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: