Kohkanzada v Amiri

Background

1. On 25 September 2014, the plaintiff and the first defendant married in Afghanistan arising out of what has been described as an arranged marriage. The plaintiff and the first defendant did not know each other well prior to their marriage. At the time, the plaintiff was a citizen of and lived in Afghanistan. The first defendant lived in Australia. The plaintiff and the first defendant spent a few weeks together in Afghanistan after their marriage before the first defendant returned to Australia.
2. The plaintiff says that he expended a considerable sum on wedding costs, including gifts to the first defendant. The second defendant says that he lent the plaintiff the money for the wedding. The plaintiff also says that he paid $10,000 to the first and/or second defendants to arrange for him to come to Australia. He obtained the appropriate Visa and arrived in Australia on 29 June 2015.
3. He says that he came to Australia in the belief that he would be continuing his spousal relationship with the first defendant. On arrival, he was met at the airport by the first defendant and members of her family and members of his extended family, such as his cousin, Brishna Azizi. There are photographs showing everyone at the airport looking happy. The plaintiff says that was just for the camera and it was apparent from the first moments of their meeting in Australia that the first defendant was not happy with him. The defendants disagree.
4. The plaintiff was taken to the place where the first defendant was residing, being with her family. He was told that he would be sleeping in a separate room to the first defendant until such time as she became comfortable with him. They had not been intimate whilst they were together in Afghanistan after the wedding. The plaintiff did not understand or accept this.
5. On the plaintiff's version, the fact that the first defendant was not willing to share a room with him and commence their married relationship became an immediate source of conflict. He says that within a couple of days he decided that he would not be staying in the house with the first defendant and her family. This was after an argument or discussion with the first defendant. According to the plaintiff, this discussion did not involve any physical violence or threats, although he says that he overheard the first defendant's brother, Abdullah Amiri, shouting to the first defendant "don't listen to your parents go and kill yourself" as well as him saying, "go and tell him to leave now or I will kill this mother fucker".
6. He then moved in with his aunt and cousin. He had a conversation with the first defendant during which the first defendant said that "it's over" and he said that she needed to pay him back for the wedding and the gifts. The plaintiff says that he met with the second defendant and asked the second defendant to organise for the return of the wedding ring and gifts, in accordance with Afghan custom.
7. The plaintiff says the second defendant refused to do this. He says that there was a further conversation during which the second defendant told him that he should leave Australia or, at least, leave Sydney. The second defendant also asked the plaintiff to sign an Islamic divorce. It seems apparent that, at the very least, there was a breakdown in communications between the plaintiff and the first defendant and the second defendant became involved in the issues between them.

The first charges

1. On 7 July 2015, the plaintiff was arrested and charged with the offences of common assault pursuant to s 61 of the Crimes Act 1900 (NSW) and stalk and intimidate with intent to cause fear of physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
2. The plaintiff was kept in custody for a number of hours before being released on bail. The origin of those charges was a statement made by the first defendant to the police relating to an incident that she says occurred in her home on 1 July 2015 whilst the plaintiff was still staying there, having arrived in Australia only days earlier.
3. The first defendant says that on the evening of 1 July 2015, she was in her bedroom when the plaintiff came into her room and asked her to come to his room. He threatened that he would break her laptop if she did not. He then picked up her mobile phone and took it to his room. She followed him.
4. She sat on the bed in his room. He complained about the arrangements, stating that they should be together. She did not want this at this time. After some further discussion, he raised his hands and placed them on her, moving closer to her and leaning in towards her. He was asking for sex.
5. He said that if she was in Kabul, he would put a gun to her head. He demanded that they "do it" on the basis that they were married. He grabbed her wrists and pushed her to the bed. He climbed on top of her and started to undo her top, suggesting there were other ways to have sex. She was panicking. Just at that time, her sister-in-law came into the bedroom and turned the light on. She wanted to know what was going on. She gave evidence, and said she witnessed the plaintiff pinning the first defendant's wrists to the bed.
6. The plaintiff is alleged to have said that he would put acid on the first defendant's face so that no one could marry her. The first defendant responded by saying that she would kick him out of Australia before he could do so.
7. On 6 July 2015, the first defendant reported the alleged incident to the police. She provided a detailed statement. Her sister-in-law, Sosan Amiri, also provided a statement to the police at that time.
8. The plaintiff denies that any such incident or conduct occurred at all. He denied this to police and continued to deny it throughout his trial. He was acquitted of the charges against him said to relate to the first defendant's complaint.

The second set of charges

1. Having been granted bail in respect of the first charges on 7 July 2015, he returned to live with his cousin at a different address from the first defendant. The first defendant says that she blocked his number on her phone. She applied for an AVO at Mount Druitt Local Court on 13 July 2015. Later that night, she received a number of threatening text messages from a number she did not recognise. The messages commenced with the sender identifying himself as the plaintiff. The messages were sent in the Dari language and included threats to kill her and her brother. It is not necessary that I recite all the content of the messages.
2. Receipt of the text messages was reported to the police. Plainly, if sent by the plaintiff, they were in breach of the Local Court's orders.
3. This resulted in further charges against the plaintiff including: 1. use carriage service to threaten to kill contrary to s 474.15(1) of the Commonwealth Criminal Code; 2. stalk/intimidate with intent to cause fear of physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act; 3. contravene AVO contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act; and 4. use carriage service to menace/harass contrary to s 474.17 of the Commonwealth Criminal Code.
4. The plaintiff participated in an ERISP interview on 16 July 2015. He denied sending messages and again raised the suggestion that the first defendant and her family were trying to have him kicked out of Australia. He said that they had even contacted his relatives back in Afghanistan asking that they convince him to go back. He showed the police a screenshot sent to him by his relatives as evidence of this.
5. On this occasion, the plaintiff was kept in custody overnight and released on bail on 17 July 2015.
6. The plaintiff denies sending the text messages. It is common ground that the messages were sent from what is described as a burner phone. The phone was not registered to the plaintiff.
7. On 20 July 2015, the plaintiff attended the Local Court and informed the Court that he would be defending the charges. It was a condition of his bail that he remain in the presence of Brishna Azizi and his aunty, Shafiqa Azizi, at all times.
8. The plaintiff said that he wanted those conditions as he was worried about the false allegations being made by the first defendant.
9. He also provided a statement to police which formed the basis of an AVO against another of the first defendant's brothers, Abdullah Amiri.

The third series of charges

1. The second defendant says that on the evening of 20 July 2015 the plaintiff attended at his home and assaulted him. He says that he saw a vehicle approaching his house. The car stopped and he saw a person emerge from the passenger side of the car. He recognised the plaintiff. The plaintiff approached him and his friend, Saeed Jawadi, who was with him out the front of his house. The plaintiff is said to have threatened the second defendant, telling him, "[d]o you see what I did to your brother? I want you to drop the AVO now, otherwise I'm going to burn you". An argument ensued.
2. The plaintiff was swinging at him and punched him in the centre of his chest. He felt pain and lost his balance.
3. The second defendant, who was a serving police officer, then went straight to Mount Druitt police station with Mr Jawadi. They both gave statements to the police about the assault. This resulted in the plaintiff being again charged with further offences including: 1. contravene AVO contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act; 2. common assault contrary to s 61 of the Crimes Act; and 3. threaten person with intent to influence witness contrary to s 322(a) of the Crimes Act.
4. The plaintiff was taken into custody. He participated in another ERISP interview. He denied the conduct. He said that he did not know where the second defendant lived. He said that he was aware of the conditions of the AVO. He responded to each of the matters put to him by the police by saying that it was a lie.
5. He pointed out that the first and second defendants were aware that his cousin Brishna drove a blue car as she picked him up in that car from the first defendant's house days earlier. His description of his movements on 20 July 2015 was consistent with his evidence in these proceedings, that is, after court he went to a coffee shop and then ended up at the shops around 6pm before going home and remaining there.
6. On this occasion, bail was refused. He remained in custody until his acquittal on 26 October 2016.
7. Thereafter, he was sent straight to immigration detention. He says that whilst in custody and immigration detention he experienced violence and witnessed traumatic events. He says he became traumatised by these events. Although he had lived in Afghanistan, he had not previously suffered such trauma. He says that as a result of these events he developed a psychiatric illness which rendered him unfit for work for a lengthy period.
8. He was later able to obtain a visa to remain in Australia. He entered into a new relationship. He now lives in Melbourne.
9. The plaintiff says that all of the allegations and statements made by the first and second defendants were false and made up by them for the purposes of having him deported and ending the marriage. He asserts that by the time he arrived in Australia, the first defendant had changed her mind and was interested in someone else. The motive for making up these stories was that the first defendant did not want to go ahead with the marriage which had taken place in Afghanistan and, after spending a short period with the plaintiff on his arrival, determined to get rid of him by having him sent back to Afghanistan.
10. The first defendant says that the events that she reported to the police occurred. She says that the plaintiff's attempt to have sex with her without her consent was witnessed by her sister-in-law, Sosan Amiri, who gave evidence to that effect in these proceedings and in the Local Court.
11. The first defendant also says that she reported the threatening text messages to the police. It was a matter for the police to investigate these matters.
12. The second defendant says that the statement he made to the police about the plaintiff's assault upon him was correct. Those events were witnessed by his friend, Mr Jawadi, who gave evidence in these proceedings and in the Local Court.

The tort of malicious prosecution

1. The only cause of action pursued by the plaintiff is for malicious prosecution.
2. As stated in A v New South Wales (2007) 230 CLR 500 at [1] (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) the four elements of malicious prosecution are: 1. that proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated or maintained against the plaintiff by the defendant; 2. the proceedings were terminated in the plaintiff's favour; 3. the defendant in initiating or maintaining the prosecution acted with malice; and 4. the proceedings lacked reasonable and probable cause. (see also Beckett v State of New South Wales (2013) 248 CLR 432 at [4]; State of New South Wales v Spedding [2023] NSWCA 180 at [13] ("Spedding")).
3. The second element is not in dispute. Indeed, at least in respect of the first and third series of charges, there would be no dispute about any of the elements if I accept that the first and second defendants' statements to the police were fabricated. As I will explain, the position may be different in respect of the charges arising out of the text messages.
4. The critical issue in terms of the first element is whether either or both of the defendants can be identified as "the prosecutor". As the High Court has acknowledged, this is not always a straightforward inquiry (see A v New South Wales at [34]).
5. For the defendants to be considered a prosecutor, I must be satisfied that they "play[ed] an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (A v New South Wales at [34]).
6. The prosecutor is not limited to public officers who may traditionally be regarded as the persons who bring criminal proceedings (see Davis v Gell (1924) 35 CLR 275). Private citizens, such as a complainant, may also be liable provided they have played an "active role" in the proceedings, of the kind referred to in A v New South Wales.
7. An assessment of whether the defendant has played such a role will turn upon all the circumstances of the case. As Isaacs ACJ explained in Davis v Gell at 282-283, in a passage which has since been cited with approval in Spedding at [16]: "[T]he 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, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position."
8. The circumstances in which a "third-party", such as a complainant, may be considered a prosecutor were elaborated upon by Dixon J in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379 ("Brain"): "It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the 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." (Citations omitted).
9. It is not enough that the defendant has merely provided false information to the police (Stanizzo v Fregnan [2021] NSWCA 195 at [224]; Balkin and Davis, Law of Torts (6th ed, 2021) at 829-830). That false information must be of such a character that it operates on the mind of the prosecuting authority so as to "procure" the bringing of the charges against the plaintiff (see Stanizzo v Fregnan at [231]).
10. Whether the information supplied to police by the defendant "procured" the bringing of the charge will ordinarily be established where that information is solely within the knowledge of the complainant (see Martin v Watson [1996] AC 74 at 86-8; Sahade v Bischoff [2015] NSWCA 418 at [138] (per Gleeson and Basten JJA, Beech-Jones J agreeing).
11. Additionally, "an action is more likely to lie where, for instance, the defendant has supported his or her false statements with equally fraudulent witnesses" (Balkin and Davis, Law of Torts (6th ed, 2021) at 830).
12. However, in circumstances where a prosecuting authority has an independent means of assessing the truth of the defendant's claims, the defendant is unlikely to be considered a prosecutor (see Sahade v Bischoff at [138]). That is because the prosecutor has been able to properly exercise their independent discretion.
13. For example, in Sahade v Bischoff, the NSW Court of Appeal considered that the availability of CCTV footage of the alleged incident meant that the relevant facts were "not so exclusively within the defendants' knowledge that it was virtually impossible for the police to exercise any independent discretion to prosecute the appellants" at [138].
14. In respect of the first series of charges, the first defendant gave a statement to the police and identified her sister-in-law as a witness to the events. There was no physical evidence or other independent way of verifying the first defendant's complaint. It was her statement which led to the prosecution on the basis that the events were solely within her knowledge. For the purpose of these proceedings she would be the prosecutor.
15. In respect of the third series of charges, the second defendant provided a contemporaneous statement to the police and brought along a witness to corroborate his version. There was no physical evidence or other means of verifying his statement. He was the instigator of the prosecution and for the purposes of these proceedings he would be the prosecutor.
16. For the reasons I will set out when considering the case against the first defendant in respect of the second set of charges, I do not consider that the first defendant could be considered the prosecutor in respect of those charges.
17. To establish malice, the plaintiff must show that the dominant purpose of the prosecutor was a purpose "other than the proper invocation of the criminal law" (A v New South Wales at [91]; see also Spedding at [36]). Whilst proof of malice will often be drawn from inference, the High Court has cautioned that such a finding should not be based on "conjecture or suspicion" (A v New South Wales at [93]).
18. If the plaintiff can establish that the prosecutor lacks an honest belief in the guilt of the accused and that they provided false information to the authorities to secure or maintain a prosecution, this is likely to be conclusive of malice, as well as the fourth element, being a want of reasonable and probable cause (Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at 469; Fleming, The Law of Torts (11th ed, 2024) at 813).
19. In the circumstances of this case, if the plaintiff establishes that the first and/or second defendant knowingly provided a false statement to the police, then they must be taken to have been acting with malice towards the plaintiff. Further, on the basis that the version of events provided was fabricated, the cases could have no reasonable and probable cause.
20. It follows that, at least in relation to the first and third series of charges (and the cases against the first and second defendants), the outcome of these proceedings depends very much on whether I accept that the first and/or second defendants have concocted a story and provided false statements to the police.

The evidence

1. The plaintiff adduced evidence from himself, his cousin Brishna, his aunt, Shafiqa and another relative, Najibullah Amini.
2. The first defendant adduced evidence from herself and called her sister-in-law Sosan Amiri in support.
3. The second defendant adduced evidence from himself and called his friend Said Jawadi in support.
4. There was no physical or independent objective evidence relating to each of the three events. This is a case in which the witnesses gave conflicting evidence about the events, leaving me to assess the truth of their evidence.

The plaintiff's evidence

1. The plaintiff was very clear on a number of things, specifically being that none of the events the subject of the charges occurred or involved him. There can be no doubt that he was unhappy with what transpired when he arrived in Australia, in terms of the unwillingness of the first defendant to behave as he perceived she should as his wife. He says that, following a discussion or argument he decided he was not going to remain in her home. Instead, he chose to go and live with his own relatives at a different place.
2. There can be no doubt that there were discussions between the first defendant and the plaintiff about what was happening in terms of their marital status. He says that his ultimate position was to demand the money back for the rings, gifts and wedding. He broached the subject with the second defendant, but the second defendant refused to assist in the process.
3. The plaintiff denied ever forcing himself on the first defendant. He denied purchasing a burner phone and sending the threatening text messages. He said he was with Brishna Azizi on the evening of 20 July 2015. He did not take her car and he did not go to the second defendant's premises. He was not there. He did not assault the second defendant. Indeed, he understood it was a condition of his bail that he remain in the company of Brishna. He said that was something he asked for because of what had happened with respect to the first and second set of charges.
4. The plaintiff denies that any of the alleged events occurred. He told the police this when confronted with the allegations; he entered pleas of not guilty; he maintained his innocence; and was ultimately acquitted. In his evidentiary statements he continued to deny any such conduct. During cross-examination he denied any such conduct.
5. He has maintained a consistent position that each of the three events were made up by the first defendant and/or the second defendant. He has maintained that position since the first time the police raised each matter with him.
6. Having said that, the plaintiff's evidence was complicated by a number of factors including that: 1. whilst he spoke English reasonably well, his English was not perfect; 2. he had difficulty understanding aspects of the questioning; and 3. he became agitated at some of the suggestions put to him, believing that his evidence was being twisted.
7. Much of the questioning related to immigration documentation which had been signed by, but not prepared by, him, at a time when he said he did not speak English and could not read English, that is either before he arrived in Australia or after he arrived in Australia.
8. Many questions were directed to the time before he arrived in Australia and proceeded on the basis that the system in Kabul might be the same as in Australia.
9. Further, he was challenged on statements made to doctors such as Dr Roberts and Dr Friend who examined him for the purposes of this case, in circumstances in which he did not generally accept that he had made those statements to the doctors. As is well known, there is a danger in relying on summary statements contained in doctors' reports (see Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA).
10. The cross-examination on the events surrounding all the charges was somewhat limited compared to the extensive cross-examination on what was described as credit issues. The plaintiff tended to blame others, such as his immigration agent or his former lawyer (whose service he terminated seemingly after being charged $6000 for appearing in the Local Court on an ADVO application).
11. In circumstances in which the plaintiff arrived from Afghanistan eight years ago and says that he did not speak English at the time, it is difficult to form a view as to the extent to which he should have been considered to have been providing false information in documents which were plainly written in English. It was suggested to him that he knew more English than he admitted.
12. The plaintiff was cross-examined extensively on matters relating to his credit. There were a range of issues canvassed. Whilst the basis of some of the propositions put to him in cross-examination never became clear, it must be that the second defendant had instructed his legal representatives that, not only was the plaintiff lying about his behaviour once he arrived in Australia, but his evidence about his background, qualifications, work experience, family, financial status and even who bought the wedding gifts and who received gifts was simply false. That is because all of this was challenged. Examples of so-called credit issues abound, including: 1. It was asserted by the second defendant that he loaned the plaintiff $32,000 for the wedding and had not been repaid. The plaintiff disputed this. 2. It was asserted by the plaintiff that he spent a significant sum on wedding gifts. The first defendant disputed this. 3. It was asserted by the plaintiff that he had an interest in a pharmacy in Kabul and had qualifications as a pharmacist. The defendants disputed this, although they accepted that he may have worked in a pharmacy at some stage. 4. It was asserted by the plaintiff that he earned a significant income in Kabul which counsel for the second defendant suggested in cross-examination was equivalent to the Prime Minister of Afghanistan. The defendants suggested that the plaintiff had just made this up. 5. It was asserted by the plaintiff that he was still earning money from the pharmacy, but the money was going to his mother in India. The defendant disputed this. 6. It was asserted by the plaintiff that the first defendant had found another man between the time of the marriage in Kabul and the time the plaintiff arrived in Australia. The first and second defendants disputed this. 7. It was asserted by the defendants that the plaintiff provided false information to the Department of Immigration. The plaintiff disputed this. 8. It was asserted by the defendants that the plaintiff had misrepresented his background and issues arising in Kabul both before and after arriving in Australia. The plaintiff rejected this.
13. As I will explain, I have reservations as to the credit of all of the principal actors, including the plaintiff, in these proceedings. This makes it difficult to determine who is telling the truth on some of these so-called credit issues introduced by the parties.
14. Both parties pointed at each other suggesting a lack of corroboration for their evidence. There is nothing in the evidence (other than the witnesses own statements) which allows me to determine how much money was lent or spent in Afghanistan; whether it was repaid; whether the plaintiff bought gifts; the size of the wedding ring, how many people attended the wedding; and what the plaintiff's background was in Kabul. I have difficulty understanding the relevance of some of this evidence to the facts in issue.
15. There were contradictions and inconsistences in the plaintiff's evidence on a number of "matters of credit", such as the information provided to the Department of Immigration on whether he was deriving income from the pharmacy business in Kabul, how much money he had, how he was able to afford payments, and even who paid for things such as the wedding, the immigration fees and the ticket to Australia.
16. Not all of the information he has provided to immigration authorities over the years could be correct. Yet, I am not sure that all of the direct propositions put to him about him lying about certain matters were ultimately supported by evidence adduced by the second defendant (that is, to prove the lie).
17. A matter of some significance is that on 13 July 2015, the plaintiff, through his solicitor, applied for and obtained an AVO in respect of the first defendant's brother, Abdullah Amiri. In support of the AVO, he signed a detailed statement as to Abdullah's threats and violence towards him.
18. The plaintiff was taken through his statement in detail during cross-examination. He disavowed it. He said in effect that the solicitor had not followed instructions and had made it up and that he did not tell the solicitor that Abdullah had engaged in such conduct (as put to him in cross-examination).
19. He specifically stated that, in respect of more than one proposition put to him about the content of his statement, that it just did not happen. He said that after this he terminated his solicitor's services and engaged new lawyers.
20. I do not accept that the solicitor made up such an extensive and comprehensive statement. Certainly, the typed statement was in English and it would have required translation from Dari but there is no reason to believe this did not occur.
21. It follows that the plaintiff must have given false information to the police about the conduct of the brother of the defendants. This impacts his credibility adversely. Whatever the truth of the allegations against him at the time, he was willing to respond in kind, that is by concocting a story about Abdullah Amiri. The effecting of the AVO against Abdullah Amiri also happens to tie in with what the plaintiff allegedly said to the second defendant when he is said to have gone to his house, that is mentioning what he did to his brother.
22. All that can be said about his evidence is that he has maintained from the outset that none of the allegations raised by the defendants were true. However, his evidence on some surrounding issues was less clear and confident and unlikely to be correct in all respects. His willingness to make up a story about Abdullah Amiri casts a shadow over his evidence about the events of July 2015.

The first defendant's evidence

1. The first defendant represented herself, albeit with considerable assistance from counsel for the second defendant. Indeed, the second defendant's written submissions are said to be on behalf of the first and second defendants.
2. It was clear during the proceedings that the interests of the first and second defendants were the same and that they were acting jointly to achieve the same result, which is hardly surprising.
3. The first defendant's approach to the matter generally was to maintain that which she asserted to the police in July 2015, both as to the assault in her home and receipt of the threatening text messages.
4. She made a statement to the police on 6 July 2015 detailing her version of what happened in her home on the night of 1 July 2015. She maintained that version in these proceedings. After providing background information and details of the conversation which led her to go into the room where the plaintiff was sleeping that night she said in that statement: "He entered his room and I went in behind him. I sat on top of his bed and he turned off the bedroom light and closed the door. He sat down next to me on the bed and faced towards me. He said, "What's the point of living in this house and we can't be together." I know that he was talking about us having sex because we have had several discussions about this same topic. He raised both of his hands and placed them on my arms and he began rubbing my arms and moving closer to me and leaning towards me. As he was doing this I began to panic. I started leaning backwards because I was trying to get away from him. I said, "Come on, we already promised each other that until I'm ready, you're not going to force me to have sex with you." He said, "If you were in Kabul, I would put a gun to your head. You are lucky we are in your dad's house. We are officially married. Let's do it" I said, "No I don't want to, I have my periods" Waris grabbed me hard by the wrists and pushed me to the bed. He was on top of me and he was pinning me against the bed and he was rubbing his body against me. He was kissing my neck and my chest and tried to undo the buttons of my PJ top with his teeth. He said, "There is other ways we can have sex. I can show you from the back.""
5. In both her opening and closing submissions, the first defendant emphasised that she should be viewed as a victim of sexual assault who had been failed by the system. I took this to mean that the plaintiff had not been convicted of the offences involving her and that now she was being sued arising out of her allegations.
6. I have regard to her position as an unrepresented defendant being sued by her former husband and her complaint about not being accepted but, in the end, there are difficulties with her evidence just like all the other principal actors.
7. She was not an impressive witness and her conduct following receipt of the text messages defies belief, that is if she really thought the threats were coming directly from the plaintiff.
8. Further, by her own admission, she formed a view very quickly that she wanted the plaintiff deported. Indeed, she admits that she threatened him with that during the incident on 29 June 2015.
9. As might be expected, there was ongoing hostility between the first defendant, the plaintiff and the plaintiff's witnesses, in particular Brishna Azizi. Neither the plaintiff nor Ms Azizi reacted well to being asked questions by the first defendant and the first defendant was apt to engage in an argument with them.
10. Plainly, a conflict developed very quickly between the plaintiff and the first defendant on the plaintiff's arrival in Australia. The first defendant attributes this to the behaviour of the plaintiff on his arrival including demands that she dress as he wanted, that she show him respect and that she behave as he demanded, including being intimate with him, culminating in the assault upon her.
11. Cross-examination might have revealed some inconsistencies on some detail and confirmed the first defendant's desire for the plaintiff to be sent back to Afghanistan very shortly after he arrived but she denied any interest in any other man at the time and maintained that which she asserted to the police occurred. No evidence was adduced by the plaintiff supporting his assertion that she was interested in someone else.
12. Mr Levet put various matters to the first defendant about the assault, but nothing really emerged during cross-examination about precisely what happened on the night which necessarily exposed the essential allegation made by the first defendant as being a lie.
13. On the other hand, cross-examination relating to the receipt of the text messages and her response thereto raised a real doubt about her belief in respect of the text messages, such as to generally impact upon her credibility. The idea (on her evidence) that, despite the increasingly serious nature of the ongoing texts, she did nothing because she did not want to disturb her family is difficult to accept. Further, her evidence that she did not speak to the second defendant or her other brother Abdullah about the text messages at all is difficult to accept, just as it is difficult to accept that she did not speak to the second defendant before going to the police about the alleged assault.
14. One of the curious features of the case presented by both the first and second defendants is that they were seemingly not talking to each other at all in those days when the events the subject of the charges occurred.
15. The first defendant says that she did not consult the second defendant about speaking to the police even though he was a police officer and did not tell the second defendant about the threats made by the plaintiff in the text messages. Similarly, the second defendant did not tell the first defendant about meeting up with the plaintiff in the short period after the assault.
16. Despite their evidence, I am unable to accept that there were no discussions about these events between the two of them. The cross examination of the first defendant caused me to have some doubts about aspects of her evidence but the fact remains that she reported the alleged assault on her within days of it occurring and has now given evidence in two courts maintaining an essentially consistent position.

The second defendant's evidence

1. I similarly did not find the second defendant to be an impressive witness in the sense that he was argumentative, keen to get his point across, and seemed to have his "lines" worked out. Like the plaintiff and first defendant, he was indignant at the suggestions put to him in cross-examination.
2. Having said that, he also adhered to the essential features of the statement he gave to the police immediately following the alleged third incident.
3. The second defendant's credibility was certainly called into question in respect of his evidence about his role and activities relating to the arrangements between the plaintiff and the first defendant. I am unable to accept all of his evidence.
4. For example, on 6 July 2015, an email was sent from the second defendant's email account purporting to be sent in the name of the plaintiff to the Department of Immigration informing the Department that the plaintiff no longer required a visa as he would be returning to Afghanistan. The email was purportedly signed by the plaintiff.
5. The plaintiff says that he did not send that email. He did not have access to the second defendant's account. The second defendant says the email was sent by the plaintiff as he had allowed the plaintiff access to his email account for a period to enable easy communication with the authorities, including the Department of Immigration.
6. The email was written in English and expressed in a way that the person who wrote it must have spoken English well. The email was sent within a week of the plaintiff arriving in Australia and days after the plaintiff had left the first defendant's home to reside with his aunt and cousin.
7. The email was sent days after the first defendant (by her own admission) had threatened to arrange to have the plaintiff deported back to Afghanistan. Ordinarily, I would infer that the sender of the email was the owner of the email account. The second defendant says that he did not send it and explains the circumstances in which he says the email was sent by the plaintiff.
8. However, the suggestion that the plaintiff sent it using the second defendant's email account makes no sense for a number of reasons including: 1. The plaintiff had his own email account. 2. The plaintiff was already in Australia at the time the email was sent, such that any suggested difficulties with communications with Afghanistan would not arise. 3. The plaintiff could not have composed the email himself as his English was poor. 4. The idea that within a week of arriving in Australia the plaintiff had decided to go back to Afghanistan seems inconsistent with every communication from the plaintiff both before and after the date of the email. Whilst there was a conflict between the plaintiff and the first defendant, it seems an unlikely proposition that this conflict was such that the plaintiff had decided to return to Afghanistan so quickly. 5. There is no reason why the plaintiff would be informing the Department of Immigration about his desire to return to Afghanistan before he'd made arrangements to return to Afghanistan. 6. There is no suggestion he had bought a plane ticket or anything else which would suggest that he did have a plan to return to Afghanistan within days of the email.
9. I do not accept that the plaintiff sent the email. The sending of the email by the second defendant or someone he authorised to send the email is consistent with what the first defendant said she would be doing to the plaintiff, which is ensuring that he would be sent back to Afghanistan. The second defendant took it upon himself to assist the first defendant.
10. This finding places a significant dent in the second defendant's credibility. In my view, he was not telling the truth about the email. However, as is well-known (see CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94]), proving that a witness is not telling the truth about one matter does not prove that they are lying about another matter.
11. Nor does this lie prove that the first and second incidents did not occur. It tends to suggest that the second defendant was willing to assist the first defendant in doing what she wanted to do, which was to be rid of the plaintiff (either following the occurrence of the first incident or the lesser form of conflict which had arisen between them).
12. Yet, there is a big step between sending an email to the Department of Immigration which could have no legal consequences other than causing the Department to investigate what was happening, and fabricating a story for the purposes of having the plaintiff arrested and charged and likely kept in custody for a period.
13. The second defendant was not acting in his role as a police officer when he was allegedly assaulted, but the fact is that he was a police officer and must be taken to have been very aware of the consequences of making a false complaint to the police and aware that police may be more responsive to a complainant by a person such as the second defendant.
14. I have reservations about the conduct of the second defendant, but nothing emerged from his evidence which necessarily established that he must have fabricated the whole story about being assaulted and enlisted his friend to corroborate his story.

The evidence of Brishna Azizi

1. Brishna Azizi is the cousin of the plaintiff. She was one of the group of people who met the plaintiff at Sydney airport when he arrived from Afghanistan. The plaintiff went to live with Brishna Azizi and Shafiqa Azizi after he left the home where the first defendant was living a few days after arriving in Australia.
2. Brishna Azizi originally gave evidence on the voir dire in support of the plaintiff's tender of a USB stick purporting to contain a copy of CCTV footage obtained from a chemist, showing the plaintiff at the chemist some time on the evening of 20 July 2015. I rejected the tender of that USB stick for the reasons set out in my judgment.
3. Brishna Azizi gave inconsistent evidence. She could not have been telling the truth on every aspect of her evidence. Further, her evidence was not consistent with the evidence of Najibullah Amini, who was belatedly called to establish the authenticity of the CCTV footage.
4. Brishna Azizi said that she was with Mr Amini when they got the CCTV from the chemist. Mr Amini said she was not. I have some concerns about Ms Azizi's evidence as to the CCTV footage. She only gave evidence about it when Mr Amini could not be found (seemingly). Mr Amini later turned up and denied there would be any reason why he could not be found.
5. Brishna Azizi was then called by the plaintiff in support of his claim against the second defendant.
6. The second defendant reported to the police that the registration number of the vehicle in which the plaintiff was alleged to have been in when he attended at the second defendant's premises and assaulted him was that which is registered to Brishna Azizi. In other words, the plaintiff was travelling in Brishna Azizi's vehicle when he went to the second defendant's premises.
7. Brishna Azizi's evidence is to the effect that the plaintiff was with her, that is, either doing the shopping or at the pharmacy, in the petrol station, or at home with her at the time when the second defendant allegedly was assaulted by the plaintiff; and, that the plaintiff did not take her car to drive to the second defendant's premises. She did not and would not allow that, as the plaintiff had only just arrived in the country and did not have a licence and has never driven in Australia.
8. Her evidence was supportive of the plaintiff's case against the second defendant. Plainly, the plaintiff could not have assaulted the second defendant if he was at home with Brishna Azizi on the evening that he was alleged to have assaulted the second defendant at the second defendant's premises.
9. Brishna Azizi gave evidence in a definite way. Despite the second defendant's attempt to suggest to her during cross-examination that the plaintiff may not have been "with" her at all times during the evening, the effect of her evidence is that there is no possibility that the plaintiff could have taken her car and gone to the second defendant's premises without her knowledge. In any event, on the second defendant's evidence the plaintiff was not driving the car. It was being driven by a woman.
10. It was put to Brishna Azizi that she knew the second defendant's address, having regard to her police statement. She denied this, again, citing language difficulties. She said the police asked her about the second defendant and she referred to the second defendant as being at the second defendant's parents' house. She did not know the second defendant's address. She says the police put in the address in her statement; she did not state the address. She drew attention to the handwritten words "Rooty Hill" on the side of the relevant paragraph, suggesting that the police wrote those words when she told the relevant officer that the address she was referring to was in Rooty Hill. I took her to be saying that the police just put in the correct address without asking her. This seems unlikely.
11. The effect of Brishna Azizi's evidence was that, at the time of the plaintiff's alleged assault of the second defendant: 1. the plaintiff was with her; 2. she did not know second defendant's address and thus did not tell the plaintiff the second defendant's address; and 3. she did not lend her car to the plaintiff or drive to the second defendant's address or drive anywhere.
12. It is not possible to view Brishna Azizi's evidence as merely mistaken or in error. It is not possible to reconcile her evidence with the second defendant's evidence. It is not possible to reconcile her evidence with the evidence of the second defendant's friend, Mr Jawadi.
13. I did not accept her evidence about the CCTV footage. I consider that she was giving evidence in the belief that Najibullah would not be giving evidence and the authenticity of the CCTV footage needed to be established. This demonstrates her willingness to give evidence which would assist the plaintiff.
14. However, like the other witnesses, the central or important feature of her evidence has remained consistent throughout. The plaintiff was with her when he allegedly assaulted the second defendant.

The evidence of Shafiqa Azizi

1. Shafiqa Azizi lived in the same house as Brishna Azizi. She is the plaintiff's aunt. Shafiqa Azizi's evidence was relevant to the plaintiff's case against the second defendant.
2. Shafiqa Azizi says she attended court with the plaintiff and Brishna Azizi on 20 July 2015. She was always in the car or doing the shopping in the late afternoon/evening of that day. She was in the car with the plaintiff and Brishna Azizi when they arrived home. She was at home that evening and says that the plaintiff never left the home.
3. Shafiqa Azizi disagreed with any suggestion that the plaintiff could have left the home for a short period. Whilst it must be that Shafiqa Azizi was not always "with the plaintiff", that is when he got changed or went to the bathroom, I do not accept the possibility that in some way he might have left the premises and taken Brishna Azizi's car without her knowledge or the knowledge of Shafiqa Azizi.
4. Shafiqa Azizi was adamant that the plaintiff did not leave the premises at any time after arriving home on 20 July 2015. She did not make any concessions to the effect that she might have been uncertain about this, or she could not recall the day or that it was possible that he might have left the house. It is not possible to reconcile her evidence with the evidence of the second defendant or the allegation that the plaintiff attended at the second defendant's premises and assaulted him on the evening of 20 July 2015.
5. After I admitted into evidence the USB containing the CCTV footage, Shafiqa Azizi was recalled at the request of the second defendant. She was cross-examined about the circumstances leading to the production of the copy of the CCTV footage to this Court, her knowledge of it, and cross-examined extensively as to her movements around the time the CCTV footage was taken.
6. She maintained that the plaintiff had always been with her, albeit she accepted that the plaintiff and Brishna Azizi had gone to the chemist and the hardware store without her. She was taken to her earlier evidence in the Local Court. There were aspects of her evidence which were inconsistent with her earlier evidence, particularly as to whether she had been doing the grocery shopping and for how long she had been apart from the plaintiff and Brishna Azizi whilst they did the shopping.
7. The effect of the cross-examination was to attempt to raise a doubt whether she was there or whether she was with the plaintiff and Brishna Azizi at all times.
8. The idea that the plaintiff might have changed into his tracksuit pants in the car and then diverted to the second defendant's premises on the way home to Brishna Azizi's house without Brishna Azizi being aware of this (as suggested on behalf of the second defendant) seems absurd. The idea that the plaintiff might have somehow managed to visit the second defendant's premises without the knowledge of Shafiqa Azizi, during or after the shopping, that is before they all went home is equally unlikely.
9. Like many of the witnesses, I had difficulties with some aspects of her evidence. All that can really be said about her evidence is that it tends to support the plaintiff's evidence that they were all at the shops together, albeit Shafiqa Azizi waited in the car. Further, Shafiqa Azizi says that she was at home with the plaintiff during the evening that he allegedly went to the second defendant's house.
10. Having regard to the time estimates, her evidence also establishes that there would have been time for the plaintiff to go home after the shopping, get changed and go to the second defendant's house arriving between 7:00-7:15pm.

The evidence of Sosan Amiri

1. Sosan Amiri is the wife of Abdullah Amiri, who is one of the first defendant's brothers.
2. Her evidence is relevant to the alleged assault upon the first defendant. She was in one of the four bedrooms upstairs with her husband, Abdullah, and her children. She was aware that the plaintiff had been asked to sleep in a separate room from the first defendant. She had gone to bed but had woken up to go to the toilet. Her husband was in a sound sleep.
3. She heard some noises and, as she walked along the corridor turning on the light, she heard the first defendant's voice. It was coming from the room where the plaintiff was sleeping. She opened the door. She says that she saw the plaintiff on top of the first defendant. She believed they were both wearing pyjamas. She saw the plaintiff pinning the first defendant's wrists to the bed. She said to him, "what are you doing". He said, in effect, "it's none of your business, I am married to Neelab". Put simply, she says she witnessed the incident the subject of the complaint to the police.
4. Ms Amiri was cross-examined at length, mainly on the evidence she had given in the Local Court.
5. Whenever she gave an answer inconsistent with the answer she had given in the Local Court, this was taken up by Mr Levet. For example, she gave inconsistent evidence on whether the light was on in the bedroom or whether she had turned the light on in the hallway. She was unable to explain why her evidence was different or how she could now remember something she could not remember two years after the incident.
6. Yet, in general terms, she maintained the version of events which she gave to the police and as was contained in her evidentiary statement. Again, there is no scope for considering that Ms Amiri might be simply mistaken. She was adamant as to what she saw and her evidence was at least generally consistent with the evidence she had given in the Local Court and with the statements she made to the police after the event. It is either a complete fabrication or it is not. There is no middle ground.
7. There was nothing about Ms Amiri's presentation which caused me to consider that she was likely to be lying, although it is always important to remember the old adage that one ounce of fact trumps ten pounds of demeanour (Fox v Percy (2003) 214 CLR 118 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ quoting Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152 per Atkin LJ).
8. Ms Amiri was plainly in her sister-in-law's camp, but that does not lead to an inference that she was not telling the truth. The plaintiff's case is that she made up a story in the days after the incident or at least was told what to say by the first defendant and has maintained it ever since. This includes giving a false statement to the police and giving false evidence on two separate occasions.
9. On Ms Amiri's evidence, she saw what happened and gave a statement to the police after the first defendant made a complaint to the police and has confirmed that in court on two occasions.

The evidence of Said Jawadi

1. Mr Jawadi prepared a statement dated 24 November 2020. He merely annexed the transcript of his evidence in the Local Court to that statement. The statement he gave to the police on 20 July 2015 was also admitted into evidence.
2. The statement he gave to police on the day of the alleged assault of the second defendant is consistent with the essential allegation made by the second defendant to the police at that same time. The effect of Mr Jawadi's evidence is that he was outside the second defendant's home with the second defendant when he observed the plaintiff arrive in a blue car. The plaintiff got out of the car, exchanged words with the second defendant and punched him in the chest. After the plaintiff got back into the car (in the passenger seat), the vehicle drove off.
3. As the car was driving away, he wrote the registration number on his hand. He had gone to his own car to retrieve a pen to do so. Photos of his hand were annexed to the police statement. The registration was that of Brishna Azizi's vehicle.
4. Mr Jawadi was cross-examined and seemed uncertain on some peripheral matters but maintained the essential parts of his evidence, other than the suggestion that he was a friend of the second defendant and would be willing to support him.
5. No reason was advanced as to why Mr Jawadi would be prepared to make a false statement to the police and then give evidence both in the Local Court and this Court that was entirely false. Mr Jawadi was the only non-family type person who gave evidence in the proceedings, although he was clearly close to the second defendant, as a friend.
6. It was not suggested to Mr Jawadi (nor could it have been) that he could not have been at the second defendant's premises at the relevant time, or that there was something else about his evidence which could not be true on an objective basis (other than that the plaintiff and Ms Azizi say they were not there, and the assault never took place).
7. There was nothing about his demeanour or the way in which he gave his evidence which caused me to form an adverse view as to his evidence. In the end, I am left in the position that Mr Jawadi was a friend of the second defendant who gave evidence that was consistent with the second defendant's evidence as to the assault, having attended at the police station with the second defendant immediately after the assault is alleged to have occurred.

CCTV footage

1. CCTV footage was obtained from a chemist and hardware store showing the plaintiff in the chemist around 6:00pm on 20 July 2015 and walking past the hardware around 6:04pm, although the timestamp on the CCTV from the hardware store is 7:04pm. The plaintiff accepts that this was a daylight-saving issue, and it should have been 6:04pm.
2. This seems likely, as there is no evidence that the plaintiff was hanging around the shopping centre for an hour, having been in the chemist around 6:00pm.
3. The importance of the CCTV footage may have been overstated by the plaintiff. There was considerable dispute as to its admissibility and validity. The second defendant did not consent to the tender of a USB stick containing a copy of the CCTV apparently obtained from the computer of Najibullah Amini. Initially, Ms Azizi gave evidence to the effect that she had been with Mr Amini when they collected the CCTV footage. Her evidence on this issue was unconvincing. It also turned out to be inconsistent with the evidence of Mr Amini. I could not be satisfied that the USB represented a copy of the original document.
4. However, the plaintiff made a further application to tender the USB based on Mr Amini's and Ms Azizi's evidence. I found Mr Amini to be a credible witness. I accept what he said about the copying of the document and his own role in assisting the plaintiff in making inquiries after being charged so as to prove the plaintiff's whereabouts.
5. Having admitted the USB into evidence, it seems to me that in the end it only establishes that the plaintiff was at the shopping centre wearing a suit around 6:00pm. Having regard to the evidence, he would have been home by 6:40pm. To the extent the second defendant seeks to challenge the validity of the CCTV footage, I reject that. At least on one view, it assists the second defendant because it shows the plaintiff in his suit at the shops at 6:00pm not 7:00pm. It is consistent with the plaintiff's evidence as to his movements around that time, but still leaves open the possibility that the plaintiff went to the second defendant's premises after he had gone home and changed into his tracksuit.

Determination

1. At least between the plaintiff and the second defendant, both parties agreed that the outcome would depend upon my factual findings. Mr Saunders did not dispute that if I found that the second defendant had fabricated and concocted a story for the purposes of having the plaintiff arrested, then the plaintiff would be entitled to succeed against the second defendant. Mr Saunders did not make submissions about any of the four elements that the plaintiff must prove, and I took this to mean that he was not disputing any of the four elements subject to the essential factual findings which the second defendant disputed.
2. The first defendant, being self-represented, did not make any submissions on legal issues (which was understandable). Both in her opening and closing submissions, she portrayed herself as a victim of sexual assault that had been let down by the system. The first defendant's submissions related more to how she felt she had been poorly treated by the conduct of the plaintiff and the plaintiff's family in casting aspersions about her values, morals and character.
3. In the end, leaving aside those matters, I took the first defendant to be stating what she asserted happened did happen, such that the plaintiff could not succeed against her.
4. If the plaintiff has proved, according to the requisite standard of proof, that the first defendant has fabricated a story and provided a false statement to the police, then he is entitled to succeed. The only purpose in doing so could be to get the plaintiff into trouble and hopefully having him sent back to Afghanistan.
5. If the plaintiff has proved that he did not send the text messages and that the first defendant did not believe that he had sent the text messages when she reported receipt of the messages to the police, then it must follow that the first defendant acted with malice towards the plaintiff in providing a statement to the police to the effect that he did.
6. However, it is not sufficient for the plaintiff to establish merely that he did not send the text messages. He must establish that the first defendant knew he did not, as the content of the messages was clearly threatening and there was a message in which the person said he was the plaintiff.
7. If the plaintiff has proved that the second defendant has concocted a story for the purposes of having the plaintiff rearrested and charged and kept in custody, then he is entitled to succeed against the second defendant.
8. In circumstances in which the second defendant was a serving police officer, the second defendant must have known that accusing the plaintiff of assaulting him would have dire consequences for the plaintiff. Again, there could be no doubt that he would have been acting with malice. Further, in circumstances in which he brought along a so-called independent witness to verify his complaint, it must be that he was acting as the prosecutor for the purposes of this malicious prosecution suit.
9. The plaintiff pursues a case against the first defendant only in respect of the proceedings arising from the first and second set of charges and against the second defendant only in respect of the proceedings arising from the third set of charges. The most substantial component of the plaintiff's claim for damages relates to the third set of charges because the plaintiff says that it was only because of those proceedings that he was kept in custody for such a lengthy period, during which time he experienced trauma as a result of which he developed a psychological illness.
10. In circumstances in which: 1. there is no independent physical evidence which might assist in determining who is telling the truth; and 2. each of the three parties relies on a so-called independent person to corroborate their version, 3. determining the facts is challenging.
11. I must not place too much weight on demeanour. Witnesses respond to giving evidence and being challenged as to their honesty in different ways.
12. In assessing who is telling the truth it is important to apply common sense, consider the surrounding circumstances, and the probabilities and plausibility of that which is asserted.
13. Importantly, the plaintiff bears the onus of proof on the civil standard, that is on the balance of probabilities. This standard is different from that imposed upon the prosecution in the proceedings in the Local Court. As the learned magistrate observed, the prosecution was required to prove the elements of the offences beyond a reasonable doubt. The prosecution did not satisfy that onus.
14. Although the standard remains the civil standard and not the criminal standard, in a case such as this the plaintiff must prove the matters that he is required to prove to a high degree of satisfaction (see Briginshaw v Briginshaw (1938) 60 CLR 336). This is because the allegations against the defendant involve serious misconduct.
15. Section 140 of the Evidence Act 1995 (NSW) is in the following terms: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
16. This is a case in which the matters alleged against the defendants are of the utmost seriousness. The plaintiff's case is that the defendants concocted stories for the purposes of getting him into trouble, that is being charged with criminal offences, detained in custody and ultimately deported.
17. I must be comfortably satisfied or satisfied to a high degree that the events which led to the first and second defendants making statements to the police did not occur, that is they gave false statements. The plaintiff must establish this to a high degree of satisfaction.
18. The plaintiff cannot succeed unless I am satisfied that the events described in the statements did not occur. This is an important aspect of this case because I am faced with evidence which is impossible to reconcile in circumstances in which I have at least some doubt about the credibility of all the principal actors.
19. There is another important principle which must be applied which is that proof that something did or did not occur is not proof of the opposite (Hobbs v Tinling [1929] 2 KB 1 at 21 per Scrutton LJ).
20. At times, the parties drew long bows when making submissions about the effect of their cross examination or even when asking questions. Establishing that the plaintiff had not been truthful about his history to doctors or to the Department of Immigration does not lead to the conclusion that he is likely to have assaulted the first defendant.
21. The plaintiff's cases against each defendant are intertwined, as the plaintiff maintains that all of the complaints against him were fabricated because the first defendant did not want to go ahead with the marriage. Perhaps surprisingly, another motive which was put to the first defendant was that she did not wish to give back the wedding gifts or repay the money spent on the wedding. It must be said that, if these were the motives for the fabrication of such serious allegations, then the first and second defendants have gone to extraordinary lengths to save a bit of money and get out of a marriage.
22. Indeed, there is merit in the suggestion of the defendants that, if the first defendant did not want to go ahead with the marriage after she arrived back in Australia, she could have just notified immigration authorities and withdrawn her sponsorship of the plaintiff. That is, if she decided when back in Australia that she did not want to go ahead with this arranged marriage, she could have ended it before he arrived rather than concocting such an elaborate plan after he arrived.
23. The ability of the first defendant to notify the authorities that she was no longer sponsoring the plaintiff's entry into Australia and that she would be ending the marriage prior to his arrival in Australia is a matter which impacts upon the likelihood of the defendants concocting stories and developing a plan to have the plaintiff sent back to Afghanistan within days of his arrival. Similarly, the opportunity for the defendants to do what they could do to notify the authorities that the plaintiff was no longer residing with the second defendant is again a matter which impacts upon the probabilities of them developing such an elaborate plan.
24. Further, it might also be viewed as unlikely that the plaintiff, having arrived in Australia on a spousal visa only days earlier, determined within days to leave the home where he was staying with his new wife and move into his cousin's premises, unless there was some particular need to do so. Irrespective of his lack of English or lack of understanding about legal requirements, he must have known how he came to be here and that there might have been consequences should he abruptly stop residing with his wife. It seems implausible that, having arrived in Australia months after marrying the first defendant, he moved away from her within days of seeing her again merely because she wanted time to acclimatise or get used to him following their quickly arranged marriage in Afghanistan.
25. Another matter to consider is that violence of a domestic nature is not generally undertaken when persons are thinking rationally and logically or thinking of the consequences. It makes no sense to think that a person subject to prohibitive or protective court orders would so quickly and flagrantly act in breach of such orders thereby risking arrest, but the Court's experience is that rational thinking is absent when it comes to such events.
26. These are all matters to consider when assessing the probabilities of the competing versions.
27. The evidence of the witnesses is impossible to reconcile. Acceptance of the plaintiff's contention that there was no assault on the first defendant necessarily requires a finding that both the first defendant and her sister-in-law, Sosan, are lying and have lied from the outset.
28. Acceptance of the plaintiff's proposition that he did not assault the second defendant necessarily involves a finding that not only the second defendant but also his friend Mr Jawadi are lying and must have planned and worked out what they would say to the police to cause the police to rearrest the plaintiff.
29. The plaintiff's case against the first defendant, in respect of the first set of charges, and the second defendant, in respect of the third set of charges, may be determined on the facts having regard to the onus of proof. This does not appear to be disputed by the parties.
30. On the other hand, the plaintiff's case against the first defendant in respect of the text messages is a little more complex, One possible finding is that the plaintiff did not send the text messages and that he was wrongly accused by the first defendant of doing so but that the first defendant believed that the plaintiff had sent the text messages having regard to their content.
31. Further, there must be a doubt as to whether the first defendant could be viewed as the prosecutor in circumstances in which she attended at the police station and provided information as to receipt of threatening text messages, from a phone that she does not recognise. The content would suggest that the plaintiff was the sender but this would really be a matter for further police investigation.
32. I will deal firstly with the case against the first defendant in respect of the text messages.

The case against the first defendant in respect of the second series of charges

1. In the text messages the subject of the second series of charges, the sender stated that he was the plaintiff. A number of text messages were sent with gradually escalating threats towards the first defendant and her family. The plaintiff reported this to the police. This resulted in further charges being laid against the plaintiff.
2. There is no evidence that the plaintiff sent the messages (unlike the conflict between the parties in respect of the first and third events). Anyone could have used a "burner phone" to send the messages and identified the plaintiff as the sender. No inference arises from the identification of the plaintiff when the message came from an unidentified phone.
3. The plaintiff submits that I would accept that, when the first defendant reported the receipt of the text messages to the police, she knew that the text messages had not been sent by the plaintiff. She knew this either because she had organised for the text messages to be sent to her phone or some other person on her behalf had so organised with her knowledge.
4. The plaintiff emphasises the admissions of the first defendant that, despite the very threatening content of the messages both against her and her brother, she did not tell anyone about the messages until the next morning.
5. Further, according to the first defendant, she never discussed the messages with her brother, the second defendant. Indeed, her other brother Abdullah gave evidence in the Local Court of not knowing anything about the text messages.
6. All of this seems implausible.
7. Yet, the difficulty with the plaintiff's case against the first defendant in respect to the second set of charges is that there remain a number of possibilities as to who might have sent the text messages.
8. One possibility is the plaintiff.
9. Another possibility is that the first defendant organised or co-opted some other person to send them pretending to be the plaintiff, knowing that this would get the plaintiff into further trouble with the police and thereby assist in furthering her aim of having him sent back to Afghanistan. The first defendant denies this.
10. There are other possibilities, one of which is that someone close to the first defendant and with a similar intent sent them without the knowledge of the first defendant.
11. Even if I accept that the plaintiff did not send them, the plaintiff still bears the onus of establishing the first defendant's knowledge and complicity in the making of false statements to the police. Mere acceptance by me that the plaintiff did not send them does not lead to the plaintiff succeeding in his case against the first defendant in respect of the proceedings arising out of the second set of charges because it is possible that the first defendant believed that the plaintiff sent them.
12. I have reservations about the evidence of the first defendant and aspects of her conduct after receipt of the messages, but those matters are not sufficient to establish that the first defendant knew that the plaintiff did not send the messages. There are other competing possibilities such that the plaintiff has not proved that which he must prove to succeed, that is, the state of the first defendant's knowledge about the text messages at the time she reported their receipt to the police.
13. I am not satisfied that the first defendant went to the police station and gave a statement about the text messages knowing that the plaintiff did not send them. The plaintiff has not established that in reporting receipt of the messages to the police, the first defendant was acting with malice towards the plaintiff. Proving that she is not telling the truth about other matters does not establish that she knew that he had not sent the text messages.
14. Further, reporting receipt of text messages from an unknown phone is not conduct which would render the first defendant "a prosecutor" for the purposes of the cause of action the plaintiff pursues. It was a matter for the police to investigate and determine whether charges should be laid. Conviction was not dependant on the plaintiff's belief as to who sent them.
15. Accordingly, the plaintiff's case against the first defendant in respect of the second set of charges fails.

The proceedings arising out of the first series of charges

1. The plaintiff faces a high bar because integral to his case against the first defendant is that within days of his arrival in Australia she concocted a false story and conspired with her sister-in-law, Sosan, to provide information to the police which would lead to the plaintiff being arrested and charged with criminal offences. These are serious allegations. Of course, they also had serious consequences for the plaintiff.
2. The plaintiff bears the onus of proving the falsity of the first defendant's evidence in circumstances in which, on my analysis, he also provided false information to the police for the purposes of obtaining protective orders against the first defendant's brother, Abdullah. Someone made up a story about Abdullah being threatening and violent and told the police that. The plaintiff says that it was his solicitor who did that rather than him and that he did not know about that. I am unable to accept that.
3. His own willingness to provide false information to the police and provide incorrect information to immigration authorities when it suited his purposes causes me to have some reservations about his evidence generally. I am unable to accept that he has been honest in every aspect of his evidence.
4. Against that, as I have already indicated, there are aspects of the first defendant's evidence which are implausible and which I am unable to accept.
5. Further, irrespective of the first defendant's attitude to the plaintiff when he arrived in Australia, her attitude towards the plaintiff was hostile within days of his arrival. It is apparent that the first defendant knew that she could take steps which would impact upon the plaintiff's ability to stay in Australia as, by her own admission, she threatened him with this during their confrontation immediately before he left her home on 1 July 2015.
6. However, none of these matters leads to the conclusion that she would have taken such serious action as to fabricate a claim for assault and report the plaintiff to the police with a view to having him arrested and deported. There were much simpler steps that she could have taken to make sure that she was not required to live with the plaintiff or consummate the arranged marriage, as he seemingly wanted.
7. For these reasons, I am unable to be satisfied to the requisite standard that the events which gave rise to the first set of charges did not occur. I am not satisfied that the first defendant deliberately provided a fake statement to the police. That does not mean that I am making a positive finding as to what actually occurred and that the first defendant's statement to the police was accurate. Not being satisfied that something did not occur is not a positive confirmation that the events did occur. Just as the magistrate was unable to be satisfied of the prosecution case beyond reasonable doubt, I am unable to be satisfied of the plaintiff's case, having regard to the civil standard, in respect of the first series of charges.

The case against the second defendant

1. The plaintiff alleges that a serving police officer concocted a story and co-opted a witness to corroborate that story for the purposes of having him charged with criminal offences and likely detained in custody.
2. It cannot be in doubt that, if the second defendant did that, he acted with malice towards the plaintiff. Particularly, having regard to the fact that the second defendant would have known that the plaintiff was on bail at the time that the second defendant went to police, it must be that the second defendant expected that his complaint would result in the plaintiff being detained in custody, likely bail refused, and that he would remain in custody awaiting a trial for a significant period. This is particularly so, having regard to his status as a visitor to Australia.
3. I have not accepted some aspects of the second defendant's evidence. Cross-examination was forensically successful in that the second defendant presented as argumentative and some of his evidence was implausible. He likely sent the email to immigration authorities. His evidence about the $40,000 in cash he took overseas smacked of recent invention for the purposes of avoiding any implication that he had broken the law.
4. Further, as pointed out by Mr Levet, the second defendant's story seems implausible. That is, having just been granted bail on strict conditions, and presumably in the knowledge that by approaching the second defendant in the way that he did he may be locked up, having only been in Australia for less than three weeks and not speaking English and presumably being unfamiliar with the New South Wales justice system.
5. It is known that, at least prior to 7pm, the plaintiff did everything he said he did when interviewed about the matter (not knowing about the CCTV footage). That is, he was seen at the shops wearing a suit around 6pm just as he told police. He was with his cousin Brishna and Aunt Shafiqa.
6. I do not accept what appeared to be the suggestion of Mr Saunders that they might have diverted on the way home to the second defendant's premises with the plaintiff getting changed out of his suit into his tracksuit in the car. That seems an unlikely proposition. If the event occurred, then it would be more likely that it occurred with the plaintiff going back home to where he was staying, getting changed out of his suit (as he said he did), and then someone taking him to the second defendant's house.
7. Then there is the coincidence of the second defendant just happening to be out the front having a smoke with his friend at the time they arrived. Further, although Mr Jawadi had not met the plaintiff, he was apparently able to recognise him from Facebook photos. Again, this is a little difficult to accept but not out of the question. Mr Jawadi then had the foresight to write the registration number of Brishna's vehicle down on his hand as the vehicle was driving away even though both he and the second defendant knew who it was who had assaulted the second defendant.
8. Further, whilst the plaintiff is alleged to have made a threat about doing the same thing to the second defendant as he did to his brother, presumably meaning making up a story for the purposes of an AVO, I am not sure why the plaintiff would have just walked straight up to the second defendant and punched him and walked away.
9. The point of that escapes me, although, again, it may be that the plaintiff was so angry about the conflict with the first and second defendant and members of their family that he lost control.
10. Another, somewhat implausible, aspect of the second defendant's story is that he thought in some way it was his duty to immediately report the plaintiff to the police, with both he and his friend immediately going to the police station and reporting the incident. This is even though the second defendant was not hurt.
11. On the other hand, there cannot be any doubt that the second defendant was keen to see the end of the plaintiff and if the incident occurred, the second defendant might have thought he could use it to get the plaintiff in further trouble.
12. There is no clear answer when considering what is likely and probable and what may be implausible. This is because, whilst aspects of the second defendant's story do seem implausible, it is also well known that people confronted with a perceived injustice become aggrieved and angry and breaching bail conditions is hardly a rare event.
13. The plaintiff might have decided to fight back against the Amiri family. He appears to have done so when he made false allegations about Abdullah Amiri for the purposes of obtaining an AVO against him.
14. So, an event which seems implausible becomes less implausible considered in the context of the interactions between all the relevant actors over those days and weeks.
15. Further, as submitted by the second defendant, Mr Jawadi was not a family member. A finding that the incident did not happen must necessarily require satisfaction that Mr Jawadi is also lying in corroborating the second defendant's evidence. He was a friend of the second defendant, but it does seem somewhat improbable that a person not closely connected with all these events would be prepared to make a false statement to the police, give false evidence in the Local Court and give false evidence in this Court.
16. Pointing to aspects of the second defendant's conduct about which he has been unwilling to tell the truth tends to raise a doubt about his credibility but does not of itself lead to the conclusion that he would have engaged in such an elaborate and devious plan to have the plaintiff arrested and kept in custody.
17. Apart from anything else, if as the plaintiff asserts, he had never been a threat to the first defendant or exhibited any type of violent or threatening conduct towards any member of the first defendant's family, it is puzzling that the first defendant and members of the family would go to such lengths not just to have him deported but to have him charged with criminal offences and kept in custody.
18. I am not satisfied, according to the requisite standard, that the second defendant concocted a story, provided a false statement to the police and has continued to prosecute the proceedings by giving false evidence on two occasions.
19. In the circumstances, the plaintiff has not established his case against the second defendant.
20. The plaintiff has thus not succeeded against either remaining defendant.

Damages

1. Lest I be wrong, I will consider damages, at least briefly.
2. The Civil Liability Act 2002 (NSW) ("CLA") does not apply to this type of intentional tort (s 3B(1)(a)).
3. The plaintiff alleges that as a result of the conduct of the defendants he suffers from a psychological injury in the nature of anxiety and major depression. He says that he experienced significant trauma whilst in prison. This led to helplessness, hopelessness, social isolation and persisting fear of being gaoled.
4. The plaintiff says that he was originally taken to Silverwater prison and then to other correctional centres. He could not speak English and was placed in cells with people who could not speak Dari. He was assaulted on a number of occasions by other prisoners. He experienced violence and trauma. He refers to a very violent assault being perpetrated upon him in which he was punched in the face a number of times.
5. The plaintiff says that if not for his incarceration he would have worked as a pharmacist, albeit he accepts that there would have been some delay in becoming eligible to work as a pharmacist in Australia.
6. In any event, having regard to the schedule of damages he provided at the end of the hearing, the plaintiff no longer seeks damages for economic loss.
7. The plaintiff relies on medical reports from Dr Paul Friend, psychiatrist, dated 13 June 2018 and 12 April 2021, respectively, and from Dr Alex Apler, psychiatrist, dated 23 May 2019.
8. The defendant relies on medical reports from Dr Wendy Roberts, a neuropsychologist, dated 18 September 2020 and 3 December 2020.
9. Dr Friend and Dr Roberts met in conclave and prepared a joint report dated 26 November 2021.
10. There was disagreement between them as to whether the plaintiff was a credible historian based on their analysis of the documents.
11. Dr Roberts carried out testing which was said to show that the plaintiff was exaggerating. Dr Friend raised concerns about this testing. Typically, a test such as this is administered in the person's first language. In Dr Friend's view, the use of an interpreter during the testing cast doubt as to the validity of the results.
12. It is only necessary to say that Dr Friend accepted that the plaintiff was suffering from a recognised psychiatric illness which is causally related to him being arrested and kept in prison. Dr Roberts acknowledged that he would have suffered symptoms whilst in prison but did not agree that that meant he suffered from a recognised illness.
13. The doctors gave evidence concurrently. They maintained their views.
14. It is always difficult to assess damages on the basis of alternative factual findings. This case is no different.
15. I can only say that if I had accepted that the defendants had provided false statements to the police which resulted in the plaintiff being incarcerated for such a lengthy period, the plaintiff would have been entitled to substantial damages arising from the tortious conduct which led to that period of incarceration.
16. The plaintiff claims damages from the defendants as follows:
17. As against the first defendant in respect of the first set of charges: 1. General Damages: $10,000.00 2. Aggravated Damages: $10,000.00 3. Exemplary Damages: $10,000.00 4. Special Damages: $22,583.33
18. As against the first defendant in respect of the second set of charges: 1. General Damages: $25,000.00 2. Aggravated Damages: $25,000.00 3. Exemplary Damages: $25,000.00 4. Special Damages: $22,583.33
19. As against the second defendant in respect of the third set of charges: 1. General Damages: $200,000.00 2. Aggravated Damages: $200,000.00 3. Exemplary Damages: $750,000.00
20. Mr Levet submitted that the amounts claimed were reflective of awards made in other cases and are reflective of the amount of time spent in custody consequent upon the charges being laid against the plaintiff.
21. It must follow that the plaintiff asserts that: 1. the consequences of the first defendant's allegedly false statement in respect of the assault perpetrated upon her were limited; 2. the consequences in respect of the complaint about the text messages was more significant but still limited; and 3. it was the second defendant's conduct which led to him being in custody for such an extended period.
22. Assuming different factual findings arising out of the first and second prosecutions and success in establishing malicious prosecution, then I would have awarded the amounts claimed as against the first defendant.
23. The issues are more complex in respect of the case against the second defendant. However, for completeness, I accept that the cause of the plaintiff being kept in custody for 11.5 months was that bail was refused, consequent on his repeat offending.
24. It follows that there would have been a direct causal connection between the tortious conduct of the second defendant and the incarceration and therefore the effects of his incarceration, as set out in the medical evidence.
25. If I had found that the second defendant had committed the tort of malicious prosecution, I would have accepted that his conduct was particularly reprehensible, in that as a serving police officer he must have known the consequences of what he was doing. Further, I would have accepted, but for the conduct of the second defendant, the plaintiff would not have remained in custody for such a lengthy period. Making false complaints to the police with the result that a person is wrongly charged and subject to criminal proceedings would likely lead to the victim of such false complaints suffering some form of injury. Indeed, most recently, in State of New South Wales v Madden [2024] NSWCA 40 the Court of Appeal (per Bell CJ, Leeming and Stern JA agreeing) observed that mere deprivation of liberty constitutes a form of "injury" for the purposes of s 3B(1)(a) of the CLA (see the discussion of Bell CJ at [140]-[153]).
26. I would assess general damages at $150,000.
27. Aggravated damages may be awarded when the defendant has acted in such a way as to demonstrate a contumelious disregard for the plaintiff's rights (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129-130 cited in State of New South Wales v Zreika [2012] NSWCA 37 at [60]). They are compensatory in nature and may be awarded where the particular circumstances and manner of the wrongdoing have caused, often intangible, injury to the plaintiff, such as injury to the plaintiff's feelings, that is incapable of being adequately compensated by ordinary compensatory damages (State of New South Wales v Ibbett [2005] NSWCA 445 at [83]-[89] per Spigelman CJ citing, amongst others, Lamb v Cotogno (1987) 164 CLR 1 at 8 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
28. An award of such damages would have been appropriate in this case. I would have awarded $100,000 in aggravated damages.
29. Exemplary damages may be awarded where the conduct of the defendant displays a similar "contumelious disregard" for the plaintiff's rights. However, they have a distinct purpose which goes beyond compensation, being to punish and deter similar conduct in the future (Lamb v Cotogno at 8 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ). Exemplary damages are likely to be higher against the State than against a private citizen who had committed the tort of malicious prosecution. I would allow $50,000.
30. If the plaintiff had succeeded against the second defendant, I would have assessed damages at $300,000.

Orders

1. The plaintiff has not succeeded. Accordingly, I make the following orders: 1. Judgment for the first defendant against the plaintiff. 2. Judgment for the second defendant against the plaintiff. 3. The plaintiff is to pay the first defendant's costs for the period when the first defendant was represented by solicitors from the date of the filing of her defence on 20 March 2018 until 21 July 2020. 4. The plaintiff is to pay the second defendant's costs as follows: 1. up to and including 14 April 2018 on an ordinary basis, and 2. from 15 April 2018 on an indemnity basis. 1. I grant liberty to apply should any party seek a variation of the costs order.

Amendments 29 May 2024 - orders on coversheet and at [276] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2024