Spedding v State of New South Wales

Catchwords

[2004] SASC 384 Davis v Gell (1924) 35 CLR 275[1924] HCA 56 De Reus v Gray (2003) 9 VR 432[2003] VSCA 84 Ea v Diaconu [2019] NSWSC 795 Ea v Diaconu (2020) 102 NSWLR 351[2020] NSWCA 127 Edwards v State of New South Wales [2021] NSWSC 181 Gray v Motor Accident Commission (1998) 196 CLR 1[1998] HCA 70 Haynes by her tutor Karen Lindley v Haynes [2022] NSWSC 581 Lamb v Cotogno (1987) 164 CLR 1[1987] HCA 47 MBP (SA) Pty Limited v Gogic (1991) 171 CLR 657[1991] HCA 3 Murray v Commonwealth of Australia (1985) 5 NSWLR 83 New South Wales v Ibbett (2006) 229 CLR 638[2006] HCA 57 Northern Territory of Australia v Mengel (1995) 185 CLR 307[1995] HCA 65 Nye v State of New South Wales (2004) AusTorts Reports 81-725[2003] NSWSC 1212 Rock v Henderson [2021] NSWCA 155 Roman v Commonwealth (2004) 16 NTLR 80[2004] NTSC 9 Savile v Roberts (1698) 91 ER 1147 State of New South Wales v Abed (2014) 246 A Crim R 549[2014] NSWCA 419 State of New South Wales v Bouffler (2017) 95 NSWLR 521[2017] NSWCA 185 State of New South Wales v Cuthbertson (2018) 99 NSWLR 120[2018] NSWCA 320 State of New South Wales v Ibbett (2005) 65 NSWLR 168

Judgment (54 paragraphs)

[1]

Background

Mr Spedding is 71 years of age. In late 2014, Mr Spedding became a person of interest in relation to an investigation into the disappearance of William Tyrrell from a house in Kendall, a town in New South Wales approximately 35 kilometres south west of Port Macquarie. At that time, Mr Spedding was living at Bonny Hills with his wife Margaret Spedding and her four grandchildren then aged between 15 and 9 years.
On 19 September 2014, Mr Spedding attended the Port Macquarie Police Station at the request of the police who were investigating the disappearance. He provided them with his diary and work notebook. The police examined his mobile phone as well. Mr Spedding did not again hear from the police until 20 January 2015.
On 19 January 2015, search warrants were obtained by the police in respect of Mr Spedding's home at Wandoo Place, Bonny Hills and his business premises in Bold Street, Laurieton. At approximately 7am on the morning of 20 January 2015, Mr Spedding and his wife were seated on the back verandah of their home at Bonny Hills when their driveway filled up with police cars. Detectives in plain clothes came to their front door. Mr Spedding opened the garage door and let them in. He was informed that they were looking for William Tyrrell.
The police searched the premises. Mr Spedding later accompanied the police to his business premises in Bold Street, Laurieton. The following day, crime scene warrants were issued with respect to both premises. Mr Spedding's wife was taken to Port Macquarie Police Station to be interviewed. Mr Spedding was told that he needed to find somewhere else to stay as his home had been declared a crime scene. Detective Sergeant Moynihan said to him: "We want you to come in for an interview to Port Macquarie Police Station."
Mr Spedding went to Port Macquarie with Detective Moynihan and Detective Senior Constable King. He was driven in the rear of a police vehicle that had doors that could not be opened by a rear seat passenger. He was told, "Stay there until we let you out."
Mr Spedding was then taken through into the custody area of the police station and directed into an interview room. He participated in an electronically recorded interview in relation to the investigation concerning the disappearance of William Tyrrell. That lasted more than six hours. It became apparent to Mr Spedding that the police considered him to be a suspect upon the basis that William Tyrrell's foster grandmother had telephoned him on the morning of 12 September 2014 requesting that he attend her house in Kendall in order to repair a broken washing machine. Detective Moynihan said to Mr Spedding: "We believe that perhaps you may have seen William … Further to that we believe that you may have grabbed William from the front yard of that address, you may have left that area without anyone knowing … We of course very much believe it."
Mr Spedding found this interrogation difficult and confronting. By the end of the interview, he was very agitated. At the conclusion of the interview, Mr Spedding was driven to Colin and Jenna Youngberry's house by Detective Moynihan and Constable King. Detective Moynihan shouted at Mr Spedding during this journey, saying, "We know you did it. We're going to get you. I'm going to come and arrest you". Mr Spedding told them that he had done nothing and that he did not know what they were talking about.
When they arrived, Constable King asked Detective Moynihan, "Are we going to let him out?" Detective Moynihan said, "Yeah, I suppose we have to". Mr Spedding left the vehicle feeling "absolutely terrible" and "really stressed". His legs were shaking and he was hot and sweaty. Constable King himself observed Mr Spedding to appear "shaken and distressed".
Mr Spedding later recalled, in conversation with his wife, that on the morning of William Tyrrell's disappearance, they had been at the Buzz Café in Laurieton where they had paid for coffee with Mr Spedding's Visa Card, following which they attended a school assembly at their grandchildren's school. After a difficult night's sleep, Mr Spedding and his wife drove to Port Macquarie to purchase new mobile phones. When they returned to the Youngberry residence, they observed media vans and reporters to be surrounding the premises. Television cameras were everywhere.
Later that day, on 21 January 2015, Mr Spedding called Detective Moynihan from the Youngberrys' home. He told Detective Moynihan that he had bank records from the Buzz Café. He gave Detective Moynihan the details, including the time of the transaction. Detective Moynihan said, "I'm tired of your bullshit and lies. Don't speak to me again."
Sometime later, the police learned that Mr Spedding had been the subject of historical sexual assault allegations. From the Strike Force Progress Report number 4, dated 9 February 2015, of which Detective Inspector Gary Jubelin is the author, it appears that the investigating police may have learned of these allegations as early as 17 September 2014. Detective Moynihan's e@glei entry on 5 January 2015 indicates that he was aware of the historical sexual assault allegations made against Mr Spedding at least by that date. In the events that occurred, three of the grandchildren who were living with Mr Spedding and his wife were removed into the care of Family and Community Services. They were told that this was because of Mr Spedding's involvement in the disappearance of William Tyrrell. The grandchildren were never returned to their custody.
On 26 February 2015, Detective Jubelin attended Mr Spedding's Bonny Hills premises and requested that he and his wife participate in a "walk-through" interview concerning their movements on the morning of 12 September 2014. The interviews were conducted by Detective Jubelin and Officers King and Brennan.
Two months later, at 1.30pm on 22 April 2015, police officers, including Detectives Jubelin, Brennan and Moynihan, attended Mr Spedding's home and arrested him. Media representatives were present at his home from early that morning. Mr Spedding and the police officers were filmed and photographed during the arrest. Images and videos of Mr Spedding and the police were broadcast widely across multiple news outlets throughout Australia.
Mr Spedding was taken to Port Macquarie Police Station. He was charged in relation to the historical sexual assault allegations concerning Jeannie Dalrymple and Lois Rifkin. He was refused bail by the police and by the Local Court the following day. Justice Bellew of the Supreme Court granted bail on 19 June 2015. Carriage of the criminal proceedings was taken over by the ODPP by the end of April 2015.
The offences allegedly committed by Mr Spedding, for which he was arrested, were said to have occurred in 1987 against his stepdaughter Jeannie Dalrymple, then aged six, and his biological daughter Lois Rifkin, then aged three. All offences were said to have been committed on the same night, between 1 March and 30 April 1987, when Mr Spedding had overnight contact with his children. However, no charges were laid by the police as the result of their investigations in 1987.
The allegations arose after access orders had been made by consent in the Local Court at Parramatta in March 1987, and while proceedings were on foot in the Family Court of Australia, concerning the custody of the children of Drake Kruger and India Kruger (Kruger v Kruger). The allegations had been the subject of a police investigation that year and the girls were interviewed by police. Cynthia Heyman, Mr Spedding's former wife (later Cynthia Kruger), as well as Connie Goldstein, were complaint witnesses in 1987 and in the subsequent District Court trial proceedings. The allegations against Mr Spedding and India Kruger of sexual assault of the Kruger children were litigated as part of the Kruger v Kruger Family Court proceedings between 17 to 21 October 1988 and 10 April to 12 May 1989.
During the Kruger v Kruger proceedings, Mr Spedding, Cynthia Heyman, Connie Goldstein, Drake Kruger and India Kruger gave evidence. Portions of the evidence of these witnesses were available by the time of Mr Spedding's District Court trial.
Mr Spedding's legal representatives were served with a copy of the reasons for judgment of Justice Gee in the Family Court dated 17 May 1989 in Kruger v Kruger. Mr Spedding was committed for trial in the District Court, and an indictment was presented on 10 June 2016 in respect of the charges specified in paragraph 37 of the amended statement of claim. Mr Spedding was arraigned on that day and pleaded not guilty. On 7 September 2016, Mr Spedding applied for a permanent stay of the criminal proceedings against him. Huggett DCJ refused that application on 24 February 2017. The matter was listed for trial commencing 8 May 2017. However, that date was vacated and later the proceedings were re-listed on 12 February 2018. Mr Spedding applied for a judge alone trial, which the Crown did not oppose.
The trial ultimately commenced before Sweeney DCJ on 21 February 2018 but was adjourned on the Crown's application to 26 February 2018. On 5 March 2018, Mr Spedding applied for a Prasad direction in relation to Counts 1 to 3 on the indictment concerning Jeannie. Mr Spedding also argued that there was no prima facie case in relation to Counts 4 to 7 on the indictment concerning Lois. Sweeney DCJ found Mr Spedding not guilty on Counts 1 to 3 on the indictment and directed herself to return verdicts of not guilty on Counts 4 to 7 because she was of the view that the evidence was not capable of proving each of the offences beyond reasonable doubt. Mr Spedding applied for and was awarded costs pursuant to s 2 of the Costs in Criminal Cases Act 1967.

[2]

The sexual assault allegations

It is at the heart of Mr Spedding's claim for damages that the sexual assault allegations that led to his District Court prosecution were in effect a collateral attack upon him in order to facilitate the investigation of him as a suspect in the disappearance of William Tyrrell. It is therefore important to understand the circumstances surrounding the making of those allegations, Mr Spedding's family background and the relationship between and among various people concerned.
Mr Spedding's first marriage was to Jenna Spedding. The marriage produced three children: George Spedding, Izzy Spedding and Robin Spedding. Mr Spedding later married Cynthia Heyman on 4 December 1982. Cynthia had two children to her previous husband, Gene Temple: Ross Temple and Jeannie Temple. Mr Spedding's marriage to Cynthia produced one daughter, Lois, who was born in December 1983. In 1984, Mr Spedding adopted Ross Temple and Jeannie Temple and they took his surname.
In mid-December 1986, Cynthia informed Mr Spedding that their marriage was over, and in the days following she moved from Victoria, where the family were then residing, to her parents' home in Dundas, New South Wales. Cynthia took Ross, Jeannie and Lois with her.
When Mr Spedding and his family were residing in Victoria, they had met and socialised with Drake Kruger and India Kruger. This couple also had three children: Noreen Kruger, Tina Kruger and David Kruger. At the end of December 1986, Drake Kruger left his wife India Kruger, taking his children to reside with Cynthia in Dundas. This prompted India Kruger to commence custody proceedings against Drake Kruger in the Magistrates Court at Ballarat. This was effectively the commencement of the Kruger v Kruger family law proceedings. On 29 January 1987, consent orders were made in the Family Court in Melbourne granting India Kruger sole custody of Noreen Kruger, David Kruger and Tina Kruger, with some access also granted to Drake Kruger.
On 24 February 1987, the Community Services Child Protection Department in Victoria received a notification about the Kruger children being sexually abused by India Kruger. In early March 1987, the Department terminated the investigation on the basis that the allegations of abuse were unsubstantiated. Importantly, on 4 March 1987, orders for access by Mr Spedding to Ross, Jeannie and Lois were made in the Local Court at Parramatta. Mr Spedding was entitled to weekend access to his children every alternate weekend commencing 11 April 1987.

[3]

The criminal proceedings

In summary, it was alleged against Mr Spedding that between 1 March 1987 and 30 April 1987, whilst Ross, Jeannie and Lois were inside the caravan on the Turner property at Campbelltown, he: Sexually assaulted Jeannie by digitally penetrating her vagina while lying on top of her (sequence 1 in the Court Attendance Notice); Assaulted Jeannie when she resisted (sequence 2 in the Court Attendance Notice); Digitally penetrated Lois's vagina (sequence 3 in the Court Attendance Notice); Digitally penetrated Lois's anus (sequence 4 in the Court Attendance Notice); Penetrated Lois's vagina with his penis (sequence 5 in the Court Attendance Notice); Penetrated Lois's anus with his penis (sequence 6 in the Court Attendance Notice); Assaulted Lois (sequence 7 in the Court Attendance Notice).
There were changes to these charges whilst the matter proceeded through the District Court. The indictment ultimately presented to the District Court at the commencement of Mr Spedding's trial contained seven charges. The allegations supporting the charges in the indictment were described in the Crown Case Statement in the following terms: "Inside the Caravan the two girls stayed in a bed with the accused and Ross slept in a separate bed. During the night it is alleged six year old Jeannie was woken by the accused inserting his fingers into her vagina while laying on top of her. Count 1 - sexual intercourse with a child under 10 pursuant to section 66A of the Crimes Act 1900, alt. Count 2 indecent assault section 66E(1A). This was not an isolated occurrence. Jeannie alleges she was subjected to ongoing sexual abuse in Victoria prior to this. On this occasion the assault only lasted briefly as Jeannie resisted the accused by kicking her legs and screaming out. Jeannie next either hit the wall or floor after being pushed aside by the accused. Count 3: Common assault pursuant to section 61 of the Crimes Act 1900. It is alleged that after pushing Jeannie aside the accused assaulted three year old Lois. Jeannie hearing Lois screaming. It is alleged the accused penetrated both her vagina and anus with his penis and digitally penetrated her vagina. Counts 4, 5 and 7 sexual intercourse with a child under 10 pursuant to section 66A of the Crimes Act 1900 with Count 6 indecent assault section 66E(1A) as alt. to Count 5. During the assault it is alleged that the accused hit Lois to the head. Count 8: Assault pursuant to section 61 of the Crimes Act 1900."

[4]

The Family Court decision

Although the views and findings expressed by Gee J in his 17 May 1989 judgment in Kruger v Kruger are in no sense determinative of the issues raised in the present proceedings, the subject matter and comprehensive analysis exposed in his Honour's detailed reasons reveal a significant forensically valuable historical analysis of the primary material that would appear ultimately to have inspired the criminal case against Mr Spedding. It is in effect the first critical consideration of the metaphorical Petri dish from which Mr Spedding's charges emerged. It is therefore instructive to take some time to refer to it now. That is particularly so having regard to the fact that it was material that was in the hands of the prosecution from as early as 20 January 2015, when a copy of his Honour's judgment was seized by police during the execution of the search warrant at Mr Spedding's business premises at Laurieton on that date, and some time before the proceedings terminated favourably to Mr Spedding.
The proceedings related to the custody of the three children Noreen, David and Tina Kruger, whose parents were Drake Kruger and India Kruger. Drake Kruger was, by the time of these Family Court proceedings, married to Cynthia Jeannie Heyman-Temple-Spedding-Kruger (as his Honour described her), in whose custody the children then were. Drake Kruger and Cynthia Heyman alleged that the children had been sexually abused by India Kruger and Mr Spedding.
His Honour described India Kruger' case as follows: "Substantially the wife's case is that, insofar as these allegations have any substance, they have come about as a combination of many circumstances being a determination of an implacable kind by Cynthia and the husband assisted by Connie Goldstein, her sister, and to a less extent by Mrs Heyman, her mother, to implant into the minds of the Kruger children that they had been sexually abused. This has been orchestrated by their continued presence in the home of the husband and Cynthia in association with her children as a result of cross-fertilisation between them and in which course of action the husband has been a knowing and willing participant. It is alleged on the wife's behalf that the environment of intrigue thus created was such that the children said what they said, not only to play their parents off against each other because of an intense loyalty conflict, but to appease the authority figures in their home, and that they were compounded further by the activities of Cynthia's brother, Jerry Heyman, insofar as those activities may have contributed to the climate of construing any innocent action between a parent and child as having a sexual connotation and a sinister one. Certain it is that if the allegations are true they are of a monstrous kind. Certain it is that if they have been made as a result of a combination of the circumstances I have described, those circumstances are remarkable but, as will be apparent from my reasons for judgment, that is precisely this case. … During the course of January 1987, while the Kruger children were at the Heyman home at Dundas, one Jerry Heyman took Lois and David to the toilet. He is the brother of Cynthia and was convicted on 2 February 1982 of abducting a five year old girl and was also convicted of an act of indecency and was thereafter imprisoned. His main problem is a sexual attraction to girls. The incident above referred to occurred while he was at the home on parole. … The wife denied the allegations of breast licking and the allegations of neglect. These had been raised by the husband in his affidavits filed in February 1987 in the Victorian custody proceedings. Both social workers were of opinion that there were no indications of any sexual abuse occurring in the children's relationship with their mother. To their observation she demonstrated love for her children and both believe the children were not suffering abuse at her hands. … On 4 March 1987 orders for access by Bill Spedding to Ross, Jeannie and Lois were made in the Local Court at Parramatta … … On 29 March 1987 Bill Spedding had access to his three children until 5pm. He arranged to have weekend access to his children every second weekend, to commence on Saturday, 11 April 1987, and had access to them overnight from 11 April to 5.30pm on Sunday, 12 April 1987. … In April 1987 Cynthia asserted that her daughters Jeannie and Lois had informed her that they had been sexually abused by Bill Spedding. On 22 April 1987 Bill Spedding received a phone call from Cynthia stating there would be no access on the weekend of 25 and 26 April 1987 and alleged that Bill had sexually molested the children. Thereafter Bill Spedding had no access to those children and paid no maintenance in respect of them. Mrs Edna Heyman, the mother of Cynthia Spedding, alleged that on 25 April 1987 she had a discussion with Lois and she was damp in her pants and had complained of stinging when urinating. She cried that her body was hurting and according to Mrs Heyman her labius [sic] appeared to be purple, and seemed to be badly bruised. Lois complained that Bill Spedding did it by sticking his fingers in her little botty. Connie Goldstein, Cynthia's sister, filed an affidavit in the Spedding proceedings, stating that she had a conversation with Jeannie about germs in which Jeannie alleged Bill Spedding touched her with his diddle in the front and in the back. She alleged he had taken her clothes off and done things to her, described an action which involved her being pulled onto Bill Spedding's penis, according to Mrs Goldstein. Cynthia herself purported to corroborate what her mother had said. … On 20 May 1987 Bill Spedding was interviewed by the police in relation to the allegation that he had sexually molested Jeannie and Lois. He denied these allegations, both in the statement and in his oral evidence before me. … On 22 August 1987 Bill Spedding moved into 13 Dorrit Way, Ambervale, to live in a de facto relationship with Margaret Myers, with whom he still resides. … On 8 June 1988 the husband and wife were divorced, as were Bill Spedding and Cynthia. On 11 September 1988 the husband married Cynthia. … In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof and due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362. There, Dixon J (as Dixon CJ then was) said: 'The seriousness of an allegation made, the inherent unlikelihood of an allegation of a given description, or the gravity of the consequences flowing from a particular finding are considerations which much affect the answer to the question whether the issue has been proved to the satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences.' These remarks have direct application to an allegation that a parent has sexually abused a child. In some cases the Court will be able to come to a positive finding that the allegation is well founded. In some cases the Court will have no hesitation in rejecting the allegations as groundless. … To reach a conclusion in favour of the wife on this issue in the present case I would need to be reasonably satisfied that the wife has not sexually abused the children before I could conclude, in relation to that issue, that she should have custody to the children; for otherwise for her to have custody would expose them to an unacceptable risk of child abuse at her hands and/or the hands of Bill Spedding. I would also have to take into account among other issues, if I was in favour of the wife on that issue, that the children believe that they have been sexually abused by her in concert with Bill Spedding, and also take into account the fact that they have been integrated into the Kruger new household for a considerable period of time. … Mr Trench, on behalf of the husband, submitted that there were nine possible scenarios in this case. Firstly, that the wife and Bill Spedding in conjunction, collectively or individually abused the children. Secondly, that the wife by herself sexually abused the children. Thirdly, that the wife and Bill Spedding sexually abused the children unbeknown to each other. Fourthly, that the wife and another male sexually abused the children. Fifthly, that another India did it. Sixthly, that no one sexually abused the children. Seventhly, that Cynthia and/or the husband sexually abused the children. Eighthly, that it was done by Jerry Heyman. Ninthly, that it was done by the wife, Bill Spedding, the husband and Cynthia. … The conduct of Cynthia can only be described as obsessive, compulsive and bizarre. She is the mistress of the Kruger household-fortress and the husband has become absorbed into that fortress. Thus he became obsessed and remains obsessed with her capacity, with which she remains obsessed, to construe any innocent remark by a child and any innocent action by a person or persons, including the wife, towards a child as having sinister consequences. It is apparent upon the evidence that both Cynthia and the husband gave to the Kruger children very clear and explicit warnings that Bill Spedding was a bad man and would do bad things to them. Cynthia had shown photographs of Bill to the children and asked them to confirm he was the man staying in the wife's house. That was done repeatedly during 1987 and both Cynthia and the husband got the children to agree he was the man with their mummy. He said Cynthia told him of these matters and he made no inquiries himself. It is clear that by the end of 1987, on his own admission, that his children were abundantly aware of the things Bill Spedding was alleged to have done to the Spedding children and that they were similar to the sort of things alleged to have been done to the Kruger children. It is clear upon the evidence that his children were present on many occasions when Cynthia also gave to them warnings of what Bill Spedding had done to the Spedding children. He said the remarks were that Bill Spedding had done naughty things to his children, but having regard to particularly the evidence of Connie Goldstein, I suspect, and find, that the remarks were much more specific than that. I have no doubt that in the Kruger new household there were discussions in the presence of the Spedding and Kruger children without any concern as to what they might hear, what they might imagine, and what they might dream up or dream about in conversation between themselves. There was undoubtedly discussion of the specific allegations made against Bill Spedding, discussion of their suspicions concerning their own children, discussion concerning what they, namely Cynthia and the husband, imagined was being done to the Kruger children. It is clear that both the husband and Cynthia were concerned to impress on the Kruger children that Bill Spedding was a dangerous man and should not be doing naughty things to them, that it in some way involved him touching their private parts, that they must be careful when he was around, that he was a naughty man who did bad things to little children, that their mummy was naughty in letting him come into the house, and that they should be careful when she let him come into the house. … Further, it is apparent upon the evidence that the husband and Cynthia set out deliberately to make Cynthia the children's mother so that she became their mother and so that the children's mother in fact became simply 'India' and called her 'dragon lady' and 'monster dragon lady'. Further, I have no doubt whatever and find that Cynthia was prepared to say anything that would fulfil this end and bring it to consummation. Her evidence contained inconsistencies within itself so numerous that I cannot take the time now to refer to them. One in particular I may draw attention to is the fact that she told Judy Houston that she and Bill Spedding had separated in August 1986 when it is plainly apparent that it was later. Further, there is not only her own unhealthy concern for construing innocent matters as having sexual overtones but there is evidence of an over-active imagination taking instances of similar conduct in one place and relocating them in the other. … I am sure insofar as it was tutoring that Cynthia and Connie were more than equal to the task of sustaining a high degree of 'tutoring'. These children were brought to expect the kind of behaviour alleged against the wife and Bill Spedding, they learnt about explicit sexual behaviour because the behaviour was constantly discussed in the home. Children in the second Kruger household, including the Kruger children, learnt more about the interrogators when they were discussing the matters expected. They learnt what adults including the husband and Connie and Cynthia expected from them and wanted of them. … Professor Brent Waters himself agreed that it was possible for allegations to be not only false or malicious but evolved over a period of interrogation precipitated by innocent incidents. He agreed there was a possibility of cross-fertilisation of ideas between the step-siblings on the Spedding side with whom the Kruger children have resided for so long. Children can say what their parents and others want to hear. Children in a conflict of loyalties situation can shift their ground, and an ex-spouse or others close to them expecting and wishing the worst can suggest things that are not there or build up what were small things with suggestive interviewing technique and spontaneous imaginative reconstruction into a falsification and contamination rather than clarification of children's memory. … I am not only not reasonably satisfied that the children [sic, wife] and/or Bill Spedding sexually abused her own children but I am reasonably satisfied that the wife and Bill Spedding have not sexually abused the said children. I bear in mind in reaching that conclusion the nature of the allegations made. I bear in mind the necessity to be reasonably satisfied that they have not been established. I have borne in mind the cautionary words of Sir Owen Dixon in the passage from Briginshaw v Briginshaw (supra) to which I have referred. However, after a careful examination of the evidence in the way that I have described, I have found that I am reasonably satisfied that they have not been established."

[5]

Mr Spedding's evidence

Mr Spedding's evidence-in-chief was given in an affidavit sworn by him on 1 July 2020. It is largely uncontroversial so far as his recitation of the events surrounding his arrest and prosecution are concerned. His version of what occurred is largely agreed and is reflected in the outline contained earlier in these reasons. However, the conversations that he had with arresting police are not accepted in full by the State, and those portions of Mr Spedding's statement that record those conversations must be included in these reasons. They are as follows. First at the Bonny Hills premises on the morning of the police raid: "28. The detectives approached the door and were demanding entry. The front door was a deadbolt that I had to unlock with a key, so I walked to the garage and opened the electric garage door to allow the detectives entry. 29.When I opened the garage door, there were approximately six male detectives wearing plain clothes that entered and approached me. 30. One of the officers had in his hand a piece of paper. He indicated to it and stated words to the effect 'we have here a search warrant to search the premises for William Tyrrell … you are not allowed to hinder or obstruct us in any way … we are going to search the premises'. 31. He handed me the piece of paper and I said words to the effect of 'I'll escort you inside'. … 35. One of the detectives asked me a question to the effect 'may we have the keys to your office at ** Bold Street and the keys to any locked cabinets down there?' I maintained an office there, from which I conducted my business. I located and provided the keys to three to four locked cabinets in the office at ** Bold Street Laurieton. 36. One of the detectives said to me words to the effect 'you'll need to come with us and open everything at the office'. I followed the detectives out of my property and I was conveyed down to my office at Bold Street Laurieton in an unmarked detectives vehicle. In the vehicle was an officer that I came to know as Detective Sergeant Moynihan, and another officer. I believe that we attended the office in Laurieton at approximately 9am. 37. Once we arrived at the office in Laurieton, I opened the office and opened the various safes and locked cabinets within the office. I had three computers in a row on the office bench and a number of laptops. One of the officers asked me a question to the effect of 'what are all the laptops for?' I replied with words to the effect 'the kids come in the afternoons after school and play their computer games'. 38. An officer then said to me words to the effect 'we will take you back to the house now'. I was conveyed back to my house in Bonny Hills again in the unmarked police car by Detective Sergeant Moynihan and another officer. 39. When [we] arrived back at the house, an officer informed me words to the effect 'we've declared this as a crime scene. You need to find somewhere else to stay and for the children'. … 45. I had a number of interactions with different officers during the search. One had approached me and said words to the effect 'we are going to search under the house'. 46. Another police officer came and asked for some tools to search the woodpile down the back of the property. The woodpile was about 50 yards south-east of the house. I said to the police officer words to the effect 'you will need more than tools to pull that apart. The landlord has put very big logs down there'. … 51. I had not finished packing the bag when I was approached and told by Detective Sergeant Moynihan words to the effect of 'we want you to come in for an interview to Port Macquarie Police Station'. 52. As the police had told me I had to go, I did not feel like I had the option to refuse them. It was not put to me as a question or a request. However, I did not know I was a suspect at this time. No police officer had informed me that I was a person of interest or a suspect before this time. I replied with words to the effect of 'oh, alright, not a problem'. 53. I was directed towards one of the unmarked police vehicles and complied. I was taken from the house to Port Macquarie Police Station in that vehicle, which was an unmarked Holden sedan. Detective Sergeant Moynihan and Detective Senior Constable King were in the front seats of the sedan and I was seated alone in the backseat. 54. During the drive to Port Macquarie, Detective Senior Constable King asked me a question to the effect 'do you know any paedophiles?' I thought about it and replied with words to the effect 'There are only two that I know of. I know him as Ronald Morgan. The other one is Bradley Facey'. One of the detectives said, 'What about Jerry?' I replied with words to the effect 'Jerry who?' One of them replied 'Jerry Heyman'. I understood Jerry Heyman to be a reference to Cynthia Heyman's brother. I said words to the effect of 'He's been in gaol for years'. 55. One of the officers began asking me questions with words to the effect of 'How often did you see him?' and 'Did he work for you?' I became confused as there was another Jerry that had worked for me and I did not know which one they were referring to, as Jerry Heyman had never worked for me. 56. By this time we were driving in the 100km/hr zone into Port Macquarie and I was struggling to hear what was being asked of me over the road noise. I said words to the effect 'I can't hear what you are saying, you'll have to ask me when we get out of the car'. Nothing more was said until we got to Port Macquarie Police Station. 57. When the vehicle arrived at Port Macquarie Police Station, it drove through the back gate of the secure police car park at the back of the station. When it stopped, I tried to open the door and I was unable to open it. One of the detectives said to me words to the effect 'stay there, we need to let you out' or 'stay there until we let you out'. 58. I then observed the detectives check their pistols into the lockers and I was taken into the police station through one of the back doors. I was taken through and into what I later found out was the custody area of the police station and down a short hallway. 59. In the hallway, a door was opened and I was directed to enter an interview room. I was given a cup of water and everyone sat down. One of the detectives then said words to the effect 'You do not have to say anything' or 'You are not obliged to participate in an interview'. … 63. The interview went for approximately six hours and eight minutes. … 67. By the time that the interview ended, it appeared to me as if Detective Sergeant Moynihan had increased in his aggression towards me. I was escorted out, the way I had come, to the same vehicle. I had no concept of what time of night it was. … 69. Whilst I was still seated in the back of the vehicle, Detective Sergeant Moynihan turned around and shouted, in what I felt to be a very angry tone, words to the effect of 'We know you did it. We're going to get you. I'm going to come and arrest you.' 70. I replied 'I haven't done anything. What are you talking about?' 71. When we arrived at Colin and Jenna's house and the vehicle stopped, Detective Senior Constable King said words to the effect of 'Are we going to let him out?' 72. Detective Sergeant Moynihan said words to the effect of 'Yeah, I suppose we have to'. 73. Once I got out of the vehicle, I was shaking and really stressed out. I felt absolutely terrible, my legs were shaking, I was hot and sweaty. I was really, really stressed."

[6]

Malicious prosecution

Mr Spedding contends that his prosecution on the historical child sexual assault charges was commenced and maintained without reasonable or probable cause and maliciously. The following material is marshalled by him in support of that contention.
Eleven days prior to his arrest on 22 April 2015, Detective Inspector Gary Jubelin prepared a document (Exhibit E) entitled Strike Force Rosann Proposed Operational Phase. It is a document described by counsel for Mr Spedding as "dripping with malice". It purports to identify Mr Spedding as a person of interest in the disappearance of William Tyrrell by reference to Mr Spedding's "involvement" in the historical child sexual offences dealt with, and discredited by, Gee J in 1987. Despite its length, but having regard to its significance in Mr Spedding's case, it is necessary to include the following important extracts: "STRIKE FORCE ROSANN PROPOSED OPERATIONAL PHASE 'Confidential document - Public Interest Immunity Claim' This document is an informal document that has been created as a guideline only to upcoming operations and strategies relating to capturing evidence against William Spedding's possible involvement in Tyrrell's abduction. Where required specific operational orders will be prepared for tasks identified in this document. BACKGROUND INFORMATION: William Tyrrell, 3 years old disappeared from his grandmother's home at ** Benaroon Drive, Kendall about 10.30am on Friday 12/9/14. An extensive search of the surrounding bushland and properties failed to locate Tyrrell. Police have now formed the view that Tyrrell was abducted. A person of interest William Spedding, 63 years old has been identified as a suspect. The suspicion attached to Spedding stems from the following: • Spedding had contact with the Tyrell family in his capacity as a washing machine mechanic. On the morning of Tyrell's disappearance his foster mother, left a message on Spedding's phone requesting he attend that day to complete his repairs of their washing machine. Checks show that Spedding retrieved that message in the morning. He did not return the call, but manually deleted the call from his phone. (no other calls were deleted). • When interviewed by police Spedding claimed he had attended a school assembly at Laurieton that morning to see his grandson get an award. This alibi has been vigorously investigated. All adults who attended the assembly have been identified and interviewed by way of detailed statement. No person at the assembly recalls seeing William Spedding at the assembly. Two people who Spedding claims to have spoken to whilst at the assembly, deny doing so. His grandson who received the award was interviewed by Child Protection Police and claims he recalls his grandmother there, but not his grandfather. The only person who supports Spedding being at the assembly is his wife and her credibility is questionable in regards to her account of the situation. • Spedding has kept a spider man toy in a prominent location in his work vehicle months after being interviewed by police in regards to his possible abduction of a child wearing a spider man outfit. Spedding claims this toy belonged to one of his grandchildren. This version has been supported by certain family members. However it appears there been some coaching and collaboration in their responses. • Evidence available to police indicate that despite the fact no convictions have been recorded, Spedding is a paedophile. Police are in possession of substantial evidence, including statements and medical evidence which indicate Spedding has been sexual assaulting numerous children, including his daughter when she was just 3 years old. • Spedding is a member of Grandparents Acting as Parents (GAPA) which on initial investigation appears to be linked to a group adults involved in paedophilic activities. • Although not evidence Spedding's behaviour during the course of this investigation can only be best described as unusual. This includes posting pictures of Tyrrell on his Facebook site. PHASE 1: PREPARATION PHASE (to be completed by 17/4/15) i. Gather evidence against William Spedding in regards to the historical sexual assaults of his daughters, Leonie [sic] and Jeannie. This includes obtaining statements and records sufficient to compile a brief of evidence. ii. Compile the brief with a view to charging Spedding with four offences. Two offences relate to his then 3 year old daughter Leonie [sic] and two offences relating to his 6 year old daughter Jeannie. iii. The brief should include a comprehensive set of facts which outlines reasons for which bail should be refused. … xvii. Speak to Anthony Jones, (sex offender, prisoner and member of GAPA) re his knowledge of Spedding and his willingness to cooperate with police. … PHASE 2: MEDIA RELEASE - FRIDAY 17/4/15 The release of the first media interview given by the parents of William Tyrrell will be released early Friday morning. This will be followed by a Media Conference held at Police Headquarters with Detective Superintendent Willing addressing the media about the status of the investigation, this will include reference to the fact investigators are exploring a line of inquiry relating the activities of suspected paedophiles. It is anticipated this will attract intense and wide ranging interest from the media. It is likely there will be further requests for interviews following the conference, which will be considered on an individual basis. The purpose of the media release is to generate discussion by possible targets, appeal to the public for further information and also be it remote encourage any person who might have William to return him. PHASE 3: ELECTRONIC & PHYSICAL SURVEILLANCE It is anticipated the media attention will generate discussion by Spedding, who may also attempt to meet up with people he feels are sympathetic towards him. LD's, TI's and physical surveillance will be utilised to capture this activity. We are also seeking photographs from surveillance police of persons who meet with Spedding during this period. These photographs will be used in Phase 6. PHASE 4: INTERVIEW WILLIAM & MARGARET SPEDDING - 20/4/15 This will involve Detective Inspector Jubelin and Detective Senior Constable King speaking to Bill Spedding whilst wearing a body wire. The conversation will be done under caution and will focus mainly on his alibi evidence relating to the school assembly. Speak to Margaret Spedding this will be done away from William Spedding. The purpose of this interview will be to point out to her that all the evidence we have gathered indicates Bill was not at the assembly and therefore she is being untruthful. Discussion will also be had concern the parents appeal for William's safe return. It is anticipated these interviews will potentially generate discussion between Margaret and Bill. It might also get Margaret to acknowledge she was lying about claiming Bill was with her at the assembly. PHASE 5: ARREST SPEDDING RE SEXUAL ASSUALTS [sic] - 22/4/15 This involves arresting Spedding, interviewing and charging him in regards to the sexual assaults of his daughters. A search warrant will also be executed on his home in regards to photographs, documents relating to the sexual assaults. Margaret Spedding will also be interviewed about her knowledge of Bill's paedophile activities. NB: Prior to the arrest we need to notify foster parents, biological mother and FACS. It is most likely this arrest will attract significant media interest we need to have a strategy in place to deal with this. It should be noted the more attention to this the greater the impact we can have in regards to Phase 6. If Bail Refused: Attempts will be made to conduct a covert operation to obtain a confession from Spedding in regards to Tyrrell. PHASE 6: INTERVIEW GAPA MEMBERS & ASSOCIATES (timings to be determined possibly commencing week of 27/4/15) Following the arrest of Spedding we will then speak to all the identified members of GAPA. The purpose of the interviews will be to establish what they know about Bill Spedding and the disappearance of William Tyrrell. We will also be seeking information concerning their knowledge of any person they have contact with or know of that has allegations and or convictions for sexual assault of juveniles. At this stage we have identified approximately 20 persons associated with GAPA who will be interviewed. The interview of the associates of Spedding will be for the purpose of establishing what they know about William Tyrrell's abduction, do they know why Bill is lying about being at the school assembly, what do they think about Bill, now he has been charged with sexually assaulting children. At this stage we have identified approximately 15 associates of Spedding who will be required to be interviewed during this phase. PHASE 7: CONCLUSION TO OPERATION PHASE Assess information obtained during operation. Determine whether to continue convert electronic evidence gathering. If not recover all devices. Follow up further sex offences committed by Bill Spedding. At this stage we have identified three other definite victims and five other possible victims. NB: The time frames for these matters are tight, I have taken into account the fact Spedding's lease on his home runs out in early May. There is also information that he was looking at possibly moving. He was seeking a job based in Townsville. With the intense media attention and financially struggling there is a possibility he might move. This would have a detrimental effect on our ability to target him. I have also attempted to facture [sic, factor] in Court Commitments, other investigations and Team 2's on call commitment commencing 29/4/15. Created 11/4/15 by Detective Inspector Jubelin"

[7]

Detective Brennan

Detective Samuel Brennan joined the William Tyrrell investigation in February 2015. He said that he became "formally aware" of historical child sexual assault allegations against Mr Spedding through "team and investigation meetings", but had "some awareness" of allegations before this time. Detective Brennan's statement in these proceedings included the following: "13. I was not the first officer to start investigating the historical child sexual assault allegations. Investigations had already been commenced within S/F Rosann and by officers attached to the Sex Crimes Squad who had made enquiries and obtained statements from Lois and Jeannie. 14. I took over the investigation into the historical child sexual assault allegations in around early April 2015. My recollection is that the documents I was originally provided with in relation to these allegations were the statements of Lois and Jeannie, as well as the historical records from the now-Department of Communities and Justice ('DCJ'). I recall then attending a meeting with officers attached to the Sex Crimes Squad and they provided a briefing as to where the investigation was up to. I did not have carriage of the investigation relating to the historical sexual assault allegations until after statements were taken from Lois and Jeannie. … 18. On 15 April 2015, I began preparing the Facts Sheet in relation to allegations made against Mr Spedding. At that stage, I had available to me the statements from the complainants Lois and Jeannie, and the DCJ records which included contemporaneous records from medical practitioners who treated the complainants."
The statements of Jeannie Dalrymple and Lois Rifkin are both exhibited to Detective Brennan's statement. The parts of Jeannie's statement that purport to describe the charged incidents in the caravan in April 1987 are as follows: "47. The inside of the caravan was small, I think I was excited about being in a caravan for the first time. I can remember that Lois and I shared a bed with Bill and there was a small bed for Ross. Bill slept in between Lois and I. I can remember waking up in the night with my pants being taken off by Bill and him putting his fingers inside my vagina. He didn't keep them for inside my vagina for very long. He was lying on top of me. I kicked my legs and carried on and screamed a bit. Lois stirred from her sleep. Bill pushed me aside and I can't remember if I hit a wall or fell off the bed. He grabbed Lois, I didn't watch what he did to her but I could hear Lois crying and screaming. I think I was on the bed at this point. I kept my head down because I didn't want to see what he was doing to her. I was crying, I was very upset. I don't know how long it went on for. I have a memory of Bill leaving the caravan when he was finished and I remember putting Lois's clothes back on her and cuddling her in the bed. I can't describe the clothes she was wearing. I remember saying to her, 'Don't tell mum.' The light was off and it was dark, but there was light coming in from outside, it could have been the moon or light. At the time I didn't see Ross wake up, but I have heard since that that he did. I heard him telling a family member that he woke up when it was happening. I have since thought about why I fought back on this occasion, I think it was because I hadn't seen him in a while as mum and Bill had separated. The abuse hadn't happened for a while so I think it made me react strongly to it."

[8]

Detective Jubelin

There were several matters raised in the evidence of former Detective Inspector Gary Jubelin that Mr Spedding contended would lead me to doubt his credibility and reliability in the absence of corroboration.
During his cross-examination, counsel for Mr Spedding called for the 44 Strike Force investigation progress reports Inspector Jubelin mentioned during his evidence. That material was produced at the conclusion of the sixth day of the trial. Additionally, Exhibit E was produced shortly before the re-commencement of the cross-examination of Inspector Jubelin on the final day of the trial, necessitating a short adjournment. This was despite Mr Spedding having called for this document on day three of the trial, during Detective Brennan's cross-examination.
Mr Spedding submitted that Exhibit E and the Strike Force investigation progress reports which became Exhibit D establish that the criminal proceedings against him were used principally as a strategy to further the investigation of him as a suspect in the disappearance of William Tyrrell. Mr Spedding also submitted that Inspector Jubelin's evidence to the contrary is false.
For example, Inspector Jubelin is the author of progress report number 6 for the month ending 13 April 2015. He was cross-examined about it. The report says that, given the resources available to the Strike Force, the only option was to focus on the Spedding line of inquiry. Inspector Jubelin also makes reference to the "targeting" of Mr Spedding involving the use of covert investigative techniques, a prepared media strategy and overt inquiry regarding his alibi evidence. Inspector Jubelin then mentions the tasks that have been carried out during the reporting period which include, amongst other things, generating media interest in the matter via a planned media strategy designed to elicit more information from the public and initiate discussion which may be captured by listening devices and, importantly, making contact with Lois and Jeannie, obtaining statements from them and compiling a brief of evidence against Mr Spedding for the sexual assault of his daughters. Immediately after the task of compiling a brief of evidence against Mr Spedding, Inspector Jubelin mentions the following task: "Prepare for a further Operational Phase in which we target Spedding with the view of gathering evidence against him concerning the Tyrrell abduction."

[9]

Detective Senior Constable King

As mentioned above, Detective King said in evidence that he remembered Inspector Jubelin referring to Mr Spedding as "Mr nice washing machine man". Inspector Jubelin conceded that it was possible that he referred to Mr Spedding in those terms. Detective King's evidence was that these words were said in a sarcastic and derogatory tone. Mr Spedding submitted that, in accordance with his own evidence, these words were followed by "I am going to ruin you."

[10]

Discussion

The State of New South Wales admits that if the torts alleged against Inspector Jubelin and Detectives Brennan and Moynihan are proven, it is vicariously liable for those torts pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983. For Mr Spedding to succeed in his action for malicious prosecution against the officers, he must establish that: 1. Proceedings of a kind to which the tort applies (generally, criminal proceedings) were initiated against him by the officers; 2. The proceedings terminated in his favour; 3. The officers, in initiating or maintaining the proceedings, acted maliciously; and 4. The officers acted without reasonable and probable cause: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1].

[11]

Identification of the prosecutor

In relation to the first element of the tort, it has been said that to incur liability a defendant must play an active role in the conduct of the proceedings, as by "instigating" or setting them in motion: A v New South Wales at [34].
Mr Spedding submitted that there can be no dispute that Detective Brennan was heavily involved in instigating the criminal proceedings. It appears clearly from Detective Brennan's statement in these proceedings that he became "formally" aware of the historical sexual assault allegations against Mr Spedding in February 2015, when he was attached to the investigation concerning the allegations. However, Detective Brennan says that he was not the first officer to start investigating the historical sexual assault allegations as, by his reckoning, the investigation had already commenced within Strike Force Rosann and by other officers attached to the Sex Crimes Squad who had made inquiries and obtained statements from Lois and Jeannie.
Detective Brennan says that he took over the investigation into the historical sexual assault allegations in around early April 2015 and that it was Inspector Jubelin who decided to take the investigation out of the ambit of the Sex Crimes Squad and into the Homicide Squad, specifically Strike Force Rosann. This evidence is at odds with the evidence of Inspector Jubelin, which is to the effect that the investigation of the historical allegations was always under the umbrella of the Strike Force.
Detective Brennan prepared the Facts Sheet which was put before the Local Court. He began preparing it on 15 April 2015. He updated it five days later. The following day he conferred with Sergeant Clint Nasr and also Inspector Jubelin about the contents of the Facts Sheet. The Court Attendance Notice specifying the alleged offences against Mr Spedding was created by Detective Brennan at 6:46pm on 22 April 2015.
Although the ODPP had taken carriage of the prosecution by the end of April 2015, Detective Brennan's role as the investigator continued. For example, he was involved in obtaining statements from various witnesses, including Connie Goldstein, Sarnia Richer, Dr Susan Marks, a supplementary statement from Lois and investigator's notes and statements from Tina Mandelbaum (nee Kruger), David, Noreen and Drake Kruger and India Clancy (previously Kruger). Apart from continuing his role as an investigator, Detective Brennan admits to being consulted by the ODPP in relation to what counts to proceed with. He also says that from time-to-time, solicitors from the ODPP requested that he obtain further evidence.

[12]

Print Date: 5/03/2018 Time: (24 hr) 16:00 Region: State Crime Command

[13]

SITREP NUMBER: 2018-45274 INITIATING SQUAD: SCC Homicide Squad DIRECTORATE: SCC Homicide Squad REGION: State Crime Command OFFICER IN CHARGE: Sergeant Justin Moynihan EVENT NUMBER: 57396211 31485 STRIKE FORCE: ROSANN CHARGE NO: 58244042 CONTACT NUMBER: 8835 8793 MEDIA STATUS: Not for Press

[14]

ISSUE: Dismissal of Historical Child Sex Offences against William SPEDDING, born 09/05/1951, in the Sydney District Court by way of 'Prima Facie' and 'Prasad Direction' issues. BACKGROUND: On the 22nd of April 2015, William SPEDDING was charged at the Port Macquarie Police Station with 9 historical offences including Sexual Intercourse with a child under the age of 10 years and Common Assault, against his former step-daughters, Jeannie DALRYMPLE, born 11/07/1980, and his biological daughter Lois RIFKIN born 28/12/1983 that occurred on the Easter weekend in 1987. These offences arose out of information received during the Strike Force ROSANN investigation that was supported by historical medical evidence and contemporaneous statements of disclosure made by the children at the time of the incident, that was obtained during the investigation. CURRENT POSITION: On the 20th February 2018, the 'judge alone' trial of SPEDDING began at the Sydney District Court, John Madison Tower Sydney, with numerous witnesses giving evidence including the two victims, DALRYMPLE and RIFKIN along with experts and the treating Doctors from the time of the incident. At the completion of the Crown case on Monday 5th March 2018, the Defence made application to the Judge, for the following directions to be ruled upon. First being that a 'No Prima Facie' case be reached for the offences relating to Lois RIFKIN, and a 'Prasad Direction' for the matters relating to Jeannie DALRYMPLE. That same day Judge SWEEENEY returned her verdicts for both decisions in favour of the defence. In her explanation Judge SWEENEY stated that due to the age of RIFKIN at the time of the incident, being 3 years old, and her lack of memory relating to the specific offence in 1987 and therefore her inability to give actual evidence relating to this, that 'Prima Facie' in this matter had not been reached, therefore it was dismissed. In relation to the matter involving DALRYMPLE, Judge SWEENEY commented that despite the contemporaneous historic evidence that was adduced that indicated an offence may have been committed, there was too much evidence obtained during the trial that indicated that the children's minds may have been manipulated at some point during their infant years by other family members, which made there [sic] knowledge of SPEDDING being the perpetrator unreliable. Therefore the 'Prasad Direction' was successful for the defence. It is to be noted that there is currently a Non Publication Order in place by the court relating to this matter due to other outstanding matters involving SPEDDING still being prosecuted in Victoria. WELFARE ISSUES: Victims and witnesses all notified of the outcome of these court results. FURTHER/PROPOSED ACTION: No further action. Officer Rank & Name: Sergeant Justin Moynihan 31485 Vetter Rank & Name: Inspector Gary Jubelin 21970 Date & Time Created: 5/03/2018 15:58 Date & Time Vetted: 5/03/2018 16:00

[15]

There is a lack of objective documentary evidence from Inspector Jubelin establishing his involvement in the institution and maintenance of the criminal proceedings. However, Inspector Jubelin was uncontroversially the officer in charge of Strike Force Rosann shortly after 20 January 2015. Detective Brennan says that it was Inspector Jubelin who decided to take the investigation out of the ambit of the Sex Crimes Squad and into the Homicide Squad. Mr Spedding maintains that this supports an inference that Inspector Jubelin wanted to take control of the investigation concerning the historical sexual assault allegations. Further, the day before Mr Spedding was charged, Detective Brennan conferred with Inspector Jubelin about the Facts Sheet. The inference from this evidence is that Inspector Jubelin exercised a high degree of control in respect of the investigation and was instrumental in the institution and maintenance of the criminal proceedings.
Part of the evidence in these proceedings included the fact that Inspector Jubelin has recently published a book with the encouraging title "I Catch Killers". Inspector Jubelin writes that he had spoken to both of the alleged victims and that before deciding to act on the evidence he consulted Nigel Warren. Mr Spedding submitted that it is abundantly clear from reading pages 256 to 259 inclusive of Inspector Jubelin's book that he was instrumental, or at the very least highly active, in the institution and maintenance of the criminal proceedings. Some parts of what Inspector Jubelin said in his book warrant recording in these reasons: "On 23 April, Margaret screams, 'No!' as we tell her husband Bill he is under arrest and needs to come with us. Walking with him away from his house back to our unmarked car, I look at the long line of TV trucks and hire cars on the road beyond it and wonder: What the fuck has happened? How do all these journalists, from every major outfit in the country, know that this was happening today? I didn't tell them. God knows who in the police hierarchy did. I'm furious. Margaret shouts at the photographers and cameramen crowding closer towards us: 'Get off the property! Right now!' They fall back, wide enough only for the car to move forward. Camera flashes fire at Bill through the windows. This evening, I guess, Margaret will sit in her empty house and watch her husband's arrest on the television news. I hope she's shocked; the charges against him are shocking - the alleged sexual and physical assault of two girls, aged three and six, in 1987 - but I did not invent them. It's taken months of careful work to get to where we are today. Unlike the first, rushed raids on Bill's home and business, this moment has been planned for, tested and carefully considered. I know the damage those television images will wreak in Margaret's home, as well as in the homes of William's foster parents and his biological family. That's why I wanted to avoid them. But once you take hold of a line of investigation, you have to follow where it leads and, from the moment I took over this investigation, Bill has been the main thread I was given. The allegations that form the basis of these sexual assault charges are not connected to William. They come instead from the same Crime Stoppers tip-off that brought Bill into Hans's reckoning when he was running the case. The alleged crimes date back decades. While Bill was not charged at the time, or after, once we received this report it was our responsibility to follow it up. I've spoken to both of the alleged victims. One of these women's medical records from the time also suggest an assault took place. Even then, the decision to act on this evidence was not one I made alone. I spoke to my old team member, Nigel Warren, who worked on the Barbara Saunders and Terry Falconer murders and who now leads a team of his own in the Sex Crimes Squad, asking him to take a look at what we'd gathered. Nigel's work now regularly involves prosecuting historical child sex offences and I trust him. He'll always do the right thing for the right reasons. He said we had the statements of the alleged victims, one of which seemed to be corroborated by the medical evidence. Nigel had seen cases prosecuted with less, he told me. I also asked the advice of friends, without naming Bill but saying, 'I'm about to pull the trigger on a guy's life'. I knew that Bill's name had already been linked publicly to the investigation into William's disappearance. Charge him with these crimes and there was no way to hide it. Get it wrong and I destroy him. At the least, there would be public court hearings in which he would be accused of being a paedophile. I told my friends we had the evidence of the alleged victims. 'What other options have you got?' they asked me. The police's own lawyers also looked at the brief of evidence before any final decision was made. Their advice was that there was enough to go ahead. As a cop I can't ignore that. As a cop, I wouldn't be doing my job if I did not also try to take advantage of the extra pressure this will put on Bill by seeing if I can gather evidence to rule him in or out of any role in William's disappearance. Bill is silent during the drive to Port Macquarie Police Station. Once we arrive, a custody sergeant reads him his rights, his fingerprints are taken and he is shown into a jail [sic, gaol]) cell ahead of tomorrow's court hearing. Anyone would find this frightening. If he is hiding something, maybe this will be enough to crack him open. Maybe it will be enough to make Margaret think about him differently. In the evening, after Bill has been interviewed about the sexual assault allegations, which he denies, I speak to him about William. He must be feeling that the ground beneath his feet is now much more uncertain and I want him to know that we are waiting, should he stumble. A thin man, Bill looks back at me coldly. He denies having anything to do with William's disappearance. Late into the night, the light from the strike force's room in the police station shines amid the darkness. Inside that room, I am working, still trying to find a missing three-year-old. Beneath it, in the cells, Bill must know his life has changed for ever. *** Bill is not our only line of inquiry. So far, we've spoken to 18 known sex offenders who live among the acre blocks and rural properties that lie within a 30-kilometre radius of Benaroon Drive, and another 60 who live further beyond it. There seem to be so many such offenders on this stretch of the Mid North Coast. It's as if they've settled on this quiet, overlooked backwater like mosquitos. One of them, Gavin (not his real name), is now Bill's cellmate at Cessnock Correctional Complex where the white goods repairman is waiting for his next bail hearing. We monitor their interaction. Both men live near each other in Kendall and both have past links to Wellington, yet it seems they have never met before. While Bill is in the cell, I go back at him again. We launch a covert operation, the details of which are kept within our strike force and the bosses who authorise it. It seems to work [sic]. Bill continues to insist he was nowhere near Benaroon Drive when William went missing. That's it, I think. He didn't do it. On 8 June, I update the strike force's investigation plan, to say that, accepting on the balance of probabilities, Bill was not involved in William's abduction and we need to refocus our investigation. I know Bill's reputation and his business have been ruined, the three kids who lived with him and Margaret have been taken away, and Margaret herself has suffered greatly. I must have made her doubt her husband. But this is a murder investigation. Justice is what matters here, not injury. I needed to be certain. Yes, getting here was painful, but as the person leading the investigation, I had to weigh up the cost of charging Bill against the cost of doing nothing and found the scales did not balance. The cost of doing nothing was heavier. All that's left is for the child sexual assault charges to play out in court. *** On 17 June, Bill's lawyer tells the Supreme Court he should be released on bail, arguing that someone else, a 'known paedophile', had access to the alleged victims of his assaults at the time they happened. That paedophile was his then brother-in-law, Jerry Heyman. It's possible, the lawyer argues, Heyman committed these offences, not Bill. After eight weeks in prison, Bill is released on bail. The case moves slowly through the courts and, a year later, he is still fighting it, with no trial scheduled to take place until another year has passed, and which is then delayed again until 2018. When finally it gets to the New South Wales District Court, Bill's lawyer argues that the allegations against him were made to Crime Stoppers by his ex-wife, following a bitter divorce. He argues that evidence has been lost and witnesses have died in the decades since the offences were allegedly committed. The presence of Heyman in Bill's life at that time also means it cannot be proved who committed the offences, if any did take place. The judge says he [sic, she] believes no jury could say for certain that Bill's guilty and, on 5 March 2018, throws out the charges against him. Walking away from the court, I feel a deep sense of sympathy. Sympathy for the women who were the alleged victims and who told the police about the most awful alleged crimes being committed against them. Sympathy for Margaret, Bill's wife, who has been an innocent bystander in all of this. Sympathy for the scrutiny and sheer pressure that we put Bill under. But it was the right thing to do to charge him. Going to court is usually a bruising experience and not every criminal charge results in a conviction, although it is rare to have your whole case thrown out like this one. I'd still rather take a case to court and lose than never go to court in the first place. Sometimes, like when I fought with Trevor as a schoolboy, you just have to take your lumps."

[16]

Conclusion

In my view, it is clear to the point of demonstration, and I find, that Detectives Moynihan and Brennan, Inspector Jubelin and the Director of Public Prosecutions were each, or at any relevant time one of them was, a prosecutor for the purpose of the tort of malicious prosecution. They were actively involved in the conduct of the criminal proceedings in the sense of setting them in motion and maintaining them. Indeed, Detective Moynihan's summary is an obvious manifestation of his role in monitoring their progress until conclusion.

[17]

Favourable termination

There is no issue in these proceedings that the criminal prosecution of Mr Spedding terminated in his favour.

[18]

Absence of reasonable and probable cause

In A v New South Wales at [58], the majority said that the inquiry about reasonable and probable cause has two aspects in that the material available to the prosecutor must be assessed in two ways: what did the prosecutor make of it and what should the prosecutor have made of it? There is a temporal dimension to the element of absence of reasonable and probable cause: the court has to look at the state of affairs when the prosecution was commenced and at times when it was maintained: A v New South Wales at [59]. The majority said this at [77]: "There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?"
Further, in cases where the prosecutor acts on material provided by third parties (as in the present matter), the majority in A v New South Wales said at [80]: "… a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion … In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established."

[19]

The charges concerning Lois

When Detective Brennan commenced proceedings by charging Mr Spedding on 21 April 2015, he had the following material: • Lois's statement dated 14 April 2015; • Jeannie's statement dated 1 April 2015; • Cynthia's statement dated 21 April 2015; • Shalyn Heyman's statement dated 15 April 2015; • Brett Heyman's statement dated 21 April 2015; • The statement/expert certificate of Dr Janice Newton dated 17 April 2015; • The statement/expert certificate of Dr Tanya Dus dated 21 April 2015; • The FACS records; and • The reasons for judgment of Gee J dated 17 May 1989.
A copy of the judgment of Gee J was seized by police officers during the execution of the search warrant at Mr Spedding's business premises at Laurieton on 20 January 2015.
As earlier noted, the judgment contained information which strongly suggested that the allegations against Mr Spedding had been concocted and that there were serious issues as to both the credibility and reliability of Cynthia Heyman and Connie Goldstein.
Detective Brennan said in his statement in these proceedings that he read the judgment of Gee J on a plane from Sydney to Melbourne on 5 May 2015, after the charges had been laid. He said that he remembers at some stage during the investigation thinking "There may be issues here with Cynthia Heyman". Further, Detective Brennan said that he was aware that the issues regarding coaching of children and speaking about sexual assault within the household had been ventilated in court previously. Even though he did not possess the evidence, Detective Brennan would have known from a reading of the judgment that the findings of Gee J were based on evidence received in the Family Court. Accordingly, his Honour's findings were matters properly to have been considered by Detective Brennan when deciding to institute and maintain the criminal proceedings.
Mr Spedding has submitted that Detective Brennan, Inspector Jubelin and Detective Moynihan never held an honest belief in the case against him in respect of Lois for the following reasons.
First, Lois did not say in her statement dated 14 April 2015 that Mr Spedding had sexually assaulted or assaulted her in the caravan on the Turner property.
Secondly, Detective Brennan had not spoken to her prior to charging Mr Spedding despite agreeing in cross-examination that it was important to speak to a complainant in a sexual assault case before deciding whether or not to arrest and charge the perpetrator in order to make an assessment of the complainant's credibility.

[20]

The charges concerning Jeannie

In her statement dated 1 April 2015, Jeannie said that she remembered in early 1987 being picked up after Christmas by Mr Spedding with Ross and Lois and taken to a house somewhere near Campbelltown. She remembered staying in the caravan and sharing a bed with Mr Spedding and Lois and waking up in the night with her pants being taken off by him and him putting his fingers inside her vagina. She said that Mr Spedding was lying on top of her and that she kicked her legs and carried on. Mr Spedding pushed Jeannie aside and grabbed Lois. Jeannie said that she did not watch what happened to Lois, but she could hear her crying and screaming.
Mr Spedding submitted that Detective Brennan did not honestly believe in the case against him in respect of Jeannie and relies on those matters raised above concerning Lois. Alternatively, even if Detective Brennan did have such a belief, the evidence overwhelmingly establishes that he did not have an objectively sufficient basis for such a belief.

[21]

Conclusion

I am satisfied that there was no reasonable or probable cause to institute or maintain the criminal prosecution against Mr Spedding.
The sexual assault allegations against Mr Spedding arose out of a malignant contest between embittered protagonists in the Family Court in 1987. They were exhaustively explored and considered in that setting by a well-respected and experienced judge. His conclusions were unambiguous. The material to which he made reference made it clear that the allegations of sexual assaults upon Mr Spedding's daughters were the result of poisonous attempts by various people to manufacture heinous allegations against Mr Spedding for a collateral purpose.
I observe immediately that it is no part of a prosecutor's function to usurp the role of the jury. Prosecutorial discretion does not extend to the making of decisions not to prosecute where there exists good evidence from which a jury might reasonably conclude that an offence has been committed. That includes the fact that the decision of a judge in unrelated proceedings, such as Gee J in the Family Court, is not binding upon putative prosecutors.
However, the material available to the prosecutors in this case, considered as a whole and not in a piecemeal or disconnected manner, supported an overwhelming inference that the allegations of sexual assault upon his daughters against Mr Spedding were concocted and false and could not be supported. I accept that the question is whether the prosecutor had reasonable and probable cause to do what he did, not whether, regardless of his knowledge or belief, there was reasonable and probable cause for a charge to be laid. In the present case, I am satisfied not only that Detective Brennan and Inspector Jubelin, and thereby the Director of Public Prosecutions, were armed with evidence that did not objectively support the institution or maintenance of the criminal proceedings against Mr Spedding but also that if they honestly held any such frail belief, they could not have done so, and did not do so, on reasonable grounds.
Even accepting somewhat charitably for the purposes of the argument, that the decision to prosecute was taken quickly "in order to protect the community from Mr Spedding as a suspected child sexual offender", and not because it suited the strategy surrounding the investigation of the disappearance of William Tyrrell, by the time the matter eventually came on for hearing before Sweeney DCJ, if not well before, the officers had material that must, and certainly should, have led them to doubt the viability of the case. Ross Spedding was in the caravan and was emphatically telling them what he had for years consistently been telling anyone who cared to listen, that his mother made it all up. That assertion coincided entirely with Gee J's conclusions three decades before. The intervening years only served to confirm the utter hopelessness of the prosecution case.

[22]

Malice

The State made the following submissions.
It is for Mr Spedding to prove a dominant purpose of a prosecutor "other than the proper invocation of the criminal law - an 'illegitimate or oblique' motive": A v New South Wales at [91]. This Court summarised the position in State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 at [150]-[152], as follows: "[150] Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as - absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that 'proof of particular facts may supply evidence of both elements', but noted that 'no universal rule relating proof of the separate elements can or should be stated'. [151] In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the 'indirect route' of proving malice. His Honour continued (at 164), in the context of a jury trial: 'If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was.' [152] However, whilst proof of malice will often be a matter of inference, it bears repeating that 'it is proof that is required, not conjecture or suspicion': A v New South Wales at [93]."
The State submitted that it is clear that mere proof of absence of reasonable and probable cause does not equate to proof of malice. On drawing inferences, in State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185, the Court stated at [231]: "Whether or not a person has a state of mind involves a finding of fact. Facts may be proved directly or by drawing inferences from proved facts. An inference cannot be drawn in the absence of evidence. In Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, the plurality, Dixon, Fullagar and Kitto JJ, at 358, approved the explanation of the principle of the High Court in the then unreported decision of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 as follows: '… 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 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'."

[23]

Misfeasance in public office

The elements of the tort of misfeasance in public office are unsettled: Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 at [48] per Payne JA. Nevertheless, the case law to date, including High Court authority, establishes that the tort involves proof of the following elements: 1. An invalid or unauthorised act; 2. Done maliciously; 3. By a public officer; 4. In the purported discharge of his or her public duties; and 5. Which causes loss or harm to the plaintiff: Ea v Diaconu at [36] and [137] citing Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 370; [1995] HCA 65.
The third element of the tort is not in issue. The police officers held public office as members of the New South Wales Police Force.
The fourth element was considered in Ea v Diaconu. As explained by Simpson AJA at [140], the preponderance of authority suggests that for the fourth element of the tort to be satisfied, the public officer must be exercising, or purporting to exercise, a power conferred or discharging a duty. The arresting and charging of Mr Spedding constituted an exercise of public power attaching to the public office held by the officers.
Further, s 48 of the Criminal Procedure Act 1986 empowers a police officer to commence committal proceedings against a person by issuing a court attendance notice and filing that notice in the Local Court. Detective Brennan exercised this power.
In relation to the element of malice, what is required is proof that the defendant acted in bad faith, which may be established by showing either that the defendant's unauthorised act or acts were carried out with the intention of harming Mr Spedding or that the unauthorised act or acts were carried out with reckless indifference to the harm that was likely to ensue: Northern Territory of Australia v Mengel at 347.
The unauthorised act in the present matter was the institution and maintenance of the criminal proceedings against Mr Spedding to further the officers' investigation of him as a suspect in the disappearance of William Tyrrell and to punish him for his suspected involvement.
Inspector Jubelin believed that Mr Spedding was a paedophile involved in the abduction of William Tyrrell, as discussed above. I infer from this evidence that because of this belief Inspector Jubelin intended to harm Mr Spedding by committing the unauthorised act of bringing the criminal proceedings against him, not to bring him to justice in relation to the offences, but to punish him for his suspected involvement in the disappearance of William Tyrrell. The exercise of the power to arrest and charge was used for this improper purpose.

[24]

Collateral abuse of process

To establish this tort, proof is required of the police officers using the machinery of the criminal law to achieve a purpose outside the ambit of the criminal proceedings: Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 at 91; [1911] HCA 46.
Mr Spedding submitted that this element is proven in circumstances where the criminal proceedings were used as a vehicle to further the investigation of him as a suspect in the disappearance of William Tyrrell and to punish him for his suspected involvement, as opposed to punishing him for committing the crimes alleged in the criminal proceedings against him.
The State submitted that while the elements of the tort of collateral abuse of process are different to those of malicious prosecution, the facts and incidents under consideration are the same. On one view, the pleading of this tort adds nothing in circumstances where the only charges presented against Mr Spedding resolved in his favour.
Furthermore, if Mr Spedding succeeds in proving malice and absence of reasonable and probable cause, he may succeed with respect to the first element of collateral abuse of process, namely improper use of court process. According to this submission, it remains unclear what overt act or threat distinct from the proceedings themselves could be relied upon to satisfy the second element of the tort.
No additional damages would be available for success on this cause of action. On the findings contended for by the State, Mr Spedding should fail on his claim for collateral abuse of process.

[25]

False imprisonment

Mr Spedding alleges that on 20 January 2015 he was taken by Detectives Moynihan and King from his Bonny Hills residence to Port Macquarie Police Station. The State says that he did so voluntarily and participated in an interview which commenced at 2:25pm and concluded at 8:33pm. The central issue in the claim for false imprisonment is whether Mr Spedding was in fact imprisoned.
A restraint brought about by an involuntary submission to an assertion of authority is enough if a person feels under an obligation to submit to the instruction of the defendant: R P Balkin and J L R Davis, The Law of Torts (4th ed, 2009, Butterworths) at [3.29] citing Attorney-General v Niania [1994] 3 NZLR 106 (HC) at 108; Roman v Commonwealth (2004) 16 NTLR 80; [2004] NTSC 9 at [10].
In my opinion, without adverting to the evidence and the competing submissions on this cause of action, I am satisfied that Mr Spedding's liberty was not under total and direct restraint nor was he led to believe that if he attempted, for example, to leave, he would be compelled by force to remain in the company of police. It is in my view quite clear from the evidence, especially Mr Spedding's evidence, that if only by reason of his personality, he was content at all relevant times to assist and cooperate with the police and was not led to believe that he would be compelled to stay had he attempted to leave.

[26]

Conclusions on liability

I am satisfied that Mr Spedding has established that, with the exception of the claim for false imprisonment, he is entitled to damages on the causes of action pleaded in his amended statement of claim.

[27]

Damages

Mr Spedding gave the following evidence that was relevantly not the subject of challenge: "150. When I arrived at Cessnock Correctional Centre, there were correctives officers in body armour who did a strip search of me. During the strip search, one of the guards put the nightstick he was carrying up against my neck and behind my left ear. 151. He put his face close to my left ear and said words to the effect of 'Don't you turn around. Don't you eyeball me. You listen to what I've got to say. We want you to talk, you know what we want you to say, we want you to talk, and I'd shove this up your arse, except I'd have to clean it afterwards. You just remember, we want you to talk.' 152. I was placed into protective custody whilst I was in Cessnock. However, other inmates, in the area in which I was held, would yell out from their cells words to the effect of 'Where's William?', 'What have you done with William?' as well as threats and abuse of various kinds. 153. When I was first put in the cell at Cessnock Correctional Centre, I was by myself for approximately a week. After that time one of the guards came in and said words to the effect 'clean off the top bunk, put the stuff on your own bunk, there is someone else coming in'. A man was then put in the cell with me. 154. The man said to me words to the effect 'G'day Bill'. I said to him words to the effect 'G'day, how are you going?' He said, 'Don't you recognise me?'. I said 'No'. Then he said 'I'm Tony Jones, you know Jonesey. Used to live across the road from you in Wellington'. I still did not recognise him as this man had a beard, a moustache and long hair, where the man I'd known was clean shaven. 155. I asked him 'what happened to your house?'. He replied, 'It burnt down'. I then realised that it was Tony Jones. He lived across from me when I lived at Raymond Street in Wellington in 2001. I hadn't seen him or spoken to him since his house had burnt down and they left the area in around 2003. 156. Tony Jones was my one and only cellmate during my time at Cessnock Correctional Centre. I thought this was very odd as he was also a suspect in the disappearance of William Tyrrell, according to the media coverage, including the 60 Minutes program in which both our names were mentioned. Although, I was informed by Tony and verily believed that he was in custody on unrelated charges. 157. I was released following being granted conditional bail by his Honour Justice Bellew of the Supreme Court on 19 June 2015. 158. On the date of my release, my actual release was delayed by media presence at the front gate of the prison. When I was conveyed outside, I was picked up by Margaret, who was with Colin and Jenna Youngberry. It was night time and I was only able to observe the media presence at the front of the prison from flashing photography lights and cameras. 159. Colin and Jenna drove us to their house, where Margaret and I spent the night. The following morning the media was out the front of the house, and then followed Margaret and I to our house in Bonny Hills. The media presence at our house in Bonny Hills continued for a few days. Following the Trial 160. Following being charged with historical sexual offences against Lois and Jeannie in New South Wales, I was also charged by the Victorian Police in July 2016 with historical sexual assault offences against Jeannie that had been alleged to have occurred prior to the New South Wales charges. 161. As a result, there were parallel proceedings simultaneously in both New South Wales and in Victoria. The Victorian charges were held in abeyance during the trial of the New South Wales charges, in light of the matters both concerning Jeannie as the alleged complainant. 162. Once the trial judge had handed down her judgment acquitting me on 5 March 2018, she said words to the effect of 'You're free to go, Mr Spedding'. 163. After the New South Wales trial was over, the proceedings in Victoria against me were due to re-commence and continue. My legal representatives wrote to the Office of Public Prosecutions in Victoria to make an application for them to dismiss the charges against me, in light of what happened in the trial in New South Wales. Those charges were subsequently withdrawn and dismissed, and my legal representatives were successful in making an application for costs before the Magistrates Court in Ballarat. However, it only covered some of the costs of that matter. 164. In late 2018, I was informed that the New South Wales Coroner would commence an Inquest into the disappearance of William Tyrrell in 2019. Once again, there was intense media interest and my name was back in the media. 165. I was glad that an Inquest was going to be conducted so that questions could be answered as to what had happened to William Tyrrell. However, we were concerned that it would mean that we would be reliving the intense media scrutiny that we had experienced over the last couple of years. There was still media presence seeking our comments, however it was not at the same intensity or tenor that it had been prior to the trial. The Impacts 166. Whilst I was in prison, I was feeling isolated, vulnerable and completely helpless. I was also extremely worried about Margaret and how she would cope, particularly as I knew our finances were and would continue to be in difficulties. I am informed and I verily believe that Mick Tylor was assisting Margaret with our paperwork and finances whilst I was in custody. 167. Whilst I was in custody, Margaret would visit me every week. We would also speak over the gaol phone. My son Ross also visited me whilst I was in custody. 168. Following having been in prison, I still feel as if I have after-effects. I find that slamming metal doors make me freeze up and panic. I feel frightened by that noise even now when I hear it, even from any metal roller doors or anything of that nature. 169. When Margaret came to visit me, particularly the first time, she looked extremely distressed and strained. I could tell that she was trying to put on a brave face for me, but she looked exhausted and terrified. 170. Following my release from custody, Margaret and I were speaking to our family GP, and he was concerned as to our well-being. He referred us both to psychologist, Liz Cooper. We have been seeing Liz since shortly following my release in 2015. I would sometimes have sessions alone with Liz and sometimes also with Margaret. 171. In my counselling sessions with Liz, I was able to talk about being charged with something that I did not do and seek her assistance in coping with all of the events surrounding the William Tyrrell investigation and the subsequent charges. 172. Following the children's removal, but prior to my arrest on 22 April 2015, I was able to see the children with Margaret through supervised access with FACS. However, following my arrest and subsequent release from custody on conditional bail, I was prohibited from any access with the children as a result of a bail condition that I was not allowed contact with any child under 18 years of age. 173. As a result, Margaret was the only one able to see the children through supervised access with FACS. I was not able to see or speak to the children from 22 April 2015 to approximately mid-March 2018, following my acquittal by her Honour Judge Sweeney of the NSW District Court. 174. When the children were removed, we were not notified of where they were placed. However, we were informed and verily believe that the children were separated from each other and placed in multiple placements. I was informed by the grandchildren's father Drake, and verily believe, that there were many behavioural issues with the children during these placements as a result of their distress and anger at their removal and separation. It was extremely difficult being aware of this and not being able to do anything about it to help. 175. Following my acquittal in 2018, I was able to have contact with our grandchildren again. The change in Bob, Raymond and Ben is sadly very clear. All three boys have become much more upset and withdrawn than they ever were when living with Margaret and I. Raymond has been having behavioural difficulties, including rebelling against teaching staff, which have resulted in multiple suspensions from school. Recently, Raymond was involved in a physical fight with a fellow student as a result of a comment that that student had made about me. 176. Following their removal from our care, both Bob and Ben left school and have not returned to schooling. We were aware that they all had very difficult times in the foster placements they were put in. Ben has become very withdrawn and we have been informed that he has suicidal ideation. Bob spent time in a special facility in Coffs Harbour during his placements. From my observations, Bob has particularly suffered from everything that happened. He has developed severe separation anxiety and anxiety about being out in public. He has developed a fear that he may be taken away or removed again if he goes out in public. He also has ongoing suicidal ideation. These issues that the boys are continuing to face cause Margaret and I great concern. 177. As a result of the bail condition concerning not approaching any child under 18 years of age, I was also not able to have any contact with any children in our wider family until after my acquittal by the New South Wales District Court. As a result, I missed my son Ross's wedding, my son George's wedding, the birth of our first great-granddaughter in Queensland, the later birth of Ross and Rosanna's first child, the birth of our granddaughter Emily's child, a funeral for Margaret's cousin Billy McMahon, the funeral of Margaret's cousin Kitty Black and three years of birthdays, Easters and Christmases. 178. The other bail conditions imposed included, initially, daily reporting to Police. I reported daily for approximately a year and a half. That bail condition was subsequently changed to reporting three times a week for approximately 6 months. I was then required to report once a week from early 2017 until my acquittal in 2018. I had a residency condition, which included a requirement to report the address where I would stay when I attended Sydney for my court appearances. I had a further condition not to approach any point of state or international departure during my bail. 179. The effect of the conditions were that I was not able to continue working as I had been previously. I was also prohibited by the conditions from seeking any employment as an employee in any workplace, specifically as a result of the condition not to have any contact with persons under 18 years of age, as there was no employment I felt I could seek where there was not a risk of this occurring. 180. The media coverage in regard to the investigation into the disappearance of William Tyrrell and subsequently, the charges against me in New South Wales and Victoria, was extensive. The media coverage was picked up throughout New South Wales and Australia. Some coverage that I saw was even reported overseas. 181. The media coverage was highly negative and, at times, defamatory. This led to a number of defamation proceedings that were pursued and settled following my acquittal. These related to inaccurate and defamatory reports about me connected to the William Tyrrell investigation and New South Wales and Victorian charges. The settlement sums from the various defamation proceedings were expended in my representation into the New South Wales Coronial Inquiry into the Disappearance and Suspected Death of William Tyrrell. 182. There have been ongoing ramifications in regard to it being widely known and publicised that I was a person of interest in relation to the investigation into the disappearance of William Tyrrell and the fact that I was charged with historical sex offences against children both in New South Wales and Victoria. 183. Following the execution of the search warrant at our house in Bonny Hills on 20 January 2015, and the subsequent extensive and negative media coverage, I began to receive abusive and threatening phone calls and messages. Such phone calls and messages continued throughout the course of the investigation and trial until around the time of my acquittal in March 2018. 184. These phone calls would often coincide with further negative media coverage in regard to the William Tyrrell investigation or my trial, such as following the airing of a number of 60 Minutes episodes in which I was named as a suspect in the William Tyrrell investigation. 185. I made a number of recordings of a number of these phone calls and provided them to the office of Mr Peter O'Brien, Solicitor. I also reported a number of these threats to the New South Wales Police, which resulted in the NSW Police recording the phone and text messages, in addition to taking a statement from me. However, I never heard anything further about the investigation into the threatening messages. There was also extensive negative messages and commentary on social media platforms and the internet. 186. On 2 August 2016 I attended Douglas Hanly Moir Pathology in Laurieton for an important blood test. The attending pathologist said to me words to the effect of 'I thought it was you'. The pathologist then left the room and another person attended and said to me words to the effect of 'we want you to leave'. I was then escorted by that person from the premises. I made a complaint to Douglas Hanly Moir in regard to this incident, however I did not receive a response to my complaint. 187. On the morning of 7 January 2017, I was driving back from somewhere and drove into Kew. I saw my friend's vehicle parked at a coffee shop in Kew and I parked my car in the carpark and walked down to join him. After that, I was walking back to my car and there was a man outside a pizza shop who approached me and asked me a question to the effect of 'Are you Bill Spedding?'. I answered 'Yes'. He lurched forwards toward me and grabbed me around the throat with both his hands. I just froze. A female, who appeared to be known to the man, reached up and removed his hands from their grip on my neck. He then said to me 'Get away from my shop, get away from here'. 188. I immediately left in my car and waited until the police station in Laurieton opened. I reported the assault to a police officer named Constable Rowley. As a result of the assault, I had bruises and abrasions to my neck. Constable Rowley took my statement and a photograph of my injuries. The bruises on my neck were visible for a couple of days and the soreness from the bruising of my neck was also there for a couple of days. I was advised by Constable Rowley when I made the statement that it would be best to avoid further publicity by the pursuing of the complaint and I was informed that he would speak to the man who had assaulted me. I am not aware that any charges were ever laid. 189. When Margaret and I moved from Bonny Hills to ** Taloumbi Place, Lake Cathie, I am informed and I verily believe that a male neighbour of that property, named Scott Druitt, who was a local police officer, approached Margaret and said words to the effect of 'Is Bill Spedding moving in here?' Margaret had said 'Yes' and he has said words to the effect of 'not happy'. 190. The following morning, a woman who identified herself as his wife approached our front door and spoke with me extensively. She was very loud and emotional. She said words to the effect that 'I'm not happy … I can't let the kids out the front any more … I told all the neighbours that Bill Spedding was moving in' and other things to that effect. She told me words to the effect that 'you are not to be out the front if there are children out there … you are not to have your blinds open' and other things to that effect. 191. Mick Tylor was present at the time as he was helping Margaret and I move. I am informed and verily believe that he recorded part of this lady's expression of her feelings towards me at our moving in. I have subsequently seen what Mick recorded and it only goes for a short period. From memory she remained at our property expressing her views towards me for approximately half an hour. 192. In November 2018, when Margaret and I were moving from the property in Lake Cathie to our property in Wellington, we were loading our property into a moving van when the same woman, Mrs Druitt, pulled up in front of our house in her car. She called out to me a question to the effect 'are you really leaving? We are glad you are going'. 193. Following the acquittal at trial by the New South Wales District Court in March 2018, when we arrived home, I remember saying to Margaret words to the effect that 'we should be jumping for joy, skipping down the street, but we're just totally flat'. 194. It was not until we both gave evidence at the Coroner's Inquest into the Disappearance of William Tyrrell in 2019, and it was accepted that Margaret and I had been at our grandsons' assembly on the morning that William Tyrrell disappeared, that it finally felt as if everything had finally ended. 195. Until the point that we had finished giving evidence at the Coroner's Inquest, we had no life at all. I feel as if we have to start all over again. 196. I feel as if we have only been able to start trying to get over everything that has happened since then. It felt like five years of adrenaline, and after that, when the adrenaline finally stops, I just felt totally deflated. 197. Our lives have been shattered as a result. 198. I was a self-employed business man for the majority my whole working life. As at January 2015, my business was WH & MA Spedding trading as Gas Refrigeration Services. I was a sole trader and the sole employee, except when my step-grandson Jayden would help me out on rare occasions or when I would occasionally employ labour to assist me in jobs I couldn't complete myself. The business was in repairing household whitegoods, installing air conditioners and working in commercial refrigeration. 199. I loved my work. I really enjoyed fixing things and being able to provide an income for my family. My long-term plan as at 2015 was to work full time until I turned 70 years of age, when our youngest grandchild would have been 18 years old and I could then retire. 200. Prior to 20 January 2015, I would easily obtain four to five service jobs per working day. I also had service agent agreements with a number of companies, including Fisher & Paykel, Bosch, Electrolux, Miele and Whirlpool. 201. Following 20 January 2015 and the subsequent search warrant publicity, Miele cancelled the service agent agreement within days. This was followed by Fisher & Paykel, who closed my trade account with them. All the other companies stopped the referrals that they had previously provided to me. None of the companies would provide a reason as to why this was occurring, and Miele refused to communicate with me at all. 202. As a result, the four to five service calls per day dropped off to none very quickly. The calls from local advertising also stopped following the publicity surrounding the search warrant. There was extensive coverage of the William Tyrrell investigation and my being a person of interest in the local news, both on TV, radio and in the newspapers. 203. The house we were renting in Bonny Hills was a four-bedroom house to house the children. Following the children's removal, the payments from Centrelink for the children from FACS, that previously would have covered the rent for the property, ended. As we were no longer in receipt of these forms of income to cover the rent, our financial situation became very dire. 204. After 22 April 2015, following my release from custody, the remaining trade accounts that I had were closed as I could not pay them. As a result of all of this the business no longer exists. 205. The landlord of my Bonny Hills home, graciously, during my time in custody reduced the rent for us so that we could stay in the local area for a time. 206. Also after my release on bail, I terminated and claimed my superannuation. I had to use it to pay off the mortgage on our property at ** Arthur Street Wellington and then re-mortgage the property to members of our family who were funding my legal defence, as we could not afford to pay for the legal fees. 207. The total amount of legal fees for NSW trial, as claimed under the costs certificate from the Department of Justice, is $270,516.60 (including GST). 208. Following my release from custody I received an exemption certificate, in recognition that I could not mentally return to work. This allowed me to be in receipt of Newstart through Centrelink until I turned 65, and then I was placed on the age pension. I am currently in receipt of the age pension. 209. I feel as if the impact of the publicity is life-long. The publicity was in Australia and world-wide, not just in New South Wales. I feel like there is damage that can never be repaired. Describing the ongoing feelings of that is very difficult. But it is sad. 210. The oppression, the apparent oppression of being out in public, did not evaporate or end with the charges having ended. When Margaret and I am out in public, we are both highly vigilant to and sensitive about people potentially looking at or noticing us. I never know when someone is going to pop out of the woodwork and grab me around the throat again, and say 'You're Bill Spedding. What'd you do with William?'. 211. On Saturday 25 January 2020, two police officers attended our house at Wellington. One of the police officers stated to me words to the effect of 'we have received an anonymous crime stoppers report that William Tyrrell is being held at the premises'. I introduced myself to the officers and invited them to come inside. The police officer stated words to the effect that 'these premises do not match what was described in the report. The report has said that there was a basement, which you don't have'. The police officers then said words to the effect of 'I am sorry, we needed to follow up on the report'. 212. The police officers attending our house early this year brought back all the memories of what has happened over the past few years. It feels eternally frustrating and never ending. I feel as if this will always continue to haunt me, despite the fact that I never had any involvement in the disappearance of William Tyrrell. 213. There are ongoing impacts for the grandchildren, my children from my first marriage with Jenna, my son Ross and our broader families as well. The grandchildren have been exposed to ridicule, harassment, abuse and bullying by people who are aware that they are our grandchildren. Members of our family have also faced what appears to be discrimination, as a result of having been related to me. This really upsets and concerns me. 214. The events over the last few years have been highly embarrassing and humiliating, for both myself, Margaret and our families. We have been experiencing distress, fear, vulnerability and isolation for years. The allegations of sexual assault against children and the investigation into an allegation of abducting William Tyrrell are some of the most horrendous accusations that can be made against someone. To experience this in 1987 and again over the last few years has been indescribably painful. 215. The impact on Margaret and my psychological wellbeing is ever-present, we will always carry the scars of what has happened to us. There is always a fear that there will be another unfounded allegation or a continuation of these unfounded allegations against us. We have ongoing feelings of fear and concern about the attention of the media, and about anyone, one day, turning up at the door with a continuation of any of these allegations. I do not feel as if we will ever be free from the shadow of these allegations, until one day someone, hopefully appropriately, is charged with the disappearance of William Tyrrell."

[28]

Damages submissions - Mr Spedding

Having regard to that evidence, Mr Spedding made the following submissions.

[29]

Damages for non-economic loss

In addition to not being cross-examined on damages issues, Inspector Jubelin conceded that the criminal proceedings have destroyed Mr Spedding and that after he was charged he was seen as a paedophile: "Q. You would agree that the charging of the plaintiff for the historical sexual assault allegations have essentially destroyed him? A. I agree it's had a, a dramatic impact on him. Yes. Q. And you would agree that, after he was charged with those offences, he was seen as a paedophile? A. I, I think that's a, a fair comment, the amount of media attention on it. Yes. Q. You're aware of media reports where he was mentioned as being a paedophile, aren't you? A. Not specific, but I - the general tone of media reports. Yes."
Mr Spedding was held in custody on remand for approximately 58 days prior to being granted bail by this Court on 19 June 2015. He had not previously ever been in custody. He was kept in the cells at Port Macquarie Police Station for approximately a week after being refused bail. He was then transported to Kempsey Correctional Centre. However, that correctional centre declined to receive him and so he was taken back to Port Macquarie Police Station where he remained for a further few days. It was whilst at Port Macquarie Police Station that Mr Spedding was kept in solitary confinement. A Corrective Services Officer removed additional bedding from the cell and informed him that "we are not allowed to put anyone else in with you".
Mr Spedding was then moved to Cessnock Correctional Centre. Upon arrival at Cessnock, he was strip searched by Corrective Services Officers in body armour. During the strip search, one of the officers put his night stick up against Mr Spedding's neck and behind his left ear and said to him words to the effect of "Don't you turn around. Don't you eyeball me. You listen to what I've got to say. We want you to talk, you know what we want you to say, we want you to talk, and I'd shove this up your arse, except I'd have to clean it afterwards. You just remember, we want you to talk".
Mr Spedding was placed into protective custody whilst at Cessnock. He heard other inmates yell out to him from their cells words to the effect of "Where's William?" and "What have you done with William?". He was threatened and abused by fellow inmates.
Mr Spedding's time in custody was a frightening ordeal, compounded by the nature of the allegations against him and being publicly named as a person of interest in the investigation into William Tyrell's disappearance.

[30]

Reputational damages - malicious prosecution

Reputational damages may be recovered as a separate head of damage: Beckett v State of New South Wales [2015] NSWSC 1017 at [745]-[748] and the cases cited therein. The intensity and ferocity of the media attention in this case, and the damage occasioned to Mr Spedding's reputation as a result, warrants a separate and substantial award for reputational damages.
It is Mr Spedding's case that the public's perception of him as the perpetrator in the William Tyrrell matter was engineered by Strike Force Rosann. The criminal proceedings portrayed him as a paedophile and strengthened the public's perception of him as being the person responsible for the disappearance of William Tyrrell. The public perception reflected Inspector Jubelin's belief that Mr Spedding was indeed a paedophile, and he wished to bring media attention upon Mr Spedding to exert maximum pressure. Without the criminal proceedings Mr Spedding was simply a person of interest. With the criminal proceedings he became the likely perpetrator.
There was a high level of media attention surrounding Mr Spedding following the execution of the search warrant at his home on 20 January 2015. The media referred to children being removed from his care, that he and his wife had been questioned days before by FACS, that the grandchildren's mother wanted answers from FACS as to why the children were living with him, the large police presence and the fact that he was a local white goods repairman. The media releases also depicted Mr Spedding and his wife on multiple occasions. The media coverage continued into March 2015, including outlets detailing further occasions when Inspector Jubelin arrived at or returned to the house.
On 17 April 2015, three days prior to Mr Spedding's arrest, the Sydney Morning Herald and the ABC were reporting on the suspicions of police that a paedophile ring was involved in the disappearance of William Tyrrell, including naming Mr Spedding as a person of interest in that coverage.
On 22 April 2015, there was a significant media contingent at Mr Spedding's home several hours before his arrest. His arrest was reported locally and nationally. When he was released from custody at Cessnock on 19 June 2015, the media was once again in attendance. Articles were also published regarding his release.
The coverage of Mr Spedding's historical sexual assault charges was widespread, from local news referring to him as an alleged paedophile, to national news networks reporting on his being refused bail by Port Macquarie Local Court and extensively citing the Police Facts Sheet, his grant of bail, variations to his bail conditions, his waiving his right to committal and the application for a permanent stay of proceedings.

[31]

Aggravated damages

Aggravated damages are given by way of compensation for injury to a plaintiff which results from the circumstances and manner of the defendant's wrongdoing: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129-130 cited in State of New South Wales v Zreika [2012] NSWCA 37 at [60]. Aggravated damages may also be awarded in circumstances when the defendant does not express regret for past wrongs: Walter v Alltools (1944) 61 TLR 39 cited in Beckett v State of New South Wales at [717].
Further, aggravated damages can be awarded for injury to a plaintiff's feelings caused by insult or humiliation: Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47. All the circumstances of a particular case must be taken into account: Nye v State of New South Wales (2004) AusTorts Reports 81-725; [2003] NSWSC 1212 cited in Beckett v State of New South Wales at [717].
Mr Spedding's distress, embarrassment and humiliation were amplified to a very large degree by the intense media interest which followed his arrest and charging. As mentioned above, the media's interest in his arrest was undoubtedly fuelled by him being a person of interest in the investigation concerning the disappearance of William Tyrrell.
Mr Spedding received threatening voice and text messages on his mobile phone and on social media. He was branded a paedophile and a child rapist. Some of the voice messages left on his phone are chilling.
Mr Spedding's image was shown on all forms of media, making him easily recognisable in public. On 2 August 2016, he was refused service by Douglass Hanly Moir Pathology in Laurieton for an important blood test when a member of staff recognised him. On 7 January 2017, he was assaulted in Kew by a man who grabbed him around the throat with both hands.
The historical sexual assault allegations resulted in FACS removing his grandchildren from his care. The bail conditions imposed prevented any access or contact between him and his grandchildren until after his acquittal in March 2018.
Neither the officers nor the ODPP has apologised for their actions. Further, Mr Spedding submitted that the State's conduct of the litigation, in particular the late service of Inspector Jubelin's statement and the provision of Exhibit E on the final day of the trial, when the document was called for on the third day of the trial, should lead to an increase in the award of aggravated damages.

[32]

Exemplary damages

Exemplary damages are awarded to punish and deter similar conduct in the future: Lamb v Cotogno. Generally speaking, what is required for an award of exemplary damages is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [22].
Mr Spedding submitted that using the criminal proceedings to further the investigation of Mr Spedding as a person of interest in the disappearance of William Tyrrell, and to punish him for his suspected involvement is "outrageous conduct" and requires the denunciation of this Court in the strongest terms.
Mr Spedding claimed the sum of $400,000.00 for exemplary damages for malicious prosecution, misfeasance in public office and collateral abuse of process. For the reasons expressed in relation to the claims for the other heads of damage regarding these torts, the sum assessed for exemplary damages should still be the same regardless of which of the torts are established.

[33]

Legal fees incurred in defending the criminal proceedings

Mr Spedding incurred legal fees in the sum of $270,516.60 in defending the criminal proceedings. He has only received the sum of $161,224.90 pursuant to the certificate issued to him under the Costs in Criminal Cases Act. The agreed shortfall is $109,291.70. This amount is claimed, together with interest at the rate prescribed under UCPR 36.7(1).
The incurring of legal fees was the natural and probable consequence of the torts of malicious prosecution, collateral abuse of process and misfeasance in public office. Mr Spedding is therefore entitled to the agreed shortfall: State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320.

[34]

Future treatment expenses

Dr Samuels and Dr Apler recommend ongoing psychological counselling at fortnightly intervals until the Coronial Inquest into the disappearance of William Tyrrell is resolved. The likely cost is $300.00 per consultation.
The William Tyrrell matter may never be resolved. Deputy State Coroner Grahame has stated that the investigation into his disappearance remains ongoing, and there is no current timetable for the conclusion of the Inquest. Even if the matter is at some point resolved, or the Inquest is suspended or terminated, Mr Spedding is very likely to continue experiencing the symptoms of his adjustment disorder with anxiety and depression. This is of particular concern in light of his unfortunate notoriety as a result of the intense and ongoing media attention concerning him and the William Tyrrell investigation.
Mr Spedding submitted that it would be reasonable to award him the present value of $300.00 per fortnight over the next 10 years, discounted at 5%. The amount claimed is $150.00 per week x 412.9 (5% multiplier for 10 years) = $62,000.00 (rounded up).

[35]

Interest

Interest is claimed on damages for non-economic loss and aggravated and exemplary damages at the rate of 2% per annum from April 2015 to the date of judgment: MBP (SA) Pty Limited v Gogic (1991) 171 CLR 657; [1991] HCA 3 recently applied by this Court in Haynes by her tutor Karen Lindley v Haynes [2022] NSWSC 581 at [62].

[36]

Collateral Abuse of Process and Misfeasance in Public Office

The State submitted that if Mr Spedding is not successful in his claim for malicious prosecution, he ought not be successful in his claims for misfeasance or collateral abuse of process. Further, if he is successful in his malicious prosecution claim, he is not entitled to damages for misfeasance or collateral abuse because they are based on the same facts.

[37]

Damages - Malicious Prosecution

For Mr Spedding to recover damage under this head, he must fall within one of the categories identified in Savile v Roberts (1698) 91 ER 1147, namely: 1. Damage to reputation or fame; 2. Damage to person or liberty; 3. Damage to property, usually but not only, consisting of legal defence costs.
The State submitted that Mr Spedding is not entitled to damages for injury to his person, liberty, reputation or fame due to being identified as a person of interest in the disappearance of William Tyrell. Whilst at times one may be forgiven for thinking his claim is based upon him being identified as such a person of interest, that is not the nature of the claim as pleaded. Mr Spedding was never prosecuted for any aspect of his involvement in that disappearance and no such involvement is suggested.

[38]

Damage to Reputation

The State agrees that reputational damage may be recovered as a separate head of damage.
Should Mr Spedding succeed with respect to his claim in malicious prosecution, the State submits that a difficult process like unscrambling an egg is required. That is because it is unclear on the evidence what injury to his reputation has been occasioned by his status as a suspect in the disappearance of William Tyrrell as opposed to the prosecution which is the subject of these proceedings.
Whilst the State has admitted that images and videos were broadcast across media organisations, Mr Spedding's references to some of the media articles do not make it clear where or to whom they were published. Mr Spedding contends that his arrest was reported locally and nationally. However, it is not possible to determine which media article the published photographs he relies upon relate to. Moreover, by way of example, the article from a website from the United Kingdom includes "Officers from Strike Force Rosann stressed that the arrest was not related to the disappearance of the four-year-old-boy …".
The State submitted that any damage to Mr Spedding's reputation or fame due to the malicious prosecution/misfeasance/collateral abuse claims should be considered in the context of his having already been identified as a suspect in the William Tyrell disappearance at the time the proceedings were instigated: how much more reputational damage did he suffer as a result of being charged with the historical child sexual assault offences, if any? This question should be considered in light of the police efforts to indicate that the historical sexual assault charges laid were not connected to the William Tyrell investigation.
There is no evidence in this case that there is or has been any pervasive view in the community as to Mr Spedding's guilt for the child sexual assault offences or for abducting William Tyrell. Nor is there any basis to suppose that it would be proper to place weight on a perception that such a community of opinion may exist. The Court should be slow to place any weight on the impact of media reporting on rational members of the community. See Beckett v State of New South Wales at [824]: "It is highly doubtful that anyone exposed to this programme would have had more than a passing interest in what it portrayed, and even less likely that it would have been treated as a prime source of credible information. Ms Beckett has maintained her innocence at all times and her reputational damage is not increased even by misguided attempts to reduce it."

[39]

Damage to person or liberty

The State agrees with the approximation that Mr Spedding was held in custody on remand for 58 days.
Mr Spedding claims $600,000.00 for non-economic loss. In terms of a comparison with other cases, it is not stated what the basis is, if any, for that submission. Included in the claim for that amount are issues related to public perception. However, Mr Spedding also claims $300,000.00 for damage to his reputation as part of his malicious prosecution case. The State submitted that I should be alert to the prospect that Mr Spedding's claims may include double counting when considering public perception issues under separate categories or heads of damage.
Mr Spedding was refused bail for offences unconnected to the William Tyrrell investigation. Against the exhaustive list of considerations within s 18 of the Bail Act 2013, there is no evidence that the magistrate/authorised justice who granted bail inappropriately took into account that Mr Spedding had been identified as a person of interest in that investigation. Mr Spedding's time spent on remand is not connected to the investigation.
Mr Spedding has emphasised his negative experiences with Corrective Services officers and other inmates. In Beckett, I related the evidence as to the experience of imprisonment, including in that matter an assault. In evaluating experiences of custody, I said: "[805] Ms Beckett's experiences in gaol have been described. I do not get a sense that her custodial experience was any better or any worse than the general prison population. For what it may be worth, Ms Beckett struck me as a woman whose ability to adapt to prison life would have been as good as might be expected for someone imprisoned for so long for the first time. However, I hasten to add that in my view it is irrelevant. The level of difference between the best and worst experience of any one in fulltime custody must by definition be far less than the difference between anyone in gaol and anyone free in society. My view about the quantum of damages necessary or sufficient to compensate a person for time spent in custody that should not have been imposed cannot be diminished or increased by reference to their particular experience."
The point of this head of damage is to compensate for loss of liberty, not for a particular kind or quality of loss of liberty.

[40]

Cost of defending the criminal proceedings

The State takes no issue with the quantum of the shortfall of $109,291.70 as reflecting the difference between the amount spent by Mr Spedding on his legal representation and the amount recovered following the award of a certificate under the Costs in Criminal Cases Act.
However, the State submitted that a question arises as to the ability to recover such an amount in circumstances where there has been an award of costs pursuant to the constraints of a statutory scheme. Beazley P seems to suggest in State of New South Wales v Cuthbertson at [65]-[66] that such a recovery is impermissible. There appears to be no difference in principle between the provisions of the Costs in Criminal Cases Act and the Crimes (Appeal and Review) Act 2001. A contrary position appears to have been taken by Brereton JA in Rock v Henderson [2021] NSWCA 155 at [18].

[41]

Future Treatment Expenses

If proven, Mr Spedding is entitled to have any mental anguish sound in damages. That is subject only to the restrictions on the recovery of damages for personal injury imposed by Part 2 of the Civil Liability Act 2002 and the Limitation Act 1969.
The State agrees with the joint recommendation of Dr Samuels and Dr Apler. Precisely when the Tyrrell inquest will conclude is unknown. The doctors' joint report indicates that Mr Spedding's emotional state has improved and will continue to do so, suggesting a period of ten years treatment is unreasonable. The State submitted that a period of two years treatment is reasonable and amounts to $15,600.00. That quantum is agreed.

[42]

Aggravated Damages

Damages under this head are compensatory and are awarded for insult or humiliation constituting injury to feelings. They can be, but are not invariably, awarded for the tort of malicious prosecution.
The State submitted that while on the face of it one might think that there was inevitably a degree of double counting in awarding aggravated damages for a tort that requires findings of malice and damage to reputation, liberty or property to succeed at all, the High Court appears to suggest that there is no double counting involved: New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57. Aggravated damages can be awarded as a single sum combined with general damages.
The concept of insult relates to insult arising from the tort, not arising from a third party insulting Mr Spedding. In this context, the threatening voice messages are not relevant to this head of damage. Further, it is far from clear that any of those messages in fact relate to the subject of the prosecution as opposed to Mr Spedding's status as a one-time suspect with respect to the disappearance of William Tyrrell.
Mr Spedding may have been upset and concerned about FACS removing his grandchildren, but there is no evidence that he was insulted or humiliated by this. Of more basic importance is that it cannot be said on the evidence that the breakdown of the foster family relationships visited upon Mr Spedding were the result of his prosecution, as opposed to the allegations underlying the prosecution.
Roseanne Beckett was awarded $100,000.00 for aggravated damages. The factual basis for that award is stated at [811]-[815] and included needless handcuffing during the execution of a search warrant, initial media attention at the behest of the informant officer and improper opposition to bail on one occasion. The State contended that nothing comparable has arisen in the present case.
If an award of aggravated damages is to be made at all it should be far more modest than that awarded to Roseanne Beckett. It cannot be said that the matters expressly relied upon by Mr Spedding put him in a stronger position than Ms Beckett with respect to this head of damages, let alone four times better.

[43]

Exemplary Damages

Exemplary damages can be available for malicious prosecution: State of New South Wales v Quirk [2012] NSWCA 216; Beckett. Such an award is intended to punish. For such an award to be made, something more than "human fallibility" is required: State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208.
Mr Spedding seeks $400,000.00 with respect to exemplary damages for malicious prosecution. The State maintains that the availability of exemplary damages is highly dependent on particular factual findings being made.
There is no basis in principle for an award of exemplary damages consisting of many multiples of the award of general damages. In Beckett, very serious findings of misconduct by police were made, with an award of exemplary damages of $200,000.00. In State of New South Wales v Landini [2010] NSWCA 157, a matter in which police were found to have fabricated or manufactured evidence, an award of $160,000.00 for exemplary damages was reduced to a sum of $50,000.00 on appeal. A sense of proportion must be maintained. In this case, that would mean an award of exemplary damages both appropriate on the facts found, and proportionate to the award of damages for injury to reputation and liberty.
Mr Spedding has claimed interest on exemplary damages. Interest on exemplary damages is not available: Murray v Commonwealth of Australia (1985) 5 NSWLR 83 per Wood J.

[44]

The Application of Part 2 of the Civil Liability Act 2002

The State has pleaded the application of Part 2 of the Civil Liability Act.
Section 3B of the Act excludes some kinds of claims from the operation of the Act. None is presently applicable, the torts pleaded involving various allegations of deprivation of liberty, tortious abuse of process or knowing excess of power. Each cause of action has nothing to do with an intention to cause injury or death.
Section 11A of the Act applies Part 2 to any award of personal injury damages regardless of the cause of action. Section 11 defines personal injury damages as damages that relate to the death of or injury to a person. The question is whether and to what extent Mr Spedding's claim is one for damages for personal injury.
At 64 of the amended statement of claim, Mr Spedding has alleged that the malicious prosecution caused a need for psychological counselling. No similar pleading is made with respect to false imprisonment, misfeasance in public office or collateral abuse of process.
Mr Spedding has particularised his injuries as consisting of Major Depressive Disorder and Anxiety and Depression. His disabilities are described in similar terms. Mr Spedding has qualified a psychiatrist, Dr Samuels. His report is dated 14 April 2020. Mr Spedding's claim for damages is at least in part one for personal injury damages. The joint report of the psychiatrists relates the need for counselling and treatment to the events on 20 January 2015 and his later arrest, the impact of the prosecution and the unresolved inquest. The first two at least are part of this claim.
It may be the case that the application of Part 2 makes no difference given that any award of damages under the torts pleaded would be primarily for loss of liberty (false imprisonment) or for injury to property, reputation and liberty (malicious prosecution). However, the State submitted that, given the operation of s 16 of the Civil Liability Act and absent any evidence that the severity of Mr Spedding's non-economic loss is at least 15% of a most extreme case, there should be no award of damages for non-economic loss arising from the personal injury part of the claim.

[45]

The Limitation Act 1969

The State relies on a defence under the Limitation Act. That defence related only to Mr Spedding's claim for false imprisonment. As I have rejected that claim, the issue of the Limitation Act no longer requires consideration.

[46]

Non-economic loss

Mr Spedding is entitled to general damages for non-economic loss in the amount of $550,000.00 for the torts of malicious prosecution, collateral abuse of process and misfeasance in public office. The two latter torts operate in combination with Mr Spedding's claim for malicious prosecution to contribute to the amount of damages that I have awarded.
Mr Spedding was subjected to a long and painful ordeal. It never should have occurred. The allegations for which he was prosecuted were old and discredited. They were frail and notoriously so. Notwithstanding those facts, Mr Spedding's experience left him distressed, confused, wrongly imprisoned and separated from his family. His release from custody, which I find to have been extremely distressing and painful, did not restore to him the family from which he had been so improperly removed. Nor has it recovered even now. He remained subject for three years to the ignominy of reporting to the police in a small community alive with suspicions about him.
Mr Spedding was the subject of a harsh and cynical strategy to further an unrelated investigation. It was never viable, nor was it proper. Mr Spedding remains to this day traumatised by the whole unnecessary ordeal. His pain continues. As a result of these things Mr Spedding finds it difficult to concentrate, his level of social activity remains severely attenuated, he feels isolated and socially uncomfortable and his enjoyment of life remains diminished.
I have included in the amount of $550,000.00 a sum calculated at the rate of $1,300.00 per day for the period during which Mr Spedding was detained in custody.

[47]

Reputational damage - malicious prosecution

Mr Spedding's reputation was comprehensively destroyed as the result of his arrest and prosecution on the historical sexual assault allegations. It is doubtful that it will ever be restored. For what it is worth, I take Inspector Jubelin to have accepted that fact. Mr Spedding had until the time of his arrest been living an unexceptionable existence in quiet circumstances in coastal New South Wales. He was never a man of means and wealth never found its way to him. His business as a washing machine repair man could hardly have been described as a path to enormous prosperity, but it depended upon his acceptance as an honest and reliable individual. That humble employment was somewhat ironically critical to his selection as a person of interest in the disappearance of William Tyrrell.
There can be no doubt that Mr Spedding was a suspect in that disappearance. That is what led the police to him in the first place. It is in my view erroneous to suggest, as the State suggests, that damages for injury to his person, his liberty, his reputation or fame due to being identified as a person of interest in that disappearance are not available because he was never prosecuted for any aspect of his alleged involvement in that crime or that no such involvement is suggested. It is clear, as I have found, that Mr Spedding's prosecution for the alleged historical child sex offences was inextricably woven into the police strategy to investigate that crime. The fact that Mr Spedding was never charged with it is entirely beside the point. Mr Spedding became associated with the disappearance of William Tyrrell as the direct and inevitable result of his arrest and prosecution on unrelated matters. The public perception of Mr Spedding as the perpetrator or prime suspect in the disappearance was directly engineered by the Strike Force.
Despite the submission that Mr Spedding was not entitled to damages for injury to his reputation because he was never prosecuted for any aspect of his alleged involvement in that crime or that no such involvement is suggested, the State submitted in complete contradiction of that submission that any damage to his reputation or fame due to his malicious prosecution should be considered in the context of his having already been identified as a suspect in the disappearance of William Tyrrell at the time the proceedings against him were instigated. The State has asked the rhetorical question, "How much more reputational damage did he suffer as a result of being charged?" As I have attempted to make clear, the distinction is an illusion. Mr Spedding's arrest on the charges brought against him carried not only the risk that he would be associated with the disappearance of William Tyrrell but were almost sardonically instituted and maintained purposefully to take advantage of that very ambiguity.

[48]

Aggravated damages

I consider that Mr Spedding is entitled to aggravated damages as compensation for the insult and humiliation constituting injury to his feeling for having been maliciously prosecuted. I award $200,000.00 under this head of damage.
In forming that view, I consider that the State's insistence that the notion of "insult" is not apt to include the effects upon Mr Spedding of "insults" directed at him by members of the public is too narrow and I do not accept it. A consequence of the inappropriate prosecution must be taken to include, among other things, the opprobrium and unfair treatment directed at him by members of the public as an obvious result of the commission of the tort. Mr Spedding's experience with the patently rabid neighbour captured on video at his front door and the incident he related about the reaction he received when seeking pathology services speak loudly in support of an insidious level of vitriol directed towards him.

[49]

Exemplary damages

I also consider that Mr Spedding is entitled to damages in the sum of $300,000.00 under this heading, calculated so as to punish the State for prosecuting him where there was no warrant for doing so and when the decision to do so was not merely the result of a well-intentioned but mistaken appreciation of the true facts. It is in my view difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and even then to persist with the prosecution long after the desired strategic advantage has patently evaporated. In a paraphrase of Inspector Jubelin's published recollections, it was inevitable that Mr Spedding would be damaged but such was the price of his search for a killer. I reject that sentiment as illegitimate, wholly unacceptable and inappropriate. Its repetition should be disavowed and deterred in the strongest possible terms.

[50]

Legal costs

Mr Spedding is entitled to unrecovered legal costs in the amount of $109,292.00.

[51]

Future treatment expenses

In my view, Mr Spedding is entitled to future treatment expenses in an amount of $25,000.00.
The State has submitted that each cause of action pleaded by Mr Spedding has "nothing to do with an intention to cause injury or death". I agree with Mr Spedding's submission that this is plainly incorrect because it appears to be based on an assumption that the word "injury" in s 3B(a)(a) of the Civil Liability Act is limited to "personal injury" as defined in s 11. The definition is not limited in this way: State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [5]-[11].
The deprivation of liberty, anxiety, distress, embarrassment and humiliation flow from the torts which have been pleaded, particularly malicious prosecution. Those who committed these torts intended to do so. For example, Detective Brennan intended to arrest and charge Mr Spedding, acts that necessarily involved depriving him of his liberty and in that context causing him anxiety and distress. These are things falling within the definition of "injury" in s 3B(1)(a) of the Act and at least in part led to Mr Spedding sustaining a psychiatric condition.
The fact that the police officers intended to prosecute Mr Spedding and in that context deprive him of his liberty, resulting in his psychiatric condition, is sufficient to satisfy s 3B(1)(a) with the consequence that Part 2 of the Act does not apply: s 11A provides that Part 2 applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of the Part by s 3B.
Section 16 of the Act therefore does not apply to the assessment of Mr Spedding's damages for non-economic loss.

[52]

Interest

Mr Spedding is entitled to interest on some but not all of the damages I have awarded. I will require the parties to agree upon the interest calculations and to provide me with a minute of an order that specifies the appropriate sum.

[53]

Decision

I make the following orders: 1. Judgment for the plaintiff for $1,484,292 plus interest on those heads of damage that attract interest. 2. I direct the parties within 7 days to provide my Associate with a minute of an order calculating interest in accordance with these reasons. 3. I order the defendant to pay the plaintiff's costs.

[54]

Amendments 07 July 2023 - Judgment anonymised 07 July 2023 - Judgment anonymised DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023

[2022] NSWSC 581

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