Scott-Irving v State of New South Wales

Relevant legislation 29Section 61M of the Crimes Act 1900 (NSW) relevantly provides: "Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or . . . the other person, is liable to imprisonment for 7 years. . . . (3) In this section, circumstances of aggravation means circumstances in which: . . . (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment." 30Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) relevantly provided, as at 25 August 2007: "Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: . . . (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: . . . (b) to prevent a repetition or continuation of the offence or the commission of another offence, . . . (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, . . . (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law." 31Rule 29.9 of the UCPR relevantly provides: "Dismissal of proceedings on defendant's application (1) A defendant in proceedings in which the plaintiff is the beginning party may apply to the court for an order: (a) for the dismissal of the proceedings . . . on the ground that, on the evidence given, a judgment for the plaintiff could not be supported. (2) Such an application may be made at any time after the conclusion of the evidence for the plaintiff in his or her case in chief. (3) The plaintiff may argue, or decline to argue, the question raised by the application. (4) The court may not make an order under this rule unless the plaintiff argues the question raised by the application and the defendant satisfies the court that, on the evidence given, a judgment for the plaintiff could not be supported. . . ."

The wrongful arrest claim 32The plaintiff provided the following particulars of his claim for wrongful arrest: (a) The plaintiff has not committed the offences charged. (b) The plaintiff was not reasonably suspected by the charging officers and informants of committing the offences charged. (c) The arrest was in breach of ss 99(1) and 99(2) of LEPRA. (d) The arrest was not reasonably necessary for the purposes of s 99(3) of LEPRA. 33Particular (a) is not an element of the tort of wrongful arrest. To establish the tort of wrongful arrest the plaintiff must prove that the arresting officer did not suspect on reasonable grounds that he had committed the offence for which he was arrested or that the arrest was otherwise unlawful. 34The material which was available to Detective McGinn at the time she arrested the plaintiff and which the defendant contended established that she had the requisite belief on reasonable grounds and that there were reasonable grounds included the following: (1)signed statements from Ms Singh and Ms Hayden that they had witnessed the plaintiff fondling the alleged victim's breasts; (2)evidence (including from the alleged victim's mother who deposed to the circumstances in which RS's disability was occasioned) that RS was deaf, blind and had a serious physical disability and cognitive impairment; and (3)the ERISP of the plaintiff in which he made certain admissions about touching RS in the Storm Village Nursing Home. 35Detective McGinn's state of mind as at 23 August 2007 appears from her statement contained in the police brief, which documented the process of investigation up until the time of arrest. 36The plaintiff submitted that these matters did not amount to "reasonable grounds" in light of the following: (1)He had gone to the police on 6 December 2006 before there had been any report to police of sexual assault, which was proof of his innocence. (2)The first written report or record of the incident was not made by either Ms Singh or Ms Hayden until 29 November 2006, which is said to be eight days after the incident. (3)He denied the incident. (4)The staff at Storm Village Home bore him animus because of the complaints he had made about the treatment of Mrs Gulisano and were, accordingly, prepared to make false allegations against him. 37In George v Rockett [1990] HCA 26; 170 CLR 104 the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said, at 115-116: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam (1970) AC 942, at p 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 reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (1966) 115 CLR p303): A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors." 38In my view, the defendant has, although it bears no onus, established that the arresting officer, Detective McGinn, suspected on reasonable grounds that the plaintiff had committed the offence of aggravated sexual assault and that there were such reasonable grounds. That she had two signed statements from eyewitnesses which were broadly contemporaneous with the incident itself (since they were prepared when the incident would have been fresh in their memories) amply met, in my view, the threshold of "reasonable grounds to suspect". 39The plaintiff has alleged that the arrest was not necessary to achieve a purpose stipulated in s 99(3) of LEPRA. He has failed to establish this allegation. Such evidence as is before me indicates that there was considerable apprehension about the plaintiff being present at the Storm Village Nursing Home, at which the witnesses worked and RS was a resident. The plaintiff has failed to establish, relevantly, that the arrest was not necessary to achieve the purpose set out in s 99(3)(b) of LEPRA of preventing a repetition of the offence or the commission of another offence or s 99(3)(d) of LEPRA of preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence. 40I am satisfied that the plaintiff's claim for damages for wrongful arrest cannot be supported on the evidence.

The claim for damages for false imprisonment 41The plaintiff has not established any illegality associated with his arrest. He has not identified any basis or evidence on which a claim that he was falsely imprisoned for the period of hours between his arrest and his release on bail could be supported.

The claim for damages for malicious prosecution 42To establish the tort of malicious prosecution, the plaintiff must establish that: (1)the prosecution was initiated by the defendant; (2)the prosecution terminated favourably to the plaintiff; (3)the prosecution was brought or maintained without reasonable or probable cause; and (4)the defendant acted with malice in bringing or maintaining the proceedings. (Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 at [4]). 43It is common ground that element (2) has been established. 44The identity of the prosecutor is relevant to elements (3) and (4) and is a question of fact. As Isaacs ACJ said in Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 282: ". . . the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor." 45The plaintiff contended that the prosecution was initiated by Detective McGinn. However, he appeared to place some reliance on the fact that she worked with Detective Stone. The evidence established that on 23 August 2007 the plaintiff was charged with aggravated sexual assault by Detective McGinn. Accordingly the assessment of elements (3) and (4) must be undertaken by reference to Detective McGinn. For completeness, some reference will also be made to Detective Stone, although he was not, in my view, at any time the prosecutor. 46The plaintiff has not adduced any evidence that supports either of the third of fourth element of the tort. To establish the third element he would have to prove that more probably than not Detective McGinn acted without reasonable and probable cause. This matter could be established by showing that she did not "honestly believe" the case that was maintained or that she had no sufficient basis for such an honest belief: A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [76]-[77]. 47I regard the evidence as being overwhelmingly against the plaintiff on this element. The narrative set out above establishes that, although Detective McGinn had signed statements from two eyewitnesses as to the commission of the offence with which the plaintiff was eventually charged, she did not in fact charge him until she had received legal advice that it was appropriate to do so. She had apparently sought that advice because of her concerns about the discrepancies between the recollections of the eyewitnesses, including as to the relative physical positions of the alleged victim and the plaintiff at the time of the alleged offence. There is no support in the evidence for the proposition either that Detective McGinn did not honestly believe the case that was being maintained or that she had no sufficient basis for such an honest belief. 48Further, there is no reason to consider that Detective McGinn had any basis for not accepting as genuine the written statements of the two eye-witnesses. Although they were employed by the Storm Village Nursing Home, there is no basis for suggesting that they were affected by any dispute between Mr Gulisano and the home. The reservations that caused Detective McGinn to seek legal advice about whether it was appropriate to prosecute the plaintiff are consistent with her concern about whether, in light of the apparent discrepancies, the prosecution could prove its case beyond reasonable doubt, as distinct from any concern about the honesty of the witnesses. 49To establish the fourth element, malice, the plaintiff would have to prove that Detective McGinn acted for an improper purpose. As the High Court said in A v State of NSW at [91]: "What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor." [Footnotes omitted.] 50The plaintiff has failed to adduce any evidence of malice, or improper purpose. For completeness, I propose to set out the plaintiff's particulars of malicious prosecution and address them to the extent to which they have not already been addressed. The particulars (which incorporate amendments made orally in the course of the hearing) are: (a) The arresting and charging Police did not hold a reasonable believe [sic] honestly, or at all, that the Plaintiff had criminally participated in the subject matter of the charge. (b) The charging Police knew that the allegation made against the Plaintiff was made maliciously and falsely and against the background of a civil dispute. (c) The prosecution was commenced and maintained by the Informant in the knowledge that Police possessed no properly admissible evidence indicating that the Plaintiff was guilty of the offence charged and that charge was not properly brought. (d) The Prosecution was commenced and maintained in the knowledge that Police had not made any proper enquiry as to the Plaintiff's guilt in respect of the offence charged and in reliance on witnesses who were improperly motivated to seek the Plaintiff's conviction of the offence charged. (e) The commencement and maintenance of the prosecution was improperly motivated by malice and/ or otherwise improperly motivated by reasons known to Police, which are set out in (i) below. (f) The only evidence inculpating the Plaintiff was provided by the complainant against the background of a civil dispute between the complainant, their employer and the Plaintiff. (g) Police failed to conduct any or any proper investigation of the circumstances giving rise to the charge and the Plaintiff's Defence. (h) The evidence relied on by the Prosecution from Detectives Joanne McGinn and Mark Stone was internally inconsistent and contradictory as to critical aspects of the charge. (i) The Prosecution was motivated by personal antipathy between Detective Mark Stone and the Plaintiff, relating to the Plaintiff's previous role as a school teacher in respect of which he was investigated for alleged offences against MR, although no charges were laid against him. 51At its highest, the plaintiff's case on the fourth element appears from the particulars and his submissions to be as follows: (1)Detective Stone knew the plaintiff from his investigation of the allegations in respect of MR. (2)Although the investigations in respect of MR did not result in any charges being laid against the plaintiff, it ought be inferred (either by reason of his commencement that he was not happy with the plaintiff's conduct or otherwise) that Detective Stone bore some animus against the plaintiff. (3)The staff at the Storm Village Nursing Home bore the plaintiff animus because of the complaints he had made in relation to Mrs Gulisano's care and therefore made false allegations against him which resulted in his being charged with aggravated sexual assault. (4)Detective McGinn ought to have appreciated that the plaintiff was innocent because the plaintiff visited the police station on 6 December 2006, which pre-dated the reporting to police of the alleged offence. (5)Detective McGinn was somehow infected by the animus the staff of the nursing home and Detective Stone bore to the plaintiff which led her to charge him and maintain the prosecution. 52Proof is required, not mere conjecture or suspicion: A v State of NSW at [93]. As to particular (a), there is no evidence that either Detective McGinn (or Detective Stone) did not honestly believe that the plaintiff engaged in the relevant conduct with which he was charged. Nor is there evidence that the allegation made against the plaintiff was made "maliciously and falsely" (particular (b)). Particular (c) reveals a fundamental misapprehension of the rules of evidence. The statements made by the two eye-witnesses were admissible since they were relevant and in proper form. Each witness set out what she had observed on 21 November 2006. That there were some discrepancies in their recollections does not affect the admissibility of the statements. The plaintiff appeared to rely on the fact that the eyewitnesses were carers (nurses aides) rather than nurses. The distinction is, in the context of the present case, immaterial. Both statements implicated the plaintiff in the offence with which he was charged. 53Particular (h) has been made out in the sense that there were some minor discrepancies in the recollections of eyewitnesses. However, both observed the plaintiff touching RS inappropriately and reported it in broadly similar terms. Had that fact been established beyond reasonable doubt in the Local Court the plaintiff would have been convicted. The plaintiff's submissions that what the witnesses described was not physically possible are rejected. 54There is no evidence of particular (d). Particular (e) when read with particular (i) has not been established. All that the plaintiff has established is that Detective Stone knew him from the prior investigation and that no charges were laid. That no charges were laid in connection with the plaintiff's conduct with respect to MR would, in any event, appear to be inconsistent with any malice on the part of Detective Stone. Particular (f) is a repetition of earlier particulars. No evidence of a causal connection between the statements made by the eyewitnesses and the civil dispute between the Storm Village Nursing Home has been adduced. The allegation that the eyewitnesses were improperly motivated when they gave their statements about what they had observed has no foundation in the evidence. 55As to particular (g), the contrary has been established by the defendant. The police brief and the request for legal advice by Detective McGinn show the lengths to which Detective McGinn (who was relevantly the prosecutor) went to investigate the alleged offence before proceeding to charge and arrest the plaintiff. 56The plaintiff submitted that he would have been assisted by the evidence of Ms Studeman. However, this submission was inconsistent with the unsigned statement of Ms Studeman contained in the police brief of evidence which does not exculpate the plaintiff in any respect. Furthermore, although the plaintiff submitted that Mr Whitelaw ought to have been on notice from their conversation on 6 December 2006 that it was important that Ms Studeman be interviewed, I cannot discern any basis on which Mr Whitelaw would have been on notice of that matter since the only reference the plaintiff made to "Shirley" was in the context of her returning a book he had lent to her. There is an unsigned statement of Ms Studeman in the police brief dated 19 November 2007 which neither implicates nor exculpates the plaintiff. It has presumably been included in the police brief because of the prosecutorial obligation to make all relevant witnesses available so that they are available to be cross-examined by the accused person: Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 120-121. Although the plaintiff was critical of the police for not obtaining a signed statement and not interviewing Ms Studeman earlier, there is no indication that her evidence could bear on the strength of the prosecution case. 57There is nothing in the police brief that establishes that, at any point in time, regard should have been had to withdrawing the charge before it was heard. The police brief revealed that further statements were obtained between the plaintiff's arrest on 23 August 2007 and the hearing in March 2008, including a statement from Ms George who signed a handwritten version of her statement in the police notebook on 11 October 2007 which relevantly corroborates the statements of Ms Singh and Ms Hayden. The statement included the following: 14. On Tuesday 21st November 2006 I was working in my office and just after midday Pramila [Singh] came rushing into my office. She told me I needed to come out. She said something like, "There's a visitor touching another resident." 15. In response I went immediately to the dining room. As I was going to the dining room Pramila and Mandy Hayden said to me something like, "His [sic] already touched [RS]." 58The plaintiff has failed to identify an improper purpose that affected Detective McGinn. He has not adduced any evidence that the dominant purpose actuating her was an improper one. Even if there was evidence to support the proposition that Detective Stone was the prosecutor (a proposition which the plaintiff eschewed since he identified Detective McGinn as the prosecutor), there is nothing to suggest that Detective Stone was doing other than his duties as a police officer, that he was in any way affected by his investigation of the matter concerning MR, or that he sought to influence Detective McGinn on that basis in deciding whether to prosecute the plaintiff.

The claim for damages for misfeasance in public office 59The elements of the tort of misfeasance in public office were summarised by Lord Diplock in delivering in the judgment of the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172. The plaintiff must prove an invalid or unauthorised act that was done maliciously by a public officer in the purported discharge of his or her public duties which causes loss or harm to the plaintiff. 60The focus of the element of malice is injury to or affecting the plaintiff. The defendant submitted that this alleged tort was not apposite in circumstances where the relevant public officer was a police officer and the relevant allegations were wrongful arrest and malicious prosecution. As the plaintiff did not particularise his claim for damages for this tort, nor seek to distinguish it in any way from the claims he has made for wrongful arrest, false imprisonment or malicious prosecution, I do not consider that I need to deal with it separately. If a separate cause of action were available in the instant case of the tort of misfeasance in public office, judgment for the plaintiff could not be supported for similar reasons as I have given in respect of the other causes of action which are addressed above.

Conclusion 61To borrow and adapt the words of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431, plaintiffs, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that does not exist. The plaintiff was arrested and charged with aggravated sexual assault on the basis of evidence that included signed statements of two eyewitnesses. The charge against him was dismissed. He has sought to turn an unremarkable event in the course of the administration of justice into a legal right to damages, although he has not established any foundation for any of the causes of action alleged. 62For the foregoing reasons it is appropriate to order that the proceedings be dismissed on the ground that, on the evidence given, judgment for the plaintiff could not be supported. The plaintiff ought to pay the defendant's costs of the proceedings.

Order 63On 29 July 2014, I made the following orders: (1) That these proceedings be dismissed on the ground that on the evidence given a judgment for the plaintiff could not be supported. I make that order under r 29.9 under Uniform Civil Procedure Rules 2005 (NSW). (2) Order that the plaintiff is to pay the defendant's costs of the proceedings.

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