was aware of that statement prior to going to Atherton on 17 May 1993.

[280] T7-68/24-31; as to the distinction between belief and suspicion, see George v Rockett [1990] HCA 26; (1990) 170 CLR 104.

[290] Criminal Code at s 7. This is consistent with her letter seeking to withdraw the Accessory Charge on 2 June 1993, at Exhibit 19.

[297] Plaintiff's submissions at [132].

[298] And could be liable if he drove the getaway car or gave it to somebody for use in the Robbery.

[299] Criminal Code, s 7(a) & s 7(b) or (c).

[305] Exhibit 1 at 152; While Mr Sturgess could not recall his understanding back then he stated that he did not think they were confined to only using the samples for the particular charge: T9-59/40-44.

[306] Plaintiff's submissions at [227].

[310] Plaintiff's outline of submissions at [229].

[311] Plaintiff's outline of submissions at [231].

[313] Exhibit 1 at 466, particularly 472.

[315] [1981] HCA 17; (1980) 145 CLR 395.

[320] See for example, Exhibit 1 at 226.

[322] Ms Adkins' statement is at Exhibit 1 at 167 and her interview is at 212. Ms Redgen's interview is at Exhibit 1 at 210.

[323] Ms Oastler's interview is at Exhibit 1 at 215.

[324] Exhibit 1 at191 and 191A; T7-24/4-5.

[325] Exhibit 1 at 212 - 214 (Ms Adkins); Exhibit 1 at 210 - 211 (Ms Redgen); and Exhibit 1 at 215 - 218 (Ms Oastler).

[331] Plaintiff's submissions at [189].

[337] She earlier said the trousers were more "jean like".

[338] Plaintiff's Outline of Submissions at [214].

[347] Exhibit 1 at 57. In that regard, Ms Pfingst's evidence was not that no further conversation had occurred with her, as submitted at [193] of Mr Irving's submissions, but that the witnesses had not further conversation with each other.

[362] Exhibit 1 at 29, and Exhibits 15 and 16.

[364] Exhibit 1 at 461, section 12.233 of the Queensland Policeman's Manual.

[384] See also Exhibit 1 at 287, Mrs Kerr's evidence at the trial.

[399] I note that Mr Irving admitted the Court should draw inferences on an individual basis as well. I have addressed those matters above.

[446] Cf In the Estate of Powe [1955] 3 All ER 448.

[447] Evidence Act 1977 (Qld) s 102.

[448] Exhibit 3; Exhibit 33, which is an Exhibits Book for Operation 3UP that only contained entries by Ms Pfingst of evidence gathered for the Robbery.

[450] R v H [2004] UKHL 3; [2004] 2 AC 134; Exhibit 1 at 461, Queensland Police Manual at 4.233; see also recent discussion in R v Ernst [2020] QCA 150 at [34]- [35].

[453] Plaintiff's submissions at [275].

[454] See T8-5/5-12, Ms Pfingst's evidence; T9-16/24-29, Mr Hartwell's evidence; T9-65/39-42, DSS Kinbacher's evidence.

[456] Exhibit 1 at 188, Evidence of Ms Lovell.

[458] Plaintiff submissions at [276]. Although the matters contained therein are not consistent with all of the evidence.

[459] For example, compare Exhibits 39, 40 and 43 as to the height and build of the robbers.

[474] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334.

[475] Plaintiff submissions at [277].

[477] Plaintiff's submissions at [285].

[485] Plaintiff's submissions at [173].

[492] T6-55/46-47 - T6-56/1-15 and 20-24.

[494] See for example, Mr Irving's letter to Mr Magoffin of 2 November 1993 as to alibies and evidence required for the trial.

[498] T7-18/6-18. Indeed she complained of the fact that she was contacted while on sick leave and could hardly talk when outlining issues of unfair discrimination or sexual harassment which was completed well before this litigation: Exhibit 35

[502] T7-19/16; Although given the comments of the High Court in the special leave application and R v Alexander [1981] HCA 17; (1981) 145 CLR 395 it appears that the Crown should have done so as part of the evidence in chief to prove its case particularly in relation to the photoboard.

[511] That was subsequently extended as was apparent from the work rosters and Ms Pfingst's letter to the Crown, although no further application for leave could be located.

[513] See Mr Irving's evidence, T2-45/23-25; Exhibit 14.

[516] T2-34/30-39/ T2-35/16-22; T2-38/41 - T2-39/1.

[518] The transcripts of which were contained in Exhibit 1; see for example 243 - 245, 246- 247, 240 - 242.

[519] See for example, T7-6/44-46; T7-7/ 25-26; T7-7/37-41; T7-8/16.

[526] cf Exhibit 32, the description in the crime circular prepared by Ms Pfingst.

[527] Defendants' submissions at [74].

[534] Cf Sahade v Bischoff [2015] NSWCA 418 at [121].

[535] [2003] NSWSC 1212.

[537] [1962] AC 726.

[539] Plaintiff's submissions at [319].

[541] Bearing in mind that what that information is has not been readily identified and, as set out above, the fact that there was an investigation into the other robberies was referred to in the objection to bail prepared by Ms Pfingst.

[544] A's Case at [77] and [80].

[545] Albeit that there was a timing issue in relation to when it was applied by him.

[546] [1938] AC 305 at 319 referred to in A's case at [86].

[566] Plaintiff's submissions at [332].

[586] Plaintiff's submissions at [3]-[10]. Based on the probable inference where a number of circumstances were relied upon.

[587] Mr Irving's submissions also frame it differently in contending that such a belief could not be founded upon reasonable grounds which would lead an ordinary, prudent and cautious person placed in the position of Ms Pfingst to the conclusion that Mr Irving was probably guilty of the alleged offences arising from the Accessory Charge or the Armed Robbery Charge. That is really an application of the objective test. In any event, even in the terms of test framed by Mr Irving I am not satisfied the evidential threshold is met.