Nye v State of New South Wales & ors

CATCHWORDS : Tort - malicious prosecution - improper motive - mode of proof - wrongful arrest and false imprisonment - onus of proof - justification - meaning of s 352(2) of the Crimes Act 1900 - police - Director of Public Prosecutions - DPP - inference - speculation - damages - aggravated damages - exemplary damages Crimes Act 1900 (NSW) s 352(2) Evidence Act 1995 s 165 LEGISLATION CITED : Justices Act 1902 s 41(6) Police Act 1892 - 1953 (WA) Supreme Court Act 1970 s 94 Abrath v North Eastern Railway Co (1883) 11 QBD 440 Amalgamated Television Services Pty Ltd v Marsden (No. 2) [2003] NSWCA 186, 9 July 2003, unreported Bradshaw v McEwans Pty Ltd ((1951) unreported) Briginshaw v Briginshaw (1938) 60 CLR 336 Broome v Cassell & Co (1972) AC 1027 Brown v Hawkes (1891) 2 QB 718 Carr v Baker (1936) 36 SR (NSW) 301 Caswell v Powell Duffryn Associated Colleries Ltd [1940] AC 152 Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 Cruise v Burke (1919) 2IR 182 Davis v Gell (1924) 35 CLR 275 Diamond v Minter (1941) 1 KB 656 Elcham v Commissioner of Police (2001) 53 NSWLR 7 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 George v Rocket (1990) 170 CLR 105 Gray v Motor Accident Commission (1998) 196 CLR 1 Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298 Hussien v Chong Fook Kam [1970] AC 942 Jones v Dunkel (1959) 101 CLR 298 Jones v Great Western Railway Co (1930) 144 LT 194 CASES CITED : Lamb v Cotongo (1987) 164 CLR 1 Luxton v Vines (1952) 85 CLR 352 Merest v Harvey (1814) 5 Taunt 442 (128 ER 761) Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Pestonji M. Mody v Queen Insurance Co (1900) ILR 25 Bomb. 332 R v Burdett (1820) 106 ER 873 Regina v Thurgar (1990) 51 ACrim R 109 Rejfek v McElroy (1965) 112 CLR 517 Rooks v Barnard (1964) AC 1129 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 Shepherd v The Queen (1990) 170 CLR 573 Smith v NSW Bar Association (1992) 176 CLR 256 Trobridge v Hardy (1955) 94 CLR 147 Uren v John Fairfax Pty Ltd (1966) 117 CLR 118 Walter v Alltools (1944) 61 TLR 39 Warwick v Foulkes (1844) 12 M & W 506 Whitfeld v De Laurent & Co Ltd (1920) 29 CLR 71 Wilkes v Wood 98 ER 489 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Ziems v Prothonotary (1957) 97 CLR 279 Plaintiff - Garry Raymond Nye First Defendant - State of New South Wales Second Defendant - Wayne Popplewell PARTIES : Third Defendant - Wayne Desmond Gordon Fourth Defendant - Peter James Hawley Fifth Defendant - David John Barnett Sixth Defendant - Director of Public Prosecutions FILE NUMBER(S) : SC 21458/96 COUNSEL : Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson Defendant: Mr I Temby QC with Mr P Lakatos SOLICITORS : Plaintiff: Miss E Faccin and Ms D Farah - Carol & O'Dea Solicitors (Sydney) Defendant: Mr IV Knight - Crown Solicitor's Office (Sydney)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21458/96 Garry Raymond Nye v State of New South Wales and others

O'KEEFE J : Introduction 1 Garry Raymond Nye (the plaintiff), who was born on 3 April 1952, has sued the State of New South Wales, Wayne Popplewell, Wayne Desmond Gordon, Peter James Hawley, David John Barnett and the Director of Public Prosecutions (DPP) for wrongful arrest and malicious prosecution. The plaintiff was arrested at Upper Colo on 24 July 1991 and charged, inter alia, with having murdered Roy Thurgar at Randwick in May 1991 and with two charges of conspiracy to supply cannabis resin (hashish). Roy Thurgar was shot between 7pm and 7.30pm on 20 May 1991 and died at about 5am the following morning. From the time of his arrest until he was acquitted on the charges of murder and conspiracy to supply cannabis resin on 10 November 1992, the plaintiff remained in custody.

2 The plaintiff has claimed damages for his arrest in respect of the murder of Roy Thurgar and for the charges of conspiracy in relation to cannabis resin and for his prosecution on such charges. The plaintiff has adopted the approach that there was no basis in law for his arrest on 24 July 1991 and for his initial detention on that day and up to the time he was remanded in custody by a magistrate on 25 July 1991. He further asserts that there was an absence of reasonable and probable cause in instituting and maintaining the prosecutions against him and that there was malice in so doing. 3 The basis on which the plaintiff has sought to prove absence of reasonable and probable cause is to show that the information possessed by the prosecutors and reasonably believed by them to be true was not such as to justify a person of ordinary prudence and caution in believing the plaintiff was probably guilty. The basis on which the plaintiff has sought to prove malice is by showing that the circumstances in which the prosecution was brought and the evidence said to support it lead to the conclusion that such prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor and that arriving at such a conclusion in relation to the defendant Gordon is assisted by his involvement in certain specific events. The High Court of Australia has accepted such a mode of proof as appropriate (the "indirect route"). In the case of the Director of Public Prosecutions it is also asserted that the wrong or indirect motive is further evidenced by two documents that were produced pursuant to subpoena, in respect of parts of which it was decided that no privilege, legal professional or otherwise, applied. This decision at trial was the subject of an unsuccessful application for leave to appeal to the Court of Appeal. Subsequently the entirety of the two documents parts of which had been the subject of the decisions at trial and on appeal was tendered and admitted without objection being raised at the time of tender. 4 The hearing extended over some 75 days and, following the receipt of voluminous lengthy written submissions and hearing oral addresses, judgment was reserved on 23 October 2003. On 30 October 2003, at the request of Senior Counsel for the plaintiff, the matter was re-listed. The court was then informed, and medical evidence was tendered to the effect, that the plaintiff had been diagnosed as suffering from lung cancer, that his prognosis was poor and that he had a life expectancy of between six weeks and eight months. A subsequent medical certificate revealed that the plaintiff was suffering from a form of cancer of the lung known as mesothelioma and that his life expectancy was to be measured in months at most, weeks at worst. A later medical report stated that the plaintiff's life expectancy was "only a few weeks, probably less than a month" from 2 December 2003. As a consequence it has been necessary to prepare this judgment more rapidly than would otherwise have been the case. The Pleadings 5 In his Statement of Claim the plaintiff alleges that the second defendant Popplewell and the third defendant Gordon laid a charge of murder and other charges against the plaintiff (para 7). The Pleading then alleges that such defendants prosecuted or caused the plaintiff to be prosecuted on the charge of murder (para 13). The Pleading also alleges that the sixth defendant, the Director of Public Prosecutions, took over the prosecution of the plaintiff for murder and continued to prosecute him on such charge (para 9). Insofar as the allegations in the Statement of Claim relate to the tort of malicious prosecution they are against the second defendant Popplewell and third defendant Gordon in respect of the initiation and prosecution of the charge of murder against the plaintiff. As against the sixth defendant, the Director of Public Prosecutions they depend on his taking over and continuance of the prosecution of the plaintiff for murder. 6 Thus, except insofar as that the State of New South Wales is sued on the basis that it is vicariously liable for what was done by Gordon and Popplewell and the Director of Public Prosecutions, the plaintiff's claim in malicious prosecution is directed against Gordon, Popplewell and the Director of Public Prosecutions only. 7 Insofar as the plaintiff's claim for wrongful arrest and false imprisonment is concerned the Statement of Claim alleges that he was taken into custody by police officers including Popplewell, Gordon, Hawley and Barnett (para 6) and that each of those defendants falsely and wrongly arrested him and kept him in prison or was a party to keeping him imprisoned for the period from 24 July 1991 (when he was arrested) until 10 November 1992 (when he was acquitted of the charges of murder and conspiracy to supply cannabis resin). The plaintiff's claim based on wrongful arrest and false imprisonment up to the time when he was brought before a court and remanded is not made against the DPP. The basis of the liability of the State of New South Wales for any wrongful arrest and false imprisonment of the plaintiff is alleged to be vicarious. Onus and Standard of Proof 8 Wrongful arrest and false imprisonment and malicious prosecution all involve an abuse of power. The former involve a deprivation of liberty, something which is regarded by the law as serious. Malicious prosecution may or may not involve deprivation of liberty but it exposes the person the subject of the prosecution to the possibility of injury to reputation and conviction for a criminal offence. These consequences are also regarded by the law as serious. 9 The onus of proving each of the elements of the torts of wrongful arrest and false imprisonment and of malicious prosecution lies on the plaintiff. Some of those elements involve proof of a negative. This is usually more difficult than proof of a positive element, but the negative may be established by inference. The standard of proof is the civil standard, namely proof on a balance of probabilities. In applying this standard the nature and seriousness of the allegation to be proved must be borne in mind. Thus in Briginshaw v Briginshaw (1938) 60 CLR 336, when considering the application of the civil standard in relation to proof of adultery, Dixon J said: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect references… This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" (at 361-363). 10 When applying Briginshaw v Briginshaw (supra) it is necessary to keep in mind what was said in Rejfek v McElroy (1965) 112 CLR 517 namely that proof of serious allegations such as, for example fraud, or false arrest and wrongful imprisonment or malicious prosecution, should be: "…on a balance of probabilities, an actual persuasion of the mind as to the existence of the fraud… The 'clarity' of proof required, where so serious a matter as fraud is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved…

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence is mind is to be persuaded are not to be confused… No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to obtain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge" (supra at 521-522 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ). 11 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court again reminded trial Judges that: "The ordinary standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed toward the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw (supra): 'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…'" (supra at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ).' " 12 The nature of the allegation, namely an arrest for and prosecution on the charges of murder and conspiracy to supply cannabis resin, made against the various defendants is serious. Wrongful arrest, false imprisonment and malicious prosecution are serious by nature. Furthermore, in the present case, the consequences flowing from adverse findings against the defendants or any of them would be likely to be grave, since each is, or was at the relevant time, a public official whose functions involve, or involved, a proper application and carrying into effect of the criminal law. Adverse findings against them may affect their employment. They may adversely affect their professional standing. They may undermine public confidence in them as public officials (see Ziems v Prothonotary (1957) 97 CLR 279 at 296 per Fullagar J; Smith v NSW Bar Association (1992) 176 CLR 256 at 272 per Deane J).

A. Malicious Prosecution 13 In the present case the elements of the tort of malicious prosecution are: 1. The institution, adoption or continuation of criminal proceedings by a defendant or defendants against the plaintiff. 2. The termination of such proceedings in favour of the plaintiff. 3. Absence of reasonable and probable cause in instituting, adopting or continuing the proceedings against the plaintiff. 4. Actual malice which may comprehend a primary purpose other than that of carrying the law into effect ( Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 at 351).

As to element 1. Who is the prosecutor? 14 For the purposes of malicious prosecution the law looks beyond theory and regards the person in fact instrumental in prosecuting as a prosecutor. The answer to the question "Who was the prosecutor?" must depend on the whole of the circumstances of the case. That is a question of fact. To incur liability as a prosecutor a defendant must have played an active role in the proceedings by setting them in motion or by adopting or continuing them (Davis v Gell (1924) 35 CLR 275 at 282-283). 15 There can be no doubt that the institution of prosecutions of the plaintiff for murder and conspiracy to supply cannabis resin falls within the first element of the tort of malicious prosecution. There is no issue that the defendant Gordon, as the officer-in-charge of the investigation, falls within the category of a prosecutor and it was accepted that he would be liable if his decision to charge the plaintiff with the murder of Roy Thurgar is shown to have been without reasonable and probable cause and to have been actuated by malice. Although in his evidence at the committal proceeding (exhibit AQ, 18/2/92 T 23) the defendant Barnett conceded that he was the informant in the plaintiff's case, he has not been sued for malicious prosecution. There is no issue that the prosecution of the plaintiff for murder was taken over or adopted by the DPP and that it was continued by the DPP until the plaintiff was acquitted. There is no evidence that the defendant Popplewell laid any of the relevant charges against the plaintiff. 16 Thus the defendants Gordon and the DPP are prosecutors for the purposes of the action by the plaintiff in malicious prosecution.

As to element 2: Favourable termination of the proceedings. 17 The law requires a plaintiff in an action for malicious prosecution to show that the proceedings of which he complains have terminated in his favour, i.e. that they have been brought to an end without adverse consequences to him. In Davis v Gell (supra) Isaacs ACJ, adopted what was said by Lord Macnaghten in Pestonji M. Mody v Queen Insurance Co (1900) ILR 25 Bomb. 332 at 335 and held that an acquittal of a criminal charge establishes, for the purposes of an action for malicious prosecution, a sufficient basis for the person who has been acquitted to maintain his action and that the same rule applies where a nolle prosequi is entered. The decision by Starke J is to a like effect (supra at 296). 18 Commonwealth Life Assurance Society Ltd v Smith (1937-1938) 59 CLR 527 confirmed that an acquittal is a favourable determination for the purposes of an action of malicious prosecution (supra at 538, 540 per Rich, Dixon, Evatt and McTiernan JJ). 19 In the light of authority, there is not, and cannot be, any dispute that this element of the tort of malicious prosecution has been satisfied. On 10 November 1992 the plaintiff was acquitted of having murdered Roy Thurgar on 20 May 1991 and of the drug conspiracies.

As to element 3: Absence of reasonable and probable cause. 20 A clear, concise and authoritative statement of what it is that a plaintiff has to prove in relation to element 3 in an action for malicious prosecution is to be found in the judgment of Jordan CJ in Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466: "In an action for malicious prosecution the burden of proof is on the plaintiff to prove (inter alia), that the defendant in instituting or maintaining the prosecution acted without reasonable or probable cause and also acted maliciously. In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty. In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds. To establish the first of these matters, it is essential that evidence should be given of some fact or facts which, either inherently or coupled with other matters proved in evidence, would enable the inference that the defendant did not believe in the plaintiff's guilt… Merely to prove that the defendant had before him information which might or might not have lead a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant's belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative… It may, for example, be supplied by evidence that the defendant had before him facts pointing to the plaintiff's innocence so overwhelming that no reasonable man could have believed in his guilt… But the necessary evidence is not supplied by proof that the defendant was aware of facts which might or might not have satisfied him of the plaintiff's guilt, or that he had before him information, some of which pointed to guilt and some to innocence. If the plaintiff proposes to establish that the defendant had not sufficient grounds for believing him to be guilty, the burden is on the plaintiff to give evidence of what information the defendant in fact had… If he contends that the defendant did not believe some of the information which he had, he must supply evidence supporting an inference as to what the defendant's belief actually was with respect to the accuracy of the information in question, not a guess as to what it was… It is only when he has supplied some evidence of the nature of the whole of the information that the defendant had that he can invite an inference that it was insufficient… If the plaintiff does place before the court evidence of the nature of the whole of the information which the defendant had, it is for the judge… to determine whether it was reasonable for the defendant to believe in the accuracy of the information and also to determine whether it was reasonable for him to act on it, i.e., whether it was sufficient to justify a man of ordinary prudence and caution in believing that the plaintiff was probably guilty" (supra at 469 to 471). Element 4: Malice.

21 In the present case the plaintiff has relied on the reasoning of the High Court in Trobridge v Hardy (1955) 94 CLR 147 in relation to the issue of malice. That case was concerned with wrongful arrest and false imprisonment and the court had to consider the meaning of "malice" as used in the Police Act 1892 - 1953 (WA). Fullagar J equated the meaning of malice as used in that statute with the meaning of the same word as used in the context of malicious prosecution. He said that it included "personal spleen or ill will or some motive other than that of bringing a wrongdoer to justice" (supra at 155). 22 The view of Kitto J was expressed somewhat more expansively. He said: "The word 'malice' must… mean what has been variously called express malice, actual malice or malice in fact as contrasted with malice in law which is no more than the unlawful intent whenever an injurious act is done intentionally and without just cause or excuse. Malice in the latter sense is not a separate matter of proof. In the former sense, however it forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominately by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted 'from an indirect and improper motive, not in furtherance of justice' ( Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455). That is to say, from some desire other than 'to discharge his duty to the public' ( Cruise v Burke (1919) 2IR 182 at 186)… (p)roof of motive is always and necessarily a matter of inference, except where a party whose motive is to be ascertained makes a direct admission on the point after the event either in or out of court. Even proof of statements made by him before the event and showing a clear intention to do for an improper reason the acts which thereafter he did, would not be direct proof of malice, for they could provide no more than a ground, when considered with all other relevant circumstances, for drawing an inference that the improper reason persisted at the material time and provided that the defendant at that time with his actuating motive" (supra at 162). 23 Malice can be proved either by showing what the motive of the defendant was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor (Brown v Hawkes (1891) 2 QB 718 at 722; approved by Kitto and Taylor JJ in Trobridge v Hardy supra at 163, 174). In Brown v Hawkes (supra) Cave J said: "Of course, there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. But I am not prepared to assent to the proposition that, where there is want of reasonable and probable cause the jury may always find malice no matter what the circumstances may be" (at 723).

24 The judgment of Cave J was upheld on appeal (1891) 2 QB 726 by Lord Esher MR and Bowen and Kay LJJ, with Bowen LJ saying: "…the few words I shall add do not in any degree go to modify anything in the declaration of the law which has been already given, more particularly in the admirable exposition of the law in Cave J's judgment" (at 727). 25 What was said by Bowen LJ in relation to proof of malice is echoed in the judgment of Jordan CJ in Mitchell v John Heine and Son Ltd (supra) when he said that: "It has been somewhat loosely said that evidence of absence of reasonable and probable cause is evidence of malice, but that evidence of malice is not evidence of reasonable and probable cause. In truth, neither of these statements is accurate. Proof of a particular fact may supply evidence both of malice and of absence of reasonable and probable cause, as where it is established that when the defendant instituted the prosecution he knew that the plaintiff was innocent. But proof that the defendant was animated by a desire to injure the plaintiff would not supply evidence of absence of reasonable and probable cause. And evidence that the defendant had formed a belief in the plaintiff's guilt, which, though genuine, was based on unreasonably insufficient grounds, would afford no evidence of malice. On the other hand, proof that the defendant had instituted the prosecution… upon information which was ludicrously and obviously insufficient might of itself supply evidence warranting an inference of malice in a particular case" (supra at 474).

26 The statement by Professor Fleming of the law in relation to the element of malice in the tort of malicious prosecution is to a like effect (The Law of Torts, Fleming, 9th edition p 686). 27 The plaintiff has relied on proof of malice by the second method referred to in Brown v Hawkes (supra) - a method described by Kitto J in Trobridge v Hardy (supra) as "the indirect route", namely that "of proving that the defendant's conduct is not to be explained by the existence of a right motive" (at 163). In doing so he argued that there must be some rational explanation for what the relevant defendants did, and that when to this there is added the unlikelihood of the defendants having acted from a proper motive, there being an absence of reasonable and probable cause, the defendants must have been actuated by an inadmissible motive of some kind or other. He then argued that the evidence by the defendant Gordon as to his motive for initiating the prosecution of the plaintiff should be rejected. Furthermore, he submitted that the events involved in the taking of the statement of one of the alibi witnesses, namely Mr NB Laing, and what should be found to be the defendant Gordon's role in the visit to Mrs Kerry Nye at Upper Colo by two members of Gordon's investigative team on 29 July 1992, supported a finding of malice against him even though the court may not be able to say with precision what his improper motive was. In relation to the DPP the plaintiff argued that the statements made in Exhibits BJ and BK were clear evidence of an improper motive and that they evidenced, and should be a basis for a finding of, relevant malice.

B. Wrongful Arrest and False Imprisonment 28 The total restraint of movement of a person or his detention by preventing him from exercising his freedom of motion and locomotion against his will and without lawful authority, is the other cause of action on which the plaintiff has sued. To constitute such tort it is not necessary that there be actual force involved and an arrest which initiates the detention may be effected without the application of any force or violence, but nonetheless attract damages if the other elements of the tort are made out. Where there is some force used, for example by handcuffing of the person arrested and detained, that will reflect in the damages awarded if the arrest and detention are effected without lawful justification. 29 In the present case there is no doubt that the plaintiff was arrested at Upper Colo on the morning of 24 July 1991, indeed it is common ground (T 1139). According to the plaintiff his immediate arrest was effected by some seven or eight police officers who were armed with automatic weapons and shotguns, but within a matter of moments he was given into the custody of the defendants Barnett and Hawley. His initial detention occurred in front of the premises in which he was living. He was given orders to keep his arms up and thereafter was ordered to go to the front of the premises and was then escorted outside the property boundary. There he was made to lie on the ground and was handcuffed (T 78-79). That he was handcuffed was not denied, indeed it was admitted by the defendant Hawley (T 1863). The plaintiff says that he was told to remain still and was threatened that if he moved he would be killed. The words attributed to the police were: "Move and I'll blow your fucking head off" (T 80-81). None of this was denied. Indeed the defendant Hawley conceded that there were several armed police officers around the plaintiff and that automatic weapons and shotguns were "more than a possibility" (T1862). The defendant Hawley claimed that he did not hear the words attributed by the plaintiff to the police, but he was not present at all times. I am satisfied that they were said. Later the plaintiff was taken back to the house where he says that he was shown a search warrant by the fifth defendant Barnett and a search of his house and its grounds was undertaken. 30 In the course of opening the defendant's case it was conceded on behalf of the defendants that the initial arrest of the plaintiff was effected by a police officer named Whittaker of the State Protection Group, and that a little after this, a matter of "a few minutes" (T 1143), the plaintiff "came into the custody of two of the named defendants, Messrs Barnett and Hawley… They were responsible for his imprisonment and deprivation of liberty from when he came into their custody until he was dealt with by the Central Local Court the next day". Thus if the arrest and imprisonment of the plaintiff were effected without lawful justification then the defendants Barnett and Hawley, being those who went to Upper Colo to arrest the plaintiff, are accepted as those who effected the arrest. 31 However the situation of the defendant Gordon also needs to be considered in relation to this tort. The defendant Gordon was the officer in-charge of the operation concerning the murder of Thurgar. It was code named Operation Shylock. The arrest of the plaintiff was part of that operation. It was the defendant Gordon who briefed the officers who took part in the raid on the plaintiff's premises at Upper Colo on 24 July 1991 and effected his arrest (T 1203-1204). According to the defendant Gordon he "cause(d) the arrest of Mr Nye" (T 1252). This was done on the basis that the police informant (Shakespeare) had alleged that, in concert with Thurgar, he had stolen 100 kilograms or thereabouts of hashish from the plaintiff and an associate of the plaintiff named Harlum (T 1252). It was this alleged theft of hashish that was said to be the motive for the murder of Thurgar by the plaintiff and Harlum. It was the 100 kilograms of hashish that was the subject of the conspiracy charges. Like the plaintiff, Harlum was acquitted of the charges of having murdered Thurgar and of conspiracy. 32 In these circumstances Gordon is a person responsible for the arrest and detention of the plaintiff and if such arrest were affected without lawful justification then he would be liable in law for the damages that flow from the wrongful arrest and false imprisonment. 33 The period of detention relevant to the cause of action for wrongful arrest and false imprisonment is that which commences with the arrest of the plaintiff and extends at most up to the time he was taken before a Magistrate on 25 July, 1991 and remanded in custody. As was said in Diamond v Minter (1941) 1 KB 656 in relation to a claim for damages for false imprisonment: "I think that the periods of detention which I have to consider are the period during which the plaintiff was in the custody of the two defendants… and the period during which he was detained at Bow Street police station before he went into court. What happened after that, with regard to his being remanded in custody, was the result of a judicial act by the learned Chief Magistrate, and no liability can attach to the police officers for that" (supra at 663).

34 Damages, if any, for detention after the plaintiff was taken before a Magistrate at Central Local Court on 25 July 1991 and remanded in custody (T 1204) must be related to his claim based on malicious prosecution. 35 The defendants rely on s 352(2) of the Crimes Act 1900 (NSW) (the Crimes Act) as the lawful justification for the arrest and initial detention of the plaintiff. That section applies, inter alia, to any serious indictable offence for which the person arrested has not been tried. It provides that:

"Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence." 36 The contention by the defendants is that they and each of them, with reasonable cause, suspected the plaintiff of having murdered Roy Thurgar on 20 May 2001 and of being involved in the drug conspiracies. 37 In George v Rocket (1990) 170 CLR 105 the High Court considered the concepts of "reasonable grounds" and "suspicion" as appearing in legislation that was concerned with the grant of search warrants; the phrase under consideration in such case being "reasonable grounds for suspecting". The discussion by the court in that case in relation to those concepts is relevant to those embodied in s 352(2) of the Crimes Act. Although the phrase used in the Crimes Act is "reasonable cause", there is no material difference between that phrase and "reasonable grounds" as dealt with by the High Court. Furthermore the participle "suspecting" is a form of the verb "to suspect" and does not have a connotation that is different from the verb from which it is derived. 38 The High Court held that the provision of the statute requiring "reasonable grounds" for the relevant state of mind "requires the existence of facts which are sufficient to induce that state of mind in a reasonable person" (at 112). Similarly the High Court pointed out that suspicion is different from belief. It requires much less to give rise to a suspicion than is required to establish a belief, and the establishment of a belief requires less than is required to establish a fact. As the High Court said: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam ([1970] AC 942 at 948) 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.' The facts which can reasonably ground a suspicion may be quite insufficient to ground a belief, yet some factual basis for the suspicion must be shown" (at 115);

and: "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture." (at 116)

39 The evidence required to arouse suspicion is less than is necessary to induce a state of belief and that in turn is less than is required to establish a state of fact. Objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief than is the case in relation to suspicion (Elcham v Commissioner of Police (2001) 53 NSWLR 7 at 16). 40 Thus what is sufficient to cause a person to suspect with reasonable cause a given state of affairs for example, for the purposes of justifying an arrest by reference to s 352 of the Crimes Act, is less than is required for an honest belief on reasonable grounds in relation to the same state of affairs. In summary the test to be applied for the purposes of lawful justification in relation to wrongful arrest and false imprisonment on the one hand is less demanding than that required in respect of element 3 of the tort of malicious prosecution (see para 13 above).

1. Absence of reasonable and probable cause 41 Roy Thurgar (Thurgar) was shot on 20 May 1991. Initially the police considered several possibilities as to the killer. None of these was the plaintiff; none of these seemed likely. Furthermore the police had no idea of the motive for the killing. At most they had vague, inadequate and even conflicting descriptions of the killer. The murder victim was a criminal of some notoriety. He was said to have been involved in a conspiracy to murder a very senior official in the Department of Corrective Services named Woodham. Thurgar had been acquitted of this charge by a jury, but convicted on a charge of possessing an unlicensed pistol. This pistol was said to have been in his possession for the purposes of shooting Woodham. He was sentenced to imprisonment for three and a half years. On appeal to the Court of Criminal Appeal his conviction was confirmed, but by majority his sentence was reduced to two years and two months, the effect of which was to allow him at large from the rising of the court (Regina v Thurgar (1990) 51 ACrim R 109). 42 The murder of Thurgar was a high profile matter. It attracted considerable media publicity from the very outset. (T 1833) As early as 21 May 1991 Inspector Wilson, who was the defendant Gordon's immediate superior, was attending to media enquiries from a number of journalists. This no doubt would have been a source of pressure on the police to make an arrest. The defendant Gordon was involved with the media in relation to the murder as well. His Duty Book reveals that he was involved in a press release in relation to the murder (exhibit 21; T 1175). The pressure for an arrest was likely to have been increased as a result of a document that had been handed to the Police Minister alleging that the investigation into the murder of Thurgar was "a cover up" and that "police (were) responsible for his murder" (exhibit BE). The name of Detective Inspector Davidson was mentioned. 43 Despite the high profile nature of the killing and the level of resources assigned to its investigation (T 1162), the police had not progressed until Shakespeare came forward as a police informant in Wollongong late in the afternoon of 28 May 1991 (T 1163). At the time the police informant Shakespeare had some 40 warrants outstanding in respect of him. These were for fraud and other matters and in total involved a very large sum of money. He was seeking protection and, as it emerged, other benefits for giving information that he claimed to have concerning the murder of Thurgar. 44 The case of murder made against the plaintiff depended on the police informant Shakespeare. His evidence was essential to the prosecution of the plaintiff in relation to the murder of Thurgar. It was also essential to the prosecution of the plaintiff on the charges of conspiracy to supply 100 kilograms of cannabis resin. In a submission to the Director of Public Prosecutions of 6 August 1991, the solicitor who apparently had the carriage of the matters, Mr Trembath, wrote that "without the evidence of Shakespeare we (i.e. the prosecution) do not have a case against Harlum and Nye for murder or against Harlum, Nye and Peak for the conspiracy charge. The only other independent evidence is vague, inconclusive identification evidence at the scene which, is uncorroborated and of little value" (exhibit BJ).

45 The evidence of Shakespeare was the only evidence that placed the plaintiff at the scene of the shooting on the evening of 20 May 1991. His evidence was the only evidence that placed the plaintiff with him and Harlum during the hours from around 9.15 or 9.30am until around 11pm on that date. On his version of events Shakespeare was involved in the murder of Thurgar and could have been charged with murder. On at least one of his version of events Shakespeare was a party to the acquisition and distribution of 100 kilograms of cannabis resin that had a street value of $1,000,000 to $1,500,000. He was the only person who claimed to have seen the hashish. His evidence was of a kind that would have attracted a warning to a jury under the common law concerning the need for caution in accepting his evidence. That of itself was a source of obvious weakness in the Crown case. 46 Whilst in one of his interviews Shakespeare said that one of the motives for the murder of Thurgar was because that "Tom Domican was filthy on him" (i.e. Thurgar), because "Thurgar had gone to the police and was gunna talk to em" (exhibit T, tab 4, p 38), the principal motive for the murder of Thurgar advanced by Shakespeare was that he and Thurgar had stolen 100 kilograms of hashish that was being transported from Queensland to Sydney by Shakespeare, Peak and others. Its transportation was said by Shakespeare on one occasion to have been for the plaintiff and Harlum; on another occasion to have been for the plaintiff, Harlum and others. 47 In these circumstances it is, and was at the material times, essential to analyse carefully the information given by Shakespeare to the police. 48 The defendant Gordon travelled to the Wollongong area in company with the defendant Popplewell (T 1164), where he saw Danny Shakespeare at the Port Kembla Police Station. There Shakespeare told the defendants Gordon and Popplewell about "a million dollars worth of hash that got ripped off between me and Thurgar" and that he "was with the people that went to Bondi and then went onto Randwick that were going to just go in and lock the laundromat up and take the pot form the laundromat." (exhibit T, tab 1). He nominated that a blue Mazda or Datsun had been involved and that one of the men had worn "a hat". Later he said that this was "an Andy Capp" type of cap. He also said at this first interview that he left before the murder had been committed and "didn't know anything about what had happened until the next day" (id). By 30 May 1991 this had changed. By that time he claimed to have heard the shot and to have gone with the assailants in a car to Blacktown after the shooting (exhibit T, tab 4). It is perhaps significant to note that in this interview the police informant Shakespeare did not name or identify the plaintiff, but he did name a person "by the name of John" (exhibit T, tab 1). 49 He was interviewed again by the defendant Gordon a little later on the evening of 28 May 1991. This interview extended over the course of two and three quarter hours. In it Shakespeare said that he had forgotten to mention a person who's name was "Gary". He was then asked: "Q 19. These two persons that you have just mentioned are they connected in some fashion with the killing of Thurgar? A. Two are, Gary and John. Q 20. Are either of these two persons responsible for the actual shooting? A. One is closely responsible for the shooting that's John" (exhibit T, tab 2).

It is worthwhile noting that this second interview took place at some remove in time from the first interview and that the volunteering of the plaintiff's Christian name was in the context of an interpolation relating to his the plaintiff's role in the distribution of "speed" and as a person who was "not long out of gaol". There was no evidence to support the former assertion, whilst the latter assertion is plainly wrong. The plaintiff's criminal history (exhibit A) shows that his last convictions resulting in imprisonment were in 1972 and 1974. And the evidence establishes that his was last release from prison prior to his being arrested on 24 July 1991 was in December 1978. This information was readily available to the police who were investigating the murder of Thurgar and it is probable that it had been ascertained before the plaintiff was arrested. 50 The story as then told by the police informant Shakespeare involved 250 kilograms of hashish and 250,000 ecstasy tablets. The ecstasy tablets seemed thereafter to have dropped out of the picture and the 250 kilograms of hashish was said to have been reduced because of "a bust in Cairns" and "a large amount of the ecstasy" being taken. There was no corroboration of any such event. He then said that the drugs were taken to Brisbane in National Panasonic boxes and stored in a storage facility at Springwood, Queensland. As emerged from police investigations the building in which the police informant Shakespeare said that the drugs had been stored had not been completed at the time of the alleged storage and was not available for the storage of goods. Shakespeare then proceeded to say that he had bought a BMW and a Tarago in Queensland near Springwood and that a man, later identified as Pollock, had brought up $20,000 out of which Shakespeare said he paid $11,000 for the BMW and "the Tarago was supplied by the guy from the storage place because he was in on it" (exhibit T, tab 2). In a later statement Shakespeare recanted this statement concerning the Tarago and the involvement of one of the people from the place of alleged storage. 51 He proceeded to tell the police that the events referred to in the preceding paragraph had taken place about three months before i.e. in February 1991, but that the theft of the drugs by him and Thurgar had only been discovered about three weeks before the date of his second statement i.e. in early May 1991. 52 He also said to the police that he had made contact with Thurgar on a mobile phone, the number of which he would give to police at a later date. The mobile phone was said to be registered in the name of a doctor in the Port Macquarie area. However this was not established to be true despite investigative efforts to do so. 53 Shakespeare explained to the police how the large quantity of hashish about which he was speaking was transported to Sydney. He said he took "a blue Magna" over to the self-storage shed at Springwood, Queensland in order to load half the hashish into that vehicle by putting it inside the door trimming. He said that he pretended to load the vehicle but did not do so and that he then returned to the motel where they were staying. There he told his companions, Peak, Bronson and another man that he was going back to pick up the (non-existent) Tarago from the storage shed, his idea being to put the balance of the hashish in the Tarago and travel separately from the others. However instead of this he bought a BMW for $11,000. What happened to the Tarago is not accounted for on his early version of events. 54 He says that he loaded the whole of the hashish into the BMW and set out for Sydney but had engine trouble and had to leave the car in Armidale. There he said he took the hashish out of the car "which took about an hour and fifteen minutes and put it into two overnight bags and a suitcase". Where these came from was never explained. Furthermore the evidence from other witnesses who had seen the police informant Shakespeare at various times after the breakdown of the BMW did not ever see him with two overnight bags and a suitcase; only one overnight bag was ever seen. 55 He then told the police that after he had transferred the drugs from the BMW into the two overnight bags and the suitcase at Armidale he "then met a girl and her son". This girl was identified by Shiralee Dadd. Shakespeare's statement was more than a little coy about this, for the girl that he referred to was one with whom he was involved, she being his girlfriend (exhibit W). She made a statement that she had in fact flown to Brisbane on a ticket that the police informant Shakespeare had paid for and had met him there. So another aspect of his second statement was untrue; at very least it was inconsistent with the statement of another Crown witness. 56 The existence of the two overnight bags and the suitcase was not confirmed by Ms Dadd in her statement of 24 July 1991 (exhibit W). Indeed she said that there was nothing in the boot of the vehicle "except my bag" (exhibit W, Q 78) and a few toys that had been purchased for her son. She did however confirm having travelled from Queensland to just outside of Armidale with the police informant Shakespeare in the BMW, where it broke down. Again she said that except for her bag there was nothing else in the BMW (exhibit T, Q 89-92). Her bag was removed from the car by Shakespeare at the garage in Armidale and taken by him to a motel. In his story Shakespeare then proceeded to tell the police that he went from Armidale to Tamworth Railway Station by bus in company with the girl and her son, carrying the three bags. However Ms Dadd said that the only luggage that went to Tamworth on the bus was her handbag and the single bag containing her and her son's clothes. 57 The police informant Shakespeare told the police that he had caught a taxi from Tamworth to Sydney at a cost of $400 and that "the girl and boy come with me but got out at Parramatta" (exhibit T, tab 2, Q 27). However the statements taken from the Tamworth taxi driver and his friend who travelled with him in the taxi to Sydney made it clear that: (a) the police informant Shakespeare did not travel to Sydney in the taxi with Ms Dadd and her son; (b) the police informant Shakespeare had only one bag. It was a bag with a broken handle and it was placed in the boot of the taxi; (c) the price of the taxi ride from Tamworth to Sydney for Ms Dadd and her son was $400. This was paid by Shakespeare in $50 notes (exhibit Y).

Ms Dadd's statement confirms that she travelled from Tamworth to Sydney in a taxi in which the passengers were "the taxi driver and his offsider", Ms Dadd and her son. She says that the money for his journey was given to her by Shakespeare. In a later statement Shakespeare changed his version as to his mode of travel from Tamworth to Sydney. Thus on yet another matter, the police informant Shakespeare's major statement was inconsistent with the evidence of other Crown witnesses and had all the appearances of being false. 58 He then proceeded to tell the police that having returned to Sydney he rang Thurgar and met him at Pier One where he, Shakespeare, gave Thurgar the bags containing the hashish, keeping one kilogram for himself. Then he said he went to Newcastle and then to Broadmeadow. Whilst he was staying there he said he was visited by four people who threatened him and one of them "jabbed me in the leg with a knife." He identified this person as the plaintiff. This was shown to be untrue, although Shakespeare had in fact sustained a stab injury to the leg at an hotel or nightclub some considerable time before. Thus, another circumstance in the police informant's major statement was demonstrably untrue. 59 In his second interview Shakespeare reiterated what he had said in the first interview namely, that he did not learn of Thurgar's murder until the morning after it had occurred. He said that he had heard about it at his mother's place. This assertion was backed up by a further assertion that he had left the company of the two men responsible for the shooting of Thurgar "at Randwick about lunch time, it would have been about 12 or 12.30pm I left them." This is in marked contrast to his later assertions to the police that he was with the two men from about 9.15 to 9.30am until about 11.00pm on the day of the shooting. Yet again significant parts of his statements were inconsistent and deliberate lies were apparent. 60 It should be noted that Shakespeare said that he did not learn of the death of Thurgar until the day after the shooting occurred. He told the police in a recorded interview of 31 May 1991 (Exhibit T Tab 4 page 36): "Gordon: Well when did you ah learn of ah the death of Thurgar, by, by way of media. Shakespeare: I seen it on the TV the next day."

This is yet another of the very many lies told by Shakespeare throughout his various statements and recorded interviews. A review of those statements and interviews leaves the distinct impression that the principal consistency in them is the number of lies told by Shakespeare. This is an conclusion that a person of ordinary prudence and caution would undoubtedly reach; a fortiori in the case of a trained investigator approaching the matter in a proper manner. 61 His description of the two men said to be involved in the killing was that one was "about six foot, slim build, dark hair; the other person is a bit smaller than me about 5'9", short hair, always wears a cap like golfers wear, normally wears a brown checkered one and a sort of corduroy sort of one. He's about 37 or 40 years of age." At the time that Thurgar was shot the plaintiff was aged 39 (T 47). From the foregoing it can be seen that within a short time of his first interview, and following a break, the police informant Shakespeare was able to give to the police a more detailed description of the assailants, albeit, still rather broad and less than precise. 62 This is to be compared with the descriptions given by those who were in the vicinity of the shooting at the relevant time. In a statement of 20 May 1991, Mr Lehman, who chased the assailant, said that initially he thought that the man was "about five foot six tall, slim build, athletic and was wearing an English type of cap … like golf hat", that was of "soft material, dark colours, may be dark brown or black". However, when the assailant stopped and turned around to face Mr Lehman he didn't seem to be as tall as he had appeared when he was running, but was rather "towards five foot four or even less". Mr Lehman said that the assailant had a dark coloured jacket on and faded blue denim jeans (exhibit AH). Mr Bizzell, in a statement of 21 May 1991, described the assailant as being about 5'9" to 5'10" (170 to 175 cms) in height, with a thin build wearing a dark duffel coat with a high collar and which came to about knee length, but he was unable to say what type of pants he was wearing. He said that the man was wearing a "white cap" like an "Andy Capp" cap. Mr John Barnett made a statement on 21 May 1991. In it he said he was unable to remember what the assailant was wearing, but he recalled that his face was obscured by something. Mr Eric Roberts, in a statement of 20 May 1991, said that he could not tell the age of the assailant because his face was covered with a scarf or perhaps a jumper that went up to his nose. He said that the assailant was wearing a hat that "could have been a woollen hat which was a light mauve or pink colour". In his statement he described it as an "Andy Capp" cap and the assailant as 5'6" tall, of solid build, fit and wearing a dark coloured jumper and blue jeans. The only person able to be described by Mr Peter Vanwest in his statement of 20 May 1991 was a "male, six foot tall, Caucasian, blonde hair which would have been about shoulder length, slender build. He was dressed in blue jeans and a dark coloured jacket" but Mr Vanwest was unable to say what type of jacket it was. Ms Ester Mestre, in her statement of 25 May 1991, described having seen two man at the bus stop which is proximate to the laundromat in question, a blue Datsun and a man standing in the trees who ran across the park after the shooting. He was described "as being about 5 ft 8", medium build, his trousers were darker than the top he had on but I don't remember much else" (Exhibit AH). These various statements, in my opinion, confirm the conclusion by Mr Trembath in his submission to the DPP of 6 August 1991 that the independent evidence "is vague, inconclusive identification evidence at the scene which is uncorroborated and of little value." In this context it should be noted that it was suggested on behalf of the plaintiff that the police informant Shakespeare, was provided with information by police between various interviews or breaks in interviews. However, there is no evidence of this and the suggestion was denied by the defendant, Gordon.

63 The final matter to which reference should be made is the description of the clothing that the police informant Shakespeare said the two men involved in the murder were wearing when he last saw them about lunch time on 20 May 1991. The taller man was said to be wearing browny/black slacks and a white shirt; the other was said to be wearing blue jeans and a sloppy-joe, which Shakespeare was unable to say whether it was blue or brown and that he had a cap on which he thought was a chequered one. This description of the clothing of the two men by Shakespeare was given on the morning of 31 May 1991. However by about 3.20pm that afternoon when the defendant Gordon returned to the topic of the dress of one of the assailants and asked what type of hat was being worn, Shakespeare replied: "Oh like a golf hat, I think it was a checked one, I can't exactly remember" (exhibit T, tab 12, page 9).

and the bandanna was said to be like a handkerchief of which the assailant had two: "a red one" and "a bluey and whitey sort of coloured one". When Shakespeare was asked about the events at the scene, there was confusion on his part about whether one or other of the men was running, whether the shotgun was exposed, whether it was in a bag, who had the bag etc. After a good deal of toing and froing the best that Shakespeare could do was that: "Maybe he ( Nye ) was carrying the bag and I think John had the gun" (parenthesis added), with the gun seemingly not in a bag (exhibit T, tab 12, page 16-17). The hat worn by the assailant (not the plaintiff) is thus variously described by Shakespeare. The constant is that it was chequered. This is to be contrasted with the other descriptions of the hat worn by the assailant. The various independent witnesses describe it as "dark brown or black", "white" and "light mauve or pink". None of those witnesses describe it as chequered, although two describe it as an "Andy Capp" style of cap - a description later adopted by the police informant Shakespeare in his statement of 23 June 1991 (exhibit T, tab 15, page 26). 64 The police informant Shakespeare was taken to Queensland in July 1991. There he was conveyed to various places and what was said was taped and later transcribed under the heading "Queensland Run Around". There he indicated a storage facility at Tolmar Place, Springwood which bore the description National Mini Storage. This was still under construction at the time that Shakespeare said the purloined hashish had been stored in it. 65 That the police informant Shakespeare hoped to gain an advantage from giving information to the police is clear from his record of interview of 29 May 1991 (Exhibit T Tab 3). That interview was conducted on the basis that it would not be used in evidence against him but "would be used to support an application for indemnity from prosecution from the Director of Public Prosecutions and any other prosecution authority." In the interview Shakespeare said that "the murder was related to a rip- off of a million dollars worth of hash that me and Roy Thurgar between us organised to rip-off. I ripped it off in Queensland and brought it down to Sydney where it was given to Roy for him to sell it". In this statement Shakespeare referred to a person "by the name of Gary" as a person who was involved with the drug matter. In it he said that the Tarago, to which he previously referred, in fact "never existed" and that the amount of hashish involved was 100 kilograms (cf 250 kgs in his second interview). This was said to have been put into the doors of a BMW which broke down and which he then transferred to "into suitcases" (cf one suitcase and two overnight bags in his second interview). He also couched his statement in a form that suggested (untruthfully) that he had then met "a girl and little boy that I knew" who "wanted a lift to Tamworth". He also said that he caught "a train - a bus to Tamworth with the girl" and (again untruthfully) that they all then came to Sydney in a taxi. He said that the only people involved in the drug "rip-off" were himself and Thurgar. However, this assertion was inconsistent with a later version given by Shakespeare, in which he involved Bronson as well. 66 In this later version of what occurred Shakespeare said that Bronson had taken off on in a yacht "to pick up stuff up the top of Australia" and was going to keep going. That yacht was the Rakiah. The yacht Rakiah had been purchased by a man named Harford for $160,000.00 on or about 10 April 1991. At the time of the purchase the vessel was at the Hardys Bay wharf, which is approximately one day's sailing time from Coffs Harbour. Unfortunately for the story told by Shakespeare the Federal Police had been keeping the Rakiah under surveillance in April/May 2001. That vessel was known to be in Coffs Harbour marina as at 29 April 1991. Those who were aboard the vessel in Coffs Harbour were George Harford, Kim O'Toole and two children. They were observed and spoken to by the vendor. The Rakiah left the Coffs Harbour marina at 01.10 hours on 5 May 1991 with twelve people aboard. These included both adults and a number of children (Exhibit AE). The intended destination of the vessel was Lord Howe Island. The vessel arrived at Lord Howe Island on 8 May 1991, after having been lost off Lord Howe Island for a short period on 7 May 1991. At Lord Howe Island the Rakiah was in need of a skipper, since the existing skipper, Paul Sexton, had been taken off the island by air ambulance. The crew was also looking for a GPS system to be installed so as to enable the vessel to go to the Whitsundays and ultimately to Fiji. The Rakiah left Lord Howe Island shortly after 1.10pm on 19 May 1991 (exhibit AE) ostensibly heading for Coffs Harbour or Ballina. An aerial search for the Rakiah on 19 and 20 May in the area to the west of Lord Howe Island failed to find it. This was a source of concern because there did not appear to be anybody aboard the vessel who was skilled in navigation or seamanship. However the Rakiah arrived in Fiji in June 1991 where it was searched. The hashish that Shakespeare had claimed to be on board was not found to be on board, nor were any other drugs. Bronson was aboard. 67 The defendants Barnett and Hawley were the officers assigned the task of gathering evidence concerning the Rakiah and its movements. An entry in the diary of Inspector Wilson for 2 July 1991 (exhibit BE) makes reference to the Rakiah, to Shakespeare having given 100 kilograms of hashish to a man called Bronson at Pier One (Sydney) four to five days before Thurgar was shot. Inspector Wilson records that the hashish was then "transferred to Newcastle & put on boat". This is clearly a reference to a statement made by Shakespeare. However, in another statement Shakespeare claimed to have given the hashish to Bronson in Newcastle and that Bronson had taken the drugs out to the Rakiah in a dingy. The vessel is recorded in Inspector Wilson's diary as "moored Newcastle Harbour" and to have "sailed from Wollongong". This would again appear to be a reference to a statement made by Shakespeare that he had gone down to Wollongong and had checked the yacht out whilst it was in Wollongong Harbour. None of these assertions by Shakespeare was correct. In addition the diary records that enquiries were "being made at Newcastle Harbour master re: vessel…" and there is a note recording the defendant David Barnett's information regarding the vessel as at that date. These reference make it clear that enquiries were being made concerning the whereabouts of the Rakiah at latest by 2 July 1991, perhaps earlier. In his evidence at the committal proceeding the defendant Hawley said that he first became interested in the Rakiah in "the weeks following his (Shakespeare's) first contact (exhibit AQ, 2 March 1992, page 16; parenthesis added), that is well before the arrest and charging of the plaintiff; perhaps as early as June, 1991. 68 By September 1991 statements were being taken from the persons who had knowledge of the Rakiah and its whereabouts in the period between April 1991 and June 1991. From this material it was clear, as the defendant Gordon conceded in his cross-examination, that the possibility that the Rakiah had come to Sydney in that period was "remote" (T 1468). The evidence of the independent witnesses concerning the Rakiah is inconsistent with various of the versions given by Shakespeare. The vessel does not appear to have been in Newcastle Harbour at any relevant time. It does not appear to have been in Wollongong at any such time. In addition, it clearly did not set out from a New South Wales port to sail to the north of Australia. Furthermore, in the period from 5 May 1991 and the date of the murder, the vessel was either under surveillance or was at sea. Thus, the claims made by Shakespeare in relation to Bronson and the drugs could not have been true, to the knowledge of the defendants Gordon, Hawley and Barnett. Another factor in this regard is that the police informant Shakespeare said that Jimmy (Bronson) was on the vessel. This appears to be correct. Bronson was on the Rakiah between the time it left Coffs Harbour on 5 May 1991 and the time it arrived in Fiji in June 1991, having left Lord Howe Island on 19 May 1991. This is inconsistent with Shakespeare's story that a pistol in the possession of the plaintiff at the time of the shooting had been given to Bronson on 21 May 1991. That could not have happened. The defendant Hawley was cross-examined on the movements of the Rakiah. He was asked: "And you knew as at 24 July that Shakespeare couldn't have given the gun to Bronson on 21 May because Bronson was on the Rakiah and the Rakiah was under Federal observation... A. That Shakespeare couldn't have given the weapon to Bronson on 21 May because he was on the Rakiah. I think we would have known the whereabouts of the Rakiah and Bronson was on it so I would have to agree with that." (T 1887).

Thus, yet again, prior to the arrest and charging of the plaintiff, significant elements of the story as told by Shakespeare were manifestly untrue to the knowledge of the police, including the defendant Gordon as officer-in-charge of the investigation and the defendants Hawley and Barnett. 69 The defendant Hawley commenced work on Operation Shylock on 17 June 1991 (T 1812). In the course of his cross-examination he said: "When I came onto the task force I was aware that there was a Federal Police operation and that he ( Bronson ) was under surveillance, and the vessel ( Rakiah ) was under surveillance (T 1891; parenthesis added);

"Q. You knew Bronson couldn't have been given the hash by Shakespeare because he was in Coffs Harbour and Lord Howe Island at the time? A. I knew that Bronson was in Coffs Harbour as you say for a period of time, which is documented, in April. I knew he was also in the vessel at Lord Howe Island, those periods of time are documented. I knew he was on the boat in Fiji, those periods of time are documented. Prior to, I knew where he was at the time he purchased the boat… Whether I knew where he was prior to that I don't know. Q. You see Mr Hawley, Shakespeare claimed he gave the hash to Bronson well after 29 April didn't he? A. I don't recall but if he did he obviously couldn't have." (T 1891)

and "Q. His story was that both Bronson and the boat were in Wollongong during May and were in Newcastle during May of 1991? A. I think that's right. Q. And you knew from the matters I previously raised with you that the boat was not in those areas during May? A. Yes. 70 This is an acceptance that there was knowledge in the investigative team headed by the defendant Gordon that significant parts of at least one of the versions advanced by Shakespeare to the police were untrue. 71 Following the above cross-examination, counsel for the plaintiff further cross-examined the defendant Hawley concerning evidence that he had given at the committal proceedings to the effect that the movements of the Rakiah were "corroboration of Shakespeare's story". His answers in which he sought to explain how this could be were confused, at times evasive and, in my opinion, not frank. The following serves to illustrate this: "Q. Have you got your committal evidence with you? A. Yes. Q. Can I take you to page 15, third last question, see you were asked this question: 'Q. In relation to the boat, what was your concern in relation to the boat? A. We'd been told that - certain things by the informant in relation to this matter, Robert Smith, in relation to this defendant, the movements of that boat, the Rakiah were corroboration of his story.' Q. That person Robert Smith referred to in that answer was Danny Shakespeare, wasn't he? A. Yes. Q. His story was that both Bronson and the boat were in Wollongong during May and were in Newcastle during May of 1991? A. I think that's right. Q. And you knew from the matters that I previously raised with you that the boat was not in those areas during May? A. Yes. Q. When you said to the Magistrate that the movements of the boat, that is the Rakiah, were corroboration of Shakespeare's story, that answer was incorrect, wasn't it? A. No, I don't believe it was. Q. Which story of Shakespeare since there were two, at least two, which of those do you say you don't agree with in relation to the proposition put to you by counsel? A. I understand the question to be in relation to a response I made to the Coroner. Q. The response you made to the Coroner was that the movements of the boat Rakiah were corroboration of Shakespeare's story, and my question to you is which story? A. The general story I suppose. Q. What do you mean by that, which general story? A. In relation to his involvement with Harlum in relation to the existence of a number of people one of which being Bronson, in relation to the existence of boats and specifically with this boat, and its involvement in the whole thing … Q. Perhaps if I could ask, were you seeking by our answer at page 15, to which you have just referred, to convey to the Magistrate that the movements of the boat as independently ascertained corroborated the story that Shakespeare had told you linking Bronson with the defendant Nye? A. What I was trying to say, bearing in mind that this is a response given 11 years ago, was that our concern, I was asked the question 'What is you concern in relation to the boat', and I have said we were told certain things by the informant in relation to this matter, in relation to this defendant, which was Bronson, the movements of the boat the Rakiah, was corroboration of his ( Shakespeare's ) story" (T 1894-1895; parenthesis added);

and: "Q. What Mr Thompson is how does the movement of the boat as independently ascertained corroborate either of those ( Shakespeare's ) stories. A. It didn't" (T 1896; parenthesis added). and: "Q. The movements of the boat did not corroborate his ( Shakespeare's ) story, did it? A. No" (T 1897; parenthesis added). 72 When it was suggested to him that the movements of the Rakiah contradicted the stories told by the police informant Shakespeare to explain the fact that the 100 kilograms of hashish had never been found, the defendant Hawley was not prepared to say other than that "they weren't the same" (T 1897). At the time this evidence was given it impressed me as an attempt at evasion of the question, albeit a fairly poor attempt. The denials by the defendant Hawley that he had not been truthful to the Magistrate did not impress me and I do not accept them (T 1897). 73 In the diary complied by Inspector Wilson there is a note against the date 2 July 1991 that refers to Bronson taking the Rakiah to Papua New Guinea and mooring it in the main harbour. The note proceeds: "Message to be placed in a Sydney newspaper approximately 6/7/91 for him to contact Bronson. Reason taken to PNG because Bronson has drug conn. there. No problem getting rid of dope."

This information mirrors what was said by Shakespeare in a statement made by him on 16 July 1991 (exhibit T, tab 17, para 2). In that statement Shakespeare said that the advertisement was to be put "in the 'Greetings Messages' column in the Daily Telegraph". This version of events differs fundamentally from an earlier version given by Shakespeare that the hashish had been given to Thurgar, not to Bronson and stored by Thurgar in the laundromat, not by Bronson on the Rakiah. Furthermore there is no evidence of any newspaper search by police at the relevant time, nor anything to indicate that any such advertisement ever appeared. On its face the story about the advertisement presents as fanciful, and the absence of any evidence as to search by police for an advertisement of the kind spoken of suggests the conclusion that they were of a like mind. 74 From the foregoing it is apparent that at the time of arrest and charging of the plaintiff there was no evidence to corroborate Shakespeare in relation to his assertions that the hashish had been given to Bronson, in Newcastle or elsewhere, that it had been taken by Bronson, in a dingy or otherwise, and put on board the Rakiah, that Bronson had been given a pistol that had been carried by the plaintiff at the time of the shooting, that the pistol was with Bronson on the Rakiah or even that 100 kilograms of hashish existed. Indeed the material available at the time of the arrest and charging of the plaintiff in essence negated these statements by Shakespeare. In these circumstances the story as told by Shakespeare would have been regarded by an ordinary person of ordinary prudence and caution as fundamentally flawed, unreliable, in a number of instances made up as he went along and changed from time to time to suit the exigencies of the questioning. Such conclusion should, in my opinion more readily have presented itself as obvious to a trained and experienced investigator. I am satisfied that it did. However accepting or believing in any particular version of events as told by Shakespeare has even more problems. 75 Shakespeare gave a detailed description of the movements that he engaged in with the plaintiff and Harlum on 20 May 1991. These were wholly inconsistent with alibi evidence provided by eight different people. All of this material was undoubtedly within the possession of the police, including the defendant, Gordon and probably others who were senior members of the Task-force Shylock by at least 29 July 1991, probably a little earlier. An examination of this evidence is undertaken below. 76 The police informant Shakespeare made a 46 page statement on 31 May 1991 in the presence of the defendant Gordon, the defendant Popplewell and another police officer. According to the time record it took only 30 minutes, that is between 11.10am and 11.40am to record this statement (Exhibit T Tab 4). In this statement Shakespeare recanted what he had previously said about leaving the two men who had been involved in the murder of Thurgar at lunchtime. Now he asserted that he had not been dropped off but that all three went to "near Centennial Park … after lunch" (Italics added). At first he fixed the time of this as "half past twelve or something" but later changed it to "half past one". This is at variance with the statement made by a Park Ranger, Walker, who recalled that about two months before he made his statement on 30 July 1991 he had seen three males sitting in a car in Grand Drive, Centennial Park. Grand Drive is in Centennial Park, not near Centennial Park. This observation was made after he had completed his lunch, which he usually took between 1 and 2pm. He thought that the men may have been smoking marijuana because there was a lot of smoke in the car. He was unable to give a description of the occupants saying: "I can't remember the description of the occupants, however, I remember the bloke in the front passenger seat had darkish scraggy hair about collar length" (Exhibit AM). He was unable to describe the face of this man or any of the other occupants. The ranger left the scene, drove around the park and then returned to Grand Drive, soon after which the vehicle that he had observed left Centennial Park. Except for the vehicle being blue and having three men in it the park ranger's statement does not corroborate the police informant Shakespeare's story in relation to the presence of the plaintiff near Centennial Park on 20 May 1991. 77 In his statement of 31 May 1991 Shakespeare claimed that he, the plaintiff and Harlum had later returned to the vicinity of Centennial Park where they met a detective by the name of Langres, who was said to be corrupt and who later left the police service. There is no corroboration of this and the matter does not seem to have been effectively followed up by the Taskforce. 78 In this same interview Shakespeare also said that he had been stabbed by the plaintiff at Newcastle shortly before the murder. This was said to be part of a process of intimidation by the plaintiff and Harlum to get Shakespeare to reveal what he had done with the 100 kilograms of hashish. However, it emerged in the course of the investigation that whilst Shakespeare had been stabbed, he had not been stabbed by the plaintiff. He had in fact been stabbed by another person, not shortly before the murder, but in or about October 1990. Thus yet another of the supposedly supporting surrounding circumstances was known by the police to be untrue. 79 In this statement Shakespeare also made reference to his mother as able to provide corroboration of his association with the plaintiff and Harlum. This was inconsistent with the statement of Mrs Nye, concerning the length of time that the plaintiff had known Shakespeare. Furthermore, when the police pressed him on this he retreated, as the following passage demonstrates: "Gordon: All right. So, if we go and see your mother she'll be able to substantiate ah …

Shakespeare: Oh, she'll say I was there but she's um blind in one eye and can't hear, she wears a hearing aid.

Gordon: But ah she can see in one eye, can she see ah see you?

Gordon: She'd see the other two people if you were with someone.

Shakespeare: Yeah, but she'd most probably tell ya nothing, you'd have to sort of get her in front of me and I'll ask her the questions." (Exhibit T Tab 4)

At least three things are apparent from this questioning. First, that when pressed Shakespeare backed off from his former statement; second, that Gordon gave every appearance of not believing him - and justifiably so. I am satisfied that he did not really believe Shakespeare's assertions. In this context it is apt to recall the warning that had been given to Gordon by Detective Superintendent Harding about Shakespeare, the need to treat what he said with caution i.e. his lack of credibility, on the day after Gordon and Shakespeare had met at Port Kembla. The third thing that emerges is from the last answer above namely, that on the very first day the two met at Port Kembla, Shakespeare was contemplating that any meeting between the police and his mother should involve him asking the questions, in a situation in which he would be able to influence the answers that his mother gave; to use a colloquialism, to wise her up as to what he wanted her to say. Such a situation would itself have given rise in the mind of a person of ordinary prudence and caution to disbelief in the person who wished to engage in such a stratagem. I think it is probable that it had such an effect on the mind of the relevant police, including the defendant, Gordon. 80 This same statement contains a number of inconsistencies and recantations some of which would plainly indicate to an observer of ordinary prudence and caution, and should have so indicated to an experienced police officer, that Shakespeare was making a good deal of his story up as he went along. An example of this is to be found by comparing his various answers concerning the time at which Thurgar was supposed to be coming to the laundromat on the day of the murder and when and from what source this information came to the knowledge of Shakespeare. In one place he said that John Harlum told him (exhibit T, tab 4, page 24). Almost immediately after this he said that Harlum didn't tell him and that is where the corrupt police officer, "Langres might have come in" (Exhibit T page 24). A little later he said that it was he, Shakespeare himself, who told the others that Thurgar was "not supposed to be there till ten to eight" (Exhibit T page 26). Shakespeare then described the discussion between the plaintiff and Harlum concerning the way in which they were going to deal with Thurgar, ie, "they were just gunna grab him and bring him over to where we were, me". (Exhibit T page 26) This description led to a comment by Gordon that "… that's ah a little bit hard to swallow"; as indeed it was. This remark by Gordon is a further indication of the improbability of Shakespeare's story as then current to the mind of Gordon. It is indicative of a lack of belief on Gordon's part. 81 In the same statement Shakespeare described what the plaintiff and Harlum were wearing. The plaintiff was said to be dressed in "brown and black, browny black slacks, black shoes um a white shirt, that was it". Harlum was said to be wearing blue jeans, runners and a sloppy joe and when asked whether he was wearing anything else Shakespeare said: "yeah he had a um hat and a bandanna" (exhibit T, tab 4, page 31). This head dress is to be contrasted with the "Andy Capp" type of head dress previously referred to. Although at first blush this may be regarded as a relatively minor discrepancy it assumes some significance because of the statements that had been made earlier by some of the independent witnesses who were at the scene of the shooting. 82 Shakespeare also said in this statement that it was not until they all arrived at Blacktown that he learnt that Thurgar had been shot. This knowledge was said by Shakespeare to have been conveyed to him "when we got back to the house at Blacktown". He was then asked what was said, and replied: "They told me that Thurgar wouldn't ? (not decipherable) up so they fuckin' blasted him". Gordon: Sorry? Shakespeare: They, they blasted him, then they hassled me where would he hide the dope. They, they believed that I didn't have it then, they knew he had it" (exhibit T, tab 4, pages 33-34).

This is to be contrasted with what Shakespeare had said in his first statement namely that he didn't know anything about the shooting until the next day (exhibit T, tab 1, page 2), a claim that was confirmed in his second statement (exhibit T, tab 2, Q 45). The improbability of the version told by Shakespeare is further highlighted by the fact that, although he asserted the hashish had been "ripped off" in February 1991, the plaintiff and Harlum did not become aware of this until about three weeks before 31 May 1991 (exhibit T, tab 4, page 40). The basis on which they are said to have learnt about the stealing of the hashish is quite inconsistent with the statement made by Shiralee Dadd (exhibit W) and by Chris Peak (exhibit X). 83 Some of the questioning of Shakespeare by the police on 31 May 1991 was directed towards the weapons which were said to have been in the possession of the plaintiff and Harlum on the day of the shooting. In one place Shakespeare said that there were two pistols and a shotgun, with one of the pistols being carried by Harlum, the other by the plaintiff. Detective Parker, in the presence of the defendants Gordon and Popplewell said: "Parker: Previously you said that there was a shot gun and a pistol, did you? Shakespeare: Yeah. Parker: Now you say there was two pistols? Shakespeare: No, there's only one pistol, there's one pistol, I don't know where it'd be" (exhibit T, tab 4, pages 42-43).

This short sequence of questions reveals yet another change of story and what, in my judgment, is a real sense of incredulity on the part of the police. 84 When pressed about this Shakespeare asserted that the pistol had been given to Bronson "the next day" and that Bronson was "on a yacht… some where up the top of Australia cruising 'round… more than likely up the top round Cape York". "The next day" was then clarified by Detective Parker as "the 21st" of May i.e. the day after the shooting. This just could not be correct. The Rakiah was at Lord Howe Island between 8 May and 19 May 1991. It left Lord Howe Island just after 1pm on 19 May and could not have been on the mainland of Australia on 21 May 1991, indeed the vessel was then somewhere between Lord Howe Island and Fiji, where it arrived in early June 1991. These facts were known to the police prior to the taking of a number of statements in relation to this matter in September 1991, before the hearing of the committal proceedings began. For reasons that are set out below I am satisfied that the majority, if not all, of the above information concerning the movements of the Rakiah was known to the police, including the defendant Gordon before the plaintiff was arrested. In any event, I am satisfied that Shakespeare's story about the pistol had the ring of incredibility about it for a person of ordinary prudence and caution. In my opinion the police, including the defendant Gordon, knowing the facts, did not believe Shakespeare on yet another aspect of his statements. 85 During the course of 31 May 1991 the defendant Gordon in company with the defendant Popplewell and Detective Parker went with Shakespeare in a police motor vehicle around the various places that Shakespeare claimed to have gone with the plaintiff and Harlum on 20 May 1991. In the course of this the police vehicle went into Centennial Park and stopped opposite a duck pond inside the park. This was then indicated as the place where Shakespeare said he had been in company with the plaintiff and Harlum, as opposed to where he had earlier said they were. He said he was there threatened, mainly by the plaintiff. They then went to the vicinity of the Royal Hotel at Randwick. There Shakespeare told the police that after the plaintiff, Harlum and he had arrived at the Royal Hotel on 20 May 1991 they all got out of the car and all went over to the park where they met Langres. Shakespeare fixed the time of this meeting as being in the afternoon, after the three men had left Centennial Park, been to a brothel at Randwick for about three quarters of an hour and had then driven to the Royal Hotel. On Shakespeare's timetable this fixes the time of the meeting at around 3pm. This of course was not possible because at that time the plaintiff had a water tight alibi. He was at the Crombie's, as a number of independent witnesses attested and as was known to the police by at least 29 July 1991 and probably some days earlier. 86 Whilst the police were unaware of the alibi material as at 31 May 1991, they were aware of it well before the hearing of the committal proceedings got underway.

87 The various matters dealt with above are by no means the only recantations, contradictions, discrepancies and like indications of the untrustworthiness of Shakespeare and the improbability of his stories. There are many others, but because of pressure of time in relation to finalising this judgment I will content myself with merely indicating a few of them: (i) Where Shakespeare first met Thurgar; compare exhibit T, tab 2 with exhibit T, tab 3. (ii) The time at which the plaintiff first ascertained that the supposed 100 kilograms of hashish was missing; compare exhibit T, tab 4 with exhibit T, tab 15. (iii) The number and description of the cars to be used by the plaintiff and Harlum for the purposes of the murder; compare exhibit T, tab 1 with exhibit T, tab 3. 88 It was argued on behalf of the defendants that there was reasonable and probable cause for instituting and maintaining the prosecution of the plaintiff for nine reasons:

(i) Shakespeare said so. In my opinion, the material provided by Shakespeare was so shot-through with recantations, contradictions, discrepancies and like indications of the untrustworthiness as to be ludicrous.

(ii) Shakespeare's story was not fanciful in that he gave details concerning the trip to Queensland which were mostly corroborated. I do not agree. As indicated above a great deal of various of the versions given by Shakespeare in relation to the trip to Queensland and its aftermath was not only uncorroborated, but in addition much of its was positively negated. Furthermore the variations in his explanations concerning the transportation of the supposed hashish and the fact that no one ever saw it militate against the acceptance of this argument. In my opinion Shakespeare presented as a fanciful character of virtually Munchausian proportions.

(iii) Shakespeare's story had credibility because the plaintiff, Harlum and others were involved with large quantities of drugs and killings in that milieu do happen. Again, I do not agree. The premise on which this argument rests is that the plaintiff was involved with large quantities of drugs. His record did not show that. The evidence from Mrs Nye negated it. The amount of cannabis found at his home on 24 July 1991 was not in the $1,000,000 to $1,500,000 league. It was consistent with low level, local distribution as asserted by Mrs Nye. The telephone intercepts did not involve the plaintiff in large quantities of drugs. The value mentioned in relation to the plaintiff was in the order of $18,000, namely $18,900.

(iv) The plaintiff had a record which involved drugs, violence and firearms. The fact is that the plaintiff was convicted at Sydney Quarter Sessions, Darlinghurst on 31 August 1972 of robbery in company and breaking, entering and stealing. He was sentenced to 10 years imprisonment with hard labour, with a non-parole period of four years from 15 May 1972. On appeal his non-parole period was reduced to two years, six months (exhibit A). He was involved in a gaol riot at Bathurst in March 1974 and was sentenced to six months penal servitude that was to terminate on 3 December 1978. He was sentenced to eight months hard labour on 14 February 1975 in respect of an offence occasioning actual bodily harm committed on or about 9 August 1974. Although he had been charged with possessing Indian hemp in 1986, no evidence was offered on such charge and it was withdrawn. On 26 May 1990 he was fined a total of $450 on three charges involving cannabis, namely administering the drug to himself, possessing the drug and possessing utensils for its administration. The only charges against him concerning firearms were those laid in consequence of the raid on his home on 24 July 1991, where weapons were found after the plaintiff had been arrested for murder. In my opinion, this ground advanced in support of the existence of reasonable and probable cause for the charges of murder and conspiracy to supply cannabis does not have substance.

(v) The telephone conversations provided general support for Shakespeare's contention that the plaintiff and Harlum were involved with murder and drugs and the Shakespeare/plaintiff conversation was hard to explain consistent with the plaintiff's innocence. An analysis of the transcripts of the telephone intercepts that are in evidence (exhibits AO, BX and 27) does not bear this submission out. I recognise that in considering the telephone and other intercept material it should be remembered that the knowledge of the police at the time of the intercepts was not the same as the knowledge of the police at the time the plaintiff was charged, at various subsequent times or at the time of the hearing of the present action. However the reference to money in the intercept of 2 July 1991 is identified in the transcript itself as being $18,900 owed to the plaintiff, not money he was going to pay for drugs. The reference to the $18,900 is repeated in the course of the same conversation. Furthermore an amount of $18,900 would go nowhere towards financing 100 kilograms of hashish, which on the evidence had a street value of $1,000,000 to $1,500,000. This material does not justify a conclusion that it supported Shakespeare's story, or any of them. The telephone call by the police informant Shakespeare to Harlum at Ray Carroll Motors on 31 May 1991 does nothing to implicate the plaintiff in the murder of Thurgar or in any drug conspiracy. It was about making arrangements for Shakespeare and Harlum to meet (exhibit AQ, 28 November 1991, p 22).

That meeting took place at the Southern Cross Hotel on 4 June 1991. Shakespeare had spoken with the police about what they were looking for from this meeting. Quite early in the conversation between Shakespeare and Harlum, Shakespeare volunteered "I've got the hash". On the various versions that he gave to police this was untrue. Shakespeare then made two statements in which he endeavoured to implicate the plaintiff. The first was: "I don't want fuckin', Gary runnin' around wantin' to fuckin' put bullets in me"; and "You call fuckin' Gary and the old man off me. I don't want them to know I've got the gear" (exhibit 27, 4 June 1991, p. 2 and 4).

The "old man" referred to in this conversation and in the conversation at the San Pedro Motel between Shakespeare and Harlum on 9 June 1991 was later said to be Abe Saffron. However there was no evidence of his involvement in the matter.

I am of the view that these endeavours, unsuccessful though they proved to be, were sketched or scripted for Shakespeare by the police under the command of the defendant Gordon in an endeavour to implicate the plaintiff, against whom there was at that stage no evidence other than the uncorroborated assertions by Shakespeare.

In a transcript of another telephone call on 2 July 1991 to Harlum at Ray Carroll Motors that was initiated by Shakespeare, there is a discussion between the two men concerning Shakespeare wanting "to get it all… sorted out". The transcript records that Shakespeare proposed to do that the following day. He is then recorded as indicating that he had no money, not even enough to send to his children (exhibit BX, tab 27, p 8). Shakespeare then volunteered: "You know? I'm sittin' on fuckin'… Harlum: We'll sort it... Shakespeare: A couple of million dollars worth of stuff. But you know what I mean? Harlum: Yep. Shakespeare: Yeah. Harlum: We'll sort it out mate. Shakespeare: Well get on his fuckin case mate. Harlum: Yes I will. Shakespeare: And sort it out with him" (exhibit 27, tab 27, p8-9).

A number of things should be noted about this conversation. First it was initiated by Shakespeare. Second it was monitored. Third it is a fair inference that it was sketched or scripted in much the same way as I am satisfied an earlier conversation had been. Fourth the passage quoted above really presents as one in which there is over-talking by Shakespeare so that it is not a clear acceptance by Harlum in relation to the existence of hashish to a value then said by Shakespeare to be $2,000,000. Fifth it does not involve the plaintiff. Whilst this conversation, standing alone, may have excited suspicion at the time it occurred, the circumstances in which it occurred and its content do not in my opinion, justify other than suspicion at most. Furthermore from a telephone conversation of 2 July 1991 between the plaintiff and Chris Peak that was monitored, it becomes clear that as far as the plaintiff was concerned the request that the plaintiff "front first thing in the morning" at Ray Carroll Motors was "just for the sole purpose of getting the fuckin' money back". Such money was identified as "eighteen thousand fuckin' nine hundred" that was owed by Shakespeare to the plaintiff (exhibit 27, tab 29, p 2, 5).

In this same conversation there is reference to $40,000 owed by Shakespeare to Relf (Ox) for doing conversions on stolen cars (ibid, p 18) and there is also a reference to John Harlum. The plaintiff says "I just know the name". When informed that Harlum claimed to know the plaintiff, the plaintiff's response makes it clear that the two were not known to each other (ibid at p 19-20). However on 18 June 1991 in the course of a monitored telephone call Harlum had been recorded as saying "Yeah, I know Gary" (ibid, tab 11A, p 6). The extent of any such knowledge, ie, whether as to a name or as an associate, is not clear.

A telephone call by Shakespeare to the plaintiff at Ray Carroll Motors, which was initiated by Shakespeare, includes an assertion by Shakespeare that he had been told that the plaintiff was running around and going to put a "shot gun" in him. Without waiting for a reaction, and as part of the same statement, Shakespeare immediately launched into a claim that he had been trying to contact the plaintiff without success. To which the plaintiff is recorded as responding "Yeah". A careful consideration of this part of the telephone interception has lead me to the conclusion that it does not involve an assent by the plaintiff to a proposition that he was intending to gun Shakespeare down. This material was included in a tape that was played to the plaintiff in cross-examination (exhibit 7). In the course of that tape Shakespeare is recorded as saying: "Yeah I know you had twenty grand in it, I know you had twenty grand in the hundred kilos yeah".

The reply by the plaintiff is not responsive to this statement, but rather is a continuation of what had previously been said. Listening to it I do not think that it justifies a conclusion or belief that it implicated the plaintiff in the ownership or transportation of the 100 kilograms of hashish about which Shakespeare had told the police. It may, at most, excite some suspicion. But any such conclusion would need to be tempered both by the fact that the assertion by Shakespeare in relation to the 100 kilograms of hashish gives every appearance of an attempt to get the plaintiff to make an admission by the way in which it is introduced and passed over.

None of the other transcripts involve anything remotely like an admission by the plaintiff.

Having reviewed the transcripts and listened to the tapes that are available I do not think that they justify the proposition advanced on behalf of the defendant.

(vi) DPP Lawyers said there was a case there. This cannot be a basis for there being, objectively, reasonable and probable cause. That one of the parties the subject of a claim in malicious prosecution is said to have said (out of court) that there was a case, does not mean that there was, or that the person to whom it was said (in whatever form) believed there was. What is more, the actual advice given by the DPP is not before the court. Privilege was claimed in respect of any such matters since they constituted legal advice and the claim was upheld. Furthermore no one from the Office of the DPP, let alone the then DPP himself, gave evidence as to: (a) the totality of the material presented by the police to the DPP; (b) the consideration given to such material; (c) the actual form of the advice given to the police, including the defendant Gordon. In this context it should also be remembered that within a very short time of the DPP taking over the prosecution he adopted a recommendation based on a report which made it clear that without the evidence of Shakespeare the prosecution did not have a case against Nye for murder or on the conspiracy charges. In addition Shakespeare was clearly inconsistent in the various versions that he gave and in which he quite obviously presented as a liar. In my opinion this ground is not sustained.

One other matter should be referred to in the present context. In my judgment it is clear that the alibi evidence from Mr and Mrs Crombie and from Ms Rockwell was not in the possession of the DPP as at 6 August 1991 (exhibit BJ). In addition the alibi material from Mr and Mrs Laing, Wayne Nye and Debbie Nye was not in the possession of the DPP as at 28 May 1992 (exhibit BK). Any view that may have been formed or expressed by the DPP must be regarded as having been conditioned by the materials supplied by Taskforce Shylock, headed by the defendant Gordon. Those materials have not been precisely defined, but they did not include the above alibi material. (vii) Senior and experienced officers, including Superintendent Harding, thought likewise. I find this basis of argument unconvincing. There is no direct evidence from Superintendent Harding as to his views or as to the material on which any views formed or held by him were formed. There is no suggestion that Superintendent Harding, although no longer a member of the Police Service at the time of the hearing of the present action, was unavailable to give evidence. (viii) Shakespeare was indemnified through the DPP so he could give evidence at a murder trial against Nye and Harlum. The application for indemnity against prosecution for Shakespeare was made on 27 June 1991 by Detective Superintendent Harding, Commander Regional Crime Squad, South. He supported the application and recommended it (exhibit CA). He said the application was urgent. Another, and secondary, purpose of Detective Superintendent Harding's letter was to seek an advising "as to the worth of gathering evidence to support charging Harlum and Nye at this point". The application was said to be urgent because it "revolve(d) around the clear indication that Nye and Harlum are involved in ongoing criminal activity". These could not have included the murder of Thurgar. It had long since been committed. They may have been thought to be related to the drug conspiracy, but this is not stated. It is this letter that led to Mr Trembath's report of 6 August 1991 (exhibit BJ) in which the vague, inconclusive identification evidence at the scene, which was correctly said to be uncorroborated and of little value, was referred to. That there was no case "without the evidence of Shakespeare" was likely to have been brought to the attention of Detective Superintendent Harding, albeit probably after the date of the Plaintiff's arrest. However that may be, at least as at 27 June 1991 Detective Superintendent Harding's letter clearly indicates that he had real concerns as to whether it was even worthwhile proceeding with further investigations in relation to the connection alleged by Shakespeare between the plaintiff, the murder of Thurgar and the drug conspiracies relating to the supposed 100 kilograms of hashish.

There is no evidence as to the material that was made available to Detective Superintendent Harding between 27 June 1991 and the date of the plaintiff's arrest, so as to found an inference that he had changed his mind between 27 June 1991 and 24 July 1991. I do not think that this ground is made out. (ix) The judgment that there was a case which warranted prosecution seems to be borne out by the fact that, against opposition, an experienced Magistrate committed for trial and an experienced Judge allowed the murder charge and a drug charge to go to the jury. This argument fails to give effect to the difference in the tests to be applied in relation to reasonable and probable cause in a malicious prosecution case on the one hand and the tests to be applied: (a) by a Magistrate in committal proceedings, as set out in s 41(6) of the Justices Act 1902 as it stood in February 1992 ; (b) by a Judge at a criminal trial,

in relation to whether a matter should be permitted to go forward, for trial in the former case or to a jury in the latter case. 89 It was next submitted on behalf of the defendants that Shakespeare's information concerning the trip to Queensland was corroborated in a number of respects. There can, in my opinion, be no doubt that Shakespeare and others were involved in a trip to Queensland in or about February 1991. The purpose of that trip had been variously stated by Shakespeare. But, neither the statement of Shiralee Dadd (exhibit W), nor that of Christopher Peak (exhibit X) evidences the existence of the 100 kilograms of hashish that Shakespeare said was transported from Queensland to Sydney. Ms Dadd, moreover, refers to the fact that the plaintiff was looking for Shakespeare to get his $18,900 back - not 100 kilograms of hashish. 90 Thirty eight (38) factual assertions were referred to in the written submissions of the defendants as corroborating Shakespeare in relation to the Queensland trip. However, none of them substantiated any contact between Shakespeare and Thurgar. Nor did they substantiate the existence of the hashish or its carriage in a BMW from Queensland to Armidale or on a bus from Armidale to Tamworth or from Tamworth to Sydney, whether in a suitcase and two overnight bags, or otherwise. In fact none of the 38 items relates to the actual existence of the hashish, nor to anyone who was with Shakespeare on the relevant trip having ever seen the hashish. What is more, as discussed above, the available evidence negates his story in relation to the hashish. Thus whilst the trip itself cannot fairly be said to be fanciful, the purpose of such trip is certainly not established, other than by Shakespeare's own statements. These are at variance with one another in significant respects. Furthermore none of the 38 points raised by the defendants in any way associates the plaintiff with the trip, whatever may have been its object. 91 The sequence of events and mode of transportation involved in the alleged carriage of the drugs involved a number of people. None of the people who gave statements to the police had seen the drugs. Furthermore the circumstances of transportation were the subject of a number of conflicting versions from the police informant Shakespeare. 92 What happened to the drugs (if they existed), on Shakespeare's version of events, is quite unclear. Initially he said that the hashish was located in the laundromat at Randwick that was run by Thurgar. That is why, he said, the plaintiff and Harlum went to the laundromat - to get the hashish back. On 1 July 1991 he changed this story. He said that about three weeks before Thurgar's murder he had met Bronson in Wollongong and that Bronson had shown him a 45-foot yacht that he said he was going to sail to Newcastle, Cairns and then New Guinea. Arrangements were said to have been made for Shakespeare to meet Bronson at Pier One in Sydney and hand over the hashish. Shakespeare told the police that about a week after this meeting in Wollongong he rang Bronson and confirmed the details of the meeting at Pier One. His story at that time was that Thurgar gave Shakespeare the hashish at Pier One about 20 minutes before Bronson arrived. On this version Bronson is said to have told Shakespeare that the yacht had already left but that he was going to meet it in Newcastle. Shakespeare said that Bronson told him that he had sailed the yacht up from Wollongong to Newcastle. At another time Shakespeare claimed that he had seen the drugs taken aboard the Rakiah in Newcastle Harbour. This was clearly untrue because the Rakiah was under surveillance by Commonwealth authorities in the period from late April/early May 1991 and had left Coffs Harbour for Lord Howe Island on 5 May 1991. 93 The 100 kilograms of hashish that were at the heart of the various versions given to the police by the police informant Shakespeare were never found. Nor was there any evidence of the sale of such a quantity of hashish. No one who was interviewed by the police had ever actually seen the drugs to which Shakespeare referred. Whilst it is true that there was a trip made by Shakespeare to Queensland in February 1991 and that various persons were involved in that trip, it was never established that the drugs existed at that time. Furthermore there was nothing to connect the plaintiff with the trip to Queensland, whatever its purpose may have been, except for the essentially uncorroborated evidence of Shakespeare, who was an obvious liar. In addition, having eliminated Thurgar's laundromat and the Rakiah as probable places of storage of the hashish, there was no information as to where such a large quantity of the drug had been stored from the time it was supposedly stolen in February 1991 and the time of Thurgar's murder in May 1991. I do not accept that the drugs existed. What is more to the point is that I am of opinion that a person of ordinary prudence and caution would not have believed that they existed, based on Shakespeare's various versions of their existence, handling and ultimate destination, or on such other evidence as was available in relation to these matters. In these circumstances, I am of opinion that the material available at the time the plaintiff was arrested and charged would not have justified a person of ordinary prudence and caution in believing that the plaintiff was probably guilty of the murder of Thurgar or of the conspiracies in relation to the hashish. In my judgment neither the defendant Gordon, nor the DPP so believed at times material to their involvement. In my opinion the defendant Gordon did not ever believe in such guilt, whatever he may have hoped or may have wished the situation to be. The DPP did not, in my opinion, believe in the guilt of the plaintiff at least as at 6 August 1991 or thereabouts. Since there is nothing in the evidence before the court to suggest that there was additional material placed before the DPP between 23 July 1991 and 6 August 1991, it is an available inference from the analysis by and conclusions of Mr Trembath that the DPP did not believe that it had a case against Nye for murder or for conspiracy as at 25 July 1991, when the DPP took over the prosecution of the plaintiff. This available inference has not been denied by the DPP in circumstances in which it could have been denied or the absence of such a denial could have been explained, if there were an explanation. In these circumstances I am of opinion that the available inference should be drawn and I do so. 94 Following an examination of each of the bases advanced on behalf of the defendant in support of the assertion that there was reasonable and probable cause for the institution and maintenance of the prosecution of the plaintiff for murder and for the drug conspiracies, I am of opinion that none of the bases is made good. There is a plain want of reasonable and probable cause. 95 As was stated earlier (paras 44 and 45), the cases of murder and conspiracy made against the plaintiff depended on the police informant Shakespeare. His evidence was essential to the prosecution of the plaintiff on those charges. In his submission to the Director of 6 August 1991, the solicitor who apparently had the carriage of the matters, Mr Trembath, wrote that "without the evidence of Shakespeare we (i.e. the prosecution) do not have a case against Harlum and Nye for murder or against Harlum, Nye and Peak for the conspiracy charge. The only other independent evidence is vague, inconclusive identification evidence at the scene which, is uncorroborated and of little value" (exhibit BJ). I agree with this summary by Mr Trembath. In my opinion it is accurate. 96 In summary, having reviewed the evidence available at the time of the arrest and charging of the plaintiff and thereafter at various stages such as the time at which the decision to prosecute was made and the later decisions to proceed to a committal were made, I am of opinion that the defendants Gordon and the DPP fall within the criteria specified by Jordan CJ in Mitchell v John Heine and Son Ltd (supra) as set out in paragraph 20 of this judgment in relation to absence of reasonable and probable cause.

A. General 97 The conclusion to which I have come in respect of absence of reasonable and probable cause i.e. that the case is in a category of the kind referred to in Brown v Hawkes (supra) and Trobridge v Hardy (supra), namely that there is a plain want of reasonable and probable cause, has the effect that the conclusion is open that the prosecutors could not properly have believed in the charges, and that the case is one in which absence of reasonable and probable cause is evidence of malice. Such a category of case falls within the statements by Jordan CJ in Mitchell v John Heine and Son Ltd (para 26 supra). 98 In addition to inviting the conclusion from the obvious insufficiency of the prosecution cases that there must have been malice, the plaintiff has relied on two events as further evidence of malice insofar as the defendant Gordon is concerned. One of these events is said to involve the defendant Gordon directly. It was associated with the taking of a statement from Mr Neil Bryson Laing at Lane Cove Police Station and involved, so the submission went, the defendant Gordon making a dismissive remark in relation to the alibi evidence proffered by Mr Laing. That remark, so the submission proceeded, further evidenced that what was motivating the defendant Gordon in charging and proceeding against the plaintiff was other than the motive of bringing a wrongdoer to justice. The other event is said to involve the defendant Gordon through the intermediacy of two relatively junior detectives, namely Detectives Devine and Keys. It was submitted that these two detectives, on the instructions and with the approval of their superior, the defendant Gordon, attempted, at Upper Colo on 29 July 1991, to influence the plaintiff's de-facto wife, Mrs Kerry Nye, to forget about an alibi that she had remembered was available in respect of the plaintiff's movements on the day of the murder, namely 20 May 1991. 99 As regards the DPP the plaintiff has relied on the absence of reasonable and probable cause for the prosecution cases being so plain that the DPP could not have honestly believed in the charge that he took over and on which he continued to prosecute the plaintiff. In addition to this, however, the plaintiff points to two matters that he argued indicate an actual improper motive on the part of the DPP in prosecuting the plaintiff. This evidence is contained in documents that were produced by the DPP and in respect of which it was ruled, in relation to certain parts, that they were not the subject of privilege. As I have earlier noted, that ruling was challenged by the defendants in the Court of Appeal. However it was upheld (Heydon and Hodgson JJA, 7 November, 2002) and subsequently the whole of the documents in which the paragraphs the subject of the ruling by me and the Court of Appeal appeared was tendered by the plaintiff without objection. However, following the tender of those documents orders were made that they not be released without specific order and their contents not be made public. I now revoke those orders.

(i) Events surrounding the taking of the statement at Lane Cove police station from Mr Neil Bryson Laing 100 The police informant Shakespeare gave various versions to the police at different times concerning his involvement with the plaintiff in relation to 100 kilograms of hashish that he claimed he and Thurgar had stolen from the plaintiff and Harlum. Part of the information that he gave to the police concerned his movements in company with the plaintiff and Harlum over the course of the day on which Thurgar was murdered. That information included a detailed account as to the whereabouts of the plaintiff at various times during the course of 20 May 1991. Those times included the morning, the afternoon and the evening of the day of the murder. Although he had given several statements, significant elements in which were at variance, the evidence concerning 20 May 1991 adduced from Shakespeare in chief at the committal proceedings would seem to encapsulate his final version. It was that: (i) he had been with the plaintiff and Harlum from about 9.30 or 9.45am, when he met them near the Bondi bus station pursuant to an arrangement that he said had been made the previous day (exhibit AQ 26/11/91 p 35). In a statement of 31 May 1991 (exhibit T, tab 5, page 3) Shakespeare had fixed the time of his meeting with the three men as being as early as about 9.15am. He said that although the two men came in their own vehicle he was asked to do the driving; (ii) they went to Randwick near the Royal Hotel, where they waited for about ten to fifteen minutes; (iii) they then drove to Coogee, where the plaintiff and Harlum were said to have gone into a unit whilst the police informant Shakespeare remained in the car where he waited for them for some 40 minutes; (iv) they then went to Centennial Park, but drove away because a park ranger was said to have come on the scene and to have observed them; (v) from Centennial Park they are said to have gone to a brothel in the vicinity of the Royal Hotel, Randwick into which the plaintiff and Harlum are said to have gone and remained for a period; (vi) after they had been in the brothel the plaintiff and Harlum returned to the car and then went across the road to a park near the hotel, where they remained for some twenty to twenty five minutes; (vii) the plaintiff and Harlum in company with the police informant are then said to have gone to the laundromat operated by Thurgar, which was situated in Alison Road, Randwick; (viii) after they had parked near a pre-school in the vicinity of the laundromat, the plaintiff and Harlum are said to have gone "for a walk to see Thurgar". The police informant Shakespeare said that he remained where he was for some 40 minutes, at which time the plaintiff and Harlum returned to the car and are said to have indicated that Thurgar claimed not to have the hashish; (ix) thereafter, all three left the vicinity of the laundromat "and drove around Coogee and Bondi" (exhibit AQ 26/11/91 p 37); (x) the three are then said to have returned to the vicinity of the laundromat "later in the afternoon" and that it was some time after that that the shooting occurred; (xi) after the shooting the plaintiff and Harlum are said to have returned to the car and to have driven to the plaintiff's house that was at Blackett, in the far western suburbs of Sydney; (xii) the three of them are said to have remained at the plaintiff's house for about half to three quarters of an hour, following which the police informant Shakespeare was dropped at a taxi stand in Blacktown.

From the foregoing it can be seen that, according to the narration of events from the police informant Shakespeare, the plaintiff was with him all day from around 9.15 or 9.30am until 11pm and that they were either in the Eastern Suburbs of Sydney or travelling to and stopping in the far western suburbs of Sydney. 101 The Crown case depended in essence on the evidence of the police informant Shakespeare, who, on his version of events, would appear, as I have said to fall within the common law principles relating to those involved together in the commission of crimes (now s 165(1)(a) of the Evidence Act 1995). It was therefore even more important than might otherwise have been the situation to have some verification of his story in relation to the critical day, for there to be some corroboration of what he claimed in relation to that day and other times, or, alternatively, that avenues that were inconsistent with his story be followed up. This applied not merely to the time of and immediately prior to the murder of Thurgar, but also to the other times of the day in question. This was because the story told by the informant was presented as a consistent whole. Events that were inconsistent with such allegedly consistent whole are significant in relation both to the issue of reasonable and probable cause and to the issue of malice, whether inferred from the plain weakness of the case against the plaintiff or as a result of express statements made by one or more of the defendants, or both. 102 The plaintiff claimed to have an alibi. As to the part of the morning and part of the afternoon of 20 May 1991 this was provided by his wife, by his wife's employers, Mr and Mrs Crombie, by a fellow employee, Ms Rockwell and, to an extent, by records of phone calls made from or received by a phone said to be in the possession of the plaintiff throughout 20 May 1991. There were other witnesses for the middle of the day. 103 The police followed up the alibi evidence from the plaintiff's wife and her employers, Mr and Mrs Crombie, and from Ms Jane Rockwell. Statements were taken from Mrs Crombie and Ms Rockwell on 31 July 1991. Each of them knew Mrs Kerry Nye (Mrs Nye). She had done work for Mr Peter Crombie at his Guildford Heights Private Hospital for a period up to the time Mr Crombie sold the hospital in 1987, with completion taking place in early 1988. After the sale Mrs Nye continued to work at the hospital for a period of six to nine months and thereafter on a part-time basis from home, collecting outstanding debts for Mr Crombie. Shortly before May 1991 the arrangement was changed and Mrs Nye's employment was terminated. Her debt collecting work was taken over by Ms Jane Rockwell. However the handover extended over a period, with Mrs Nye assisting Ms Rockwell to become familiar with the system. 104 Mr Crombie's statement indicated that he recalled seeing Mrs Nye in the office at his home at Wahroonga (exhibit AQ, 20 February 1992, p 7) in company with Ms Rockwell on 20 May 1991. He had noted in his diary that Mrs Nye was present with Ms Rockwell on that day and he was clear that some time shortly after 3pm she left his premises in company with a male person whom he thought he recognised and who was driving a Falcon car. When shown a number of photographs by police he indicated one which was a photograph of the plaintiff, thereby identifying the plaintiff as the male with whom Mrs Nye left the Crombie home. 105 The statement taken from Mrs Crombie confirmed that Mrs Nye had worked for Mr Crombie and that after the sale of the hospital she continued working for him at the Crombie home. In her statement she detailed that Mrs Nye was brought to the Crombie home on 20 May 1991 by Mrs Nye's husband and that she arrived about 10am with a number of boxes of records. Her statement indicates that the plaintiff said that he was going to visit his brother. These details were made known to Mr Wayne Nye (Wayne Nye), a brother of the plaintiff, when he visited Mrs Crombie on 29 July 1991 i.e. at a time proximate to the date of the murder when the events of 20 May could be reasonably expected to be fresh in the mind of Mrs Crombie. 106 On the occasion of the visit by Wayne Nye he said that an important matter was a telephone call that had been made "on the 20th of May from your place to Garry's mobile phone". As it happened, at the time of this conversation between Wayne Nye and Mrs Crombie, she had with her the Telecom bill that had been issued on 18 July 1991. She checked it and found a call at 2.39pm that had been made from her phone to a mobile phone number 018 649 432 (exhibit BN). This is the number of the phone that was in the possession of the plaintiff at the time of such call and is said to have been in his possession during the course of 20 May 1991. She too identified the plaintiff as the person who had brought Mrs Nye to the house. This was done for the defendant Barnett. It should be noted in this context that the plaintiff said that he made a phone call to a mate's mobile phone from his mobile phone number 018 649 432 shortly before 7pm on the night of the murder. That phone call was routed through the Penrith Receiving Station of the phone company, indicating that when the phone was used at that time it was in the area covered by that repeater station i.e. within a relatively short radius of Penrith. This is confirmed by the records of the phone company (exhibit CC). They show such a call was made at 6.55pm on the night of the murder. 107 Ms Rockwell confirmed that on 20 May 1991 she worked at the Crombie's home in company with Mrs Nye, that Mrs Nye had arrived with a male who was driving a Falcon sedan. Ms Rockwell had left the house at about 2.45pm, at which time the plaintiff's wife was still there. Ms Rockwell said that at about 2.30pm she began to pack up so that she could leave to pick up her children from school and that about that time the plaintiff's wife said that she would have to call her husband to come and pick her up. Ms Rockwell identified a photograph that was shown to her by the defendant Barnett as that of the person who had brought Mrs Nye to the Crombie house. It was a photograph of the plaintiff. 108 The statements by Mrs Crombie and Ms Rockwell were taken on 31 July 1991. Both were taken and witnessed by the defendant Barnett and became part of the material available to the defendants, Gordon and Popplewell. The statement by Mr Crombie is undated. However it was taken at a date later than those of Mrs Crombie and Ms Rockwell because, at the time their statements were taken, Mr Crombie was not available. He was out of the country. None of those statements appear to have been in the possession of the DPP in early August, 1991; they were by May 1992. 109 The statements taken from Mr and Mrs Crombie and Ms Rockwell clearly provided a strong alibi for the plaintiff for a short period in and around 10am and from about 2.40pm until somewhere around 3pm or a little later on 20 May 1991. However because the statements of Mr and Mrs Crombie and Ms Rockwell did not deal with the period between a time shortly after 10am and about 2.40pm, they did not provide an alibi for a critical part of the day during which the police informant Shakespeare said that the plaintiff was with him undertaking the activities that he detailed. It was thus important from the plaintiff's point of view, and damaging to the Crown case, to establish if the whereabouts of the plaintiff in the intermediate period were accounted for and if there was additional material that tended to substantiate that the plaintiff was in a place other than the place of the shooting at Randwick or its environs at and proximate to the time of the shooting, which occurred between about 7pm to 7.30pm. 110 It is in respect of this period that the evidence of Wayne Nye, Mrs Debbie Nye (Debbie Nye) and Mr Neil Bryson and his wife is important. 111 A statement was taken from Wayne Nye and his wife Debbie Nye at Lane Cove Police Station on 23 April 1992. Significantly the statement from Wayne Nye was witnessed by the defendant Gordon. From that I conclude that the defendant Gordon went to the Lane Cove police station and took a statement at least from the plaintiff's brother on 23 April 1992. 112 The statement from Wayne Nye details that on the day of the murder the plaintiff arrived at Wayne Nye's place of work somewhere between 10.30am and 11am, where the two men had a short discussion. The plaintiff was asked to go to Wayne Nye's house and take a cake with him. Wayne Nye, who was a postman, left at about midday to undertake his delivery run that usually takes some three hours and 15 minutes to complete. His recollection is that he got home at about 2.50pm and spoke with the plaintiff, amongst others, after which the plaintiff left in his car to pick up his wife. Thus although Wayne Nye evidenced an alibi for the plaintiff between approximately 10.30am and 11am or thereabouts, he did not provide any alibi for the plaintiff for the period between about 11am and about 2.45pm. This was a critical period because it was in this period that the police informant Shakespeare claimed that he, the plaintiff and Harlum were near (or in) Centennial Park. In this regard it should be remembered that a park ranger saw three men in a blue Datsun in Centennial Park on the afternoon of the murder. However he did not identify the plaintiff as one of those men. The identification of the plaintiff as an occupant of the Datsun car was wholly dependent on the police informant Shakespeare. Thus from the plaintiff's point of view it was important to establish that the plaintiff was elsewhere at the time the police informant Shakespeare asserted that the plaintiff was in Centennial Park in company with him and Harlum. If that was established, then Shakespeare's assertions would be further undermined and the case, based essentially on Shakespeare's evidence, would be seriously, perhaps fatally, damaged. 113 It is against this background that the statement taken from Mr Neil Bryson is important, both as to its content and as to when and by whom it was taken. Regrettably, and for reasons that can only be speculated on, Mr Laing's statement is not available, either in its original form or as a copy. Furthermore there is no reference to it in any of the papers or other material produced on behalf of the defendants, the police service or the Crown. However Mr Laing is adamant that he made the statement and that he made it at Lane Cove police station. Mrs Laing is equally adamant. 114 When the matter of Mr Laing's statement arose in the plaintiff's case Mr Laing was recovering from serious surgery and was unable to give oral evidence. However, a handwritten statement from him was tendered in evidence (exhibit V). In it he said that he had gone with his wife to the Lane Cove Police Station to assist the police with their enquiries and at that station he was interviewed by an officer in plain clothes who introduced himself as a detective. Mr Laing could not remember his name. He was asked questions by the detective in question, in response to which he told him that the plaintiff had come to his place with a cake and "stayed a couple of hours or more", leaving after Wayne Nye had returned to the Laing's premises. His statement was confirmed by the evidence of his wife and thus, together with the statements of Wayne Nye and Debbie Nye, provided solid evidence as to the whereabouts of the plaintiff between some time around or shortly after midday on 20 May 1991 and approximately 2.30pm to 2.45pm on the same day. 115 In combination therefore, the statements of Mrs Nye, Mr Crombie, Mrs Crombie, Ms Rockwell, Wayne Nye and Mr and Mrs Bryson provided a powerful body of evidence that accounted for the whereabouts of the plaintiff on the day of the murder between a time before approximately 9.30am and some time after 3pm. The presence of the plaintiff as so accounted for was wholly inconsistent with the story told by the police informant Shakespeare in respect of this period. 116 In his written statement (exhibit V) Mr Laing says that he was never asked to give evidence by the police at any hearing of the charge of murder against the plaintiff. There is no evidence that the statement of Mr Laing was included in the original brief of the Crown case delivered to the legal representatives of the plaintiff in accordance with the Justices Act 1902. Nor is there any evidence that any such statement was provided as a supplementary statement subsequent to the delivery of the Crown brief. Indeed there is evidence that the statement was not in the hands of the DPP even as late as 28 May 1992 (as to which see below). 117 What is significant in the present context is that Mr Laing remembers clearly that he made a written statement for the police that he signed after it had been typed up by the detective who interviewed him. In addition he clearly remembers that he said to this detective words to the effect: "Garry could not have committed the murder because he was at my place on that day."

The response of the detective was, in my view, significant. It reveals a dismissive attitude towards the plaintiff and the evidence of alibi. It does not sit well with a desire on the part of the officer in question to administer the law in furtherance of justice and in the proper and impartial performance of his duty. It is indicative of prejudice. Mr Laing says, and I accept his evidence, that the detective said to him words to the effect: "He's only a crim".

In the cross-examination of Mr Laing Senior Counsel for the defendants did not suggest that the officer who took his statement had not said the words referred to above. 118 Mr Laing described the officer who had interviewed him and recorded his statement as tall, "about six feet in height" and "solidly built". This is a fair description of the defendant Gordon (T 1568-1569). In his statement Mr Laing said "I think that he was well over forty years old, about late forties in age" (exhibit V). That is older than the defendant Gordon was in 1991/92. It should be remembered, however, that Mr Laing's recollection was more than 10 years old at the time he made his statement and later gave oral evidence. Furthermore it needs to be remembered that evidence of identification, even when proximate to an event in question, is of a category that is treated both by the common law and the Evidence Act 1995 (s 165) as calling for caution in determining whether to accept it and the weight to be given to it. However one thing that is significant is that the detective who made the statement referred to above identified himself as "a member of Freshwater Surf Club". This is something which, in the circumstances, would be likely to have been remembered by a person who was in a police station being interviewed by the police officer who said it. The defendant Gordon was a member of that club proximate to the time of taking the statement. Moreover no other officer associated with the investigation, or who was a member of the team put together for Operation Shylock, was identified as a member of Freshwater Surf Club. The defendant Gordon was asked about this expressly: "Q. Were you ever a member of Freshwater Surf Club? A. Yes, I was. Q. When? A. I think around about '84 to 1989 or '90. Q. …do you know of any other detectives involved in this investigation who were members of the Freshwater Surf Club? A. Not to my recollection" (T 1568).

The defendant Gordon was the officer-in-charge of the investigation. He was aware of the members of the Taskforce and of those police officers who were brought in to assist in the investigation. I would expect that had any officers involved in the investigation been members of the Freshwater Surf Club that fact would have been remembered by a trained detective with the experience of the defendant Gordon. 119 After the evidence in the matter had concluded Senior Counsel for the plaintiff sought leave to reopen the plaintiff's case in order to adduce oral evidence from Mr Laing, who by that time had recovered sufficiently from his operation to be able to give evidence. This leave was granted and Mr Laing was subsequently called to give oral evidence. When his recollection as to the physical characteristics of the officer in question was tested in relation to whether the detective in question was "going grey" he said that this was possible, although when asked whether he actually remembered he said: "vaguely, very vaguely". He was then asked: "Q. What do you remember about him? A. It is not much I can remember about him. I know he is a pretty big sort of fellow (T 2531)." He was unable to remember whether the officer wore a beard or moustache, thought he looked like a man who was reasonably fit but was unable to positively identify him as the man who was depicted in a newspaper photograph and an accompanying copy photo taken on 9 May 1991 (exhibit 28). These were photographs of the defendant Gordon. However he did say that the size of the man in the photographs accorded with the size of the detective who had interviewed him. 120 As already stated, it was not suggested to Mr Laing in the course of his cross-examination that the words "he's only a crim" were not said. Furthermore the defendant Gordon did not deny that he had taken the statement from Mr Laing at Lane Cove police station. Although the right had been reserved to the defendants to reopen their cases and adduce further evidence in relation to the oral evidence given by Mr Laing, this right was not exercised. Indeed Senior Counsel for the defendants informed the court after the conclusion of Mr Laing's oral evidence that "we have nothing of a consequential nature" (T 2537). 121 In the course of cross-examination the defendant Gordon said that he had no recollection of having gone to Lane Cove Police Station or of interviewing Wayne Nye or of taking a statement from him. Nor did he have any recollection of having spoken with Mr Laing (T 1569). However having seen the statement of Wayne Nye he conceded that he had taken it at Lane Cove Police Station (T 1567). He was then cross-examined as the whether he was the detective to whom Mr Laing had said "Garry could not have committed the murder because he was at my place on that day". He replied that he did not remember. When it was put to him: "Q… you are not able to deny you were the detective? A. No, that's correct." (T 1569)

In the course of cross-examination the defendant Gordon not only conceded that he had been a member of Freshwater Surf Club from about 1984 to 1989 or 1990 (T 1568) and confirmed that he was not aware of any other detectives involved in the investigation who were members of the Freshwater Surf Club (T 1568), but also accepted that in 1991/1992 he was "solidly built", although he was then aged about 35, not in his forties.

122 What is of some assistance in relation to the determination of the date on which Mr Laing made his statement to the detective at Lane Cove police station is that he had a recollection that the season of the year at which the statement was taken "was summer" (T 2526). This evidence was not the subject of challenge. From this evidence, which I accept, it is unlikely that his statement was taken in the winter month of July, i.e. at the time the statements of Mrs Crombie and Ms Rockwell were taken, or that it was taken at any time up to 17 September 1991. Thereafter the defendant Gordon was involved in preparing the prosecution of the plaintiff, Harlum and others for hearing and in the actual committal hearing itself. The committal hearing extended until 21 February 1992 when the plaintiff, Harlum and Pollock were committed for trial (exhibit AQ, 21 February, 1992 p3). It continued for some time thereafter in relation to another accused, Bronson. As a consequence the defendant Gordon was fairly much occupied until about that time i.e. the conclusion of the committal proceedings, with the preparation of the case, the organising and presenting of the witnesses and other necessary matters associated with the lengthy committal proceedings. 123 It was argued on behalf of the defendant Gordon that there should be a finding that the statement from Mr Laing was probably taken at the same time as the statements were taken from Mr and Mrs Crombie. However there is no evidence that the statements taken from them by the defendant Barnett were taken at Lane Cove Police Station. Where they were taken is not revealed in the evidence. Furthermore the fact that it does not appear that Mr Laing's statement (or that of Mrs Laing) was in the brief given to the DPP is, in my opinion, a relevant consideration in determining the time at which it (and that of Mrs Laing) was taken. Had they been in the brief to the DPP it would be expected that they would have been referred to at the committal; neither of them was. 124 Mr and Mrs Crombie and Mr Rockwell were not related to the plaintiff in any way. They were in a category that is different from that into which the relatives or extended family of the plaintiff fitted. They gave evidence at the committal and at the trial. On the other hand the statements by Wayne Nye, Debbie Nye and Mr and Mrs Laing were those of relatives or members of the plaintiff's extended family and thus in a separate category and appropriate to be dealt with separately. None of them gave evidence at the committal. These factors militate in favour of the statement by Mr Laing having been taken at Lane Cove Police Station after the conclusion of the committal proceedings, probably around the same time as the statements were taken from Wayne Nye and Debbie Nye, namely in April 1992. 125 It was further submitted that the fact that a statement was taken from Mrs Laing at the same time as one was taken from him but that she was unaware that Debbie Nye and Wayne Nye had made statements at the Lane Cove Police Station, supported a conclusion that the statements taken from her and her husband were not taken in or about April 1992. I do not think that this submission is correct. Such a conclusion certainly does not follow logically from the material relied on by the defendant Gordon in this regard and I am not prepared to make such a finding on that basis. It was also submitted that as Mr Laing was elderly, had been ill, had undergone serious surgery and was speaking in relation to events that had taken place a long time ago, his evidence should not be accepted at face value. Whilst all these factors are present I do not think that they detract from Mr Laing's recollection of fundamental matters like where he made his statement, the season at which it was made, what he said to the detective who took his statement and what that officer said to him. Furthermore, although details of the person who took the statement from him might be expected to be less than precise in the circumstances, his general impression of the size of the detective would not be something likely forgotten. The event was unusual, a unique one, for Mr and Mrs Laing. It was an event which, for a lay person, could be expected to leave an indelible impression on the mind. I am satisfied it did in material respects. 126 The NSW Police Duty Book of the defendant Gordon (exhibit 21) that covered the period between the date of arrest of the plaintiff and 17 September 1991 was tendered. It did not reveal any visit by the defendant Gordon to the Lane Cove police station at or about the times at which the statements of Mrs Crombie or Ms Rockwell or Mr Crombie were taken. There is not reference to Lane Cove Police Station at all in the Duty Book in that period of time. Furthermore the time of the defendant Gordon is well accounted for in that document. For part of that time he was out of Sydney, either in the country or interstate, as he was involved in a number of significant matters other than the investigation of the murder of Thurgar. These involved managerial duties and made substantial demands on his time. In addition when he was in Sydney and involved in the relevant investigation, his time is accounted for. These considerations, it was submitted by senior counsel for the defendants, meant that it was improbable that he would have gone to Lane Cove to take statements from Mr and Mrs Laing in that period. 127 The Duty Book together with the detailed evidence given by the defendant Gordon supports a conclusion that he did not take statements from alibi witnesses at Lane Cove police station in the period between the arrest of the plaintiff on 24 July 1991 and the date of the last entry in his Duty Book namely 17 September 1991; that was left to others in the Taskforce. 128 Yet again, and regrettably, his Duty Book (or Books) for the period from 18 September 1991 to April/May 1992 was not produced. It is missing. So too are the Running Sheets in which reference to the statements by Mr and Mrs Laing should have been included. However it is known that the defendant Gordon witnessed the statement by Wayne Nye and he conceded that he did take this statement at Lane Cove police station, although he was unable to recall having done so. The statement (exhibit AG) records that it was taken at Lane Cove Police Station. 129 The fact that the alibi provided by the members of the plaintiff's family and extended family was not examined on at the committal proceedings supports a conclusion that statements from the person's in question would be likely to have been taken after that proceeding had concluded, ie after 21 February 1992. 130 When all the foregoing factors are considered together I am satisfied that Mr Laing's statement was taken at Lane Cove police station and that it was probably taken at or about the same time as the statements of Wayne Nye and Debbie Nye were taken, that is in late April 1992. 131 There is no question but that the defendant Gordon was at Lane Cove police station in connection with the investigation into the murder of Thurgar at that time, but not, on the evidence, during the period at least up to 17 September 1991. The reason for his being involved in the taking of statements in April 1992 was that the plaintiff, Harlum, Pollock and Branson had all been committed for trial and the officers who had been involved in Taskforce Shylock had already been assigned to other duties. That meant that the officer-in-charge of the investigation, the defendant Gordon, was left without the backup that had been available to him in the period from May/June 1991 to about the commencement of the committal proceedings. 132 The fact that Mr Laing was not advised of the trial and that neither he nor Mrs Laing was asked to give evidence is another relevant factor. The alibi material contained in his statement, together with the corroboration given by Mrs Laing, is seriously destructive of the credibility of the police informant Shakespeare and, as a consequence, of the Crown case. Had that material been in the hands of the Crown Prosecutor it is likely that Mr Laing would have been called as a witness in the Crown case, in view of the obligation cast on the Crown to produce evidence from relevant witnesses, even if unfavourable to the Crown. The fact that no reference is made to him in the Crown case at trial suggests that the Crown did not have Mr Laing's statement at that time, whether because it had been mislaid even at that early stage, or because it was not made available to the DPP, or because it was overlooked, or for some reason best known to the officer-in-charge of the investigation, but unknown to the court. 133 Notwithstanding the lack of a precise fit between the description of the detective who made the remark referred to above, the various factors and circumstances referred to in the preceding paragraphs lead me to be satisfied on the balance of probabilities that it was the defendant Gordon who took the statement from Mr Laing, that this was done at Lane Cove police station in or about late April 1992 and that it was the defendant Gordon who made the remark to Mr Laing about the plaintiff. Furthermore I am satisfied that such remark was indicative of the attitude of the defendant Gordon towards the plaintiff. It demonstrated a frame of mind that was dismissive of the alibi evidence. It indicated that he was not really concerned with the facts, but rather with maintaining a charge of murder against the plaintiff, whom he saw as a member of the criminal class, albeit perhaps a relatively petty criminal, a person of no consequence, who was an easy target for a charge of having murdered Thurgar. Such an attitude is likely to have been one of some standing in time. It is not the sort of attitude that is instantaneous. It is an attitude that takes time to form and firm up, so as to be expressed, rather than concealed. It is, in my opinion, an attitude that was, on the probabilities, held by the defendant Gordon in 1991, prior to the time at which the plaintiff was arrested and charged.

(ii) Events at Upper Colo on 29 July 1991 134 Until some five weeks before his arrest on a charge, inter alia, of having murdered Thurgar in May 1991 the plaintiff and his family had lived at Blackett in the Western Suburbs of Sydney (T 73). From there they moved to Upper Colo. Somewhere between 7am and 7.30am on the morning of 24 July 1991 (T 75) he was arrested at his home. Whilst in custody he was taken into the house where the defendant Barnett and others were present. The defendant Barnett showed him a warrant by his being grabbed by the back of the head and the warrant roughly pushed into his face. After the house had been searched, in the course of which it was badly trashed (T 98), he was taken in a police car to a Police Station in Sydney. As emerged from the evidence of the defendant Gordon, he was seen by police at the Sydney Police Centre and questioned. 135 Mrs Nye, who had been taken into custody at about the same time as the plaintiff, was also taken to Sydney in a police vehicle, as were the plaintiff's two sons. She was interrogated but later allowed to go at large on bail. She returned to Upper Colo. 136 The arrest of the plaintiff and Mrs Nye was effected on a Wednesday. On the following Monday, 29 July 1991, Mrs Nye was visited at Upper Colo by two detectives. One was named Keys, the other Devine. Detective Keys, who by 2003 had attained the rank of Acting Inspector, was, in July 1991, a Detective Senior Constable attached to the Arson Unit of the Major Crime Squad, South Region. She had been brought in to assist in the investigation into the murder of Thurgar. She gave evidence at the trial of the present action. Detective Devine did not. He had been available to be called and indeed was present at the court on 13 May 2003 when detective Keys was giving her evidence. At that stage it was proposed to call him the following day (T 1743-1744). 137 Mrs Nye gave evidence of an attempt by the two detectives at Upper Colo on 29 July 1991 to induce her to forget about certain alibi evidence that she had advanced in favour of the plaintiff. In return for doing so she says she was told that advantages could be arranged for her and two of her sons (T 391). This is denied by Acting Inspector Keys, but she is not supported by evidence from her fellow detective Devine, because he did not give evidence. The resolution of the issue between Mrs Nye on the one hand and Acting Inspector Keys on the other is therefore dependent on a comparison of the testimony of the two, the inherent circumstances and such documents as are available. 138 It was submitted on behalf of the plaintiff that the court should find that there had been an attempt on behalf of the police, and in particular the defendant Gordon, to suborn Mrs Nye in order to assist in obtaining a conviction against the plaintiff. Such attempt, it was further submitted, should be sheeted home to the defendant Gordon as the officer-in-charge of the investigation, and that the court should find this because it was he who sent Detectives Keys and Devine out to interview Mrs Nye and it was to him that they reported on their return to Sydney. 139 The stand taken by the defendants is that the evidence of Acting Inspector Keys should be preferred and that there should be a finding that the events as detailed by Mrs Nye did not occur. Such a conclusion, so the argument ran, was supported (or at least not gainsaid) by such documentation as existed in relation to the visit. In the alternative it was submitted on behalf of the defendant Gordon that even if the event as deposed to by Mrs Nye had taken place, there was no evidence on which the court could find that the defendant Gordon sent detectives Keys and Devine to Upper Colo for the purpose, inter alia, of suborning Mrs Nye or that their ineffectual attempts to do so had been reported to him. In addition it was further submitted that even if the ineffectual outcome of the attempts to suborn, as deposed to by Mrs Nye, had taken place, it was inherently improbable that any report of this would have been made to the defendant Gordon as officer-in-charge or that, even if it had been, that did not evidence malice. 140 In resolving that question (indeed any question based on inference from circumstantial evidence) it is important to bear in mind the difference between a legitimate inference on the one hand and speculation on the other. The court must apply what has been stated in the authorities in relation to the difference between the two. In Luxton v Vines (1952) 85 CLR 352 Dixon, Fullagar and Kitto JJ said: "The test to be applied in determining… whether circumstantial evidence sufficies to support a finding… was restated recently by this court in Bradshaw v McEwans Pty Ltd ((1951) unreported) and for the purposes of this case it is enough to set out the following passage from the judgment: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture… But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise'" (at 358). 141 The distinction between a legitimate inference on the one hand and conjecture on the other is often difficult to determine. This is recognised in the cases, the more important of which have been authoritatively gathered together by Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262. Although that case was concerned with a question of causation and arose in the context of an appeal from the Dust Diseases Tribunal, nonetheless the principles concerning the distinction between conjecture on the one hand and inference on the other are of general application; causation as a fact to be proved, can, like any other fact that requires proof, be established by a process of inference. Spigelman CJ with whom Davies AJA agreed, said: "The law in Australia is, in my opinion, as stated by Glass JA in this court in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197: '…The evidence will be sufficient if, and only if, the materials offered justify an inference of probable connection. This is the only principal of law. Whether its requirements are met depends upon the evaluation of the evidence'. It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists. Lord MacMillan in Jones v Great Western Railway Co (1930) 144 LT 194, in the context of stating that a possibility that a negligent act caused injury was not enough said (at 202):

'The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.' After referring to this passage Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306 said: 'The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if it goes no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.' As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Colleries Ltd [1940] AC 152 at 169-170: 'Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive facts proved from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.' The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, e.g., Luxton v Vines (1952) 85 CLR 352 at 358. In my opinion, evidence of possibility,… should be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case. Proof on the balance of probabilities… may be established on the basis of circumstantial evidence. As Lord Cairns said in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279: 'My Lords, in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances pout together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.' Causation, like any other fact can be established by a process of inference which combines primary facts like 'strands in a cable' rather than 'links in a chain', to use Wigmores simile: Wigmore on Evidence, 3rd ed (1981) vol 9 at 412-444 [2497] referred to in Shepherd v The Queen (1990) 170 CLR 573 at 579." (Italics added)

142 Kerry Nye lived in a de-facto relationship with the plaintiff and had done so from about 1979 (T 291). There was one child of their union, who was born in 1979. In addition she had three other sons by an earlier union, one born in 1971, another in 1972, a third in 1977 (T 290). She had custody of these three boys and all four boys, together with another young resident named Shane Butfield who was aged 17 (T 298), were residing at Upper Colo on 24 July 1991 when the plaintiff and Mrs Nye were arrested together with the boys, two at least of whom were handcuffed. 143 Mrs Nye claims that she was roughly treated by Detective Keys at the scene. This was not denied by Detective Keys. Whilst she was handcuffed Mrs Nye claims that Detective Keys used her left shoulder to butt into her right chest on about three occasions, thereby pushing her back against a wire fence (exhibit Q). All were taken to the Police Centre, at Surry Hills (T 1730) in Sydney where Mrs Nye was questioned. During the course of questioning she says that both Detective Keys and Detective Devine told her that if she did not cooperate by undertaking an interview she would not get bail. She says that they also urged her to speak to the boys and convince them to make statements, otherwise one of her children would be charged with being an accessory to murder for which, she says she was told, there would be a penalty of 14 years imprisonment. 144 Mrs Nye is shown on the charge sheet to have been apprehended at 7.05am on 24 July 1991 and to have been charged at 8.06pm on the same day. The charge against her was that between 5 and 12 July 1991 at Colo she knowingly took part in the supply of a prohibited drug namely cannabis leaf. The charge was laid by Detective Devine (exhibit 15). She was admitted to bail at about 8.30pm (exhibit Q). 145 At the Police Centre she was questioned by Detective Devine in the presence of Detective Keys. There were three lots of questioning. The first two were recorded on audio and videotape and transcribed (exhibits 13 and 16). In the course of the first lot of questioning she was shown transcripts of several telephone intercepts all of which were numbered. There were a lot of them, the highest number referred to being 160. A number of these appear to involve the telephone at the Nye residence. The questioning about these telephone intercepts began around 1.15pm and concluded shortly after 4.40pm (exhibit 13). In the second lot of questioning she was asked about the plaintiff's involvement with drugs and about his "infatuation with guns". In the course of this interview another tape of a telephone intercept was played and she was asked to identify voices that were included in it. A number of the tapes in existence that had been used to monitor various phones and calls involved, amongst others, the plaintiff. Mrs Nye was also shown a page that contained details of five or six calls and she identified the plaintiff's mobile phone number. She was asked about dealings between the plaintiff and a man by the name of Sam and indicated that substantial sums of money were given by the plaintiff to that man (exhibit 16). She was asked to identify names of various people that were derived from transcripts of telephone intercepts and did so. These included a man called Chris (probably Peak) and a man called Ox (probably Wayne Relf) (exhibit BM). The questioning led to the police informant Shakespeare being referred to. Mrs Nye is recorded as having told the police: "And it was to do with the drug dealings and the guy that Chris - well, that Garry and Sam - … introduced me to another guy called Danny and that's the eighteen thousand that's mentioned in the phone conversation - Danny went for a walk with it" (exhibit 16 Q 157).

A little later in the transcript of her questioning she refers to Danny as "Danny Shakespeare" (Q 163) and to the fact that the plaintiff was trying to find Shakespeare who had "ripped him (the plaintiff) for the 18 grand" (164). The police were informed that "the rip-off of the $18,000" had occurred in February 1991 (Q 173). In the course of the questioning of Mrs Nye there are several references to the "$18,000 rip-off" by Shakespeare, to the fact that the police informant Shakespeare had only known the plaintiff for three days before "he (Shakespeare) took him (the plaintiff) for the 18 grand and he never seen him again" (Q 169). She explained to the police that in a phone call to Shakespeare from Ray Carroll Motors at Yagoona, the plaintiff spoke to Shakespeare, who said that he "would be giving him (the plaintiff) the 18 grand within two weeks" (Q 170). She also informed the police that her only knowledge of Ray Carroll Motors was that "that's where Garry went about that $18,000 rip-off" (Q 243). She also said that the drug dealing undertaken by the plaintiff was "small scale… because they're only dealing in a couple of pounds a week" (Q 322) and that "it's only people in Mount Druitt really that they're dealing with". She stressed that the plaintiff's involvement was "not a real big organised ring, there's no sort of main criminals at the top" (Q 322). 146 From the foregoing it is clear that there had been fairly intensive and reasonably wide spread interception of telephone lines that involved phones of or used by the plaintiff. This is confirmed by other exhibits. Furthermore there was a clear exposition by Mrs Nye of the nature of the "rip-off". This was by Shakespeare. It involved a relatively small amount, namely some $18,000. There is no suggestion of any large scale dealing by the plaintiff nor any basis in her interview for concluding that the police informant Shakespeare, whether alone of in concert with Thurgar, had stolen 100 kilograms of hashish from the plaintiff nor any basis for concluding that the plaintiff had or had access to the amount of money that would have been necessary to purchase such a large quantity of hashish. 147 She claims that without the threats referred to above neither she nor her children would have made any statements. Mrs Nye lodged a complaint about the behaviour of the two detectives, Keys and Devine, and these were the subject of later internal investigation. 148 In the course of her interrogation no questions are recorded as having been directed to her concerning the whereabouts of the plaintiff on 20 May 1991. Her first recorded questioning began at 1.14pm and concluded at 4.42pm (exhibit 19). Her second recorded questioning began at 5.01pm and concluded at 6.20pm (exhibit 16). But she was later questioned without the subject matter or answers being recorded in any way. What was included in this questioning is not revealed in the evidence. However it was conceded by Detective Keys that throughout her questioning Mrs Nye cooperated with the police fully (T 1746). She was thus an important source of understanding for the police in relation to the dealings between the plaintiff and the police informant Shakespeare, indeed she had become "potentially an important Crown witness", according to Detective Keys (T 1748). The material from Mrs Nye's interrogations was material that was available to the defendant Gordon, as officer-in-charge of the investigation (T 1749, 1750) and likely to have been in the material submitted to the DPP. 149 Mrs Nye had been arrested: so too had her children. She had been held in custody for more than twelve hours. She was aware that her children were also in custody. She claims to have been assaulted and threatened. At very least she could be expected to be apprehensive, probably frightened, anxious to answer the police questions, but unlikely to turn her mind to matters outside those the subject of her questioning and the situation in which she and her children found themselves. In the circumstances it is unremarkable that she made no reference to any alibi of the plaintiff in the course of her questioning. 150 Following her release on bail Mrs Nye returned to Upper Colo. There she tried to recall the movements of the plaintiff on 20 May 1991, the day of the murder. In the early hours of the morning of Saturday 27 July 1991 she remembered having being at the Crombie's house. Somewhere between 5am and 6am on that morning she rang Wayne Nye on her home phone and told him that she had remembered where the plaintiff had been on 20 May 1991 and that she had documents that may satisfy the police as to that. The Crombie's were referred to in the course of this conversation and Wayne Nye referred to the plaintiff having been at his house on that same day (T 388). 151 No tender was made of a telephone intercept warrant in respect of Ms Nye's home phone. Detective Keys was unable to recall whether she had been told that Mrs Nye had made a telephone call to Wayne Nye on the morning of Saturday 27 July 1991 (T 1756). However in a statement made by Detective Devine for the purposes of an internal investigation arising out of a complaint by Mrs Nye, he refers to the interrogation of Mrs Nye on 24 July 1991 about, inter alia her involvement in the supply of cannabis leaf. In that statement he records that Mrs Nye was charged with offences and that "some time after the date of arrest, I became aware of further telephone intercept information relative to this Defendant. This information is also obtained under the same telephone warrant as was the subject of our interview" (exhibit AV). This supports a conclusion that there was an interception of telephone calls made from and to the telephone in the Nye home and that there was further material obtained from such source after the date of her arrest and that of the plaintiff. Moreover, the extensive use of such warrants in the course of the investigation, the fact that calls on the plaintiff's phones were monitored, the fact that the plaintiff was a target as a result of the information given by the police informant Shakespeare, militate in favour of the inference that the phone at the plaintiff's home at Upper Colo was likely to have been included within the ambit of the electronic surveillance that was a characteristic of the investigation known as Operation Shylock, undertaken in respect of the "high profile killing" of Thurgar (T 1716). The defendant Gordon was cross-examined on this topic. The answer given by him when he was asked about telephone intercepts for the Nye residence was: "… I am just trying to recollect. I am not quite sure whether the intercepts for the Nye residence were still activated at that point in time on 29 July" (T 1708) (italics added).

This answer admits that a telephone intercept had been put in place in respect of the phone at the Nye's home but does not deal with its removal by 27 July 1991 when Mrs Nye rang her brother-in-law about her husband's alibi. However in the defendant Gordon's Duty Book (exhibit 21) for 29 July 1991 there is a reference to the Nye's residence, to speaking with Detectives Devine and Keys about the residence and then attending to "Sect 19 Report re Listening Device for telephone".

These references provide strong support for the conclusion that there was a listening device in place on the telephone on the Nye house and that the defendant Gordon was aware of that fact and of the reports on the material obtained as a result of the interceptions that took place. 152 I think it is a fair inference that such electronic surveillance was in place and I am satisfied to the requisite standard that it was. The mere fact that the plaintiff had been arrested would not be likely to lead to the immediate cessation of surveillance of such a kind. This accords with the evidence of Detective Keys. She would have found it surprising had telephone intercepts been removed from Mrs Nye's premises within a week of the plaintiff's arrest (T1755). An experienced investigator would be likely to maintain such a device in place against the contingency that persons associated with the plaintiff would make calls or have calls made to them following the arrest of the plaintiff and the members of his family. The conclusion to which I have come was squarely raised in cross-examination, however no evidence was adduced to negate the inference that was open in relation to the existence of an interception device on such phone as at 27 July 1991. 153 Detective Keys had a telephone conversation with Mrs Nye on 25 July 1991 in which Mrs Nye complained about money and other property that was missing following the police search of the premises at Upper Colo and about damage done to furniture and household effects during the search of the premises on 24 July 1991. However there does not appear to have been any other topic of discussion between the two of them. On 26 July 1991 Detective Keys telephoned Mrs Nye following a discussion about the case with Superintendent Harding. Mrs Nye is recorded in Detective Keys' Duty Book as expressing fears for her life and for her children. Detective Keys then conferred with the defendants Gordon and Popplewell, rang Mrs Nye and reassured her and made arrangements to "interview" her on 29 July 1991. She then discussed the matter further with the defendant Gordon and had yet another telephone conversation with Mrs Nye (exhibit AT; T 1733). What emerges from an examination of her Duty Book for that and other days in and around the time of seeing Mrs Nye on 29 July 1991 is that there was close and fairly frequent contact between her and the defendant Gordon as officer-in-charge of the investigation and I infer that she was reporting events to him as they occurred and receiving instructions from him where appropriate. 154 During the period from and including 25 to 28 July 1991 Detective Devine was off duty (exhibit AT). So, although it appears that he was the more senior of the two officers at that time, it fell to Detective Keys to speak with Mrs Nye who says that her concern during the immediate aftermath of the arrests was the missing property, the missing money and the damage done by the police to the premises (T 641). 155 It is against the background to which I have referred that Detectives Keys and Devine went out to Upper Colo to interview Mrs Nye on 29 July 1991. The Duty Books for both officers for 29 July 1991 reveal that they had in their possession a tape recording device and although it would have been open to them to record the interview with Mrs Nye no recording was made. Detective Keys said she could not recall why this was so (T 1734). 156 The events at Upper Colo are the subject of conflicting testimony, the evidence of Mrs Nye being in stark contrast to that of Detective Keys. 157 Before the two police officers went to Upper Colo on 29 July 1991 they conferred with the defendant Gordon and then with Detective Inspectors Wilson and Wegg. Detectives Keys and Devine also conferred with the defendant Gordon on their return to Sydney following the meeting with Mrs Nye.

158 An arrangement to visit Mrs Nye in order to interview her is noted in Acting Inspector Keys' Duty Book for 26 July 1991. However, whilst Acting Inspector Keys says that the arrangement was made with Mrs Nye, Mrs Nye denies this and the note in the Duty Book may be read in such a way as to be consistent with the arrangement having been made internally within the police service, that is, arranging for a vehicle, arranging for the necessary time to carry out and complete such a task. Whatever may be the true situation, it is common ground that the officers were not welcome. Both Duty Books record that Mrs Nye told them to "fuck off my property". In her evidence in chief Mrs Nye said that she screamed at the officers and told them to get off her property. It was common ground that notwithstanding this, they wanted to talk to her, indeed in cross-examination she said that they were "insistent" on talking to her (T 542). It was put to her by senior counsel for the defendants that the words used by her were: "Fuck off you dogs" (T 542) and she agreed that words to that effect were used by her. This seems somewhat curious if what was proposed by them was merely to offer counselling and support to Mrs Nye as may, on one view, be inferred from Detective Keys' Duty Book entry for 26 July 1991. It should be noted in this context that whilst Acting Inspector Keys initially said that she could not recall specifically why they were going there i.e. the reason why she and Detective Devine went to Upper Colo on 29 July 1991 (T 1753), she later changed her evidence to assert that her "recollection for going there would be reassurance and to assist her" (T 1776). Nevertheless she did not make any application to anybody in witness or other like protection for a person to be assigned to Mrs Nye (T 1771). Her evidence on this topic is quite unsatisfactory and I do not accept it. 159 Mrs Nye had been cross examined to the effect that the police had gone to Upper Colo "to check on (her) wellbeing" and in furtherance of such a purpose had said to her "We're here to look after you". Mrs Nye was emphatic in her refutation of any such thing being said (T 550). The true purpose of the journey to Upper Colo on 29 July 1991 is, in my opinion, established by the following evidence from Acting Inspector Keys: "Q. Did you use the word "interview" in you entry of 26th July in the same sense as you had used it in your entry of 24 July, that is intending to convey that questions would be asked for the purposes of eliciting information relevant to the investigation? A. Yes. Q. Do I gather from that, that putting those together, that you went out to Colo to interview Mrs Nye for the purposes of obtaining information for the benefit or purposes of the investigation? A. Yes. Q. In those circumstances isn't it strange that the tape taken for that purpose was not used for that purpose? A. It is strange but I can't recall the reason why it was not used" (T1763-1764).

The above answers, in my opinion, are in effect an acceptance that the wellbeing of Mrs Nye was not the purpose of the visit. Furthermore, despite the entry in the relevant Running Sheets that refers to Flannery and Smith I do not think that they were intended to form, or in fact formed, any part of the interview, or purpose of the interview. Nor did the two detectives go to Upper Colo for the purposes of investigating a complaint. That was made abundantly clear in the evidence of Acting Inspector Keys (T 1753). However it is clear that, notwithstanding, the inhospitable greeting from Mrs Nye, the two detectives were anxious to interview her. According to Mrs Nye, Detective Keys said: "No, Kerry we want to talk to you" (T 390) and, by dint of persuasion, Detectives Keys and Devine were allowed inside the house where Mrs Nye says she told them about the alibi by the Crombie's and that there were records that they, the police, couldn't touch (T 390). 160 The Duty Books of both officers contain very similar entries in relation to the circumstances in which they got into the Nye house and what occurred there. The Duty Book of Detective Keys records: "Then speak to Nye. Nye invited us into her home, interview same…" (exhibit AT); The Duty Book of Detective Devine records: "Roslyn talks to Nye and she calms down, then talk to Nye, inside her premises and interview same" (exhibit AT).

What is in my opinion of significance is that (1) an arrangement was made to go out Upper Colo and "interview" Mrs Nye; (2) each of the Duty Books has the reference "interview same"; (3) neither of the Duty Books refers to any counselling, comforting or offering of support to Mrs Nye, nor to her wellbeing. In my opinion these factors support a conclusion that the two detectives went out for a purpose unrelated to the welfare of Mrs Nye, but rather for the purpose of interviewing her in relation to the investigation, the material for which by that time was likely to have included the information obtained by telephone interception concerning the alibi given for the plaintiff by Mr and Mrs Crombie and Ms Rockwell and others. 161 A tape recording device was taken to Upper Colo. The defendant Gordon stressed his use of recording devices for the purposes of interviews, indeed two of the interviews with Mrs Nye used the ERISP system. To have a tape recorder and not use it was unfortunate to say the least. Acting Inspector Keys conceded that to have the tape but not to use it was "strange" (T 1763). Since the Duty Books of both of the detectives expressly note that the tape was not used, it would seem probable that this occurred not as the result of some oversight, but rather as the result of a decision i.e. it was purposive. In the circumstances, the failure on the part of Detectives Keys and Devine to use the tape recording device that they had in their possession is, in my opinion, adverse to their credibility. 162 In the witness box Acting Inspector Keys presented as resentful of questions asked of her and for an officer of her experience and seniority she was not an impressive witness. She was at times quite grudging in assenting to the obvious. Thus when she was asked whether it was clear that she had information before 29 July 1991 that suggested that the police informant Shakespeare was involved in car conversion rackets as is expressly referred to in the record of interview of Mrs Nye of 24 July 1991, she replied "It would appear so, yes" (T 1785). This was a grudging concession of the obvious. Another example that reflects adversely on her credit concerns questions that she was asked in relation to information about Harlum's telephone number. This information was clearly given by Mrs Nye to the police in her record of interview on 24 July 1991. However when asked about this Acting Inspector Keys was initially hesitant. She appeared to hedge her answers and when pressed said: " Well, I certainly didn't have it in paper form" (T 1784). When asked about this further she answered, in a manner that I noted was more than a little petulant: "Yes it was. I had the information. It was recorded in this interview" (T 1784).

When giving this answer she gave the clear impression of being resentful about having to answer questions. She did not present as a witness in whom the court could repose its confidence. 163 A running sheet bearing date 29 July 1991 was prepared by Detectives Keys and Devine. It records that they went to Colo to "interview Kerry Nye" regarding Smith and Flannery as "previously arranged with Nye" (exhibit BM). However there is no reference in the Running Sheet to any questions being asked of, or anything being said by, Mrs Nye on 29 July 1991 in relation to Smith and Flannery. They do not appear from the Running Sheet to have been discussed. The same is true in respect of the Duty Books of both Detectives Devine and Keys. Furthermore although Mrs Nye had been asked about some 25 people during the course of her recorded interviews on 24 July 1991 there is no reference in the transcripts to Flannery and the only Smith referred to is Kerry Smith, which is Mrs Nye's name. 164 The version of events in the Running Sheet relating to the welcome by Mrs Nye differs from the versions appearing in both Duty Books. In the Duty Books the words recorded are: "fuck off my property" (exhibit 21). However in the Running Sheet the words are recorded as: "fuck off you dogs. You gave me up". The discrepancy is curious and raises a question as to when the various documents were completed and why they are not ad idem. However it would be a matter of speculation to proceed down this road and I do not do so. Nonetheless whilst neither of the Duty Books makes any reference to Chris Peak, John Harlum, Danny Shakespeare or alibi evidence, the Running Sheets refer to all of them. The Running Sheets also set out details of the alibi provided by the Crombie's and advert to the fact that the plaintiff went to his brother's place and to his father in law's place. It refers as well to the phone call made by Mrs Nye when she telephoned the plaintiff from the Crombie house. 165 The Running Sheets also refers to the $18,000 that the police informant Shakespeare was said to have "previously ripped Garry off for". 166 Mrs Nye was asked questions about the interview that the two officers conducted with her on the occasion of their visit to Upper Colo on 29 July 1991. Having referred to the documents that substantiated her alibi she was asked: "Q. Tell me what else you said to them? A. When I said that Peter Devine Said: 'Kerry, what can we do so you will forget Garry's alibi?' Q. What did you say? A. I laughed at him and asked for my children to be detraumatised and I said to him he might be an arsehole but he isn't that big an arsehole to leave him in gaol for a murder he didn't commit. Q. Apart from saying, 'What can we offer you to forget'? A. He offered to drop my charge and my two elder boys charges. Q. What did he say about that? A. He said we will talk to the DPP and you'll have yours and Adam's and Cory's charges removed. Q. And, obviously, other things were said but can you recall? A. Roslyn Keys told me I could take my children to a public hospital and have them detraumatised. Q. Did she say anything about how that could be done? A. No she didn't. Q. What else was said by either of them, you can remember? A. It was said to me that, 'Come on Kerry here's your chance to get rid of him. He's been an arsehole to you for years' and I said, 'No. That's not how it is. I've got to look at Joel every day. Sorry.' Q. Who said that? A. Who said what? Q. 'Here's a chance to get rid of him. He's been an arsehole all your life'. A. Peter Devine" (T 391). 167 Detective Devine did not give evidence. As already indicated Detective Devine was the senior of the two officers. He was also the spokesperson for them when they visited Upper Colo on 29 July 1991. It is not disputed that he was the detective who asked most of the questions. It was he who was to follow Detective Keys in evidence in the defendant's case on 14 May 2003 (T1743-1744). In contrast to the situation concerning Detective Barnett (in respect of whom an explanation for non-attendance was given to the court and accepted on behalf of the plaintiff), no explanation was given for the fact that Detective (or former detective) Devine was not called. In my opinion the circumstances entitle the court to apply the decision in Jones v Dunkel (1959) 101 CLR 298. Kitto J said that: "… any inference favourable to the plaintiff for which there (is) ground in the evidence might more confidently be drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence" (supra at 308).

Menzies J said that the proper principle was: "(i) that the absence of… a witness cannot be used to make up any deficiency of evidence; (ii) that evidence that might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference" (supra at 312). 168 Windeyer J expressed the principle somewhat more expansively. He cited with approval a passage from Wigmore on Evidence 3rd ed. (1940) vol 2, s. 285, p 162 as follows: "The failure to bring before the tribunal some circumstance, document or witness which either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences to be sure, cannot fairly be made except upon certain conditions; and they are always open to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." Windeyer J continued: "This is plain common sense. If authority be needed, two passages from R v Burdett (1820) 106 ER 873 may be cited. Abbott CJ said: 'No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends to be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected' (at 898). And Best J said: 'Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if tis existence be highly probable, particularly if the opposite party has in his power to rebut it be evidence and yet offers none; for then we have something like an admission that the presumption is just (at 883)." (supra at 321) 169 For the purposes of this judgment I apply the less expansive and somewhat more conservative approach adopted by Kitto and Menzies JJ. On that basis it is appropriate to conclude that, whilst the absence of Detective Devine as a witness cannot be used to make up any deficiency of evidence in the plaintiff's case, his unexplained failure to give evidence that might have contradicted the evidence of Mrs Nye operates so that her evidence may be somewhat more readily accepted. Furthermore, where an inference is open from the evidence before the court and the question is whether it should be drawn, the circumstance that the defendant disputing that such inference should be drawn might have proved to the contrary had he chosen to give or call evidence, may properly be taken into account as a circumstance in favour of drawing the inference. 170 When Acting Inspector Keys was asked about the disparaging remarks concerning the plaintiff about which Mrs Nye gave evidence, she did not deny them, saying that she did not recall Detective Devine so doing or using the word "arsehole". Her evidence in relation to this matter was not convincing. In the course of her examination in chief she was asked about the reference by Mrs Nye to bank documents and her assertion that police could not touch them. Acting Inspector Keys said she did not recall that. She was then asked by senior counsel for the defendants: "Q. But you don't deny it could have happened? A. I don't recall the exact conversations we had. Q. She has told the court that Devine said, 'Kerrie, what can we do so you will forget Garry's alibi'. Did he say that? A. I certainly didn't hear those words , no. Q. She has said that he said 'We will talk to the DPP and have yours and Adam's and Corey's charges removed.' Was that said? A. Again, I don't recall the exact conversation. (Italics added)

171 Because I was of the opinion that the preceding answer gave the appearance of an evasion I asked: "Q. That wasn't what you were asked? A. I don't specifically recall it, no. Q. Are you saying it didn't occur or you just don't recall it? A. I don't recall it." (T 1742-1743) Senior counsel for the defendants asked:

"Q. She has said that somebody said to her, 'Come on Kerrie here's a chance to get rid of him. He's been an arsehole to you for years.' Was that said? A. I don't recall that." (T 1743) 172 From the foregoing it can be seen that the version of events deposed to by Mrs Nye was not denied in the defendants' case. The nature of the event was quite singular. Both detectives were relatively junior. Both were involved in an investigation of a high profile murder. Both had conferred with their superior, the defendant Gordon, before going to Upper Colo. Both reported to him immediately on their return to Sydney. In these circumstances there is a probability that if such an event had not occurred, the detectives said to have been involved in it would have remembered that fact. It is not a matter which in my opinion would be readily forgotten. I found the evidence of Acting inspector Keys unconvincing in relation to her asserted absence of recollection. I cannot help but think that she remembered more than she asserted. However for present purposes it suffices to note that Mrs Nye's evidence in relation to the conversation was not denied. 173 Mrs Nye was cross-examined concerning her evidence on this matter. It was put to her: "Q. I want to suggest to you that you have falsely remembered what happened on the day in question and that there was no reference by any police officer on 29 July to forgetting the alibi? A. You can say that but it's something I'll never, ever forget in my life." (T 647). When Mrs Nye gave this evidence she did so with conviction. I judged that she was speaking the truth. That conclusion is fortified by the fact that her assertions were not denied by the police officer present on the occasion who was called as a witness; nor by the police officer to whom the assertions were attributed, who was not called as a witness. 174 When Mrs Nye was cross-examined about her evidence concerning the dropping of charges against her and her sons the following sequence took place: "Q. Who said that? A. Peter Devine was the main spokesperson. Q. Who said that? A. Peter Devine. Q. And you ask his Honour to accept that Peter Devine - will you accept then he was a detective Senior Constable? A. Yes he was. Q. You ask his Honour to accept that he, an officer of that rank, offered you to approach the DPP and get charges dropped? A. That is what he said, sir. Q. It never happened, did it, Mrs Nye? A. Yes it did." (T 648).

Again Mrs Nye gave this evidence with conviction. I gained the strong impression that she honestly believed that what she was saying was true. It was not denied in the defendants' case. 175 It is significant in this regard to note that in the Duty Book of Detective Keys for 30 July 1991 she refers to the Running Sheets in Operation Shylock, to conferring with the defendants Gordon and Barnett and to the fact that, having contacted Mrs Nye yet again, she spoke with Adam Nye and informed him "re inquiries with DPP. Also inform re help from FACS" (Family and Community Services) (exhibit AT; T 1736). In my opinion this provides some support for Mrs Nye's evidence. Furthermore the examination-in-chief of Acting Inspector Keys on the entry in her duty Book for 30 July 1991 is revealing. In my opinion it is another indication that her evidence has to be looked at with caution. Having read out verbatim the entry in her Duty Book for 30 July 1991 and having been asked what FAC'S stood for (T 1736) she was then asked: "Q. So the effect of the entries are that you conveyed some information to Adam Nye concerning Family and Community Services? A. Yes" (T 1736). 176 This is clearly not correct in relation to the gist of the entries on that day. The first matter that Adam Nye was spoken to about was the outcome of detective Keys' enquiries with the DPP. The reference to help from Family and Community Services was secondary. Moreover when cross-examined about the entry she conceded that her enquiries with the DPP could have been concerning charges against Mrs Nye (T 1773). But when it was later pointed out to her that this tied in with the assertions made by Mrs Nye in relation to what had been said by detective Devine, Acting Inspector Keys denied having had such a conversation with the DPP, although she could not recall "any other reason why… (she) would be speaking to the DPP on the day after (she) visited Mrs Nye at Upper Colo" (T 1774). In my opinion the sequence of events favours the version of events deposed to by Mrs Nye.

177 The Running Sheet which bears date 29 July 1991 extends to eight pages. Counsel for the plaintiff cross-examined Acting Inspector Keys at length about the document in a manner that was critical of the genuineness of the document. The cross-examination first established that except for a recollection of going to Upper Colo and being abused by Mrs Nye, Acting Inspector Keys' memory was from her "duty book and running sheets" (T 1760). Next counsel for the plaintiff compared in detail the contents of the Running Sheet dated 29 July 1991 with the recorded interviews that had been conducted with Mrs Kerry Nye on 24 July 1991. This revealed that there was a substantial concordance between the contents of the second of the recorded interviews of 24 July 1991 (exhibit 16) and the contents of the Running Sheet (exhibit BM). The material concerning going to Upper Colo, the abuse by Mrs Nye and the alibi evidence occupies three pages of the Running Sheet. Indeed, other than the information that is recorded in the Running Sheet concerning what Mrs Nye said about the plaintiff's alibi, most of the other information that is recorded in it was known to the police prior to 29 July 1991. Indeed, most of the residue of the material included in the Running Sheet coincides with what appears in the second recorded interview of Mrs Nye of 24 July 1991, as a comparison between it and questions 163, 166, 167, 186, 190, 196, 204, 242, 243, 244 and 298 reveals. Why two police officers would go to Upper Colo and spend a good part of their day to obtain material that they already had is unexplained in the defendant's case. At one stage Inspector Keys suggested the purpose of the visit "could be clarifying questions" (T 1791). This is not borne out by the antecedent running sheet, the running sheet dated 29 July 1991 or the entries in the Duty Books. 178 Yet Acting Inspector Keys said that the information contained in the Running Sheet was what Mrs Nye told the two officers on 29 July 1991 and "nothing else" (T 1794). I do not accept this. It flies in the face of reason and when combined with the other factors to which I have previously referred, I am lead to the conclusion that I should prefer the evidence of Mrs Nye in relation to what was said to her by detective Devine in the presence of the then detective Keys, and I do so. 179 As already indicated detective Devine was the senior of the two officers. He was also the spokesperson for the two when they visited Upper Colo on 29 July 1991. It is not disputed that he was the officer who asked most of the questions. It was he who was to follow detective Keys in evidence in the defendant's case. He was not called. His situation was unlike that of Detective Barnett (see para 214). 180 There was no suggestion that the alibi for the plaintiff was not discussed. Indeed Mrs Nye said that she first raised the matter with the police (T 391). Although it was submitted that the conclusion should be drawn from this that the two detectives were unaware of the alibi before going out to Upper Colo, I do not think this is correct. 181 I find that as a result of telephone intercepts that were in place in relation to the phone at the Nye house in Upper Colo the police, including the defendant Gordon and detectives Keys and Devine, were aware prior to the visit to Upper Colo on 29 July 1991 that Mrs Nye claimed that the plaintiff had an alibi for the bulk of the time that the police informant Shakespeare said that the plaintiff was in his company on 20 May, 1991. That evidence, particularly in relation to the time at which the informant Shakespeare says he was at Centennial Park with the plaintiff, was plainly destructive of the Crown case against the plaintiff. In the circumstances I am satisfied that detectives Devine and Keys visited Mrs Nye at Upper Colo on 29 July 1991 and that one of the purposes, probably the primary purpose, of such visit was to endeavour to convince Mrs Nye not to press the alibi material. 182 The foregoing finding does not necessarily involve the defendant Gordon. In order for such finding to have relevance in relation to the question of malice and absence of belief in the guilt of the plaintiff on the part of the defendant Gordon, it I necessary to determine whether what was done by detectives Keys and Devine was done at his behest. 183 The Duty Books of Detectives Keys and Devine, as I have already said, clearly show that they frequently consulted with and reported to the defendant Gordon. Both had been taken into the investigation although each seems to have been a relatively junior officer. Acting Inspector Keys described herself at the time of the investigation as "still very junior" (Italics added) (T 1757). When Acting Inspector Keys was asked about the reporting of information that she had obtained in the course of her duties as one of the investigative team, she said that it "had to go back to", amongst others, Detective Gordon (T 1749). In the circumstances I think it would be unlikely that two such officers would travel all the way to Upper Colo to make a further approach to Mrs Nye without some antecedent discussion with the officer-in-charge of the investigation concerning the object of the visit and the working out of a strategy for its conduct in conjunction with him. It is clear from the contemporaneous records that there were several conferences between detectives Keys and Devine on the one hand and their superior, the defendant Gordon, on the other. There are two such conferences noted as having been held on Friday 26 July 1991. One is noted immediately after yet another telephone conversation between detective Keys and Mrs Nye and on 29 July 1991 both detectives Keys and Devine are shown as conferring with the defendant Gordon prior to going out to Upper Colo. In the circumstances I think it is probable that the object or purpose and course of the visit would have been discussed with the defendant Gordon. It is clear that they reported to him about what had occurred on their visit immediately after they had returned from Upper Colo (T 1765). Detective Keys' evidence in that regard coincides with her Duty Book for 29 July 1991 which records: "Return to Sydney. Meal on route 3.15 to 3.30pm. And return to office. Confer with Detective Sergeant Gordon…" (T 1734). 184 The various telephone contacts with Mrs Nye were reported to the defendants Gordon and Popplewell (T 1759). A conference with the defendant Gordon was held shortly before detectives Keys and Gordon left for Upper Colo (T 1760). Following their return from Upper Colo the two detectives immediately "met him face to face and talked with him" (T 1765). In this meeting they "definitely" reported "the outcome of what occurred at Colo" to him (T 1765). Acting Inspector Keys was asked: "Q. So you did speak with him over and above the contents of the running sheet about that visit? A. Yes. I said I would believe I would definitely speak to him on that day on the night of the 29th? Q. I am asking you about that visit because your answer didn't specify that, you see, is that correct? A. Did I speak to Detective Gordon about the visit? Q. Yes. On your return to the office? A. Yes. Q. Did you tell him everything that had happened? A. I don't recall whether it's me or Det Devine that tells him. Q. In your company? A. We would have been together" (T 1765 - 1766) (Italics added).

This evidence accords with the witness' Duty Book and with the inherent probabilities, assuming that the defendant Gordon was on duty on their return to Sydney, as his Duty Book indicates he was. Furthermore his Duty Book records that he spoke with detectives Devine and Keys "re Kerry Nye" some time after he had completed his afternoon meal break at 2.30pm (exhibit 21). 185 It was submitted on behalf of the defendants that the real questions concerning the visit to Upper Colo on 29 July 1991 were: 1. Whether there was an attempt to suborn Mrs Nye; 2. If so, was this on the instructions of the defendant Gordon or with his subsequent knowledge and acquiescence.

Senior counsel for the defendants submitted that of the twp possibilities raised in (2) above, the former would, and the latter might perhaps, go to malice. However it was further submitted that the court could not draw an inference of malice from a "do nothing" approach by the defendant Gordon. Furthermore he submitted that if the defendant Gordon did not send detective Keys and Devine out to suborn Mrs Nye (which was put to him) or did not acquiesce in their having done so (which was not put to him) then it is unnecessary to make a finding of fact in relation to the event. He submitted that it could be dealt with in the basis of an assumption, namely even if the event happened it did not go to establish any of the issues in the case, including the issue of malice. 186 As indicated above the defendant Gordon was cross-examined about telephone intercepts on the Nye house, in the context of what was said by Mrs Nye to have occurred in the course of the visit by detectives Keys and Devine to Upper Colo on 29 July 1991. He was then asked: "Q. The next thing I want to raise with you is that they went out there, irrespective of where the first information about the alibi came from, with your authorisation or direction for them to offer to assist her if she would put the alibi to one side? A. No, Mr Donovan, I totally reject that." (T 1708)

It is instructive to compare this denial with the cross-examination of Mrs Nye. She said that there had never been any arrangements made by the police to visit her and that "the visit was quite a surprise" (T 644). Furthermore she said that the visit was "very surprising that's why I abused them" (T 644). When pressed she denied that the police had made any enquiries about her being home at any particular time. She was then asked: "Q. I suggest to you that there had been an appointment made and you know that because it would be ludicrous for them to drive for an hour and a half or two hours from Sydney on the mere chance you'd be home? A. You can suggest that but I'm telling you you're wrong. No appointment was made. Q. We're agreed, aren't we, that when they arrived your initial reaction was one of anger towards them using a profanity, telling them to get off your property? A. That's correct" (T 645). 187 It was submitted on behalf of the defendants that the court should find that an arrangement had been made with Mrs Nye to visit her at her home on 29 July 1991. It was inconceivable, so the argument ran, that two detectives who were involved in a major murder investigation would travel for what was suggested to be up to two hours to go to Upper Colo when, as was distinctly possible, Mrs Nye may not be there when they arrived. Although initially attractive this argument is in my opinion flawed. The element of surprise is an important part of the investigative technique. When people are confronted by police without warning it is commonly thought that they are more likely to provide information than would be the case if they are given time to think about matters in advance. In addition it is not uncommon that police will wait for a suspect or witness in order to confront or interview them. In the present case there is nothing in the Duty Books to indicate that either of the two detectives had any other specific duties assigned to them for 29 July 1991. This suggests that the visit was one of some significance. It was not about Mrs Nye's well being or about the complaints she had made about missing money or pieces of clothing or the trashing of her home. It was not about "Flannery and Smith". It was not about clarifying questions already asked. It was about furthering the investigation, seeking to get Mrs Nye to forget about the alibi she had been able to piece together for the plaintiff on the day of the plaintiff. 188 On their return to Sydney from Upper Colo Detectives Devine and Keys reported to the defendant Gordon and then commenced clerical work involving the running sheets that, according to their Duty Books, occupied Detective Keys until 9.30pm and Detective Devine until the same time (exhibit AT).

189 The plaintiff and Mrs Nye had been separated for some time prior to her giving evidence in the present action. It did not appear that she stood to gain from being untruthful about the events at Upper Colo. No motive for telling other than the truth was suggested to her; none was apparent, although certain other matters were advanced as being adverse to her credibility and reliability (as to which see below). There was, in my opinion, no apparent motive for her to be untruthful, although I am conscious that motives and incentives may exist, even if unknown. There is nothing in the evidence to suggest that she was aware of any role that may have been played by the defendant Gordon in relation to the visit; she did not seek to assert any. On the other hand Gordon, as a highly experienced police officer and as a defendant in the action, was undoubtedly aware of the significance of the visit and of any link between him and what I am satisfied was done by the two detectives who were under his command. In a number of respects the defendant Gordon's evidence was unexceptional. In other respects it was not convincing. He was evasive on some occasions; altered his evidence on others. Senior counsel for the defendant submitted that in examining the evidence of the defendant Gordon a number of factors should be taken into account. These included that: (i) the investigation of the murder of Thurgar was a major one that occurred almost 12 years before the defendant Gordon gave his evidence.

This is correct and may in some respects account for defects in memory. However as against this there was voluminous material available from which he could refresh his recollection in preparation for giving evidence in the present action. Furthermore, he lived through the matter, was in charge of it and it was a high profile matter. (ii) the assessment of what the defendant Gordon did or failed to do in the investigation of the matter must be judged in the circumstances prevailing at the time and not in hindsight.

This is a consideration to which I have had regard. In this regard it was submitted that the fact that the defendant Gordon was involved in other matters of significance should be taken into account. As against this the defendant Gordon had a very substantial team of investigators and others as part of Taskforce Shylock, or otherwise at his disposal. Had he needed additional resources he could, as he agreed, have called for them. He did not do so and I conclude from this that the resources available were adequate to follow up such matters as he wished to have followed up; (iii) the defendant Gordon disclosed the information he had to the Police Legal Services and to the DPP for their consideration and advice.

That information was disclosed by him to Police Legal Services and to the DPP is clear. However the defendant Gordon was unable to say what information he had given them. He was asked by senior counsel for the defendants if he had withheld "any information which (he) thought to be pertinent". To this he responded "No" (T 1168). However when he was asked if he remembered "anything that (he) told either the legal services or the DPP", his response was "To be perfectly honest, no, not now" (T 1168). What is clear, however, is that the alibi evidence of Mr and Mrs Crombie and Ms Rockwell was not in the hands of the DPP as at 6 August 1991 and the alibi evidence provided by Mr and Mrs Laing, Wayne Nye and Debbie Nye, was not in the hands of the DPP by 28 May 1992, or in my opinion at all. His inability to remember "anything" that he had told either the Police Legal Services or the DPP in the circumstances, means that this argument lacks cogency(T 1168). (iv) the defendant Gordon felt "confident the issues around my concerns on various occasions would have been spoken about with them" meaning thereby Mr Lloyd QC, Mr Bannon QC, Mr Trembath or anyone from the DPP.

This ground incorporates an answer given by the defendant Gordon. It followed upon an express disclaimer of recollection namely: "I don't remember now the details of the conversations that I had with Mr Lloyd, Mr Bannon, Mr Trembath or anyone from the DPP" (T 1705).

Against this background I do not think that the statement relied on by senior counsel for the defendants has cogency; (v) A decision was made by the defendant Gordon to record the interviews with Shakespeare.

It is correct to say that this was a feature favourable to the defendant Gordon. However it is clear from an examination of the transcripts of the questioning of Shakespeare that there were gaps from time to time and that on more than one occasion Shakespeare presented as having a resurgence of memory following such a break. Whilst no affirmative finding can be made in respect of this situation it does somewhat temper the force that this ground may otherwise have had; (vi) The questioning of the defendant Gordon both by senior counsel for the plaintiffs, and at times by the court extended over many days.

That is correct. But as events transpired the defendant Gordon and the defendant Hawley were the only defendants called in the case. The cross-examination of the defendant Gordon could therefore have been expected to be quite lengthy. The length of the cross-examination is not as important as its content and a deal of its content was less than convincing as described above and below. (vii) There were no verbal confessions or admissions alleged to have been made by the plaintiff.

This is true and like all the other matters raise both in the written and oral submissions concerning the evidence of the defendant Gordon it is a matter that I have taken into account in making my assessment of the denials by the defendant Gordon - and indeed all his evidence. 190 I regret to say, however, that I do not accept the denials by the defendant Gordon in relation to the visit to Upper Colo by Detectives Keys and Devine. That does not mean that the contrary proposition is thereby established, and I do not use my rejection of his denial in such a way, but I am satisfied on the balance of probabilities, and bearing in mind the seriousness of the conclusion, that Detectives Keys and Devine went out to Upper Colo on 29 July 1991 at the direction of the defendant Gordon and that they there attempted to convince Mrs Nye that she should not persist in proffering the alibi evidence which she had discussed on the telephone with Wayne Nye on 26 July 1991 and with the two detectives on 29 July 1991. In this regard I think it important to remember that although the alibi evidence was recorded in the Running Sheet of 29 July 1991, nothing was done to interview Wayne Nye or Debbie Nye nor, as I have held, Mrs and Mrs Laing until after the committal proceedings against the plaintiff had concluded. Furthermore the alibi material in the Running Sheet of 29 July 1991 does not appear to have been brought to the attention of the DPP. These matters, both individually and in combination, in my opinion, tend to show that the alibi evidence for the middle of the day for 20 May 1991 was unpalatable for the defendant Gordon and that he wanted to suppress it. It was destructive of his prime, indeed only real, witness against the plaintiff, namely the police informant Danny Shakespeare. This conclusion is consistent with the attitude revealed by the dismissive remark made by him to Mr Laing after he had taken his statement at the Lane Cove Police Station in late April 1992. 191 The finding that I have just made is one that was properly conceded by senior counsel for the defendants to be one that "would… go to malice". Such a concession accords with authority. 192 The conclusions at which I have arrived evidence malice on the part of the defendant Gordon, as a prosecutor, in instituting the prosecution and thereafter in taking part in its maintenance. When the events of 29 July 1991 are added to such evidence they reinforce the conclusion of malice in relation to the defendant Gordon. The events at Lane Cove Police Station in April 1992 confirm the conclusion that the defendant Gordon was actuated by an improper motive. I am satisfied in accordance with the civil onus, as understood in relation to a serious finding of the kind in question, that the defendant Gordon was actuated by malice in instigating and maintaining the prosecution of the plaintiff for the murder of Thurgar and for the drug conspiracies.

193 I find that the defendant Gordon maliciously and without reasonable and probable cause instigated and maintained prosecutions against the plaintiff for the murder of Thurgar and for conspiracies to supply cannabis resin. Whilst the foregoing findings have the effect of completing the elements of the tort of malicious prosecution against the defendant Gordon, it is still necessary to consider the situation of the DPP as another prosecutor.

C. The DPP 194 The DPP took over the prosecution of the plaintiff. It appears that this occurred on 25 July 1991 when the matter was first before the Local Court. On that occasion the representative of the Crown is noted as "DPP" and the officer of the DPP appearing in the matter is noted as "Trembath" (T 207; exhibit 4). The same officer is noted as appearing on behalf of the DPP on 29 November 1991 during the course of the committal proceedings. On that date he actually conducted the proceedings on behalf of the DPP and opposed an application for bail that was made on behalf of the plaintiff (exhibit AQ, vol 1, 29 November 1991, p 14). From these facts and those referred to hereafter in relation to Mr Trembath, it is, in my opinion, a fair inference that he was probably responsible for instructing counsel who appeared at the committal proceedings. 195 After the plaintiff had been arrested on 24 July 1991 a question arose as to whether or not there should be a grant of immunity from prosecution for the police informant Shakespeare. That question was referred to Mr Trembath. He prepared a report dated 6 August 1991 that was headed "Submission to the Director" (exhibit BJ). That document and a further report dated 28 May 1992 (exhibit BK) each contained a paragraph that was ruled by me not to be subject of legal professional privilege. That ruling was challenged by the defendants in the Court of Appeal but was upheld (Heydon and Hodgson JJA, 7 November 2002). Subsequently, the whole of the documents in which the paragraphs, the subject of the ruling by me and the decision of the Court of Appeal appeared, were tendered by the plaintiff without objection. However, orders were made that such documents not be released without further specific order and that their contents not be made public. I have revoked those orders (see para 99). 196 Mr Trembath's report of 6 August 1991 contains a recommendation that "an immunity be sought for Danny Shakespeare for any offences arising out of the THURGAR murder inquiry" (exhibit BJ).

197 In his submission to the Director Mr Trembath reports: "In this matter the evidence of Shakespeare is essential to the prosecution of HARLUM and NYE as principals in the THURGAR murder"; and:

"My pragmatic view is that without the evidence of Shakespeare we do not have a case against HARLUM and NYE for murder or against HARLUM, NYE and PEAK for the conspiracy charge. The only other independent evidence is vague, inconclusive identification evidence at the scene which is uncorroborated and of little value" (exhibit BJ). 198 I am satisfied that this report was submitted to the Director and that he acted on it. On 22 November 1991 the police informant Shakespeare was given an indemnity of the kind sought (exhibit 23). From Mr Trembath's submission to the defendant DPP it is apparent that prior to the date on which the hearing of the committal proceedings got underway, namely 25 November 1991, the defendant DPP was aware of the inherent weakness in the Crown case because of its dependence in essence on the uncorroborated evidence of an accomplice who had changed his story in critical respects on a number of occasions, and who was known to be unreliable and untruthful. It was a case that fell within the residual category of cases referred to in Trobridge v Hardy (supra), Mitchell v John Heine and Son Ltd (supra) and in Brown v Hawkes (supra) namely one in which absence of reasonable and probable cause may evidence malice. 199 By letter dated 4 May 1992 (exhibit 8) the solicitors for the plaintiff made application to the DPP requesting that no bill be found in respect of the murder charge and the charges of conspiracy to supply a prohibited drug that had been laid against the plaintiff. They submitted, in summary, that the case against the plaintiff stood or fell on the substantially uncorroborated evidence of an accomplice, namely the police informant Shakespeare. He, as they correctly submitted, was described at least twice by the Magistrate in the lower court as an "admitted liar", on another occasion as an "admitted con-man" and on yet another occasion as "a con-man". The evidence of Shakespeare, so the plaintiff's solicitors submitted, was not only substantially uncorroborated but it was marked by internal inconsistencies and contradictions and was contradicted by other lay Crown witnesses. 200 The No Bill request was received in the office of the DPP on 13 May 1992 and referred to Mr Trembath. He prepared a report dated 28 May 1992 (exhibit BK). In it Mr Trembath detailed the facts and said: "The Crown case rests on the evidence of the informant, Danny Shakespeare…".

He then referred to the alibi evidence under the heading "ALIBI - NYE". In that section of his report he adverts to the alibi evidence from Mrs Crombie, Mr Crombie and Ms Rockwell. Significantly no reference is made to any evidence from or statements by Wayne Nye, Debbie Nye, Mr Neil Laing or Mrs Laing. Had such documents been in the possession of the DPP it is inconceivable that they would not have been mentioned by Mr Trembath. As I have earlier said this supports the view that their statements were not in the original Crown brief or any supplementary Crown brief and that they were not in the possession of the DPP as at 13 May 1992 or up to the time Mr Trembath completed his report on 28 May 1992. In this context it is significant to note that in the report prepared by Mr Trembath in relation to the application for immunity made on behalf of the police informant Shakespeare there is no reference whatsoever to any alibi evidence. This points to the Running Sheet of 29 July 1991 not being in the possession of the DPP at that time i.e. 6 August 1991 and the absence of any reference to the contents of that Running Sheet in Mr Trembath's Submission to the Director in 1992 evidences that such Running Sheet was not then in the possession of the DPP.

Having examined the available evidence the report to the DPP then stated: "As the foregoing summary indicates the Crown case against Mr Nye is the weakest and there is no independent corroboration of Shakespeare linking Nye to either the murder or the drugs conspiracy. However, I would submit that it is inappropriate to isolate Shakespeare's evidence against Nye because it would further undermine Shakespeare's evidence against all four accused and cast doubt on what appears to be a strong case against Harlum for the murder and the drug conspiracy and against Pollock and Bronson for the drug conspiracy (Peak has already pleaded guilty to this conspiracy)." Mr Trembath's recommendation was "that the matter proceed to trial". 201 I am satisfied that Mr Trembath's report was received and adopted by the DPP and that its recommendation was acted on. This is clear from the following:

1. The report is headed "Submission to the Director". Undoubtedly the Director is the DPP and I infer from its form that it was a submission direct to him.
2. The letter from the Office of the Director of Public Prosecutions advised the solicitors for the plaintiff that "the Director of Public Prosecutions has directed the case against the above name proceed to trial". Furthermore that letter uses the terminology of Mr Trembath's report.
3. The letter from the Office of the Director of Public Prosecutions is dated 4 June 1992, a matter of days after the date Mr Trembath's report bears. 4. There is no evidence to indicate that any intermediate officer in the Office of the DPP altered the report or recommendation. Had evidence of such a kind been available one would have expected it to have been called. 202 Mr Trembath's report in relation to the plaintiff proceeds on the basis that the Crown case rested on the evidence of the police informant Shakespeare, that there was no independent corroboration of his evidence linking the plaintiff with the murder of Thurgar and that even the limited alibi evidence that appears to have been available to the DPP (described as "strong") at that time was "a significant obstacle for the Crown". The basis on which the recommendation to proceed against the plaintiff depends is that if the prosecution against him were not continued it would undermine the police informant Shakespeare even further and cast doubt on the cases against Harlum, Pollock and Bronson. What this means is that the plaintiff was to be sacrificed in order to bolster the cases against people other than the plaintiff. This is a motive which falls within the residual category referred to by Fullagar J and by Kitto J in Trobridge v Hardy (supra) and by Jordan CJ in Mitchell v John Heine and Son Ltd (supra). It is a motive that was recognised by Heydon JA in his judgment on appeal (7 November 2002, unreported) as affording "some grounds for the contention which the plaintiff advances" in relation to motive on the part of the DPP. It is an improper motive and is evidence of malice. I hasten to add that the present incumbent of the position of DPP was not the incumbent in 1991 or 1992. 203 There was a manifest inadequacy in the case for murder against the plaintiff. It amounted to a plain want of reasonable and probable cause for such a case. Whilst that evidences malice, it should not be viewed in isolation. It should be combined with the conclusions to which I have come concerning the actions of the DPP in adopting and acting on the memorandum of Mr Trembath of 28 May 1992, which includes the motivating factor referred to above. Whilst recognising the seriousness of a finding adverse to a public official such as the DPP in a matter such as the present, I am nonetheless satisfied in accordance with the requisite standard that the defendant DPP was actuated by malice, in the sense of an improper motive, in maintaining and furthering the prosecution of the plaintiff on a charge of having murdered Thurgar and in relation to the drug conspiracy charges. 204 In my opinion the elements of the tort of malicious prosecution have been made out against the defendant DPP and I so find. The liability of the DPP for malicious prosecution in the instant case is not removed because it was a Crown Prosecutor who presented the indictment against the plaintiff.

D. As to the defendant Popplewell 205 No evidence was directed specifically towards the position of the defendant Popplewell. His precise role in the investigation, other than as the investigator who was the second-in-charge, was not examined. He was certainly not the officer-in-charge of the investigation, nor was he shown to have so acted at any material time. He was not shown in the evidence to be a prosecutor. In these circumstances I am of opinion that the action for malicious prosecution against him must fail. 206 One question to which this conclusion is relevant is that of costs. However, as all defendants were represented by the same counsel and as the proceedings were not protracted as a result of the defendant Popplewell being joined in the proceedings I do not think that such question warrants any further examination I propose to dismiss the claim in malicious prosecution against him.

207 It is common ground that the initial arrest of the plaintiff was effected by a member of the State Protection Group by the name of Whittaker, but that within a matter of a few minutes the plaintiff came into the custody of Detectives Barnett and Hawley. They had been sent out by the defendant Gordon to arrest the plaintiff. They were responsible for his imprisonment and deprivation of liberty until he was charged with murder, conspiracies to supply cannabis resin, possession of cannabis and certain firearms offences shortly before 4pm on 24 July 1991. He was then refused bail by Sergeant Keir as authorised officer "due to the seriousness of the offences". These were noted as "murder, conspiracies to supply other drugs, other offences" (exhibit CB). It is clear from this that the significant charges in relation to the further detention of the plaintiff were the murder and the drug conspiracies. 208 The arrest of the plaintiff was effected on the orders of the officer-in-charge of the investigation, namely the defendant Gordon. He said so (T 1252). Furthermore in opening their case senior counsel for the defendants conceded in relation to the claim for wrongful arrest and false imprisonment that: "Mr Gordon must share responsibility for their (i.e. Barnett and Hawley's) conduct and he does not seek to shirk that responsibility" (T 1146; parenthesis added). 209 There is no evidence as to the state of mind or knowledge of officer Whittaker at and immediately prior to the time of the arrest. In any event he has not been sued for his part in the arrest of the plaintiff. 210 The defendant Popplewell is one of the defendants who has been sued for the wrongful arrest and false imprisonment of the plaintiff. However he did not take any part in the arrest of the plaintiff. He has not been shown to have given any orders concerning the arrest of the plaintiff or to have been otherwise involved in such arrest. In short there is no evidence on which the court could find adversely to the defendant Popplewell in respect of the claim of wrongful arrest and false imprisonment. Accordingly there will be a verdict and judgment in favour of the defendant Popplewell in respect of the plaintiff's claim for wrongful arrest and false imprisonment. 211 The defendant Barnett was the senior of the two detectives who kept the plaintiff detained at Upper Colo on 24 July 1991. He was a detective sergeant. The defendant Hawley was more junior than Barnett. He was a detective senior constable (T 1813). Both of them acted on the orders of the defendant Gordon in arresting the plaintiff. 212 The offences for which the defendants Barnett and Hawley were sent to arrest the plaintiff were the murder of Thurgar and the drug conspiracies relating to the 100 kilograms of hashish that Thurgar claimed to exist. Those offences were, as I have said previous on a number of occasions, virtually entirely dependant on the material provided to the police by their informant Shakespeare. The evidence establishes that Hawley and Barnett went out to Upper Colo to arrest the plaintiff. From the concessions made in the defendants' case it is clear that this was done in accordance with the orders given by the defendant Gordon. The defendant Hawley was asked: "Q. As at the time of arrest, the morning of 24 July I want to know what material - firstly I should ask you, what was your state of mind concerning the involvement, of any, of Mr Nye in the murder of the late Mr Thurgar? A. When are we talking about? Q. When the arrest was effected. A. Well in my mind he was involved in the murder" (T 1815).

Further questioning in chief revealed that he had read some of the statements and records of interview of Shakespeare and had not consciously missed anything in that regard. However he never interviewed Shakespeare (T 1816) and had been told by Gordon that there was "sufficient to go and arrest" the plaintiff (T 1818). 213 Although in some respects the defendant Hawley was a less than satisfactory witness I am prepared to accept his statement that he thought the plaintiff was involved in the murder of Thurgar. That view, combined with the limited material at his disposal, the orders by his superior and the background against which his superior said those orders were given, is enough in my opinion to bring the defendant Hawley within the protection of s 352(2) of the Crimes Act. Accordingly I am of opinion that there should be a verdict and judgment in favour of Hawley on the plaintiff's claim for wrongful arrest and false imprisonment. 214 The defendant Barnett did not give evidence. However an explanation for his non-attendance was given and that explanation was accepted by senior counsel for the plaintiff. In the course of addresses it was conceded on behalf of the plaintiff that the principles in Jones v Dunkel (supra) did not apply to the defendant Barnett. However the onus is on the person who seeks to rely on the protection of s 352(2) of the Crimes Act to bring him or herself within its ambit. There is no evidence before the court as to the state of mind of the defendant Barnett at the time he took over the imprisonment of the plaintiff at Upper Colo on 24 July 1991. There is no evidence as to his state of knowledge concerning the guilt or otherwise of the plaintiff or of any suspicions that the had in that regard. In addition there is no evidence as to the material of which he was aware and on which he could found any suspicion in relation to the guilt of the plaintiff, even if he had such suspicion. All that is really known is that he was sent out by the defendant Gordon to effect the arrest of the plaintiff. This is not enough to bring him within the protection of s 352(2) of the Crimes Act. Accordingly there will be a verdict and judgment against the defendant Barnett in respect of the claim by the plaintiff for false imprisonment. 215 The defendant Gordon ordered the arrest of the plaintiff. I do not accept that at the time he did so that he suspected with reasonable cause that the plaintiff had committed the murder or the drug conspiracies for which he was arrested. In my opinion, whilst he may have had a suspicion that the plaintiff may have committed such offences, he did not suspect that he had in fact committed any such offences. 216 The exculpatory words in s 352(2) of the Crimes Act require the constable who apprehends a citizen without warrant to suspect such citizen of "having committed" a relevant offence. It is not sufficient for the purposes of s 352(2) for the constable, even with reasonable cause, to suspect that the citizen who is arrested "may have committed" a relevant offence. The section is concerned with suspicion as to a fact, not a possibility. 217 An additional factor operating adversely to the defendant Gordon in respect of the arrest and initial detention of the plaintiff is that I am not satisfied that the material available to him immediately prior to the time of he plaintiff's arrest provided "reasonable cause" within the meaning of s 352(2). By that time he was well aware of the utter unreliability of Shakespeare, the absence of any corroboration in relation to major parts of even Shakespeare's ultimate story and the absence of any link between the murder of Thurgar and the plaintiff, other than the assertion by Shakespeare. 218 In the light of the foregoing findings, the concession referred to in paragraph 31 and the fact that the defendants Hawley and Barnett acted on his orders in effecting the arrest of the plaintiff I am of opinion that the plaintiff has made good his claim for wrongful arrest and false imprisonment against the defendant Gordon. There will be a verdict and judgment against the defendant Gordon on the plaintiff's claim for wrongful arrest and false imprisonment.

Credit of the defendant Gordon and certain other witnesses 219 The credit of a number of the witnesses has been referred to already in several sections of this judgment. However it is appropriate in my opinion, that I should indicate some additional reasons why I formed the views that I have expressed above in relation to the credit of such witnesses. 220 The credit of the defendant Gordon is a matter of significance in the present case. He said that he believed in the guilt of the plaintiff. If such belief existed it would be a critical matter in relation to the requirement that the plaintiff prove malice and would be relevant on the issue of reasonable and probable cause. It would also be relevant to the plaintiff's claim based on wrongful arrest and false imprisonment. 221 The defendant Gordon gave evidence over the course of a number of days. He was a police officer of longstanding. His field of work was such as to fit him to evaluate evidentiary material and to give evidence in court. In his evidence in chief he was asked questions concerning his consciousness of discrepancies on the part of Shakespeare. He was shown exhibit AE (a bundle of documents concerning the movements of the vessel Rakiah). He was then asked by senior counsel for the defendants the following: "Q. Mr Gordon, would you just flick through some of the documents in that divider until you are able to answer this question. Did you, during the course of the current proceedings, receive for your perusal a bundle of documents concerning the movement of the Rakiah? A. I did receive a number of documents relating the vessel Rakiah. Q. Perhaps I can only ask you, some of which are something like the ones you are looking at? A. Yes. Q. My first question is this. Are you conscious of the fact that there is serious discrepancies between the apparent movements of the Rakiah referred to in the documents you saw as against the various accounts which Shakespeare gave police concerning a vessel, a man Bronson, and the movements of drugs? A. Yes I am. Q. And were you conscious of discrepancies of that sort during the course of the investigation? A. Yes, best of my memory I was. Q. And did that cast doubt on Shakespeare's credibility in those respects ? A. Yes" (T 1222). (Italics added) The limitation contained in the question caused me to ask: "Q. When you say 'in those respects' you mean but not beyond? A. Yes, correct, sir. Q. Why is that? A. There was core elements of other information he had provided that we were checking out. There was the issues of the listening devices that we had in place and I was of the opinion that core elements of what he had to say were credible. Q. And when you went up to Brisbane and spoke to the people about the storage, did you ascertain when the storage units had been erected? A. From memory, yes. Q. And did that confirm that they had not been erected at the time Shakespeare said he had stored 100 kilograms of cannabis resin in them? A. From my memory I think they were under construction. Q. That means they hadn't been constructed? A. Yes sir. Q. That means he couldn't have stored it there? A. Yes. Q. Well, what did that do in relation to your view about his credibility, if anything? A. Yes there was a view of the discrediting in that regard. Q. So you had that and you had the vessel. A. Yes. Q. Anything else, in that regard?" (T 1222-1223).

Before the defendant Gordon could answer this question senior counsel for the defendants suggested to him: "Q. You're conscious now, aren't you that there were difficulties in his account or perhaps his accounts as to the bags that the cannabis resin was said to be in? A. Yes. Q. And you were conscious of those difficulties at the time? A. Yes, I was. Q. And those difficulties were not, at the end of the day, satisfactorily resolved, were they? A. No" (T 1223).

He was then asked: Q. Well, these are three areas in which there were difficulties? A. Yes."

I then asked: "Q. Were there others? A. There were discrepancies with the version of accounts he provided us with. Q. Anything else? A. Nothing that jumps into my mind at the present time."

The discrepancies to which reference was made were later confirmed by the defendant Gordon as matters of which he was aware before the arrest of the plaintiff (T 1237).

222 In my opinion the foregoing sequence of questions reflects adversely on the credit of the defendant Gordon. Within a few questions he moved from having doubts in relation to Shakespeare's credibility only in respect of the movements of the vessel Rakiah, to having doubts about his credibility in relation to the storage of the hashish, to having doubts about the case or bags in which Shakespeare said he carried the hashish, to still further doubts arising out of discrepancies concerning other significant matters in Shakespeare's various versions of events. This would not have emerged but for concern about the limited nature of the question and answer first asked of the witness in respect of his doubts about Shakespeare's credibility. 223 In the course of his cross-examination of the defendant Gordon, senior counsel for the plaintiff returned to the issue of the core elements on which the defendant Gordon claimed his belief in the guilt of the plaintiff rested. They were said by the defendant Gordon to be "the information provided by Shakespeare in his assertions of his movements. The telephone intercepts was the other core element that I referred to" (T 1238). He was then asked: "Q. Neither of those areas of information, the telephone intercepts or the other listening devices, nor the movements of Shakespeare gave you any information about Mr Nye did it? A. The assertions by Shakespeare did, yes. Q. In what way did they assist you or give you information about Mr Nye? A. On 20 May in particular where Shakespeare suggested that he was in the company of Mr Nye and Mr Harlum, and of the actual incident surrounding the death of Mr Thurgar, the shooting" (T 1238).

However after some further questioning it emerged "that it all came back to the information supplied by Shakespeare" (T 1239). Then a few questions later Gordon added to this: "The issue concerning the telephone conversation between Mr Nye at the car yard certainly, in my opinion, lent weight to the core issues with Shakespeare as to his involvement with the death of Mr Thurgar."

That telephone call was said by the defendant Gordon to have "lent a great deal of suspicion to me" (T 1239). When pressed on this he said that this call was corroboration of Shakespeare, his reasoning being as follows: "In my opinion the corroboration connecting Mr Nye was connected with other movements of Shakespeare and the assertions of where he had been. The fact that he said he was in company with the plaintiff on the 20th May. In July the phone call. Those issues, in my view, lent weight to the corroboration of the version put forward by Shakespeare" (T 1240),

This was a curious, and, in my opinion, unconvincing answer. The statements by Shakespeare as to where he had been could relate either to his movements on the trip to Queensland in February 1991 or to his movements on the day of the shooting of Thurgar. From the discussion above it is clear that the movements of Shakespeare on the trip to Queensland were the subject of manifest discrepancies. In addition they did not corroborate the existence of the 100 kilograms of hashish; nor did they involve the plaintiff in the purpose of such trip. If the movements of Shakespeare were intended to relate to the day of the murder, then by 29 July 1991, and probably some days earlier, the defendant Gordon was aware of an alibi that had every appearance of negating Shakespeare's statements concerning the movements of the plaintiff on the day of the murder and thereby further undermining his credibility. 224 The reliance on Shakespeare emerged again and again as the constant in the core elements on which the defendant Gordon said he relied to support his belief in the guilt of he plaintiff. Those core elements were said to be based on "the general information provided by Shakespeare connected to this plaintiff and Mr Harlum" (T 1242). This is in my opinion general to the extent of being vague, but brings the situation back to there being dependence by Gordon on Shakespeare. In the light of this situation senior counsel for the plaintiff asked: "Q. So rather than just say everything that he told us was credible, can you tell me what you say were the core elements you had an opinion on were credible? A. The telephone intercepts (T 1444)."

To this he later added that: "I had a belief that he told us he was in company with the plaintiff and Mr Nye (sic) when they shot and killed Mr Thurgar" (T 1245).

This was defined as meaning that he, the defendant Gordon "took as a fact that Shakespeare was present with Nye and Harlum at the time the murder was committed". Furthermore he said he believed in the reason asserted by Shakespeare for the killing at all times namely: "A. During the course of the investigation. Q. Up to and including the time of the arrest? A. Yes. Q. and including the time that continued on thereafter until the committal commenced? A. Yes. Q. And thereafter after the committal right through it the time of trial? A. Yes" (T 1245).

This last answer is just not credible. By that time the cross-examination of Shakespeare at the committal proceedings had made even more obvious what had been obvious before, namely that Shakespeare was an inveterate liar. In addition the alibi evidence from Mr and Mrs Crombie was known and had been made available to the DPP before the conclusion of the committal proceedings. Furthermore, the alibi material that was available from Mr and Mrs Laing and Wayne and Debbie Nye was known to the defendant Gordon, even though the running sheet dated 29 July 1991 does not appear to have been made available to the DPP. 225 In my opinion, the above sequence of questions reflects badly on the credit of the defendant Gordon. 226 The defendant Gordon was also asked about his belief in the existence of the 100 kilograms of hashish. He said he believed that it existed (T 1246). His belief in this regard was said to be based entirely on "the assertions made by Shakespeare" (T 1247). He was then asked whether he believed that the hashish had been brought by Shakespeare from Queensland down to Sydney. His answer appeared to me to be an evasion. It was " there was no evidence of that". When he was then pressed on his belief in relation to that, he said he did not believe it (T 1246). Furthermore he said that the did not believe that it was a fact that Shakespeare had stored the 100 kilograms of hashish in the storage units that he designated in the Gold Coast (T 1246). All of this further undermined the credibility of Shakespeare and clearly had done so in the mind of the defendant Gordon, notwithstanding more limited respects in which he had earlier said he had reservations about Shakespeare's assertions. 227 The belief by the defendant Gordon in the existence of the drugs underwent quite a change over the course of a short period of questioning. Thus he said that he thought that "a hundred kilos of hash actually existed" (T 1246). He then said that he thought "that the drugs may have existed" (italics added) (T 1248); then that their existence was a possibility (T 1248); then he finally returned to their existence being "higher than a possibility" (T 1248) to a belief "that they existed" (T 1248). His reasoning was curious, as emerges from the following questions and answers: "A. …I had an opinion at the time that the drugs may have existed and been secreted elsewhere. Q. What lead you to the opinion that the drugs, as you say, may have existed and were secreted elsewhere? A. Largely the character of Shakespeare. Q. What, because he is telling you what you believe is a lie about the drugs, you believed that there were drugs somewhere else? A. I thought that was a possibility, yes. Q. A possibility? A. Yes" (T 1248).

However the defendant Gordon, in my opinion, realising what he had said and the adverse effect that it could have on his case, quickly recovered when senior counsel for the plaintiff incautiously asked a further question: "Q. Not more than a possibility? Just a possibility? A. I consider it higher than a possibility. I believed they existed" (T 1248).

The foregoing was a sequence of which I took particular note because of the demeanour of the witness at that time in the cross-examination. I was of opinion that it was detrimental to the credibility of the defendant Gordon. Furthermore for a police officer of the experience of the defendant Gordon to repose belief of such a kind in Shakespeare in the circumstances of so many changes of story, inconsistencies, discrepancies and recantations belies belief. I think the truth is that he wanted to believe Shakespeare but did not. 228 There are a number of other instances in which passages in the transcript reflected badly on the credibility of the defendant Gordon. I will give two further examples, over and above those given above and elsewhere in this judgment and over and above the fact that it was necessary on more than one occasion to draw to the defendant Gordon's attention that he was giving the appearance of forcing evidence on the questioner (see, for example T 1237). The first involves the contrast between an answer he gave on 29 April 2003 disavowing his belief that the 100 kilograms of hashish had been brought by Shakespeare from Queensland to Sydney (T 1246), and his recantation of this the next day when he said that he believed Shakespeare when he said that he had brought the drugs to Sydney (T 1294). That arose in the following questions: "Q. We know that you did not believe that any hash was brought down to Sydney in the way that Shakespeare alleged? A. If I could clarify that point, he did make mention that he got a taxi from the country area and delivered the hash to Thurgar? Q. That is the way he alleged it? A. Yes. That is what he alleged. Q. You didn't believe that did you? A. Yes. I accepted that part of it" (T 1294). 229 The answer that the had given on the previous day (T 1246) was then drawn to his attention and he was asked: "… Now you want to withdraw what you said yesterday about that? A. Yes. Q. Alright what has lead you to change your evidence from yesterday? A. I have researched statements and transcripts last night and tried to cast my mind back to the events of the state of the assertions made by Shakespeare. They are the reasons why I accept that the drugs were conveyed to Sydney by Shakespeare. Q. Right, in the taxi? A. As I said yesterday there is no evidence to suggest that they were brought down in a taxi, but I accepted that he brought the drugs back to Sydney in some form. Q. But you were asked whether you believed that they were brought back in a taxi as Shakespeare asserted to you. That is the question; would you kindly answer that question? A. Yes. Q. You did believe that. A. Yes" (T 1294-1295). 230 A number of things should be noted in respect of this sequence of questioning. First there is an unequivocal change in the evidence. Second the defendant Gordon did not mention a taxi as the means by which Shakespeare conveyed the drugs to Sydney. Third, the answers contain what I viewed as attempts at evasion. Thus for example the "taxi" postulated in the earlier part of the questioning becomes "in some form" a little later, but when specificity was insisted on, he returned to the "taxi". Fourth, the assertion by Shakespeare was that he brought the drugs to Sydney in a taxi in which he, Shiralee Dadd and her son were passengers. However, well before the arrest of the plaintiff that version had been recanted by Shakespeare. Furthermore, police checks amongst the pool of taxi drivers in Tamworth did not reveal that a second taxi made a journey from Tamworth to Sydney, at the relevant time, either with a person answering to Shakespeare's description, or at all. Finally, Shakespeare did not assert to the police in the recorded interviews that he had come to Sydney with the drugs in a taxi, other than that in which he said that Shiralee Dadd and her son were passengers with him. That was, of course, a lie - as Shakespeare's recantation clearly showed. 231 In my opinion the questioning on the above topic indicates that the defendant Gordon is not a reliable witness and I am satisfied that he is not. A matter that which is confirmatory of my conclusion in relation to the credibility of the defendant Gordon is a sequence of questioning concerning an aspect of one of Shakespeare's various versions of events as given to the police: "Q. Then 'We then went to a park, we then went back to the car and I left, and I didn't know anything about what had actually happened until the next day'. Did you believe any of that as at the time of the arrest? A. No, that version changed as time went on. Q. That version changed. Indeed later he told you that he did not leave the car at the time alleged here, that is so, isn't it? A. Yes, that is my recollection. Q. So what you learned from Shakespeare was a deliberate lie? A. I don't know if I would say a deliberate lie. Q. Well what sort of a lie is it if not deliberate? A. Well he gave - with the discrepancies that were in his statements, he gave us the explanation that he did not trust us in the first instance, to account for the variations in his accounts. Q. So he did not tell the truth because of that? A. Yes. Q. So that is why he told a lie, that is what he was explaining to you, wasn't it? A. Yes. Q. That is what Mr Donovan is asking you about, and from what you told me now there was a deliberate decision made on his part because he did not trust you? A. Yes. Q. So he did tell a deliberate lie in that regard? A. Yes sir (T 1306)."

The plain fact was that Shakespeare had told a lie and that he had done so intentionally albeit that he claimed to have a reason for so doing. It was, on any view, a deliberate lie. This was ultimately conceded by the defendant Gordon but only after he had hedged. His approach in this instance to the giving of evidence was not atypical. The instance quoted above was such as to reflect unfavourably on his credit; but it was not a lone instance. 232 There are a number of other matters to which reference could be made over and above the demeanour of the witness, but the foregoing suffice, in my opinion, to indicate why it is that I do not accept his denials in a number of instances. I thought he was not an impressive witness. 233 Whilst on the question of credibility I should indicate my conclusions in relation to the plaintiff, his wife, Acting Inspector Keys and Mr (formerly detective) Hawley. 234 The plaintiff is a man who had a troubled childhood. His mother and his natural father separated at what appears to have been an early stage in his life. He had trouble at school. He thought he had been to 14 schools but said that his brother had told him that it was in fact 22. He left school when he was fourteen years and ten months, at a time when his mother was terminally ill with cancer. He presented as a man who was not well educated and lacked verbal skills. At 15 he was put into a boys home as an uncontrollable child. He remained there for 16 months, but was in a lot of trouble while he was there. His work pattern was intermittent. He had a number of offences for which he was dealt with in the Children's Court. Thereafter he was charged with a number of offences, for many of which he was acquitted. He underwent outpatient treatment from a psychiatric hospital. His criminal history reached its zenith when he was convicted of robbery in company and breaking, entering and stealing in August 1972. He was sentenced to 10 years hard labour in respect of the robbery in company, such sentence to date from 15 May 1972. He received a concurrent sentence of three years for the breaking, entering and stealing, with a non-parole period of four years that was accompanied by a recommendation that his sentences be served on a prison farm or in a training centre. On appeal, the non-parole period was reduced to two years and six months. Apparently he did not go to, or remain in, a prison farm or training centre, for in 1974 he was charged with riotous assembly as a result of his involvement in the Bathurst gaol riots of that time. For this he received an additional sentence of imprisonment for two years and six months that was to terminate on 3 December 1978. His criminal history thereafter includes a conviction for the possession of cannabis, administering such drug to himself and having in his possession utensils for that purpose. He was fined $150 on each charge (exhibit A). 235 The plaintiff presented as a quietly spoken man, somewhat cowed. His evidence is not essentially in conflict with that of others in relation to the issues in the present case. He was somewhat vague in relation to the sequencing of his employment history following his release from gaol in 1978. However, it is reasonably clear that, over the course of the years between his release from gaol and his arrest on 24 July 1991, his employment was not continuous and in more recent years his source of income appears to have been the selling in his locality of cannabis, mainly cannabis leaf. This activity was confirmed by the finding of a quantity of cannabis leaf that was hidden in a bucket that had been buried in the back yard of the premises at Upper Colo. 236 I thought that the plaintiff tried to give honest evidence. He did not exaggerate. He did not equivocate. He made concessions adverse to his interests, in some instances unnecessarily so. On the whole I found him a credible witness but somewhat vague, particularly in relation to the details of his employment history over the years. 237 Mrs Nye impressed me as a witness. She first met the plaintiff after he had come out of gaol, that is in or about 1978. The relationship developed and in 1979 she commenced living with the plaintiff and began using the surname Nye. Her evidence concerning the plaintiff's employment was more sequential and clear than that given by the plaintiff. The account that she gave of events at Upper Colo on 24 July 1991 was not denied in essential respects by the witnesses called in the defendants' case. She did not appear to overstate the situation at the time of her arrest or subsequently nor did she attempt to force evidence in the course of cross-examination. Her evidence concerning the circumstances in which she pieced together, in her own mind, where it was that the plaintiff had been on the day of the murder, had a real ring of authenticity about it. Her complaint about what appears to have been the loss of certain property, including a sum of money and a jacket, during, or in consequence of, the search of her home by police and confiscation of material by them on 24 July 1991 was borne out by contemporaneous records from a number of police sources. However her complaint about the behaviour of detectives Keys and Devine on 29 July 1991 was not made known to the police at that time. This is a major matter as a result of which her credibility was called into question. 238 She readily conceded that the three statements that she made by way of complaint to the police (exhibits O, P and Q) did not contain anything "as to the topic of any offer made… by Devine or Keys" on 29 July 1991 (T 405). The first of such statements was dated 25 July 1991. It covered events and items that had gone missing and damage that had been done on 24 July 1991, but it did not extend to matters beyond that date. The second such statement (exhibit P) was made on 2 October 1991. In it Mrs Nye dealt with two things; first she amended the period that two of her children had been left in the cold; second, she amplified the property that was missing or had been damaged. This statement did not extend beyond events on 24 July 1991. The third such statement (exhibit Q) was dated 31 December 1991 and again related only to events on 24 July 1991. However, in it she did make complaint about her treatment on the day of her arrest by detectives Keys and Devine both as to events at the scene of the arrest and as to events relating to her questioning by those two detectives at the Police Station. She alleged that she was threatened. 239 It was an important aspect of the cross-examination of Mrs Nye that she did not make any reference to the events of 29 July 1991 in her statements. This was advanced as adverse to her credit. Her explanation for not bringing this matter forward, even by 31 December 1991, was: "A. Because at that stage my trust in the police force had faltered a little and the information regarding Ros Keys and Peter Devine I only divulged to the ICAC and to the Ombudsman and to Bob Carr and Paul Gibson. Q. Why did you withhold that particular aspect of your unhappiness with the police? A. Why did I do it? Like I told you, because, I was scared. I didn't trust the police force. I was scared for my life" (T 404).

There were overtones in the conduct of the case which, although never proved and on which it would not be possible to do other than speculate at most, did suggest that there was concern in some quarters, including persons associated with the plaintiff and Mrs Nye, that the murder of Thurgar had been orchestrated by corrupt police. In this regard it should be remembered that the events at the heart of the present case occurred before the establishment of the Royal Commission into the New South Wales Police Service that was conducted by the now Chief Judge of the Common Law Division of this court, Justice JRT Wood. In the circumstances I do not think that Mrs Nye's reason can be dismissed as fanciful. Indeed I accept that she was scared for her life, even though her fear in that regard may have been without foundation. As a consequence I do not regard her credit as having been diminished by the non-inclusion of the material about detectives Keys and Devine in the statements that became O, P and Q. 240 The other major attacks on the credit of Mrs Nye were: (i) that in her early twenties she was dealt with "for certain criminal offences" and that at the time she was "addicted to a narcotic drug" (T 415); and (ii) that more recently she had been addicted to an anxiolytic known as Serepax and that as at 24 and 29 July 1991 she was taking this drug in "very high quantities". Against this background she was asked: "Q. Putting this as gently as I can, do you think that it is possible that that may have had an effect upon your capacity to recollect matters, Mrs Nye? A. I don't think it has interfered with my recollection with the events, no. Q. You hesitated before you answered that question. In fairness, it may have had some effect upon your powers of recollection? A. It may have" (T 417). 241 The matter raised in relation to her previous convictions was so lacking in specificity as to be of no real assistance in relation to Mrs Nye's credibility. Its only relevance may have been that she was addicted to Serepax at that time and that her addiction gave rise to aberrant behaviour. She was frank and open about her past and I do not think that this attack on her credit diminished it. 242 The attack on her credit raised by reference to her addiction to Serepax as at late July 1991 calls for careful consideration. As emerged in the course of her questioning she was at that time taking about 30 tablets per day. These, she said, were prescribed at the rate of 100 tablets every three days by her doctor. It was not suggested in cross-examination, either directly or indirectly, that this was untrue. Furthermore there was nothing in the evidence from Acting Inspector Keys to suggest anything in the behaviour of Mrs Nye on 24 July 1991 that indicated that she was affected by any drugs. The same is true in respect of 29 July 1991. Indeed on that day the greeting extended by Mrs Nye to the two detectives was quite excited and vociferous - not the sort of behaviour to be expected of a person who was affected by anxiolytics. In addition it is relevant to note that whatever may have been Mrs Nye's level of ingestion of Serepax in 1991, she was able to hold down a job that, on the material before the court, appears to have been reasonably demanding. Finally I thought that the frank concession in her response to the last question (above) asked by senior counsel for the defendants, indicated that she was making an honest endeavour to give her evidence truthfully. 243 Having considered the principal challenges to her credibility, observed her demeanour, analysed what she said in relation to the visit to her on 29 July 1991, the absence of countervailing evidence I am satisfied that Mrs Nye, was in essential respects, a witness of truth and I accept her as such. 244 Acting Inspector Keys was, at the time she gave her evidence in the present case, an experienced officer who held relatively high rank. I have already referred to her attitude and demeanour and to a number of matters that were adverse to her credit in an earlier section of this judgment. There is, however, an additional matter to which reference should be made. It will be recalled that although a tape recorder was taken to Upper Colo on 29 July 1991 it was not used. There is no entry in the Duty Book of detective Keys as to the content of the interview that was conducted with Mrs Nye on 29 July 1991 and no contemporaneous notes produced in relation to that interview. Mrs Nye said that no notes were taken. Detective Keys said that except for going out the Upper Colo she was only able to recall "being abused and then my memory (is) from my Duty Book and Running Sheets" (T 1760). When she was pressed about not having recorded the interview in her Duty Book she said "I might not record it in my Duty Book" (T 1761). When later she was asked about the typing up of the Running Sheet dated 29 July 1991 and whether it wads typed up from notes the following occurred: "Q. Did you ever go and visit a witness involved in the murder investigation and not take notes? A. Unlikely. I would assume, again, I can't recall writing it down but I would assume it would have been in a shorthand notebook, but I can't recall. Q. Did you take shorthand. A. No. Q. You mean you recorded - - A. I mean a shorthand notebook, sorry" (T 1795).

No such notebook was produced. Furthermore, why there would be a shorthand notebook as well as a Duty Book is unexplained. These considerations suggest that no notebook existed. I am satisfied that it did not, as the evidence of Mrs Nye establishes. 245 The foregoing matters, including those referred to an earlier section of this judgment, cause me not to accept the evidence of Acting Inspector Keys in relation to the visit to Upper Colo on 29 July 1991, where that evidence is in conflict with the evidence of Mrs Nye. As I have indicated above, I prefer the evidence of Mrs Nye.

Conclusion in relation to Liability 246 The conclusion that the tort of malicious prosecution has been made out against the defendant Gordon and the DPP carries with it, by concession, the consequence that the State of New South Wales is vicariously liable both for the malicious prosecution and the damages payable as a consequence. The conclusion that the defendant Gordon and the defendant Barnett are liable to the plaintiff for wrongful arrest and false imprisonment carries with it a like consequence for the State of New South Wales, again by concession. In these circumstances it is necessary to consider the question of damages.

Damages 247 The damages that may be awarded in respect of the torts of malicious prosecution and wrongful arrest and false imprisonment may include:

As the name implies compensatory damages are intended to provide for any financial losses including loss of earnings both actual and potential future losses of such a kind, and are apt to include a money value for physical hurt, curtailment of liberty, injury to reputation (if appropriate) and any inconvenience or disturbance of the life of the plaintiff ( Broome v Cassell & Co (1972) AC 1027 at 1073 per Lord Hailsham LC; at 1124 per Lord Diplock. 248 Aggravated damages are also compensatory in nature. They may be awarded for injury to the plaintiff's feelings caused by the insult, humiliation and the like involved in the relevant wrongdoing. (Lamb v Cotongo (1987) 164 CLR 1 at 8 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ). Aggravated damages as compensation for the injured feelings of the plaintiff may be awarded where his sense of injury resulting from the wrong done to him "is justifiably heightened by the manner in which or the motive for which the defendant(s) did it." Broome v Cassel & Co (supra at 1124 per Lord Diplock). A like view was expressed by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission (1998) 196 CLR 1 at 4, para 6, when they quoted with approval a passage from Windeyer J in Uren v John Fairfax Pty Ltd (1966) 117 CLR 118 at 149. 249 It has been held in this regard that the plaintiff's damages may be aggravated when defendants have not expressed regret for the wrongs done (Walter v Alltools (1944) 61 TLR 39 at 40. Furthermore, where a defendant pleads that the imprisonment or prosecution of the plaintiff was justified, regard may be had to that fact in the context of aggravated damages (Warwick v Foulkes (1844) 12 M & W 506 at 508-509 per Lord Abinger CB. Thus, if police behave in a high handed or unpleasant way then a greater award of aggravated damages can be appropriate. The defendant's conduct is relevant to aggravated damages only in so far as it effects the plaintiff's feelings (Flemming, The Law of Torts, 9th ed, 274). 250 In assessing the quantum of aggravated damages all the circumstances of the particular case must be taken into account. Thus, where aggravated damages are claimed on the basis of injury to reputation, the reputation of the plaintiff as it existed prior to the wrong or wrongs in respect of which such damages are claimed was or were committed, must be taken into account (Clayton & Tomlinson, Civil Actions Against the Police, 1992 at 388 to 389). No claim for injury to the reputation of the plaintiff is made in the present case. In the light of the plaintiff's criminal history this is understandable. However, as will be seen below the fact that he had been in prison on a charge of murder has had an adverse effect on his employment prospects. 251 Exemplary damages are to be distinguished from compensatory and aggravated damages. Although the distinction has been criticised by some text writers it has been repeatedly accepted by the High Court and the existence of exemplary damages as a separate head of damage has been clearly affirmed. Furthermore, the restrictions imposed by the House of Lords in relation to exemplary damages in Rooks v Barnard (1964) AC 1129 have been rejected in Australia (Uren v John Fairfax & Sons Pty Limited (supra); Lamb v Cotongo (supra); Gray v Motor Accident Commission (supra). 252 The law of Australia is that, in contrast to aggravated damages: "Exemplary damages … go beyond compensation and are awarded 'as a punishment to the guilty, to deter from any such proceeding for the future and as a proof of detestation of the jury to the action itself': Wilkes v Wood … in some cases it may be difficult to differentiate between aggravated damages and exemplary damages … Mayne & McGregor on Damages, 12th ed p 196 contains an off-sited description of exemplary damages: 'Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights.' The punitive aspect of exemplary damages was emphasised by Brennan J in XL Petroleum (NSW) Pty LTD v Caltex Oil (Australia) Pty Ltd where he said: 'As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs CJ saying: "I wish to know, in a case, where a man disregards every principle which actuates the conduct of gentleman, what is to restrain him except large damages?" The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co (supra at 1130), "to teach a wrong doer that tort does not pay" ' ".

and: "The object, or at least the effect, is not wholly punishment and the deterrence which is intended extends beyond the actual wrong doer and the exact nature of his wrong doing … so far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like-minded persons, but it also extends to conduct of the same reprehensible kind" Lamb v Cotongo (supra at 8-10). 253 In Gray v Motor Accident Commission (supra at 4 para 6), the objects of punishment to be effected by exemplary damages were accepted to include "moral retribution or deterrence". 254 The plaintiff is entitled to whatever compensatory damages may properly be awarded (including, if appropriate, aggravated damages) (Gray v Motor Accident Commission (supra at 7, para 15, per Gleeson CJ, McHugh, Gummow and Hayne JJ) and, if appropriate, to exemplary damages notwithstanding that any award may be covered by insurance, whether compulsory or voluntary (Lamb v Cotongo (supra) and in my opinion the same reasoning applies even though the award of damages may be the subject of an indemnity from the State. 255 In Gray v Motor Accident Commission the High Court said that: "Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. Something more must be found. Although they are awarded rarely they have been awarded in very different kinds of cases."(supra at 6, para 12)

Such cases include wrongful arrest and false imprisonment and malicious prosecution. 256 Where exemplary damages are awarded they are paid in addition to compensatory damages and in that sense will be a windfall in the hands of the plaintiff to whom the wrong has been done. In Gray v Motor Accident Commission the High Court said in relation to the quantification of such damages that: "Because exemplary damages are awarded to punish, it is not surprising that their quantification should be treated as a matter for the discretion of the tribunal assessing damages. And for so many years that was the task for the jury, not the judge. Yet there is little to be found in the cases which would identify the proper instructions to a jury for performing this part of its function. Rather, it seems to be treated in a way not very different from what is called the jury's 'constitutional right' to return a verdict of manslaughter notwithstanding proof of the elements of murder. That is, it is treated as if it is a power of the jury that is not to be hedged about by any more precise criterion than the jury's intuitive conclusion that the defendant's conduct was sufficiently reprehensible to warrant punishment. Yet it is clear that there are thought to be limits on the power." (supra at 10, para 26)

The limits on the power were not expressly defined by the High Court but factors that must be taken into account were adverted to as the following passage indicates: "No doubt the conduct of the wrong doer is central to (the) enquiry: for exemplary damages are concerned to punish the wrong doer and to deter others from like conduct, not to compensate the party that was wronged but there are other factors that must be considered." (supra at 12, para 31)

Those thereafter referred to by the High Court are not material to the present case but a number of those referred to antecedently are. 257 In Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298 Heydon JA adopting as "entirely correct" (at 346 para 256) the observations of the trial judge in that case in relation to exemplary damages said: "If exemplary damages are to fulfil their threefold purpose, they must not merely irritate, they must sting. It is the gravity and character of the defendants' conduct which guides the court's discretion as to the proper amount to award by way of exemplary damages. That is why there is 'no necessary proportionality' between the amount awarded as compensation for the damage suffered by the plaintiff and the amount of exemplary damages against the defendant … a minimal amount of damage inflicted on a plaintiff may, if the wrong doing was outrageous, nevertheless require heavy exemplary damages to be visited on the defendant." (supra at 245 para 254)

This view was adopted in the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (No. 2) [2003] NSWCA 186, 9 July 2003, unreported at paras 23 and 24. 258 Because the types of cases in which exemplary damages may be awarded are varied it would seem that there is no "single formula that adequately describes the boundaries of the field in which they may be awarded." A formulation as adopted by Knox CJ in Whitfeld v De Laurent & Co Ltd (1920) 29 CLR 71 at 77 was referred to with approval by the High Court, namely, "conscious wrong doing in contumelious disregard of another's rights". (Gray v Motor Accident Commission supra at 7, para 14). A formulation along such lines accords in general terms with other formulations by the High Court (supra) and is appropriate to apply in the instant case.

Damages claimed by the plaintiff 259 The plaintiff has claimed compensatory damages, aggravated damages and exemplary damages.

A. Compensatory and Aggravated Damages 260 The compensatory damages that are claimed in the Statement of Claim are for: (i) economic loss incurred during the time that the plaintiff was held in prison and in respect of the period to date and indefinitely thereafter; (ii) legal costs; (iii) damage and loss occasioned to personal property in the course of "the police raid" on 24 July 1991. 261 No evidence has been led concerning the claims that fall within headings (ii) and (iii) in the preceding paragraph. As a consequence no award can be made in respect of these heads of claim. 262 In the written submissions and oral address of the plaintiff damages for pain and suffering and general damages were claimed in addition to lost earning capacity and future economic loss. As regards the claim made for loss of earnings or earning capacity under heading (i) above, the evidence of the plaintiff concerning his working history was vague. However Mrs Nye gave evidence, which I accept, that after the plaintiff's release from gaol in about 1979 he worked: (i) for a roofing company, but only for a few months; (ii) as a painter for a few months; (iii) for Tren Windows for an unspecified period; (iv) for a company where he was "spraying a liquid fibre… onto poles to give buildings a fire rating" for at least five years; (v) at the RSL at Rooty Hill for two or three years (T 291-292)

and thereafter did not work up to the time he was arrested. By that time it is apparent that he had chosen to earn his living by the sale of cannabis that, on the evidence, appears to have been effected in and around the locality where he was living and in quite small quantities. 263 After his release following his acquittal in November 1992 the plaintiff went for some job interviews but was unsuccessful. In at least one of the interviews his prospective employer declined to employ him because of his lack of experience and the fact that he had been in prison for murder. This was notwithstanding the fact that the plaintiff explained to his prospective employer that he had been acquitted; "set up", as he claimed to have been (T 111-112). Thereafter he made a number of applications for jobs but was unsuccessful and following these failures he seems to have given up trying. He said he spent his days thinking of the way that the police "arrested us, destroyed my life and that of my family" (T 114). The situation, in my opinion, is that the plaintiff lost his self-confidence. He felt that his life was at an end, and as the evidence stood at the conclusion of the hearing, it appeared unlikely that he would work again. Regrettably that situation has now become a certainty. The plaintiff is dying of mesothelioma. He is not expected to live beyond the current year. This has a profound effect on the damages that he can recover for economic loss. There can be no award of damages for future economic loss. What is more his earning capacity came to an abrupt end in late October 2003 from causes unconnected with the present case. 264 The work history of the plaintiff is inconsistent with damages being awarded on the basis that he would have worked consistently between the date on which he was arrested and the present time. Past events suggest that, at most, he would have worked only a part of that time. I do not think that this would have been as much as fifty percent of the time, rather I judge that it would more probably have been in the order of one third of the time. Furthermore it is not easy to assess the type of work he would have undertaken, nor his earnings in any such work. It appears that he had done a variety of jobs in the past, but all of them involved physical work, some of it hard and dirty work. In one of the jobs in which he was employed in the 1980's he was earning $700 - $800 per week "cash in hand" (T 116). Because of the nature of the evidence it is not possible, in my opinion, to do other than provide a lump sum that fairly reflects his inability to exercise his earning capacity from the date of his arrest until late October 2003. Doing the best I can on the material available I think that $100,000 is an appropriate figure. 265 The plaintiff is entitled to interest on the damages awarded in respect of past economic loss. Section 94 of the Supreme Court Act 1970 empowers the court to order that interest be paid at such rate as it thinks fit. The rates percent on amounts awarded by the court payable in the absence of a specific order are set out in Schedule J to the Rules. These rates have varied very much over the years. Between September 1991 and the present time they have fluctuated between a high of thirteen percent and a low of nine percent. In the interests of finality and rather than delaying the matter for precise calculations to be made on behalf of the respective parties, I order that the rate of interest payable in respect of past economic loss should be ten percent. On that basis the interest payable to the plaintiff on the amount of $100,000 in respect of the period of a little over 12 years (from July 1991 to the end of October 2003) amounts to $60,000. This amount will be awarded to the plaintiff as part of his damages in the claim based on malicious prosecution.

266 The circumstances in which the plaintiff was taken into custody were such as to be likely to strike terror into the heart of almost any person. The plaintiff said that those circumstances had such an effect on him. He was wakened somewhere around 7.00am, when his wife shook him and told him there were police everywhere. Their presence included some who were overhead in a helicopter. On looking out the window he saw a large number of police dressed in black and wearing black balaclavas covering the tops of their faces, so that only their eyes were showing (T 75). He could see automatic weapons and pump action shotguns. From his front window he was able to see 20 to 30 police (T 75). The witness Hawley later fixed this number as up to 40 police. The plaintiff was asked:

Q. When you saw that what did you feel? A. Truth? I shit meself. Q. You mean literally. A. Nearly your Honour. It was at that time that the helicopter came around and there was a police marksman leaning out of the window." (T 76) 267 There was a question raised in the evidence of former Detective Hawley concerning the occupants of the helicopter. Whilst there was no issue as to the presence of a helicopter he said that he thought that a detective named Lambee was in the helicopter and that he was "no marksman" (T 1862). However, the fact remains that there was a helicopter that was flying around in proximity to the premises as part of the arresting force and that there was an officer in that helicopter, over and above the crew. There was no denial that he was leaning out of the helicopter, nor is there anything in the defendant's case to suggest he was not armed. In these circumstances it is perfectly understandable and quite reasonable that the plaintiff would conclude that the supernumerary in the helicopter was a police marksman. It is the plaintiff's reasonable perceptions of the situation as presented to him that give rise to an effect that forms part of his damages. 268 Although the principal crime for which the plaintiff was to be arrested was murder, the number of police, their mode of dress, the array of firearms in their possession and displayed and the presence of a helicopter as described above, amounted in combination, to an over reaction to the situation. That view was borne out by what occurred at the scene on the morning of the plaintiff's arrest. It is strengthened by the fact that the plaintiff was in the premises with his wife and at least four children. The police were aware in advance of his arrest that he resided at the premises with his family. In those circumstances there was, in my opinion, an inherent probability that there would be no violence offered by the plaintiff in the event that a reasonable number of police went to affect his arrest. As I have indicated, I am of opinion that what was done in furtherance of his arrest was excessive, an overkill. 269 The plaintiff is entitled to compensation for the fact of his arrest and detention. That compensation includes the effects on him and his life that are a result of the events associated with his arrest and detention. Furthermore, the circumstances in which he was taken into custody can be factors in aggravation of the damages payable as a consequence o his arrest and detention. The way in which he was treated around the time of his arrest and during his initial detention call for an award of aggravated damages. It should be remembered that his arrest was effected in the depth of winter. The plaintiff said that the weather was freezing (T 78) and that he was very cold because he was barefooted and wearing only a pair of pyjama pants. He was detained in this condition for some time. He was handcuffed and forced on to the ground at gunpoint, with threats being made against his life, as I find occurred. He said, and I accept, that "everything was loud, everything was loud, screaming, more or less shouting and yelling" (T 80). It was "a pretty scary thing to go through" (T 80). Threats were made against him and he feared for his safety and that of his family (T 80). Whilst detained he saw his wife in handcuffs (T 80). On being taken back in custody to the house he was treated roughly. He was grabbed by the back of the head by a detective and a search warrant was roughly pushed into his face (T 85). He was spoken to in quite uncouth language (T 86). Whilst he was so imprisoned he saw the search of his home and some of the effects of that search. 270 There is no evidence that actually denies the above evidence given by the plaintiff'. His evidence is consistent with the general "hype" of the situation. It is consistent with the way in which the search of the premises (which is not the subject of any action) was undertaken. According to the plaintiff's evidence and that of Mrs Nye, the house was "trashed". The photographs of the house taken following the search (exhibit H) are eloquent confirmation of this evidence. Clothes were strewn everywhere, equipment was damaged, furniture was overturned. The house was reduced to a virtual rubbish tip. And this was seen by the plaintiff as part and parcel of the circumstances of his arrest and detention. True it is that during the search unlicensed firearms and ammunition were found in the premises. Furthermore, at a still later stage, a cache of cannabis was found in a bucket buried within the curtilage of the premises, but at some remove from it. All of this occurred after the plaintiff had been arrested and treated in the manner described above. When he was confronted by Detective Barnett the plaintiff immediately asserted that he did not know Thurgar (T1867). 271 Former Detective Hawley painted the plaintiff's arrest as if it was a calm event. He denied that the plaintiff was screamed at or yelled at or shouted at in his presence. However, the very circumstances surrounding the plaintiff's arrest bespeak a high state of excitation on the part of the police who were involved. It was quite an event. It was not the sort of circumstance in which calm could be expected to prevail. I do not think that it did. I find that it is not credible that at his arrest the plaintiff was told "We are making enquiries in relation to the death of Roy Thurgar" (T1866) as the defendant Hawley deposed. In my judgment the scene was very much as deposed to by the plaintiff. 272 The arrest of the plaintiff that was effected by police officer Whittaker and was taken over very quickly by the then Detectives Barnett and Hawley, was for murder. It was only later when the plaintiff was back at the Major Crime Squad premises in Sydney that he was told that he was going to be charged with murder, conspiracy to supply a prohibited drug and offences relating to the weapons and drugs found at the premises during the search that was conducted by the police. His arrest for murder was, as I have held, not justified. Nor was his arrest for the drug conspiracies with which he was later charged. 273 The circumstances of his arrest at Upper Colo fall within a category that is apt to attract both aggravated and exemplary damages. Those circumstances persisted until he was charged later the same day, not only with murder and the conspiracies relating to the 100 kilograms of hashish, but also with possession of illegal firearms and of a prohibited drug. There is no doubt that illegal firearms and a quantity of prohibited drug were found on his premises subsequent to his initial arrest that was effected somewhere around 7.00am. However, no words of separate arrest were uttered to him in respect of the firearms offences or the possession of cannabis. The behaviour involved in the arrest of the plaintiff was excessively violent, high handed and unnecessarily added to the insult, humiliation and impact on him of his arrest and detention. 274 The plaintiff was initially refused bail by the officer in charge of police at the station where he was charged and was again refused bail by a Magistrate on 25 July 1991. The damages in respect of his wrongful arrest and false imprisonment relate to a limited period. I fix such period as that between the time of his arrest and the time he was charged at the Police Centre, Surry Hills. This is a period of some nine hours. However they included hours of terror. For this period, there should in my opinion be an award of $25,000 by way of compensatory damages. Furthermore, as emerged from the evidence of Dr Phillips, the events of that day had ongoing effects. 275 In February 1998 the plaintiff was examined by a consultant psychiatrist, Dr Jonathan Phillips. He took a history from the plaintiff, noted his mental state, formed an opinion in relation to the plaintiff and prepared a report (exhibit U). A number of his observations in relation to the plaintiff were quite positive. Dr Phillips had the benefit of a report from the plaintiff's general practitioner, Dr Fisher, who had seen the plaintiff on eight occasions between 3 August 1993 and 17 October 1995. The plaintiff was diagnosed by Dr Fisher as suffering from post-traumatic stress disorder in consequence of the events to which he had been subjected as a result of his arrest and imprisonment. 276 Dr Phillips noted the events on the day of the plaintiff's arrest, the media interest and his subsequent frightening time in prison. He referred to a number of psychological symptoms that the plaintiff had displayed whilst in the Remand Centre a Long Bay Goal. He opined that the plaintiff's relationship with his wife had "failed probably as a result of pressures of his imprisonment". He also noted the adverse effects of such imprisonment on his relationship with his son and recorded the fact that the plaintiff "fears that police will eventually kill him". 277 Dr Phillips diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood (DSM IV 309.28). He said that "Mr Nye has lost self esteem and self respect and hope for his future". He sheeted this home to the events of 24 July 1991, as an initiator and thereafter to those events which followed. He expressed the view that the plaintiff's prognosis was relatively poor and that the plaintiff would probably continue to experience his current symptoms for the rest of his life. 278 Dr Phillips saw the plaintiff again in February 2000 and reported in respect of the consultation in August 2000 (exhibit U). On this examination Dr Phillips found that the plaintiff remained angry about the charge of murder that had been laid against him and that it remained on his record despite the fact that he had been found not guilty. An examination of his criminal history as printed out on 29 March 2000 confirmed that the charge of murder and the two charges of conspiracy to supply a prohibited drug indeed remained on his record (exhibit A). 279 The history given by the plaintiff to Dr Phillips at the consultation in February 2000 presents a sad and sorry picture. It reveals the plaintiff as a virtual recluse who is agitated, unable to control his ruminations, fearful for the future and suffering from memory difficulties. Dr Phillips thought there had been an evolution of the plaintiff's symptoms that had been triggered by the events in which he had been involved, more especially those of 24 July 1991. He expressed the opinion that the plaintiff's capacity for pleasure in life was much reduced and his prognosis poor. 280 In his oral evidence Dr Phillips detailed the treatment programme that might assist the plaintiff. It usually requires ten to twenty consultations with a success rate of about seventy percent. However where a patient is over 40, as the plaintiff was, the success rate of the treatment programme drops. 281 The end point of the doctor's evidence in chief was that his view remained the same as expressed in his reports notwithstanding the fact that he had been informed that the plaintiff had what he described as a "pre existing vulnerability" (T 602). 282 Dr Phillips was cross-examined about the extent of his knowledge of the antecedent psychiatric history of the plaintiff. He informed the court that he had not obtained any history of psychiatric problems, other than that the plaintiff had been examined by a psychiatrist or psychologist at Long Bay (T 612). On this basis he viewed the plaintiff as a man without any prior psychiatric history. When that history was put to him he pointed out that the bulk of the plaintiff's psychiatric admissions were through his teenage, adolescent and early adult years (T 615). He was properly asked whether a conclusion based on certain premises would change if the premises were changed. To this he answered: "It may change the conclusion. It might probably change the conclusion. On the other hand it may not" (T 618).

He was then asked if the plaintiff's prior psychiatric history may be of relevance diagnostically and it was suggested that it could cast doubt on his conclusion that the disorders that he had diagnosed arose from the police raid. Dr Phillips said: "A. Well, taking the matter simply, the answer has to be yes" (T 218).

He was then asked what he meant by "taking the matter simply". To which he replied: "A. Well… If one has a disorder in early life that that diagnosis persists and you will be able to make the diagnosis sequentially over a number of years. The more appropriate understanding of this is that a person can have an early disorder which is self limiting or where there is a marked reduction in symptoms but where that disorder leaves a psychological scar… it makes the person vulnerable later in life. The person because of an earlier experience travels on vulnerable but not necessarily symptomatic then comes another trauma and the person then develops psychiatric symptoms" (T 619). 283 When pressed by senior counsel for the defendants as to whether he could "say confidently" that the process just referred to was the way the plaintiff's condition had developed, Dr Phillips said "I can not state the level of confidence you ask" (T 619). However he conceded that, had he known that prior to his arrest the plaintiff was not in normal employment but was making his living as a drug dealer, such knowledge would cast doubt on his diagnosis (T 620). 284 In the final analysis Dr Phillips expressed the view that: "…the raid is the sentinel event which caused him to decompensate with a cascade of symptoms initially in the depressive area and at least by 2000 in the post traumatic stress disorder area. I do not think that the selling of leaf marijuana for a period of one year or thereabouts would be the cause of post traumatic stress disorder; Q. …You referred to the raid. Mr Temby asked you about that. In terms of what the plaintiff has expressed to you about his concerns, was there an element which referred not just to the raid but to the fact that he was wrongly accused and spent some 15 or 18 months in gaol? A. Yes, that is so. "Q. You may not be able to split this up, and if you can't please tell me. …as you see it, is that all rolled into one in terms of impact on him, or is there one component that is the raid and one component that is the 15 or so months of imprisonment? A. It's very difficult to make the split. I believe the raid because of the acuteness of it… as the history was given, was the sentinel event. On top of that, and I include right through to the business of charging, on top of that there was a period where on the history he was fearful about a number off matters, and that would add, but the sentinel issue in my view was the raid as I called it" (T 624). 285 Dr Philips defined the "raid" to which he had referred in his reports and oral evidence as the events at Upper Colo on 24 July 1991 and the subsequent events that day. 286 The defendants did not call any psychiatric evidence to contradict Dr Phillips. 287 The causes of psychiatric symptoms are often difficult to determine. This is particularly so where a person has experienced antecedent psychiatric problems. The plaintiff had experienced such problems and they left a psychological scar that made him vulnerable to psychological trauma. He had, however, been in a stable relationship with Mrs Nye for some twelve years prior to his arrest. There was no suggestion that, prior to 24 July 1991, he was suffering from any of the symptoms of which he complained to Dr Fisher and Dr Philips and in respect of which he had sought treatment after his release. I accept the view expressed by Dr Philips that the events of 24 July 1991 were the trigger for his decompensation. I also accept that his period in prison, with its attendant anxieties, fears and frustrations played a part in producing the psychiatric disorders from which the plaintiff was suffering. I further accept that the breakdown of the relationship between the plaintiff and his wife was a consequence of the psychiatric disorders that Drs Fisher and Phillips diagnosed and come out of his experiences on 24 July 1991 and subsequently. Since part of the cause of the plaintiff's psychiatric disorder arises out of the wrongful arrest and false imprisonment and part arises out of the malicious prosecution, there should be an apportionment of the damages related to the plaintiff's psychiatric condition between the two causes of action. Neither of the plaintiff's doctors nominated a percentage apportionment. However, the court has to do the best it can on the available material. I would apportion 75% to the action for wrongful arrest and false imprisonment and 25% to the action for malicious prosecution. 288 The psychiatric condition that the plaintiff has developed has fundamentally changed his life for the worse. His sense of self worth has been diminished. He is sad and depressed, socially isolated, remains angry, is fearful and has difficulties with his memory (exhibit U). His psychiatric condition has adversely affected him for more than a decade. Such matters are difficult to assess. There is no conventional sum recognised by the law for compensatory damages for such a disorder. Insofar as aggravated damages are concerned they are at large. I am of opinion that a figure of $100,000 would be appropriate as compensatory damages. These damages will have to be apportioned between the plaintiff's claim for wrongful arrest and false imprisonment on the one hand and malicious prosecution on the on the other, in the proportions referred to above. I will deal with aggravated damages when I have considered the compensatory damages that should be awarded in respect of the plaintiff's deprivation of liberty as a consequence of his being prosecuted for murder and conspiracy. 289 The plaintiff is also entitled to damages for the tort of malicious prosecution. He is entitled to damages that will compensate him for the period that he was in prison. That period commences at the time of his first refusal of bail, through his remands in custody, up until the time he was acquitted of the murder of Thurgar and the drugs conspiracies relating to the 100 kilograms of hashish. They are damages that are payable by the defendant Gordon and the DPP. 290 The behaviour of the defendant Gordon and of the DPP was in serious derogation of the plaintiff's rights. The defendant Gordon did not believe in his guilt but caused him to be prosecuted nonetheless. The DPP took over the prosecution and proceeded with it not because he thought the plaintiff was guilty but in order to bolster prosecutions against other defendants. Such an approach to the rights of a citizen is high handed and unacceptable. In my opinion such behaviour sounds in both aggravated and exemplary damages, in addition to the general damages that flow from the deprivation of liberty, and all that such deprivation entails. 291 The plaintiff spent just short of sixteen months in prison. That period was unpleasant. Any period of imprisonment will, of course, be unpleasant. However the imprisonment of the plaintiff was particularly unpleasant. The first eight days were spent at the Police Centre (T 102) where he shared a cell with Harlum for seven of those days. During this time he had but little conversation with his cell mate because they were concerned that there was a microphone in the roof. Whether there was or was not a microphone in the roof was not established by the evidence. Moreover during the time that he was in custody at the Police Centre he was subjected to a degree of taunting, it being suggested that Thurgar's friends would be waiting for him at Long Bay (T 102). 292 He was then transferred to the remand section of Long Bay Gaol (T 102) where he and Harlum were initially separated. However they were later placed in the same cell, where they remained until the trial. The plaintiff said that when he first went to Long Bay Gaol "it was a very touchy situation" in relation to protection and initially each stood guard whilst the other took a shower. The other prisoners did not speak to them for the first five or six days and they were told that they were going to be stabbed (T 103). This threat was thought to be real by the prison authorities because they were called up by the Governor of the prison, told that an attempt would be made on their lives and were advised to "go on protection". However the plaintiff declined this on the basis that to go into protection "would be admitting to guilt and I'm not an informant. I'm not a child molester, nothing like that. I dare not go on protection" (T 103). Although things settled down somewhat after that, the plaintiff was "always on guard" for his safety (T 104). This persisted until he was acquitted in November 1992 when he was released on bail (T 107). During the time he spent in prison the plaintiff was not only fearful but also ruminated on the injustice to which he had been subjected. He had a lot of time to do so. 293 When the plaintiff was giving evidence about the effect on him of the dangers that he was subjected to in prison and about his separation from and concern about his family during this period he became quite emotional. I noted his reaction at the time and was convinced that it was genuine. Furthermore I thought it mirrored some of the feelings that he had experienced whilst in custody. 294 During his time in prison the plaintiff also experienced feelings of extreme anger and frustration. This was because he knew he had not killed Thurgar, indeed he had nothing to do with his killing (T 107). These feelings persisted even after his release and were not helped by the fact that none of the defendants Gordon, Popplewell, Barnett, Hawley or the DPP spoke to him after his acquittal or offered any apology to him. Until the time he gave his evidence the plaintiff's reaction was that he could never "forgive the police for what they done to us" (T 108). He said that the events "rule my life" and that he thinks "of nothing but the way the police arrested us, destroyed my life and that of my family". 295 All of these matters call for an award of compensation. 296 Counsel for the defendants has submitted that the damages that might otherwise have been awarded in respect of this period should be reduced because the plaintiff would not have been granted bail in respect of the charges relating to the possession of illegal firearms and the possession of some 2.25 kilograms of cannabis leaf. Although this submission has some force a perusal of the documents relating to bail (exhibits CB and 4) suggest that bail was successively refused because of the murder charge that was a "serious matter concerning violence", because there was "no presumption of bail for conspiracy (drugs)" (exhibit CB) and because of the plaintiff's prior convictions The other charges do not seem to have been the subject of any decisions as to bail. On 29 November 1991 the plaintiff applied for bail when the committal proceedings were about to stand adjourned until 10 February 1992 (exhibit AQ). The application was for bail in relation to the Thurgar murder and the two drug conspiracies. Bail was opposed by Mr Trembath on behalf of the DPP. In relation to the plaintiff he said "this accused of course is charged with murder, they're serious offences there's no presumption (of bail) and in Mr Nye's case he does have a substantial record" (exhibit AQ, 29 November 1991, p 14). Bail was refused for the plaintiff in respect of the murder charge because "violence occurred" and in respect of the conspiracies because "there's no presumption to bail" (ibid, p 16). From the foregoing I conclude that the detention of the plaintiff in gaol and the refusal of bail to him related to the charges of which he was later acquitted and that his period of detention forms part of the damages in the plaintiff's claim based on malicious prosecution. 297 Liberty is one of mankind's most important right. To deprive a man of his liberty is very serious. In one sense the right to liberty is priceless. However the court must determine an amount that will compensate the plaintiff for the loss of such right. I am conscious that the plaintiff has already been compensated for the economic consequences that flow from his imprisonment. However the consideration of deprivation of liberty is a matter over and above the economic compensation that has already been awarded. There is no standard. However, in my opinion, a figure of $100,00 would be appropriate compensation for the deprivation of liberty for sixteen months which the plaintiff suffered. 298 In addition to the compensatory damages which have been awarded to date there should be aggravated damages. These should recognise the sense of humiliation, frustration and anger that the plaintiff experienced as a result of his arrest and wrongful imprisonment. In my opinion an amount of $200,000 should be awarded as aggravated damages. This amount should be apportioned equally between the two causes of action on which the plaintiff has succeeded. B. Exemplary/Punitive Damages 299 The behaviour of the defendants Gordon and Barnett in causing and effecting the arrest and detention of the plaintiff on 24 July 1991 was not only high handed but in my opinion showed a contumelious disregard for the rights of the plaintiff. It was behaviour that was conscious. It was behaviour that should be punished. The award of exemplary damages should be such as to teach the wrongdoers that such a tort will not be tolerated in our society. It should reflect the need for both moral retribution and deterrence. The defendants and others must be made aware that conduct of such a kind is not to be tolerated. The same is true in relation to the conduct of the defendant Gordon and the DPP in instituting and maintaining the prosecution of the plaintiff. The exemplary damages that are awarded should be such as to sting. 300 There is little guide for such damages. As set out above they are at large. In this context it should be remembered that in Excel Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd a jury awarded $400,000 as exemplary damages in a case in which the wrong done to the plaintiff was to spike the plaintiff's underground petrol tanks, so as to prevent the plaintiff from using the tanks in competition with the defendant. On appeal the Court of Appeal reduced the award of exemplary damages to $150,000. On further appeal to the High Court Gibbs CJ with whom Mason and Wilson JJ agreed, thought that the award of $400,000 by the jury was excessive but that the amount of $150,000 that had been substituted by the Court of Appeal was not excessive. Interestingly Murphy J took the view that the appeal should be allowed and the jury's verdict should be restored. Brennan J was of the view that it could not be said that the award of $400,000 was not appropriate to provide an effective deterrent against the defendant. Thus, although the amount of $400,000 was held by the majority to be excessive, the jury's verdict and the decisions of the two dissenting judges are nevertheless worth noting. So too is the fact that the figure of $150,000 that was ultimately awarded for exemplary damages accorded with the values of 1984. Those values have changed in the last 20 years. 301 Senior counsel for defendants properly conceded that should exemplary damage be awarded they should be substantial. Counsel for the plaintiff has submitted that the award of exemplary damages to the plaintiff should total many millions of dollars. This was based on the proposition that the worth of the defendant should be looked at in order to know what it was by way of exemplary damages that would sting the defendant. For this purpose the plaintiff put before the court the budget speech made by the Treasurer of New South Wales in relation to the 2003-2004 budget showing, inter alia, the total expenditure of the government and the amount to be expended on the New South Wales Police Service. In addition reference was made to a number of cases in other countries in which large awards of exemplary damages had been made. In one case the amount received as total compensation was $C10,000,000. In respect of a plaintiff who had been wrongly convicted of murder and had served 23 years in gaol. One case, in 2002 involved exemplary damages of $C300,000 in a case in which the plaintiff had been maliciously prosecuted for murder. All of these cases were in Canada. I do not think that the achievement of the purposes of an award of exemplary damages in a case in New South Wales is to be determined by reference to what has been done in another country. 302 In resolving the tension between the need for adequate punishment, retribution and deterrence on the one hand and the references by appellant courts to reasonableness and moderation on the other, I am of opinion that the invitation extended by counsel for the plaintiff to be awarded many millions of dollars in exemplary damages should be resisted. Whilst it is true that the State of New South Wales will pay the damages, either because those against whom they are awarded are or were officers of the state or because of the vicarious liability of the State as a defendant, I do not think it appropriate to award exemplary damages by reference to a percentage of the budget of the State of New South Wales. To do so would in my opinion produce an outcome that would be excessive. 303 What is needed is the award of a sum that will sting, a sum that will cause notice to be taken of what has occurred, of the wrongs that have been done to the plaintiff and of the disapprobation of the court. In the light of these considerations I am of opinion that the amount that is appropriate by way of exemplary damages is $750,000 and this should be apportioned as to 25% to the claim based on wrongful arrest and false imprisonment and as to 75% to the claim based on malicious prosecution. 304 The damages which have been awarded to the plaintiff can be summarised as follows:

(i.) In respect of the tort of malicious prosecution:

(c.) $100,000 as compensation for imprisonment; (d.) $100,000 being 50% of the aggravated damages awarded; (e.) $25,000 as the appropriate proportionate part of compensation for psychiatric injury; (f.) $562,500 being 75 percent of the exemplary damages awarded.

The total of these amounts namely $947,500 is the amount payable as damages by the defendants Gordon and the DPP.

(ii.) In respect of wrongful arrest and false imprisonment. (a.) $25,000 as compensation for the arrest and period of detention on 24 July 1991; (b.) $75,000 as the appropriate proportionate part of compensation for psychiatric injury; (c.) $100,000 being 50 percent of the aggravated damages awarded; (d.) $187,500 being 25 percent of the exemplary damages awarded. The total of these amounts namely $387,500 is the amount payable by the defendants Gordon and Barnett. 305 The total amount awarded to the plaintiff is therefore $1,335,000, and in respect of which sum the defendant State of New South Wales is vicariously liable.

306 For the foregoing reasons there will be verdicts as follows: (i) $947,500 against the defendants Gordon, the DPP and the State of New South Wales in respect of the plaintiff's claim based on malicious prosecution. (ii) $387,500 against the defendants Gordon, Barnett and the State of New South Wales in respect of the plaintiff's claim based on wrongful arrest and false imprisonment. (iii) In favour of the defendants Popplewell and Hawley.

There will be judgments accordingly. 307 I order the defendants Gordon, Barnett, the DPP and the State of New South Wales to pay the plaintiff's costs. 308 There will be no order as to the costs of the defendants Popplewell and Hawley. 309 The plaintiff is to be at liberty to enter judgment forthwith.

Note: paragraphs 304(i), 305 and 306(i) have been amended pursuant to the slip rule.

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