DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY –
where the plaintiff brought a successful claim for malicious
prosecution against
the defendants – where the plaintiff claims damages for general,
Source
Original judgment source is linked above.
Catchwords
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY –where the plaintiff brought a successful claim for maliciousprosecution againstthe defendants – where the plaintiff claims damages for general,aggravated and exemplary damages and anaward of interest – whether theplaintiff is entitled to general, aggravated and exemplary damages and in whatamount? –whether the delay of the plaintiff should affect period forwhich interest awarded?PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COSTS – where the plaintiff brought alleging two maliciousprosecutions– where one claim successful and other claim unsuccessful – wherethe plaintiff seeks an order that thedefendants pay all of theplaintiff’s costs of the trial on a standard basis to be assessed –where the defendants submitthat the costs should reflect the level of successon the issues that had to be considered and the plaintiff’s unreasonable
delay increased costs – whether the plaintiff is entitled to all of his
costs?
Bulsey v State of Queensland [2015] QCA 187,
considered
Hrdavec v State of New South Wales [2021] NSWSC 560,
considered
Houda v The State of New South Wales [2005] NSWSC 1053,
cited
Irving v Pfingst [2020] QSC 280, related
Irving v Pfingst [2021] QCA 280, related
Spedding v State
of New South Wales [2022] NSWSC 1627, considered
State of New South
Wales v Riley [2003] NSWCA 208
(2003) 57 NSWLR 496, cited
State of New South Wales v
Spedding [2023] NSWCA 180, considered
Stradford (a pseudonym) v Judge
Vasta [2023] FCA 1020, considered
Judgment (91 paragraphs)
[1]
[1] BROWN J: An assessment of damages suffered by the plaintiff, Mr Irving, is required in relation to a successful claim for malicious prosecution arising out of his being charged on 18 May 1993 with an offence of being an accessory after the fact to robbery (Accessory Charge).
[2] This follows a successful appeal by the plaintiff in which the majority, Fraser and McMurdo JJA, found that the plaintiff had established his claim for the malicious prosecution of the Accessory Charge.[1] The Court of Appeal therefore gave judgement for the plaintiff against the defendants for the claim for the malicious prosecution of the Accessory Charge, for damages to be assessed.
[3] The Court of Appeal otherwise dismissed the appeal against the respondents. The Court of Appeal therefore did not interfere with the primary decision which dismissed the claim for the malicious prosecution for the charge of armed robbery (Robbery Charge) for which the plaintiff was tried, found guilty and imprisoned. In the case of the Accessory Charge, the charge was withdrawn. In the case of the Robbery Charge, a nolle prosequi was entered after the conviction was overturned by the High Court.
[4] The Court of Appeal remitted the proceedings to the Trial Division for the assessment of damages in respect of the success claim for malicious claim and for consideration of the order for costs which should be made in the trial proceedings.
[5] This Court therefore must consider the appropriate award of damages including the appropriate award of interest and the appropriate order for costs which should be made for the proceeding in the trial division.
[6] The background to this matter has been set out in both the reasons I delivered following the trial and by the Court of Appeal. I will therefore not repeat it.
[2]
[7] The assessment of damages must take into account the basis of the findings expressed by the majority of the Court of Appeal determining that the defendants are liable for malicious prosecution and any relevant evidence from the trial relevant to the assessment of damages. It is not otherwise an occasion on which this Court revisits its findings made in the trial below.
[8] Justice Fraser in his reasons found that the objective insufficiency of the material to warrant the Accessory Charge was demonstrated by the absence of material in the first defendant's possession to warrant the allegation that Wayne Suthers had committed the robbery.[2] According to his Honour, the insufficiency of the material was such that it supported an inference that the first defendant could not honestly have formed the view that there was a proper case for the prosecution of plaintiff in relation to the Accessory Charge.[3] Justice Fraser agreed with Justice McMurdo, that there was overwhelming evidence that when the first defendant brought the Accessory Charge she suspected the plaintiff had committed the armed robbery, the strength and enduring character of that suspicion being revealed by the evidence that she was then in the midst of investigating.[4]
[9] Justice McMurdo found that at the time that the plaintiff was charged with the Accessory Charge he could not have been both the robber and an accessory after the fact to his own offence.[5] He found that the first defendant could not have held an honest belief that the plaintiff was guilty of the offence charged if, at the same time, she suspected that it was the plaintiff, and not Mr Suthers who robbed the bank.
[3]
"[101] Although, in her evidence-in-chief, Ms Pfingst did say that she believed that Mr Irving was guilty of the Accessory Charge, such a belief was disproved by other evidence, including her own. She admitted that she knew nothing about Suthers, apart from what she had been told by Mr Irving. She accepted that she had no evidence that Suthers was the robber. She suspected that Mr Irving was the robber. The evidence of that suspicion was overwhelming. She was pursuing a line of enquiry that one of Mr Irving's shirts was that of the robber. In several documents which she prepared by then, she described him as a suspect for the robbery itself. She could not have held, at the same time, a belief that Suthers was the robber whilst suspecting that Mr Irving was the robber.
[4]
[105] It is therefore demonstrated that the judge erred in finding that when she laid the Accessory Charge, Ms Pfingst believed Mr Irving was guilty as charged, or was probably guilty of that charge. And if this case is characterised as one where the prosecutor may not have known where the truth lay, it should have found that it was demonstrated that Ms Pfingst had not honestly concluded that the material was such as to warrant setting the process of the criminal law in motion on this charge."
[5]
[11] Having found that there was not on an objective view a reasonable and probable cause for the charge, McMurdo JA also found that malice was established. This was on the following basis:
[6]
"[108] That improper purpose should be inferred not only from the findings, which should have been made, that the charge was laid without reasonable probable cause. An inference of malice is also supported by the fact of Ms Pfingst's suspicion that Mr Irving had been the robber in this case, and perhaps in the other cases which were being considered within the Cairns CIB as a group. At the time that this charge was laid, Mr Irving was in custody upon other charges. But they were minor charges which were unlikely to result in his ongoing detention, and as it happened, they were dealt with on 20 May 1993. The Accessory Charge provided the basis for the ongoing detention of Mr Irving, whilst Ms Pfingst pursued her investigation of him as the robber in the hope that her investigations would yield further and sufficient evidence to justify the charge that he was the robber.
[7]
[109] At the date when this charge was laid, Ms Pfingst had good grounds for suspicion that Mr Irving was the robber, and she may have had good grounds of suspecting that he had been the robber in one or both of the other cases then being investigated. But those suspicions, could not have justified the laying of a charge for which there was no reasonable and probable cause, in order to facilitate her ongoing investigation."
[8]
[12] There was not a significant dispute between the parties as to the relevant principles which guide the determination of damages for malicious prosecution. There is a dispute as to whether some cases recognise "exceptional circumstances" warranting a greater award and whether the plaintiff's case is characterised as involving exceptional circumstances.
[13] It is undisputed between the parties that an award of damages for malicious prosecution falls to be considered in one of three categories that were identified by Holt CJ in Savile v Roberts.[6] Those categories are damage to the plaintiff's fame and reputation, damage to the person, such as where the person is put in danger of losing their life, limb or liberty, and damage to property, where they are first to expend money and necessary charges to acquit themselves of a crime of which they are accused.
[14] The three heads under which general damages are recoverable for torts such as "malicious prosecution", were described by Lord Diplock in Cassell & Co v Broome:[7]
[9]
"The three heads under which damages are recoverable for those torts for which damages are "at large" are classified under three heads: (1) compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls "aggravated damages". (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls "exemplary damages' ..."
[10]
[15] That passage has been adopted by this Court in Bulsey v State of Queensland.[8] Although Cassell &Co was concerned with damages for libel, the principles referred to the assessment of damages by Lord Diplock have been applied to other torts including in the context of damages for false imprisonment.[9]
[16] Once damage under any of the three heads is proved, the award of damages for the tort of malicious prosecution are 'at large', meaning that they must be assessed. It is a question of fact whether and to what extent the tortious act has caused harm. [10] While some guidance may be obtained from damages assessments in other cases each case turns on its own facts.
[17] In the present case it is uncontroversial that the plaintiff is entitled to damages as a result of the plaintiff's deprivation of liberty while held in custody following being charged with the Accessory Charge. In that regard general damages should adequately compensate the plaintiff for all consequences of the defendants' conduct that is not too remote[11] and includes loss of time and hurt to feelings, indignity, humiliation, disturbance with the even tenor of life and disgrace.[12]
[18] The assessment of general damages involves a subjective and impressionistic evaluative judgment.[13]
[19] In Ruddock v Taylor[14] Spiegelman J considered that for damages for wrongful imprisonment " a substantial proportion of the ultimate award must be given for what has been described as the "initial shock of being arrested". That has been followed since in a number of cases.[15]
[20] Damages for loss of liberty particularly focus on the impact on the plaintiff of the relevant period of imprisonment. That impact may be lessened if the plaintiff has had previous experience of being arrested and spending time in custody.[16]
[21] Aggravated damages may also be awarded. They are compensatory in nature and include "insult, humiliation and the like."[17] It has been recognised that the distinction between ordinary or general damages and aggravated damages in false imprisonment cases may become blurred given that both are compensatory. In , Hodgson JA explained the distinction at [127]-[131], noting that while care must be taken to avoid double counting:
[11]
"...It is extremely difficult to quantify damages with hurt feelings. In cases of hurt feelings caused by ordinary wrongdoing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide ranges of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrongdoing it goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and must where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified."
[12]
[22] The court in the assessment of compensatory damages in false imprisonment cases, such as malicious prosecution, can take into account any conduct of the defendants up until damages are assessed[21] which may have the effect of increasing the injury to the plaintiff's feelings, including, for example, an absence of apology. In order for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendants was neither bona fide nor justifiable.[22]
[23] Exemplary damages may also be awarded where the defendant's conduct "has been highhanded, insolent or vindictive" or exhibited "conscious wrongdoing in contumacious disregard of the plaintiff's rights".[23] The focus of the inquiry is upon the wrongdoer.[24] They are awarded to punish the wrongdoer and to deter others from like conduct or where compensatory damages do not sufficiently express the court's disapproval or demonstrate that wrongful conduct should not be to the advantage of the wrongdoer.[25]
[13]
[24] According to the plaintiff he is entitled to damages for compensatory, aggravated and exemplary damages and to an award of interest. There is no dispute that he is entitled to damages under each of the three heads of damage.
[25] The plaintiff contends that the awarded damages should be based on:
[14]
(a) a period of seven nights, eight days of imprisonment solely on the basis of the Accessory Charge, including being subjected to DNA samples being forcibly taken whilst he was in custody, including evidence of psychiatric injury and distress as a consequence thereof;
(b) a further 38 days before the Accessory Charge was withdrawn on 2 July 1993 after the plaintiff was refused bail and held in custody on both the Accessory and Robbery Charge;
(c) the manner in which the arrest on the Accessory Charge impacted upon the conduct of the Robbery Charge and the use of evidence obtained for the Accessory Charge in pursuit of the Robbery Charge for which the plaintiff was innocent;
(d) the abuse of power by the first defendant in arresting and charging the plaintiff with the Accessory Charge, then objecting to his bail on the Accessory Charge in circumstances where she must have known that there was no foundation for the Accessory Charge and deliberately and intentionally deprived him of his liberty;
(e) the continued denial by the first defendant of the illegitimacy of the Accessory Charge, despite her concessions that she had no evidence to support the charge as particularised;
(f) the failure by the first defendant to apologise and the suffering to the plaintiff in the manner in which she gave evidence at trial and repeated denials over more than 30 years;
(g) the failure by the second defendant to acknowledge the errors and the conduct of the first defendant and its failure to apologise for the conduct of the first defendant and for the wrongfulness of the plaintiff's imprisonment such failure extending over a period of excess of more than 30 years; and
(h) the need for the court to take steps to ensure that others are deterred from engaging in similar conduct to the first defendant.
[15]
[26] The plaintiff contends that the Court of Appeal made findings outlined in paragraphs 22 to 32 of his submissions which broaden the scope of damage suffered by the plaintiff. That is refuted by the defendant.
[27] The plaintiff contends that he should be awarded:
[16]
(a) $460,000.00 by way of compensatory damages;
(b) $300,000.00 by way of aggravated damages;
(c) $200,000.00 by was exemplary damages;
(d) interest on all heads of damages from 18 May 1993; and
(e) the costs of the trial.
[17]
[28] The plaintiff's claim is a significant increase from the $250,000.00 originally sought at trial. The calculation of damages is however done at the date of hearing and the plaintiff particularly relies on authorities decided subsequently to the trial to support his increased claim.
[29] The defendants and the plaintiff are vastly apart on what they contend is the assessment of damages. According to the defendants, the Court should award the plaintiff no more than $50,000.00 in damages which would include aggravated and exemplary damages comprised of:
[18]
(a) an award of no more than $15,000.00 for general damages based on his imprisonment of a period of 7 days in the Cains Watchhouse;
(b) an award of no more than $10,000.00 for aggravated damages; and
(c) an award of no more than $25,000.00 for exemplary damages.
[19]
[30] The defendants contend that the plaintiff is entitled to damages only caused by the first malicious prosecution based on the Accessory Charge and is not entitled to damages caused by any other alleged cause of action such as the second malicious prosecution because that aspect of the proceedings has been determined adversely to the plaintiff's action both at first instance and upon appeal.
[31] The defendants contend that this Court should not revisit the findings as the plaintiff has sought to do in paragraphs 22 to 32 of his outline of submissions, contending that no such findings were made by the Court of Appeal. The defendants also contend that the plaintiff's claim seeks to go beyond the factual and legal findings which were made at trial which were not overturned on appeal and the Court of Appeal's findings to the extent that the Court's findings at trial were overturned.
[32] The key findings of fact that the defendants contend the Court of Appeal made on appeal were that:
[20]
(a) the first defendant did not honestly conclude that the material was such as to warrant setting the process of the criminal law in motion on the Accessory Charge;
(b) the Accessory Charge was laid without reasonable and probable cause on the objective basis and in the subjective understanding of the first defendant; and
(c) the first defendant laid the Accessory Charge predominantly to ensure that the plaintiff remained in detention while she pursued her investigation of him, hoping that her investigation would yield further and sufficient evidence to justify the laying of a Robbery Charge against him.
[21]
[33] Those findings were undisputedly made by the majority of the Court of Appeal in determining that the defendants were liable for malicious prosecution in relation to the Accessory Charge. That plaintiff did not contend otherwise.
[34] The plaintiff, however, contends that the findings of the Court of Appeal referred to in paragraphs 22 to 32 of his submissions have a broader effect than that contended by the defendants and that which was found at trial. The plaintiff originally contended the effect of some other observations of Fraser or McMurdo JJA implicitly constituted findings by the Court of Appeal, however during oral argument that was largely maintained but it was contended the observations of the first defendant's conduct was still relevant in terms of the egregious nature of the first defendant's conduct.
[22]
Factual Disputes and relevant evidence of impact
[23]
[35] There is a dispute between the parties as to the time the plaintiff was deprived of his liberty as a result of the Accessory Charge. While at the conclusion of the trial it was uncontroversial the period of detention in respect of the Accessory charge was seven days, the plaintiff now contends it should be assessed on the basis of 46 days.
[36] The complication in the present case is that while the plaintiff was originally kept in custody after being charged on the Accessory Charge, he was subsequently charged with the Robbery Charge on 25 May 1993. While the two charges could not both be pursued by the prosecution, the Accessory Charge was not formally withdrawn until 2 July 1993, after he had been in custody for 46 days.
[37] The period of false imprisonment, as a result of the Accessory Charge, commenced on 18 May 1993. There is no dispute that the plaintiff's initial detention in the watchhouse on 17 May 1993, was due to his being taken into custody for a failure to appear in respect of other charges, not the Accessory Charge.
[38] On 20 May 1993,the plaintiff was refused bail on the Accessory Charge. An application was then made to the Supreme Court for bail on 26 May 1993, the day after the Robbery Charge was laid. What transpired at that hearing however was not in evidence, other than the fact that bail was refused. In the bail documents which were part of Exhibit 1[26] it is evident that an application for bail had been made by the plaintiff on 20 May 1993 to the Supreme Court. That was in respect of the Accessory Charge. In an affidavit of the first defendant dated 25 May 1993, in respect of the application by the plaintiff for bail, she deposed to the fact that the Accessory Charge had been made on 18 May 1993 and that on 25 May 1993 she had charged the plaintiff with the offence of stealing with violence whilst armed. While it seems unlikely that the bail application on 26 May 1993 would not have considered the further charge of armed robbery, there is no evidence of any application for bail extending to that charge. A letter of the Director of Public Prosecutions simply refers to the application for bail having been unsuccessful on 26 May 1993.[27] There is no evidence of the plaintiff having applied for bail in respect of the Robbery Charge including after the Accessory Charge was withdrawn. Nor was any evidence led that the plaintiff did not apply for bail in relation to the Robbery Charge because it had been refused in relation to the Accessory Charge. Once charged with the Robbery Charge, the plaintiff was in custody in respect of both charges.
[24]
[49] The plaintiff was detained in custody in respect of the Accessory Charge in the police watchhouse. The plaintiff gave evidence as to his experience at the watchhouse. That evidence was unchallenged. The plaintiff was originally arrested and taken into custody at the watchhouse on 17 May 1993 when he was first taken into custody in respect of his failure to appear on unrelated charges. His evidence relating to that experience is not relevant to the assessment of damages, save that the initial shock of his arrest at that time was in relation to a charge unrelated to the Accessory Charge for which he was detained from 18 May 1993 not 17 May 1993.
[50] The plaintiff gave evidence of his initial experience as including the initial humiliation of having to go through the process of being stripped searched, fingerprinted and having to have your clothes removed and adopt various physical positions for the police to check that he had no embargoed material which he described as degrading, humiliating and disgusting. That evidence however related to what occurred on 17 May 1993 not 18 May 1993
[51] The evidence of the plaintiff's experience in custody from 18 May 1993 was largely unchallenged, although insofar as he gave evidence that he was threatened and harassed at the time of his arrest by the first defendant and other police officers that was not accepted in the original judgement following the trial.[35] That finding was not overturned by the Court of Appeal.
[52] The plaintiff gave the following evidence in relation to his experience in custody from 18 May 1993 until 25 May 1993 at the police watchhouse, which was unchallenged and which I act upon.
[53] He gave evidence describing his experience of being locked up in a cell where there were 70 people and there were not enough beds for everyone and he had to sleep on a plastic mattress on the floor of the cell. He also indicated a lot of the past was triggered as a result of his detention. In that regard the plaintiff had also given evidence of his traumatic experience when imprisoned as a young 17 year old for some time.
[54] The plaintiff stated that he found there was only one shower present for 70 people. He said there was a lot of animosity and anger in the place because there was some conflict between different groups of the same racial background including with respect to the distribution of food. He stated that there was a tray full of rolls that were shoved under the door and it was a case of first in best dressed and that it wasn't a very nice place to be and that tension occurred when food came every day. He further stated that there was a lot of violence which he found unnerving. The concrete floors and concrete walls caused it to be very cold. The toilet was in the corner of the room and there was no privacy. He did not have visitors other than to try and access a duty solicitor which was difficult.
[25]
The plaintiff did not seek general damages for psychiatric injury either following the original trial or the present hearing.[39] At this hearing, the plaintiff acknowledged the extent of the psychiatric condition, as assessed by Drs Chalk and DeLeacy, was relatively modest.[40] That is supported by the concessions made by Dr DeLeacy.[41] Dr DeLeacy agreed with that change of assessment and Dr Chalk essentially agreed.[42] Further, their assessment of injury to the extent it arose from the subject matter of this litigation was attributable to the plaintiff's lengthy period of imprisonment for the Robbery Charge rather than arising from the Accessory Charge. The plaintiff conceded that personal injuries were not a matter of significance in the assessment of damages and did not seriously contend that it was an issue between the parties in the assessment of damages. [43] It is therefore unnecessary for me to consider the question of any damages for personal injury further. In any event, damage for personal injury was not established as being causally linked to the first malicious prosecution, given his time in prison was overwhelmingly spent as a result of the Robbery Charge not the Accessory Charge and given the concessions made by Dr DeLeacy. Any damages for personal injury in respect of the malicious prosecution would therefore have been miniscule.
[26]
[63] The plaintiff did not contend that he is entitled to damages for loss of reputation. There is in any event no real evidence of reputational damage being suffered by the plaintiff as a result of the Accessory Charge which was withdrawn. The plaintiff had a criminal history prior to the Accessory Charge, including in respect of the Robbery Charge, although he had a significant period of no offending and being employed and a family man after his earlier offending. At the time of the Accessory Charge and the Robbery Charge, he had been largely unemployed doing casual labour from time to time prior to his being charged. Significantly, he was sentenced to a significant sentence for the Robbery Charge which was ultimately overturned and a nolle prosequi entered. However, that charge was not found to give rise to malicious prosecution.
[27]
[64] The principal damage suffered by the plaintiff as a result of the first malicious prosecution is deprivation of liberty while imprisoned on the Accessory Charge and the associated distress, humiliation and personal indignity from being in cramped and stressful conditions.
[65] Both sides referred the Court to a number of cases and the awards made. They are of limited assistance given the wide array of awards which turn on the facts in an individual case. [44] I will make reference to some of them, but they generally serve as no more than as yardsticks.
[66] The plaintiff focussed on more recent cases, which he contends are properly characterised as "exceptional cases" warranting a far more significant award and that his case is analogous to those cases. As will be evident from the discussion below the exceptional nature of the cases arises from the particular facts involved, to which the application of the general principles discussed above resulted in a significant award of damages being made.
[67] The defendants referred to the judgement of Judge Tilmouth in Johnson v The State of South Australia who summarised a number of damages awards which had been made in respect of false imprisonment.[45] Those summaries related to people who had been imprisoned for a number of hours as opposed to a number of days and ranged between $8,000.00 up to $30,000.00. They are of little assistance.
[68] Justice Walton in Edwards v State of New South Wales and Hrdavec v State of New South Wales[46] was not satisfied that malicious prosecution was established in either case, but indicated that he would have awarded damages of $60,000.00 for a period of imprisonment for 69 days and damages of $8,000.00 for a period of less than a day respectively if the prosecution had been found to be malicious.
[69] Justice Walton in Hrdavec[47] relevantly observed that there is no authoritative guidelines in Australia as to how to calculate damages in wrongful or malicious prosecution cases by reference to the period of time for which the plaintiff was detained, nor is there any clear arithmetical symmetry.
[70] Justice Harrison in in awarding general damages for non-economic loss in the amount of $550,000.00 with respect to the tort of malicious prosecution, collateral abuse of process and misfeasance in public office, calculated damages for deprivation of liberty using a daily rate of $1300.00 per day for the period of imprisonment amounting to $75,400.00 for 58 days. That approach has not, however, been generally followed in Australian cases.
[28]
"I am comfortably satisfied that he sustained anger, severe embarrassment and considerable concern over his future as a solicitor, a belief based upon reasonable grounds that his reputation had been damaged, the fear that the incident will crop up in the future and be used against him, and a stinging sense of injustice in the way in which he was so badly treated".
[29]
[82] It is evident that reputational damage was a significant factor in the determination of damages. It provides little assistance in the present case.
[83] The further case particularly relied upon by the plaintiff is State of New South Wales v Spedding[59] where the Court of Appeal did not interfere with the damages awarded to Mr Spedding which included general damages for malicious prosecution, misfeasance in public office and collateral abuse of process. Mr Spedding was a suspect in the disappearance of William Tyrrell. As a result of being a suspect the police charged him with historical child sex offences which were to give the impression (which was false) that it was more likely that he was responsible for the disappearance. As a result of the charges he was the brunt of behaviour which included his being physically assaulted in the street, refused medical services, harassed at his house which resulted in his having to move and being hounded for three years from the laying of charges until his acquittal of the charges. He was subject to very onerous conditions of bail up until acquittal which prevented him engaging in a number of significant events. He could not have contact with four children who he and his wife had fostered and they were ultimately split up. He lost his employment and business. There was no challenge to the finding by the trial judge that his reputation was comprehensively destroyed. In that case general damages were awarded for non-economic loss of $550,000.00 across the three torts which included $75,400.00 for the 58 days spent in custody. An award of $300,000.00 was made for reputational damage caused by the malicious prosecution. The Court of Appeal did not find that the damages were manifestly excessive. The Court of Appeal considered the egregiousness of the conduct in that case of the police officers, for which the State was vicariously liable, was beyond compare. In the Court's view "[t]he high-handed, self-serving ,grand standing undermining of the criminal justice system by the relevant police officers in arresting, charging, opposing bail and maintaining the prosecution against Mr Spedding has no relevant comparator in the reported cases in New South Wales."[60]
[84] While the present case shares some features with that of Spedding, the treatment of the plaintiff and humiliation and damage suffered was on a far greater scale than that suffered by the plaintiff in the present case. The conduct of the police was sustained and extreme, almost malevolent, calculated to inflict significant harm upon him, which it did.
[30]
"It was significant for the claim on the Accessory Charge that there was a body of evidence which demonstrated that Ms Pfingst suspected, when she laid that charge, that it was Mr Irving who was the robber. That fact assisted Mr Irving's claim about the Accessory Charge, but it assisted Ms Pfingst's defence of his claim about the Robbery Charge.... by the time the Robbery Charge was laid, on 25 May 1993, nothing had emerged which would have diminished Ms Pfingst's suspicion, by that time and shortly afterwards, she had procured further evidence which could have caused her to believe that he was probably guilty of the robbery offence".
[31]
[93] While the plaintiff being imprisoned and refused bail gave further time for evidence to be gathered in relation to the Robbery Charge, that investigation had commenced prior to the Accessory Charge and would have continued whether or not he was charged as an Accessory. The plaintiff's contention is without foundation, nor does the evidence establish any relevant causal link between the Robbery Charge and the malicious prosecution for the Accessory Charge giving rise to any compensable claim as contended by the plaintiff.
[94] The question of the appropriate award of damages does not involve, a discounting of the damages to be awarded to the plaintiff because of what occurred subsequently in relation to the Robbery Charge, but it similarly does not involve inflating the damages to include matters causally connected to the Robbery Charge rather than the malicious prosecution involving the Accessory Charge, which was withdrawn. The proceedings which resulted in the plaintiff's conviction being set aside in the High Court were in respect of the Robbery Charge. The length of time to vindicate his position is partly due to the inaction in this litigation but also was driven significantly and understandably by his conviction and years in prison for the Robbery Charge.
[95] Having considered all of the above circumstances and the authorities to which I was referred to the extent they provide some guide, I consider the deprivation of liberty suffered by the plaintiff and the associated distress, disturbance to his even tenor of life and angst warrant damages considerably higher than the defendants contend but lower than what is contended for by the plaintiff. I consider that the appropriate award for general damages is an amount of $65,000.00.
[32]
[96] Aggravated damages have also been sought by the plaintiff. They are awarded for injury to the plaintiff's feelings caused by insult and humiliation, resulting from the circumstances of wrongdoing.[64] In particular they may be awarded where the defendant has acted with "contumacious disregard of the plaintiff's rights" in acting in an insulting or highhanded manner or with malice. The Court must avoid double counting between general damages and aggravated damages since both are compensatory.
[97] I consider that the plaintiff is entitled to aggravated damages. He suffered considerable indignity from the manner and circumstances in which samples were taken while in custody under the s 259 Order. His period of incarceration was aggravated by the fact that the first defendant opposed his receiving bail during that period of incarceration based on the Accessory Charge which should not have been laid which the first defendant knew so as to ensure that he remained in custody. When the plaintiff was charged by the first defendant with the Robbery Charge it wasn't until a week later that the first defendant took steps to have the charge withdrawn and it was not withdrawn until 2 July 1993.
[98] The plaintiff suffered and continued to suffer the humiliation and insult of having endured being maliciously prosecuted in respect of the Accessory Charge and the failure of the defendants to acknowledge the wrong. The plaintiff has long fought to vindicate his name and seek acknowledgement of the wrong done to him although that was in significant part, directed to the Robbery Charge and his subsequent lengthy period in prison. While the Accessory Charge was withdrawn, he should never have been charged. He has fought for some 30 years to have the State recognise the wrong that occurred, without any apology being received from the State or the first defendant. He endured a trial where neither the first defendant or the State conceded that the Accessory Charge was in any way unjustified, when, as the Court of Appeal found, the first defendant in fact believed that he was guilty of the robbery and used the time he was in custody to gather further evidence against him in respect of the Robbery Charge. No apology from either of the defendants has been forthcoming. I am satisfied that conduct by the defendants has caused insult and humiliation and contributed to his prolonged sense of injustice by the disregard of the plaintiff's rights and his seeking vindication arising out of what occurred. Given the findings of the Court of Appeal, the conduct of the first defendant was not justifiable and was improper.
[33]
[101] The plaintiff also seeks exemplary damages. While that was raised in the original proceeding no figure had been placed upon it. That said, the plaintiff did not abandon any claim for exemplary damages for malicious prosecution based on the Accessory Charge.
[102] The Court of Appeal found that the first defendant lacked any honest belief in the Accessory Charge and laid it for an improper purpose. The Accessory Charge against the plaintiff was found by the Court of Appeal to have been laid to allow the investigation for the robbery to occur and to ensure that the plaintiff remained in custody. In those circumstances, having regard to the reasons of both Fraser and McMurdo JJA, I consider that an award for exemplary damages is warranted.
[103] In the case of exemplary damages they are directed to the wrongdoer rather than being compensatory in nature and are intended to punish the defendant for conduct showing a conscious and contumacious disregard of a plaintiff's rights and to deter them from committing like conduct again. While not motivated by spite or ill-will or devious orchestrated conduct as was evident in Spedding, there was a conscious and contumacious disregard of the plaintiff's rights and an abuse of her office in charging the plaintiff without a proper basis, so as to keep him in custody while investigations continued.
[104] While the plaintiff referred to various "embellishments" by the first defendant adverted to by Fraser JA or McMurdo JA in their reasons, they did not result in findings by the Court of Appeal of deliberate or dishonest conduct which made her conduct more egregious. In his reasons McMurdo JA stated in relation to the errors and misrepresentations in the QP9 and bail objection documents: "In summary, these suggested inaccuracies are either not shown to be such, or not shown to be embellishments affecting Ms Pfingst's credibility." [66] Similarly the complaints of the first defendant's actions in relation to the High Court are unconnected to the Accessory charge and were not the subject of specific findings.
[105] While the plaintiff was in custody, the first defendant opposed bail in respect of the Accessory Charge when she knew she lacked reasonable and probable cause to charge the plaintiff and also used his time in custody to obtain an order to take samples from him which continued the abuse of the office relying as they did on the validity of the Accessory Charge. In the present case the first defendant left the police service a considerable time ago and as such any damages will not act as a deterrence at least to the first defendant.
[34]
[107] The plaintiff seeks an award of interest as damages from 18 May 1993. It is agreed that the interest rate should be two percent on the compensatory component of the damages and not awarded in respect of the exemplary damages.
[108] The defendants further contend that the Court should exercise its discretion to award interest only from 18 May 2018, due to unreasonable delay. According to the defendant's submission 18 May 2018 is nominated on the basis it is the date the plaintiff's alleged unreasonable delay ended. The plaintiff contends that he has not unreasonably delayed proceedings given his attempts to resolve the matter extra-curially and the effect of delay in disclosure by the defendants on the conduct of its action.
[109] The award of interest is a discretionary one, the principles of which were helpfully summarised by Applegarth J in Cape Byron Power 1 Pty Ltd v Downey Energy Systems Pty Ltd. [67] In particular his Honour noted that there was no rule that delay in itself restricts the period over which interest may be awarded.[68] However, the case for compensating a plaintiff for being kept out of the use of money for the entire period is weakened where the plaintiff has been responsible for unreasonable delay.[69] In circumstances where the court does find that a proceeding has been unreasonably delayed by the plaintiff's conduct or inactivity, the discretion to confine the period for which interest is awarded should not depend on the defendant proving specific detriment.[70]
[110] In the present case the defendants contend that interest should not be awarded until 2018 when the plaintiff filed a fourth amended statement of claim on 18 May 2018, a fifth amended statement of claim on 26 June 2018 and an amended reply on 3 August 2018.
[111] I am satisfied in the present case that the plaintiff, has unreasonably delayed the prosecution of the litigation in part, which cannot be abrogated by the fact that he suffered periods of impecuniosity and tried to resolve the matter without enduring litigation.
[112] The proceedings were issued on 20 August 1999, and the defendants filed a defence on 29 October 1999 and the plaintiff filed a reply on 7 December 1999. Nothing occurred for a period of two years at which time the plaintiff filed a notice of intention to proceed on 25 June 2001.
[35]
[123] As to the question of costs the plaintiff seeks an order that the defendants pay all of the plaintiff's costs of the trial on a standard basis to be assessed. The plaintiff contends that that is appropriate given that the factual and legal issues on the Robbery Charge were not easily definable and severable from the Accessory Charge and that the evidence at trial relating to the Accessory Charge was critical to the plaintiff's success on appeal in respect of the Accessory Charge. He contends the vast majority of evidence at the trial related to events between the date of robbery and 25 May 1993, the date on which the charge was laid and that the plaintiff had substantial success in relation to establishing the Accessory Charge was based the first malicious prosecution.
[124] The defendants however contend that the plaintiff should not receive all of his costs and the costs should reflect the level of success on the issues that had to be considered by the Court. The defendants also contend the Court should only order costs on the standard basis in favour of the plaintiff from 18 May 2018 and should be no more than thirty-percent to reflect the defendant's distinct success at the trial in relation to the issues that dominated the majority of the trial.
[125] They also noted that the defendants had received an indemnity cost certificate in relation to the aborted trial before Justice Boddice and should not receive any costs in relation to that. Further, the reserve costs relating to his various applications to proceed and consolidate proceedings should not be awarded to the plaintiff, nor the costs of his various other proceedings which were consolidated into the proceeding. That is accepted by the plaintiff.
[126] While the plaintiff referred to the case of Beckett v The State of New South Wales[72] as justifying a costs award in his favour in their entirety, that case is of little assistance given it was in the context of an argument by the State that the plaintiff's conduct had deprived the State of an opportunity to resolve the proceeding other than by way of litigation and therefore should not be ordered to pay her costs.[73]
[127] While there was some overlap in evidence relied on in respect of prosecuting the first malicious prosecution with the second malicious prosecution, the latter took the majority of time at trial. The second malicious prosecution was the dominant issue at trial in terms of time and the calling of evidence. While the delay of the plaintiff in his conduct of the matter may have increased, the work done during the period where I consider there was unreasonable delay was not significant and I am not satisfied that it justifies delaying the time from which costs are payable.
[36]
[129] I therefore find that the plaintiff is entitled to damages in respect of the first malicious prosecution:
[37]
(a) in the sum of $65,000.00 in respect of general damages;
(b) in the sum of $45,000.00 in respect of aggravated damages; and
(c) $20,000.00 in respect of exemplary damages for which the first defendant is only liable.
[38]
[130] Interest is payable on the general and aggravated damages from 28 September 2011 at the agreed rate of 2 per cent per annum.
[131] The defendants are to pay forty per cent of the costs of and incidental to the proceedings in the trial division. I am satisfied that the costs of the trial before Boddice J in September 2018 and reserve costs in respect of the applications for leave to proceed filed 30 January 2004 and 11 July 2011 and in respect of proceedings s 914 of 1999 and s 63 of 2001, which were the subject of consolidation should be excluded.
[132] The orders that I propose to make in respect of damages (the Proposed Orders) are that:
[39]
The plaintiff's damages on the first malicious prosecution are assessed as:
[40]
(a) in the sum of $65,000.00 in respect of general damages ;
>
> (b) in the sum of $45,000.00 in respect of aggravated damages; and
>
> (c) $20,000.00 in respect of exemplary damages for which the first defendant is only liable.
[41]
Pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) interest should be awarded on the sum of $110,000.00 in respect of general and aggravated damages from 28 September 2011 at a rate of two per cent as agreed by the parties.
[42]
[133] Given that I have provided that parties are to calculate interest I will not make formal orders save as to costs and to provide for the parties calculating interest and providing an agreed draft order with the calculation, which will then be made upon the papers by me upon being satisfied that it reflects the above terms.
[134] I order that:
[43]
The parties are directed to calculate and agree to the amount of interest at the rate in [2] of the Proposed Orders above for the relevant period.
2. The parties are to provide an agreed draft order containing the Proposed Orders which includes the calculation of interest referred to in [1] above to the Associate for Brown J by 4 pm on 18 September 2025 to be provided by email.
3. The defendants are to pay 40 per cent of the plaintiff's costs of proceedings in the Trial Division excluding:
[44]
(a) the plaintiff's costs of the aborted trial before Boddice J;
>
> (b) reserve costs in respect of the applications filed by the plaintiff on 30 January 2004 and 11 July 2011; and
>
> (c) reserve costs in respect of proceedings s 914 of 1999 and s 63 of 2001.
[45]
[1]Irving v Pfingst[2021] QCA 280 (COA Decision). Justice Mullins (as her Honour then was), found, in dissent, that the plaintiff had not established the malicious prosecution claim in respect of the Accessory Charge.
[28] Plaintiff's closing submissions at trial at [337].
[66]
[29] Plaintiff's original trial submissions at [350].
[67]
[30] Plaintiff's amended outline of submissions dated 19 February 2021 at [10].
[68]
[31] Save a faint objection was made after the issue was raised by the Court but no proper submissions were put as to why the plaintiff could not raise the argument.
[71] Representations were made to the further Attorney-Generals who acted after Ms Lavarch, who had rejected his claim in May 2006. In 2008 the plaintiff was informed by Mr Shine, the then Attorney General, that he intended to review whether compensation should be awarded and was prepared to consider whether a retired judge would be engaged to review the material and provide an opinion. That however ultimately did not come to fruition. The plaintiff then was again told his claim was under consideration by the Attorney-General who replaced Mr Shine, Mr Dick in 2009. Ultimately the plaintiff was told that the matter should be pursued through his litigation in the court and advised, on 21 December 2009, that the Attorney-General would not recommend and ex gratia payment or that a review be conducted by a retired judge.
[39] By 2 June 1993, first defendant made it clear that the Accessory Charge was no longer to be prosecuted and that she did not intend that the plaintiff be simultaneously be prosecuted on both charges, by advising Police Prosecutions that the Accessory Charge be withdrawn on the date of the committal hearing on 2 July 1993 and the Robbery Charge should proceed. The plaintiff gave evidence he was notified of the withdrawal of the charge on 2 July 1993.
[40] It is contended on behalf of the plaintiff that given the Accessory Charge was not formally withdrawn until 2 July 1993 the plaintiff was held in custody in respect of both charges and damages for deprivation of liberty should be assessed on the basis of the 46 days. This was contrary to the plaintiff's original submission at trial, when he had submitted that he was wrongfully held in prison for a period of seven days and that he was held against his will on the Robbery Charge between 25 May 1993 and 11 December 1997.[28] The trial was run on the basis of the period of the plaintiff being wrongfully imprisoned on the Accessory Charge for only seven out of the 1671 days the plaintiff had been imprisoned.[29] The plaintiff also submitted that was the period of detention in respect of the Accessory Charge to the Court of Appeal.[30] In the plaintiff's submissions in reply in this Court, the plaintiff accepted he had made submissions that he was imprisoned in respect of the Accessory Charge for seven days but submitted that his change in position was explained by the fact his previous submissions were premised on the plaintiff being successful in respect of both the first and second malicious prosecutions. The defendants did not, at least initially, object to the recast argument[31] and met the argument in their submissions, noting the inconsistency in approach.
[41] A plaintiff is generally bound by the way he ran his or her case at trial, which in this case was that the period of imprisonment as result of the first malicious prosecution was seven days. However the evidence led at trial does show that he was charged with the Robbery Charge on 25 May, that the first defendant wrote to prosecutions requesting the Accessory Charge be withdrawn on 2 June and that the charge was withdrawn on 2 July 1993. Notwithstanding the plaintiff is in effect raising a new case in this respect from that at trial I will consider it for the purposes of assessing damages.
[42] The defendants contend that once the Robbery Charge was laid against the plaintiff, the Accessory Charge could no longer be prosecuted as the two charges were inconsistent and therefore any period of imprisonment after 25 May 1993 is to be attributed to the Robbery Charge and not the Accessory Charge, notwithstanding the latter had not been withdrawn. Consistent with the fact both charges could not be maintained together, the defendants point to the fact that the first defendant wrote to the officer in charge of the criminal investigation branch on 2 June 1993,[32] requesting that the Accessory Charge which was due for committal hearing on 2 July 1993 be withdrawn and for the Robbery Charge to proceed which was listed for committal on 13 July 1993.
[43] As was found by the Court of Appeal the two charges could not stand together and once the Robbery Charge was laid against the plaintiff, as a principal, the Accessory Charge could not stand and be prosecuted at the same time as the Robbery charge. While the plaintiff however had no entitlement to be released on the Accessory Charge until it was withdrawn, the Robbery Charge was the active charge that was then going to be prosecuted. Even if the Accessory Charge had been withdrawn at an earlier point in time, the plaintiff would have remained in custody in respect of the Robbery Charge in the absence of a bail application being made.
[44] Further once the Robbery Charge was laid it is unlikely he would have been granted bail in respect of that charge given it had been refused in respect of the Accessory Charge and the Robbery Charge was a more serious charge and the plaintiff had been arrested for a failure to appear albeit he had an explanation as to miscommunication as to the date he was to appear.
[45] I am satisfied even if the Accessory charge had been withdrawn on 25 May 1993, that the plaintiff would have remained in custody in respect of the Robbery Charge and the Accessory Charge was not causative of his ongoing detention.
[46] On the present state of the evidence I conclude that the plaintiff was deprived of his liberty as a result of the Accessory Charge for a period of seven days not 46 days as he would have remained in custody in respect of the Robbery Charge even if the Accessory Charge had been withdrawn at an earlier stage.
[47] However, the length of time that it took to withdraw the charge is a matter which is relevant to assessing aggravated damages given the first defendant did not take steps to have the Accessory Charge withdrawn until 2 June 1993.
[48] The plaintiff also submits that the Court should, in assessing damages, consider the counterfactual of what would have occurred had he not been charged with the Accessory Charge. The plaintiff contends that he may not have been locatable to be charged with the Robbery Charge, because he would not have been obliged to provide an address, nor subject to a reporting obligation and it was "highly likely that the plaintiff would have been difficult to locate taking into account his knowledge that the police were pursuing him for the robbery."[33] It is contended that the arrest for the Robbery charge may have been significantly delayed and his time in custody in respect of the Robbery Charge shortened. There are two difficulties with this argument. The first is that is a matter of speculation whether the plaintiff would have been difficult to locate.[34] While it is true there would have been no reporting requirement as the other charges for which he was originally arrested had been resolved, given it had taken the police some effort to locate him the first time and the police were continuing their investigation into the Robbery and that he may be responsible for that offence it is possible that the police would have sought to keep him under surveillance until the decision of whether or not to charge him with the Robbery Charge. I am not satisfied that there would be a very low chance so as to be regarded as speculative that the Robbery charge and the plaintiff's arrest would have been delayed until after 25 May 1993 and he would not have been incarcerated from that date. The second aspect is that if he had not been charged with the Accessory Charge his time in custody would have only been in respect of the Robbery Charge for which the claim of malicious prosecution failed. His time in custody could only have been shortened in respect of the Robbery charge, not the Accessory Charge. Thus there is no causal link between the damage and the Accessory Charge the subject of the malicious prosecution.
[55] During the period when he was in custody, bail was refused on 20 May 1993 by the Magistrate and refused by the Supreme Court on 26 May 1993. The first defendant was the officer who was responsible for opposing bail on both occasions. In the first instance, the wrong criminal history was produced and there were some factual errors in the outline of facts. There were also errors in the QP9. While the plaintiff submits that this Court should have regard to those errors in terms of considering the egregiousness of the first defendant's conduct, I did not find that there were errors for which the first defendant was responsible were deliberate or the result of deliberate manipulation nor did the Court of Appeal make any findings to that effect. The first defendant's opposition to bail is, however, relevant to the plaintiff's suffering while in custody.
[56] In the case of Supreme Court bail application in respect of the Accessory Charge, the first defendant provided an affidavit deposing as to the plaintiff having been charged with Robbery on 25 May 1993 as part of the reason for opposing bail. That shows she continued to perpetuate her opposition in relation to a charge which she never should have laid against the plaintiff.
[57] The plaintiff gave evidence that when his bail application was refused on 26 May 2023 that he felt shattered and bereft.
[58] During the period that the plaintiff was remanded in custody on the Accessory Charge, the first defendant took the opportunity to seek an order that samples be taken from the plaintiff pursuant to s 259 of the Criminal Code, which require, inter alia that the Magistrate be satisfied that the plaintiff was in lawful custody.[36] Insofar as the plaintiff refers to the evidence again containing misdescriptions and being with respect to the Robbery charge, no finding was made at trial or by the Court of Appeal that it was deliberate. Following the grant of the Order, those samples were taken despite the plaintiff's opposition to those samples being taken and the first defendant being informed by Legal Aid on 19 May 1993 that there were not any reasonable grounds for believing that the samples may afford evidence as to the commission of any offence for which the plaintiff was presently charged. The plaintiff said he was told by police that they "could use as much force as necessary to take the samples" from him.[37] He described that experience to be one where he felt attacked and violated. The opportunity was also taken to ask him further questions about the robbery itself.
[59] I accept the plaintiff's evidence in relation to the conditions he experienced at the Cairns watchhouse and what the plaintiff experienced and how he felt while in custody, including when the samples were taken pursuant to the s 259 Order.
[60] Prior to being charged with the Accessory Charge, the plaintiff had not offended and had not been in custody since 1988 when he spent a night in a watchhouse or some form of detention centre. He had not been in custody for any significant period for almost twenty years ( although he had prior to that) and only had committed minor offences.
[61] Dr DeLeacy provided a report which referred to the history of the incident as relayed by the plaintiff. His report and the transcript of his evidence from the previous trial before Boddice J was tendered by consent. What the plaintiff reported to Dr DeLeacy does not take what he stated in evidence much further. While it does refer to Dr DeLeacy being informed by the plaintiff that he was treated badly by police it is just a bald statement referenced to no particular event or conduct. As stated above, insofar as specific allegations were made in relation to the "corridor conversation" and the Cairns CIB, I did not accept the police threatened, harassed or assaulted the plaintiff.
[62] Dr DeLeacy did refer to the plaintiff's ongoing sense of injustice as a result of his wrongful imprisonment. That is largely attributable to his imprisonment on the Robbery Charge. I accept however that the events that the plaintiff experienced in relation to the Accessory Charge resulted in a some sense of injustice, even though the events leading up to and subsequent conviction and imprisonment on the Robbery Charge contributed more significantly to that sense of injustice, the latter being described by him as having a "crushing effect".[38] I also accept that sense of injustice has continued as a result of his engaging in a lengthy process, both through his representations to various State representatives and authorities to review his case and by this litigation, to have the State and the first defendant accept that, at least in relation to the Accessory Charge, he was a victim of malicious prosecution.
[71] In addition to Spedding, the plaintiff contended that the appropriate cases to which the Court should have regard are Bulsey v State of Queensland,[49]Stradford (a pseudonym) v Judge Vasta[50] and Houda v The State of New South Wales.[51]
[72] In Bulsey, the Court of Appeal awarded $165,000.00 in damages made up of $60,000.00 in respect of assault, battery and false imprisonment during the course of the wrongful arrest, and $100,000.00 for false imprisonment after the wrongful arrest, and $5,000.00 for personal injury. A claim of malicious prosecution was abandoned by the first appellant. In that case six police had arrived dressed in commando uniforms with black helmets and masks. They forcibly entered the first appellant's home where the first appellant was residing with his partner, the second appellant and children. They were all asleep. The first appellant was manhandled to the floor, had a boot placed on his head, was handcuffed and dragged out of his home partially dressed. He was transported from his island community to the mainland where he was questioned as a suspect in relation to highly publicised offences in which he played no part. His frightened partner, who was pregnant, and his children were present when he was taken. He was held in custody for more than two full days before being charged for unlawful assembly and remanded by a Magistrate. That charge was later withdrawn and other charges were laid. In a subsequent committal, the State conceded that it did not have a case against the appellant.
[73] Justice Fraser considered the assessment of total damages by the trial judge of $80,000.00 was inadequate because of the "absence of any award for aggravated damages" and that the "award insufficiently recognises the seriousness and impact of the wrong done to the first appellant."[52] He referred to the great seriousness of the wrong and stated that a "very substantial award of damages is required to compensate the first appellant for the wrong done to him by that wrongful exercise of executive power over a citizen."[53] Justice McMeekin in agreeing with Justice Fraser considered that " it is important that the Courts acknowledge fully the hurt that can be done when power is misused. The vehicle for doing that is by an award of significant damages." Justice McMeekin found the startling feature of the case was " not so much the period of the unlawful imprisonment but the manner in which the appellants were treated."[54]
[74] Given the violent and intimidating nature in which the police entered the appellants' house and the humiliating way he was dragged out on the street partially clothed and then removed to the mainland before he was imprisoned for two full days, the manner in which the first appellant was treated in Bulsey was a more serious case than the present, although the present case also involves the wrongful exercise of executive power over a citizen and imprisonment for a longer period.
[75] Justice Wigney in Stradford found the respondents were liable for false imprisonment. One of the respondents, a judge dealt with the appellant, who was not legally represented, for contempt for failing to comply with an order of another Judge. No order in fact had been made by that judge. He ordered that the appellant be imprisoned for 12 months to be released after five months. He was taken into custody by MSS Security and then was subsequently handcuffed and taken into custody by the Police and taken in a police van to Roma Street Watchhouse. After four days he was transferred to the Brisbane Correctional Centre until his release on 12 December. That followed an application being made by lawyers appointed by the appellant where the Judge conceded he was in error in the original decision.
[76] Justice Wigney stated that in assessing general damages a "substantial portion of the ultimate award should be referrable to the initial shock of being arrested".[55]
[77] Justice Wigney accepted Mr Stradford's evidence that he had been in a state of fear when he appeared before the Judge in relation to contempt and was berated in front of his former wife and his best friend. He was taken by the guards through a public area and then in the basement had to remove his cufflinks, belt and shoes and was frisked and placed in a holding cell with glass walls. He was shocked and fearful. When he was transported by the police, he was handcuffed and he felt claustrophobic and like a dog in the back of a cage. At the Watchhouse he was questioned by police and told he might be in the Watchhouse for months. He was strip searched, had to remove his clothes and adopt various positions to see whether he had concealed anything in his anus which he found degrading. He was given women's shorts to wear when the officer couldn't find a pair of shorts and was subsequently taunted by other prisoners. He was then given tracksuit pants. He was kept in a narrow holding cell with four other inmates, one of whom then punched the wall above him. He felt terrified and overwhelmed. He was taunted by the inmates. He was taken to a pod but had a cell on his own. His bed was a lump of concrete and he was given a mattress and blanket but no pillow. He was upset and distressed. The bubbler in his cell didn't work. The metal toilet had no toilet paper. The watchhouse was bitterly cold. He was given take away food. He was allowed to make one call which upset him. He subsequently had to share a cell on the second night with an inmate who was coming off ice and heroin and said he had been in and out of mental health wards. Mr Stradford awoke to find the inmate's hands around his throat. The inmate did not exercise personal hygiene. Mr Stradford could not access his medication. He observed violence and aggression between inmates and on one occasion was punched in the head by one. He did not sleep well and started to struggle mentally. His lawyers told him they couldn't assist without payment of a significant amount of money and he could not get legal aid. He started to mentally decline and become suicidal. He took steps in that regard but withdrew when he thought of his children.
[78] When he subsequently saw a nurse he was teary and stated he wasn't coping. He was given medication and given time in the "exercise yard". He was subsequently transferred to the correctional centre and gave further detailed evidence of the trauma he experienced. He was placed under observation after seeing a psychologist which meant he received fewer privileges. He was strip searched. His medical condition flared up given the absence of medication. He was in a small cell. He had a prisoner grab his backside and tell him he would look sexier if he shaved his legs. Such was his mental state that night he shaved his legs. He was elbowed in the head by an inmate. He was then told he was going to be sent to a maximum security prison. He phoned his friend to tell him and was then told he had won his appeal and was to be released.
[79] The appellant was awarded damages in relation to the various periods of deprivation of liberty, for some 30 minutes when Mr Stradford was in the custody of MSS guards, which took account of the initial shock, in the amount of $35,000.00. In respect of the period when he was in custody in the Watchhouse and the prison, which was a period of 6 days, Wigney J found that the appellant was entitled to a significant award of damages to compensate him for the breach of his fundamental right to liberty during that period, as well as the events which he suffered which were demeaning, humiliating and destressing "regardless of whether of not they represented a normal prison experience",[56] an amount of $165,000.00. There was no dispute that as a result of being imprisoned the appellant continued to suffer from post-traumatic stress disorder and a major depressive disorder.
[80] While not wanting to diminish the experience of the plaintiff in the present case, the treatment of the plaintiff in being exposed to cramped and degrading conditions, which caused him distress, was significantly less in terms of its impact and his treatment than the conditions described by Mr Stradford. The evidence in Stradford showed he suffered significant shock and trauma upon his arrest and imprisonment, particularly given it was at the direction of a judge.
[81] As to Houdav State of New South Wales,[57] Cooper AJ awarded $100,000.00 for compensatory damages as well as $20,000.00 in respect of malicious prosecution, false imprisonment and wrongful arrest and assault. The officer in question was found to have acted out of spite when he arrested the plaintiff solicitor for assault, after the plaintiff stood up to him for his rude and unjustified conduct. The plaintiff, a solicitor, was arrested at court in front of colleagues and members of the public while waiting for his clients. He was pulled to the steps leading to the court lobby by three policeman and walked down the street to the police station. His clients saw him being taken away. He was kept at the station for an hour, which was found by the trial judge to constitute false imprisonment. The charges were maintained for a period of six months until they were withdrawn. During that period he had to report the matter to the Law Society and have the threat of losing his status as a solicitor of the Supreme Court New South Wales if he had been found guilty. He had to see clients, police and colleagues during that period. According to Cooper AJ:[58]
[85] I have had some regard to those cases in the assessment of damages for this case but as is evident from the above cases, the cases are diverse and each turns on its own facts.
[86] Being arrested and imprisoned on the Accessory Charge was not the plaintiff's first experience with the justice system or time in prison. As a result of that previous experience and the fact that the first night in the Watchhouse was due to his failure to appear in relation to unrelated offences, the State submits that the damages for the period of false imprisonment should be tempered by the fact that the award of damages in relation to imprisonment often includes a significant amount for the "initial shock of being arrested".[61]
[87] While the plaintiff was somebody who was familiar with the prison system and was imprisoned for the failure to appear on 17 May 1993, his initial shock at his arrest and imprisonment on the Accessory Charge ( as opposed to the failure to appear) was not necessarily significantly diminished by his earlier experiences. He had not had contact with the criminal justice system in any substantive way for some 10 years, although he had had some minor transgressions in 1988 for which he was fined. According to his evidence it triggered earlier trauma he had experienced when previously in custody. The Accessory Charge was a serious charge and carried a potentially heavy sentence if established.
[88] The experience of then being charged with the Accessory Charge and having his bail opposed by the first defendant and subsequently refused, while tempered given his previous experience, compared to someone like Mr Stradford, would, I accept, still would have caused him distress and mental suffering. I do not consider the impact of the experience would have lessened significantly over the days he was in custody, given that he was kept in custody at the Watchhouse in an overcrowded cell, with only one shared toilet, made to sleep on a mattress on the floor and be subject to a random food distribution amongst the inmates. The conditions which involved a complete lack of privacy would have been humiliating and degrading. Although he was not subject to any violence I accept that he would have suffered anxiety as a result of the tensions between other prisoners and the violence he witnessed. I infer that his previous experience with the criminal justice system would have tempered his experience to some degree but not significantly.
[89] While the plaintiff contends that what makes his case exceptional is the thirty years he has fought for recognition that he was the victim of charges that should not have been laid and suffered years in prison as a result, that was predominantly the result of the Robbery Charge and only in small part due to the Accessory Charge. The plaintiff's contention conflates the effect of the Accessory Charge and the Robbery Charge, whereas it is only the malicious prosecution in respect of the Accessory charge which is compensable. The Court of Appeal accepted that there was reasonable and probable cause for the Robbery Charge to be laid against the plaintiff on 25 May 1993. While the prolonged injustice the plaintiff has experienced seeking to vindicate his case and the associated angst is compensable and will be taken into account in the award of damages, to the extent the plaintiff seeks to draw a parallel with Spedding, Stradford or Bulsey it is not borne out on the facts of the present case, although as stated above they are of some relevance as a guide.
[90] The plaintiff also contends that he suffered damage as a result of the Accessory Charge in respect of the Robbery Charge. The plaintiff contended that tortious act need not be the sole or principal cause of harm to be compensable and that it is sufficient if it a material or contributing cause of harm.[62] That may be accepted. However the plaintiff did not demonstrate that the unjustified laying of the Accessory Charge somehow caused the plaintiff to suffer damage in respect of the Robbery Charge.
[91] The plaintiff submits that charging him with the Accessory Charge started a series of events that ultimately led to his wrongful conviction for robbery and his being imprisoned for a lengthy period of time.
[92] The plaintiff contends that damages should include the manner in which the Accessory Charge impacted upon the subsequent conduct of the Robbery Charge and use of evidence obtained for the Accessory Charge in the pursuit of the Robbery Charge. The plaintiff particularly focussed on the samples gathered under compulsion of the s 259 order which was used as part of the investigation in respect of the robbery not the Accessory Charge. Results were, however, never received from the samples taken while he was in custody on the Accessory Charge and were not relied upon for the prosecution of the Robbery Charge. To the extent that the plaintiff refers to evidence relating to the Accessory Charge being used in the brief of Evidence for the committal hearing and criminal trial in respect of the Robbery Charge, that wasn't otherwise developed. That is unsurprising given that the investigation into the Robbery Charge was the primary investigation for which the greatest amount of evidence was obtained. Other than the physical samples taken, there was scant evidence that was obtained to support the Accessory charge which was significant in terms of the Court of Appeal finding that the defendants were liable for malicious prosecution. Justice McMurdo put it in these terms:[63]
[99] Charging the plaintiff with the Accessory Charge was a misuse of power by an officer who, in her role, held significant powers to act within the confines of the law. This case demonstrates the dangers of misusing power to bend the rules to catch the "bad guy". It infects and undermines the justice system and leads to a distortion in the investigation process which can lead to an innocent person being charged and feeling the weight of a system against them. If the police do not act in accordance with their duties and themselves comply with the law they are entrusted to enforce, public confidence is undermined and members of the public such as the plaintiff feel betrayed by the justice system. The Court must ensure he is compensated for the hurt and enduring sense of injustice caused, while ensuring that it does not duplicate the matters for which general damages have been awarded. As was stated by McMeekin J in Bulsey "[t]he executive, through the police, wield enormous power. It is essential that that power be used within the confines of the law. It is important that the courts acknowledge fully the hurt that can be done when the power is misused."[65]
[100] In the circumstances I consider that the plaintiff is entitled to aggravated damages in the amount of $45,000.00.
[106] I consider that in all of the circumstances exemplary damages in an amount of $20,000.00 should be paid by the first defendant.
[113] On 20 January 2004, the defendants applied to strike out the claim for want of prosecution or as an abuse of process. The plaintiff took steps to adjourn that application and apply for leave to consolidate the proceeding with another proceeding commenced in Cairns. Leave to consolidate and proceed was given on 5 April 2004. That ultimately resulted in the delivery of a consolidated and amended statement of claim on 4 June 2004 to the defendants, but not filed. Nothing further occurred in the litigation for over five years, during which the plaintiff sought to pursue an ex gratia payment from the Attorney-General.
[114] In January 2011, the plaintiff filed a notice of change of solicitors and Maurice Blackburn began to act for the plaintiff. In July 2011, the plaintiff filed an application for leave to proceed and leave to discontinue claims against other defendants. On 29 August 2011, the Court granted leave to proceed and a further amended statement of claim was delivered on 28 September 2011. Further pleadings were filed and the parties undertook disclosure with the defendants delivering three lists of documents in 2011 and 2012. The supplementary lists delivered in 2012 were not expansive. Aside from disclosure there was little activity for a period of two years.
[115] The plaintiff served a further amended statement of claim on 20 June 2014 and a defence was filed on 25 August 2014. An unsuccessful mediation occurred on 4 August 2016. No action was then taken for a further year when on 7 August 2017 a further amended statement of claim was filed followed by an amended defence. There was then a delay of nine months until a fourth amended statement of claim was filed on 18 May 2018.
[116] After August 2018, the matter was then affected by an aborted trial in 2018 and a trial originally scheduled for April 2019 having to be adjourned. Those matters were not attributable to the fault of the parties.
[117] The plaintiff contends that the delay was also affected by disclosure not having been fully given by the defendants. The progressive disclosure by the defendants which took place over a period of time does not demonstrate any delay by the defendants which can explain the plaintiff's delay in prosecuting the proceedings since it correlates with the fact that the plaintiff amended their pleading several times.
[118] The plaintiff also contends that the plaintiff should not be punished for seeking to resolve the matter on an ex gratia basis. The defendants however contend that the plaintiff's attempts to seek an ex Gratia payment continued well after the Attorney-General had rejected such a claim in May 2006.[71]
[119] While parties should be encouraged to try and resolve matters outside of the courts if possible and the plaintiff was given some limited encouragement that may occur, at least in 2008 and 2009, no steps were taken at all to advance the litigation during that period, it was unreasonable to delay the progress of the proceedings while he explored that possibility, albeit he was relying on the pro bono assistance of Mr O'Keefe to try and advance his case. Parties are obliged under r 5 of the UCPR to proceed in an expeditious way and even if trying to resolve matters outside of litigation cannot simply wait and see if the latter will be successful and let the litigation lie in abeyance. Nor can they delay the progress of litigation once commenced, due to their own difficult financial circumstances.
[120] Once a further statement of claim was served on 28 September 2011 following an order being granted by Justice Lyons on 29 August 2011 for the matter to proceed, the matter progressed, albeit at a slow pace. I consider that the litigation was not, in reality, advanced until the service of the statement of claim on 28 September 2011. After that time it progressed slowly, but I do not find the plaintiff unreasonably delayed the proceedings. The delay that occurred prior to that time cannot be attributed to the defendants' disclosure which was delivered in 2011 and 2012. I consider that the plaintiff unreasonably delayed the prosecution of these proceedings up until the service of the amended statement of claim on 28 September 2011 and that interest should be paid from that date.
[121] The parties agreed interest should be allowed at 2 per cent.
[122] Interest is not payable in respect of exemplary damages.
[128] In my view, the appropriate cost order in this matter would be to award the plaintiff forty-percent of his costs of and incidental to the proceedings in the trial division. It should exclude the cost of the aborted trial before Boddice J in September 2018 which the was the subject of an indemnity cost certificate under the Appeal Cost Fund Act 1973 (Qld). Reserve costs in respect of the applications of 30 January 2004 and 11 July 2011 and proceedings s 914 of 1999, s 63 of 2001 should also be excluded from the costs order. The defendants have not sought those costs.