230 CLR 500
Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep)
Adams v Kennedy [2000] NSWCA 152
49 NSWLR 78
Bunyan v Jordan [1937] HCA 5
57 CLR 1
Christie v Leachinsky [1947] AC 573
Coles Myer Ltd v Webster
Coles Myer Ltd v Thompson [2009] NSWCA 299
Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30
Source
Original judgment source is linked above.
Catchwords
230 CLR 500
Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep)
Adams v Kennedy [2000] NSWCA 15249 NSWLR 78
Bunyan v Jordan [1937] HCA 557 CLR 1
Christie v Leachinsky [1947] AC 573
Coles Myer Ltd v WebsterColes Myer Ltd v Thompson [2009] NSWCA 299
Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30146 CLR 1
Davis v Gell [1924] HCA 56214 CLR 118
Gibbs v Rea [1998] AC 786
Graham v Baker [1961] HCA 48106 CLR 340
Gray v Motor Accidents Commission [1998] HC 70197 CLR 138
Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218
Johnstone v State of New South Wales [2010] NSWCA 70202 A Crim R 422
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11243 CLR 361
Lamb v Cotogno [1987] HCA 47169 CLR 638
Martin v Watson [1996] AC 74
Metwally v University of Wollongong [1985] HCA 2860 ALR 68
Mutton v Baker [2014] VSCA 43
Najdovski v Crnojlovic [2008] NSWCA 17572 NSWLR 728
Nationwide News Pty Ltd v Naidu [2007] NSWCA 37771 NSWLR 471
New South Wales v Hunt [2014] NSWCA 47
New South Wales v Radford [2010] NSWCA 276
79 NSWLR 327
New South Wales v Zreika [2012] NSWCA 37
Poidevin v Semaan [2013] NSWCA 334
85 NSWLR 758
Ruddock v Taylor [2003] NSWCA 262
58 NSWLR 269
Spautz v Butterworth (1996) 41 NSWLR 1
State of New South Wales v Delly [2007] NSWCA 303
70 NSWLR 125
State of New South Wales v Landini [2010] NSWCA 157
State of New South v Riley [2003] NSWCA 208
57 NSWLR 496
Trobridge v Hardy [1955] HCA 68
94 CLR 147
Wilson v Peisley (1975) 50 ALJR 207
7 ALR 571
Zorom Enterprises v Zabow [2007] NSWCA 106
Judgment (76 paragraphs)
[1]
maintained the prosecution - Whether the discretion of the prosecuting officer was misled by false information from the complainant concerning facts relating to the alleged offence which were only within the knowledge of the complainant
Legislation Cited: Bail Act 1978 (NSW) s 50(1)
Civil Procedure Act 2000 (NSW) s 100(1)
Crimes Act 1900 (NSW) ss 110, 112(2)
Director of Public Prosecutions Act 1986 (NSW) s 10
Law Enforcement (Powers and Responsibilities) Act 2000 (NSW) ss 4, 201 Pt 9
Law Reform (Vicarious Liability) Act 1983 (NSW) Pt 4
Superannuation Guarantee (Administration) Act 1992 (Cth)
Superannuation Guarantee (Administration) Amendment Act 2012 (Cth)
Supreme Court Act 1970 (NSW) s 75A
Uniform Civil Procedure Rules 2005 (NSW) r 6.12, 15.7, 15.8, 36.7, 51.53, Sch 5
Cases Cited: A v New South Wales [2007] HCA 10; 230 CLR 500
Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep)
Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78
Bunyan v Jordan [1937] HCA 5; 57 CLR 1
Christie v Leachinsky [1947] AC 573
Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299
Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; 53 CLR 343
Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187
Costa v The Public Trustee of NSW [2008] NSWCA 223
Cullen v Trappell [1980] HCA 10; 146 CLR 1
Davis v Gell [1924] HCA 56; 35 CLR 275
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
Elite Protective Personnel v Salmon [2007] NSWCA 322
Fox v Percy [2003] HCA 22; 214 CLR 118
Gibbs v Rea [1998] AC 786
Graham v Baker [1961] HCA 48; 106 CLR 340
Gray v Motor Accidents Commission [1998] HC 70; 196 CLR 1
Hamod v State of New South Wales [2011] NSWCA 375
House v The King (1936) 55 CLR 499
Husher v Husher [1999] HCA 47; 197 CLR 138
Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218
Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
MBP (SA) Pty Ltd v Gogic [1991] HCA 3
Mahon v Rahn (No 2) [2000] 1 WLR 2150
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Martin v Watson [1996] AC 74
Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68
Mutton v Baker [2014] VSCA 43
Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471
New South Wales v Hunt [2014] NSWCA 47
New South Wales v Radford [2010] NSWCA 276; 79 NSWLR 327
New South Wales v Zreika [2012] NSWCA 37
Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758
Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269
Spautz v Butterworth (1996) 41 NSWLR 1
State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125
State of New South Wales v Landini [2010] NSWCA 157
State of New South v Riley [2003] NSWCA 208; 57 NSWLR 496
Trobridge v Hardy [1955] HCA 68; 94 CLR 147
Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571
Zorom Enterprises v Zabow [2007] NSWCA 106; 71 NSWLR 354
Texts Cited: John G Fleming, The Law of Torts (9th ed 1998, LBC Information Services)
Category: Principal judgment
Parties: State of New South Wales (Appellant)
Hayam Abed (First respondent)
Wafaa Younis (Second respondent)
Khalil Younis (Third respondent)
Representation: Counsel:
J E Maconachie QC / D F Villa (Appellant)
D Higgs SC / D Del Monte (First respondent)
R M Sweet / F F F Salama (Second and third respondent)
Solicitors:
I V Knight - Crown Solicitor (Appellant)
Kheir Lawyers (First respondent)
Stojanovic Solicitors (Second and third respondents)
File Number(s): 2013/319409
Publication restriction: No
Decision under appeal Jurisdiction: 9101
Citation: Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep)
Date of Decision: 2013-09-27 00:00:00
Before: Sorby DCJ
File Number(s): 2009/338335
[2]
Judgment
1BATHURST CJ: I agree with the judgment of Gleeson JA.
2MACFARLAN JA: I agree with the judgment of Gleeson JA and add the following observations.
3The primary judge concluded in relation to the malicious prosecution claim that both the police and the DPP acted maliciously because they acted for the improper purpose of keeping Ms Abed incarcerated (Judgment [121]). In my view, such a purpose is not of itself improper. It may be wholly consistent with "a genuine desire to serve the ends of justice" (see Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 164 per Kitto J) to act for the purpose of keeping a person incarcerated. That will be so if the prosecutor believes that the plaintiff committed an offence that, in accordance with the law, warranted continuing incarceration.
4On the other hand, further facts, if established, might reveal that the defendant acted for an improper purpose. For example, the evidence might reveal that the defendant wished to keep the plaintiff incarcerated to avenge some perceived wrong that the plaintiff did to the defendant.
5No such further facts that would convert a purpose of keeping the plaintiff incarcerated into an improper one were found (or indeed even suggested by the evidence) in the present case. It follows that even if the primary judge's finding of purpose was well-founded, the purpose so found was not improper, with the result that the finding of malicious prosecution cannot stand.
6GLEESON JA: On the evening of 8 December 2006 the first respondent, Hayam Abed (Ms Abed), was arrested at her home at Austral by officers of the New South Wales Police. Ms Abed lived in a shed which contained a flat on the northern side of the Austral property, which was separated from the main residence at the front of the property by a colorbond fence. The property was owned by her former husband, Khalil Younis (Mr Younis), who is the third respondent. He lived in the main residence, a single storey brick home, with his second wife, Wafaa Younis (Ms Younis), who is the second respondent.
7Ms Abed was arrested following a telephone call by Ms Younis to the 000 operator reporting that a woman had broken into and entered her house, and was armed with a knife. The primary judge found that Ms Abed was told by the arresting officers that she was under arrest for assault, but no further explanation was provided to her at that time. Ms Abed was taken to the Green Valley Police Station and later interviewed, at which point she was advised of the reason for her arrest. She was charged with the offences of break and enter with intent to commit murder and breach of a bail undertaking (which had been given in connection with assault charges against her following an incident at the property a few days earlier involving Ms Younis and Mr Younis). She was refused bail and held in custody on remand. Subsequent applications for bail were also refused. The prosecution was formally taken over by the Director of Public Prosecutions (DPP). In early June 2007 Ms Abed was charged with a lesser offence of break and enter and commit a serious indictable offence, namely, intimidate.
8On 13 June 2007 the charges against Ms Abed were withdrawn by the Office of the Director of Public Prosecutions (the ODPP) on the direction of the Director. On 19 June 2007 Ms Abed was released from custody.
9Ms Abed commenced a proceeding in the District Court claiming damages for false arrest, false imprisonment, and malicious prosecution. The proceeding was brought against the appellant, the State of New South Wales (the State), on the basis that it was vicariously liable, pursuant to Pt 4 of the Law Reform (Vicarious Liability) Act 1983 (NSW) for the conduct of the police officers involved in the arrest, detention, and subsequent prosecution of Ms Abed, as well as the solicitor with the ODPP who had the conduct of the prosecution.
10The proceeding was also brought against Ms and Mr Younis claiming damages for malicious prosecution, or alternatively for the intentional infliction of harm.
11The State cross-claimed against Ms Younis and Mr Younis for indemnity or contribution on the basis that they were liable to Ms Abed for the tort of maliciously inducing arrest, and the tort of maliciously bringing about and maintaining the prosecution of Ms Abed.
12The primary judge (Sorby DCJ) found that the manner of Ms Abed's arrest constituted a trespass to person and that she was falsely imprisoned on 8 December 2006 for approximately 3 hours until the time she was advised of the reason for her arrest when interviewed at the Green Valley Police Station. He awarded damages in the amount of $10,000 for trespass and $10,000 for false imprisonment. He found that the police acted with reasonable and probable cause in charging Ms Abed on 8 December 2006 and that there was no improper purpose in laying the charges. However he found the State liable for malicious prosecution of Ms Abed in respect of the period after 5 April 2007 until 19 June 2007 and awarded her damages totalling $195,089. He also found that Ms Younis and Mr Younis were jointly and severally liable with the State for the malicious prosecution. Although finding that liability for malicious prosecution should be apportioned (75% to the State; 15% to Ms Younis; and 10% to Mr Younis), his Honour entered judgment for Ms Abed against each of them in the same amount of $215,089. He also made an order that they pay Ms Abed's costs. No orders were made in respect of the State's cross-claim: (Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep).
13The State appeals against that decision. Ms Younis and Mr Younis have cross-appealed against that decision. Ms Abed has also cross-appealed against part of that decision relating to damages.
[3]
Factual circumstances
14There has been no challenge to the basic factual findings of the primary judge in relation to the arrest and detention of Ms Abed on 8 December 2006. There are however a number of challenges to the factual findings on the malicious prosecution cause of action. The following summary, which is highly abbreviated, will be sufficient to understand the principal issues in dispute.
15Ms Abed was born in Palestine in 1961 and married Mr Younis in about 1989. They migrated to Australia in 1995 but separated after 14 years of marriage in about November 2004. Mr Younis travelled to Palestine in April 2005 where he married Ms Younis. Ms Younis eventually arrived in Australia on 13 November 2006. From this time Ms Abed, and Mr and Mrs Younis, all lived on the same property located at Austral.
16The property was effectively divided into two parts. As already mentioned, the main residence on the front part of the property where Mr and Mrs Younis resided was separated from the rear of the property where Ms Abed lived by a green colorbond fence. Witnesses described the height of this fence as about "six feet". On the northern part of the property, where Ms Abed lived, there were also various other sheds and greenhouses used by Mr and Mrs Younis to conduct a commercial nursery business. Access to the shed occupied by Ms Abed was via a separate driveway that ran along the left hand (western) side of the property. This driveway was separated from the front of the property, where the brick house was located, by a barbed wire fence. There was a gate in the wire fence near where it intersected with the colorbond fence. It seems that there was another gate in the wire fence located closer to the front of the property.
17The proximity of these living arrangements led to various disputes. Relevantly on 1 December 2006 Ms Abed was arrested and charged with two counts of assault occasioning actual bodily harm. The complainants were Mr and Mrs Younis who accused Ms Abed of hitting them with a stick. The police sought and obtained an AVO on behalf of Mr and Mrs Younis. Ms Abed was granted bail.
18On the evening of 6 December 2006 there was another physical dispute between the parties. The police were called and all three were taken to Fairfield Hospital with varying degrees of injury. Ms Abed suffered fractures to her ninth and tenth ribs according to notes from Fairfield Hospital.
[4]
8 December 2006
19On 8 December 2006 the police were called to three incidents at the property.
20Firstly, at approximately 9.45 am, police were called to the property by Mr Younis who accused Ms Abed of breaching the AVO by threatening him and turning off the supply of electricity to the watering system for the nursery. The fuse box was located in the shed where Ms Abed lived. Ms Abed was arrested and taken to Green Valley Police Station. Ultimately no charges were laid and she was released from custody.
21Later that day, acting on information received from a neighbour that a person was inside Ms Abed's flat causing damage, police attended at approximately 1.17 pm and arrested Mr Younis outside Ms Abed's flat. Ms Younis was also present at this time. Following his arrest Mr Younis began to hyperventilate and he was taken by ambulance to Liverpool Hospital. He was later released from hospital and returned home at about 5.00 pm. At about 6.45 pm that evening police attended the property and rearrested Mr Younis for malicious damage to property. He was taken to Green Valley Police Station. Ms Younis stayed at home. Mr Younis was in custody waiting to be interviewed by police at the time of the events giving rise to the present proceedings.
[5]
The third incident
22Whilst in custody Mr Younis' mobile phone rang at about 7.15 pm, with the caller ID displaying Ms Younis' name. Mr Younis was given his mobile phone by the police officer and he spoke with Ms Younis. His evidence was that she told him that Ms Abed had entered their house and had threatened her. He said he told Ms Younis to "go inside, keep inside and close the door". The call then ceased. Ms Younis rang again shortly thereafter, at about 7.21 pm. Mr Younis said that she told him that she was very fearful and very scared. He reported to the police officer that his wife was "in danger". In response the police officer told him that she should "ring the police, ring 000". Mr Younis said that he told his wife to ring 000. He spoke to her in Arabic during both of these calls.
23Ms Younis subsequently telephoned the 000 line. This call was received at about 7.23 pm. With the assistance of an Arabic interpreter, Ms Younis reported that she was calling from her home; that Ms Abed had broken the bathroom window and entered her home through that window; that she was attacked by Ms Abed in the bathroom; that Ms Abed was armed with a knife; and that Ms Younis had locked herself within the bedroom of her home.
24Police from Green Valley Police Station responded when the call came through at 7.30 pm. Constables Kathryn Ginn and Martin Ling arrived at the property at approximately 7.50 pm. On entering the property they saw Ms Younis walk from the front door of the brick home towards them. Constable Ling asked "Where was the lady with the knife?" He realised that Ms Younis could not speak English. Ms Younis walked the officers to the rear of the house and pointed out a broken flyscreen and window and showed them the broken glass on the ground. The officers then searched the house but found no one inside. With the aid of an Arabic phrase book they asked Ms Younis to accompany them to the police station. On the way to the police car Ms Younis pointed to the rear of the property and started walking towards what appeared to be a barbeque area. She pointed to something which appeared to be a large knife, and then pointed to the colorbond fence. Constable Ling looked over the fence and saw a person walking away from it. Constable Ling told Constable Ginn to "secure the knife".
25Constable Ling walked towards a gate that led into the rear yard of the property but could not get over it due to its height and the barbed wire along the top. He then walked back towards the front of the property where he was joined by Constable Kellie Burraston and Constable Stacey Dews, who had recently arrived at the property. Constables Ling and Burraston walked towards the front of the house and jumped another gate in the side wire fence in order to walk along the driveway up the left hand side of the house. After they had passed the colorbond fence they saw Ms Abed "holding a pole with a spike on it". She was told to put it down and to "walk out here", to which she responded "Why, I have just been washing, why?" Ms Abed then put the pole down, but picked up another similar white pole. Ms Abed advanced towards Constables Ling and Burraston. They were about two metres from each other. She was told to put the second pole down, which she finally did. Ms Abed was then taken to the ground by both officers, handcuffed, and arrested by Constable Ling. There was a conversation during which he told Ms Abed that she was under arrest for assault and also administered the standard caution. Ms Abed asked "Why" on a number of occasions and again stated that she had been doing her washing.
26The primary judge found that the arrest occurred at approximately 7.57 pm: at [67]. The circumstances of the arrest were disputed at trial. Ms Abed denied that she was told that she was under arrest until she arrived at the Green Valley Police Station. His Honour must be taken to have rejected this evidence as he found that the arresting officers told Ms Abed that she was under arrest for assault when they first detained her at the Austral property: at [63]. There is no challenge however to his Honour's finding that the arresting officers did not explain to Ms Abed the reason for her arrest at that time: at [23].
27Ms Abed was taken to Green Valley Police Station where she was entered into custody by Sergeant Tray Lucas, the Custody Manager, at 8.25 pm. Sergeant Lucas gave evidence that he observed when asking Ms Abed questions relating to her health that she had "slight difficulty" understanding some of his questions (Blue 60T). He arranged for an interpreter to attend the police station to assist Ms Abed, who arrived at about 9.18 pm. Subsequently at 10.35 pm Sergeant Lucas read the caution and summary of Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2000 (NSW) (LEPRA) to Ms Abed and she signed an acknowledgment, as did the interpreter.
28At 11.00 pm Ms Abed voluntarily participated in an electronically recorded interview (ERISP) conducted by Constables Burraston and Turner. His Honour found that it was at this time that Ms Abed was told of the reason for her arrest - that she was to be charged with break and enter: at [67]. Ms Abed protested her innocence and, amongst other things, stated to the police that:
[6]
9 December 2006
33Mr Younis gave evidence at the trial that on the morning of 9 December 2006 he observed crates leaning up against the colorbond fence on Ms Abed's side of the property and that he informed the police about it that day (Black 2/699L-O). Mr Younis subsequently gave a statement to police on 7 February 2007 which was recorded by Constable Dews in her notebook and signed by Mr Younis (a formal statement confirming this statement was later completed on 3 March 2007). The notebook entry stated:
At about 8 am on Saturday 9 December, I went out to the back fence to check the water tap for my farm. The main tap is on Hayam's side of the fence. I went onto her side of the fence to turn on the main tap when I saw a box leaning next to the colorbond fence. This box was commonly used to step up and walk over the colorbond fence. I moved the box to cut the grass then returned it in the same spot. The box has remained in this spot.
34Constable Dews photographed the box identified by Mr Younis (Blue 46-47). She described the "box" in her evidence as three crates - one black crate and one blue crate which were standing on top of each other and another black crate which was situated before it, looking like a step for the two crates.
35The primary judge found that these crates had not been observed by Constable Burraston and Constable Ling at the time of Ms Abed's arrest on 8 December 2006: at [167].
[7]
DPP takes over prosecution
36On 14 December 2006 the ODPP gave notice in accordance with s 10 of the Director of Public Prosecutions Act 1986 (NSW) that the Director had, pursuant to s 9 of that Act, taken over the prosecution of sequence 1 - the offence of break and enter a dwelling and assault with intent to murder. The police continued to undertake various investigatory tasks. Constable Burraston remained the prosecutor for sequence 2 - the breach of bail undertaking.
37On 18 December 2006 the proceedings were mentioned before the Liverpool Local Court. Bail was opposed and refused, apparently on the basis that there was need to protect the victims.
38On 16 January 2007 Ms Abed was provided with a copy of the prosecution brief of evidence. On the following day the matter was again listed for mention at the Liverpool Local Court. Bail was again opposed and refused.
39Ms Rofe, solicitor, was allocated the conduct of the matter at the ODPP on 24 January 2007. She gave evidence that her practice was to read the brief of evidence when allocated a new matter.
[8]
February 2007
40On 16 February 2007 Ms Rofe discussed the prosecution case during a telephone call with Constable Burraston. Constable Burraston gave evidence that at this time she was still awaiting information relating to DNA evidence concerning the knife and she was hoping such evidence would link Ms Abed to the crime. Ms Rofe was cross-examined in respect of her file note of this discussion. She gave evidence that her note recorded the likelihood that there was going to be a need to examine the credibility of the allegations made by Ms Younis as there were no witnesses to the incident and the prosecution would be relying on the credibility of the complainant's version.
41The primary judge referred (at [89]) to Constable Burraston's evidence in cross-examination where she agreed that her view at this time was that, pending the receipt of any DNA or fingerprint evidence, "this was not a strong case". One of the matters, which his Honour noted (at [91]), that caused Constable Burraston to have "doubt" was a difference between Ms Younis' version as to how the knife was discovered by her on the night of the incident, and the description of those events in the statements of the arresting officers. The primary judge found that the essence of the "doubts" held by Constable Burraston at the time, without DNA results, was the veracity and credit of the witness and alleged victim, Ms Younis: at [92].
[9]
March 2007
42On 2 March 2007 the solicitors for Ms Abed sent a facsimile to Constable Burraston, which was also copied to Ms Rofe, requesting certain information including audio tapes of the record of interview with Ms Abed, an inspection of the Austral property, and details of Ms Younis' landline telephone number, her mobile number, and the mobile number of Mr Younis, as they intended to subpoena the relevant telephone carriers. Constable Burraston replied to Ms Abed's solicitors the following day. In relation to the request for phone numbers she advised that a copy of the 000 call would be supplied in the brief of evidence and any further phone numbers would not be supplied by the police due to further investigations and concern for victim protection.
43On 12 March 2007 Ms Abed's solicitor telephoned Ms Rofe in relation to her earlier request for various documents including the ERISP and colour photographs. During this telephone call, Ms Rofe raised the possibility of plea negotiations with Ms Abed's solicitor, in particular whether she would plead to a lesser charge of aggravated break and enter and commit serious indictable offence, namely, intimidation. Ms Rofe confirmed this offer which, if accepted, would result in withdrawal of sequence 1, in a letter dated 15 March 2007.
[10]
Notice given of alibi defence
44On 15 March 2007 Ms Rofe was informed by Ms Abed's solicitor that Ms Abed "may be relying on an alibi defence" and requested the precise time the 000 call was made, and the precise time Ms Younis made the telephone call to her husband at the Green Valley Police Station on the evening of 8 December. No details were provided as to what the alibi defence might be.
45On the same day Ms Rofe emailed Constable Burraston requesting the information sought by Ms Abed's solicitors as she "may be relying on alibi". Constable Burraston gave evidence that she did not recall receiving this email and did not recall being aware that there was a possibility of an alibi (Black 2/423T, 424C-H). As will be seen, it is possible that Constable Burraston may have been on leave at this time and therefore did not receive the email of 15 March until a later time.
46On 23 March 2007 Ms Rofe was told by Ms Abed's solicitor the substance of the alibi defence: that Ms Abed had been on the telephone at the time of the alleged assault on Ms Younis. (This had not been mentioned by Ms Abed during her interview with police on 8 December 2006 or in any communication from Ms Abed's solicitors prior to this point.) This led to a series of inquiries by Ms Rofe directed towards verifying the alibi defence. Ms Rofe sent an email to Constable Dews on 23 March 2007, in the absence of Constable Burraston who was still on leave, requesting that she chase up the requisitions made by Ms Abed's solicitors as a matter of urgency. Ms Rofe sent another email on 2 April 2007, this time addressed to Constable Burraston, who had returned from leave the previous day, again requesting that she attend to the requisitions made by Ms Abed's solicitors as a matter of urgency. The telephone records became available to Ms Rofe on 20 April 2007. Inquiries were then made by Ms Rofe of the persons whose numbers had been called to confirm that it was Ms Abed, and not someone else, who had made the phone calls. Those inquiries were concluded on 2 June 2007.
[11]
Lapsing notice to remove Ms Abed's caveat
47Ms Abed had lodged a caveat against the Austral property on 3 March 2005 claiming an equitable interest in the property, on the basis that it had been purchased with funds provided by both her and Mr Younis. On or about 15 March 2007, Mr Younis applied for the issue of a lapsing notice in order to have this caveat removed. He purportedly served the lapsing notice on Ms Abed at her last known address, being the Austral property. The primary judge found that he did so knowing at the time that Ms Abed was incarcerated and that she would not be aware of the lapsing notice or that the caveat would likely be lifted in the circumstances, which is what in fact occurred: at [172].
[12]
April 2007
48On 2 April 2007 Constable Burraston wrote a letter addressed to the "presiding judge of the Supreme Court" to be used by the ODPP in a further bail application by Ms Abed. In that letter Constable Burraston set out her reasons why Ms Abed should be remanded in custody, including, the "strong police case". Ms Abed's application for bail in the Supreme Court, which was opposed by the DPP, was refused by Hidden J on 5 April 2007 and she remained in custody.
49The next local court mention instruction sheet was prepared by the DPP on 11 April 2007. Under the heading "bail opposed", the words which had previously appeared "serious offence. Strong Crown case ... (accused found at house by police)" had been crossed out.
50It was common ground that Ms Rofe did not receive the report from DAL (dated 3 April 2007) until 20 April 2007. The forensic investigation showed no DNA link on the knife handle with Ms Abed. As already mentioned, also on 20 April 2007 Ms Rofe received the Telstra records regarding Ms Abed's telephone number and calls made from that number on the night of the incident.
[13]
May 2007
51On 10 May 2007 Ms Rofe conducted a telephone interview with Ms Younis. Ms Rofe's note of this conversation recorded a number of observations she made in relation to Ms Younis' response to various questions. These included that Ms Younis did not mention any knife when she described Ms Abed crawling through the bathroom window and that Ms Younis said she was on the telephone to the police (the 000 operator) when Ms Abed was in her house. Ms Rofe noted that she needed to obtain details of the 000 call. In cross-examination Ms Rofe denied the suggestion put to her that the veracity and accuracy of Ms Younis' statement was, in her mind, significantly in doubt at this time. She could not recall her views at that time as to whether it was a strong case, but she agreed she spoke with Crown Prosecutor Degnan (on 10 May 2007) regarding the possibility of withdrawing sequence 1, the break and enter with intent to murder charge, and replacing it with a lesser charge under s 112(2) of the Crimes Act (of break and enter and commit a serious indictable offence, namely, intimidate) which could be dealt with in the local court. The primary judge found that during this meeting the Director (in fact it was Crown Prosecutor Degnan) gave a direction to Ms Rofe to withdraw sequence 1 and replace it with the lesser charge under s 112(2) of the Crimes Act: at [113].
52On 22 May 2007 Ms Rofe had a further telephone conference with Ms Younis after unsuccessfully attempting to contact her on 18 May. With the assistance of an interpreter she asked Ms Younis to recall the events on the night of the incident. Following this telephone interview Ms Rofe discussed the matter again with Crown Prosecutor Degnan. He expressed concern regarding the Crown brief. He identified an issue with the timing of the phone calls which Ms Abed said she had made at about the same time as the alleged incident involving Ms Younis. He advised that further material needed to be obtained "asap" and that further investigations were required in relation to a number of matters including: the distance of the window from the ground; the presence of glass fragments; and evidence from the phone records.
53Ms Rofe telephoned Ms Abed's solicitor on the same day. She informed her that the DPP was considering the entire matter but that they needed a few more weeks. The matter would then be referred to the Director to determine which way to proceed. She also explained that she was looking at the matter from the accused's perspective.
54On 23 May 2007 the matter was mentioned at the Liverpool Local Court and listed for further mention on 13 June 2007.
[14]
June 2007
55On 1 June 2007 Ms Rofe emailed Constable Burraston requesting that the lesser charge under s 112(2) of the Crimes Act be laid against Ms Abed to replace the current charge of break and enter with intent to murder (Blue 217). (The later reference by the primary judge (at [117]) to this request having been made on 6 June 2007 is an error.) In her email Ms Rofe also referred to her discussions with Constable Burraston regarding the "weakness in the Crown case" and requested her view in relation to possibly "withdrawing all charge (sic) in this matter and no longer proceeding".
56On 1 June 2007 Ms Rofe also received the results of the IPND inquiry which provided the name and address of the two persons to whom telephone calls had been made from the shed of Ms Abed on the night of the incident. On 1 and 2 June 2007 Constable Burraston obtained statements, which she recorded in her notebook (Blue 166-169), from the two persons who Ms Abed said she had telephoned on the night of the incident on 8 December 2006.
57On 2 June 2007, Constable Burraston emailed Ms Rofe and stated that she believed the charge (under s 110 - break and enter with intent to commit murder) should be withdrawn because of "doubt in phone conversation" and "doubt of Constable Ginn and Ling statement". Constable Burraston stated in her email that although she believed this doubt was caused due to a language barrier problem, she understood that this would be hard to argue at court and therefore the matter should be withdrawn.
[15]
Ms Rofe's recommendation to withdraw the charge
58On 5 June 2007 Ms Rofe prepared a submission to the DPP recommending withdrawal of the lesser charge under s 112(1) of the Crimes Act as there was no reasonable prospect of conviction. In her submission Ms Rofe noted the following concerns in relation to the Crown case:
(1)Absence of forensic evidence - DNA testing did not link the knife with Ms Abed; a finger print examination of the bathroom window frame had produced no suitable fingerprints for comparison; and the broken glass was contained outside the bathroom window only, although a photograph taken by police on the night of the incident showed that there was some glass fragments inside the bathroom.
Ms Rofe also noted that the Crown case relied solely upon the complainant's evidence, and there were significant concerns that cast doubt on her version of events.
(2)Timing of phone calls - the Telstra phone records supported Ms Abed's version that she made telephone calls around the time of the alleged incident. The Telstra records showed that Ms Abed made a call to one person at 7.18 pm for approximately 10 minutes and 53 seconds, finishing at 7.29 pm, and then made a second call 8 seconds later which lasted for around 24 minutes, finishing at 7.53 pm. The Telstra records also showed that Ms Younis telephoned her husband's mobile at 7.15 pm for approximately 37 seconds, and then made a second call to Ms Younis approximately 5 minutes later at 7.21 pm for approximately 1 minute and 21 seconds, and she then called the 000 number at 7.23 pm.
Ms Rofe noted that in the telephone conference with Ms Younis on 10 May 2007, Ms Younis had stated she called the 000 number when Ms Abed was in her house. This information was not contained in her police statement, but the transcript of the 000 call confirmed that Ms Younis told the operator that Ms Abed was still in her house when she was on the phone to the operator. Ms Rofe noted that the Telstra records showed that this could not have been the case.
(3)Knife located by complainant - Ms Rofe noted that the circumstances in which Ms Younis had alerted the police on the night of the incident to the presence of the knife lying on the grass was somewhat strange.
(4)Complainant's husband located crates - Ms Rofe noted a concern that the crates, which Mr Younis had told the police (on the day following the incident) were located on Ms Abed's side of the fence, were not sighted by police the previous evening.
(5)Motive - Ms Rofe noted that, having regard to the previous incidents between Mr Younis and Ms Abed earlier on 8 December 2006, there was a clear inference that all parties could possibly be "out to get each other".
(6)Impossibility of committing offence - Ms Rofe noted that during the ERISP, Ms Abed had made a number of comments which raised doubts about the impossibility or at least difficulty of her committing the offence, in particular that she had a broken rib and would be physically incapable of climbing over the fence and into the bathroom window. Ms Rofe noted that attempts to obtain a medical statement had been unsuccessful.
59On 6 June 2007 Ms Rofe had a telephone conference with Mr Younis (Ms Younis being unavailable) and informed him that she had recommended that the matter not proceed (Blue 240).
60On 7 June 2007 Crown Prosecutor Degnan concurred with Ms Rofe's recommendation and directed the withdrawal of the charge pursuant to s 112(2) Crimes Act. (The reference by the primary judge (at [116]) to this having occurred on 5 June 2007, being the date of Ms Rofe's submission, is an error: see at Blue 21Q-X.) On the same day Ms Rofe informed Ms Abed's legal representatives that the proceedings would be discontinued and that on 13 June 2007 the Crown would seek to withdraw the charges. Ms Abed's lawyers then sought to have the matter relisted immediately in the Liverpool Local Court and have Ms Abed released from custody. They were advised by the local court that the Court could not order Ms Abed's release as a new charge had been laid.
61On 8 June 2007 an issue was identified within the ODPP concerning whether Crown Prosecutor Degnan had the appropriate delegation to direct the termination of all charges. The view was taken that the decision to withdraw the charges had to be made by the Director. This information was communicated to Ms Abed's solicitors on the same day (at Blue 449).
62On 12 June 2007 the Director gave an instruction that there be no further proceedings on the s 112(2) charge and noted that the question of custody could be addressed at Court the following day.
63Subsequently, on 13 June 2007, Ms Rofe prepared local court mention instructions advising that the two charges were to be withdrawn and that the remaining charge concerning breach of bail was a "matter for police".
64Ultimately Ms Abed was released from custody on 19 June 2007.
65The primary judge found that the behaviour of the police and the DPP from 5 April 2007 to 19 June 2007, by maintaining and not withdrawing the charge of break and enter with intent to murder in the face of the "evidentiary difficulties set out earlier" (in particular the telephone records), and by the delay in withdrawing that charge once the decision had been made to withdraw it (on 10 May 2007), together with laying the lesser charge under section 112(2) of the Crimes Act 1900 based upon the same evidence, was without reasonable and probable cause and was malicious, the improper purpose being to keep Ms Abed incarcerated: at [121].
66As already mentioned, Ms Abed brought a proceeding in the District Court claiming damages against the State, and Ms Younis and Mr Younis. Ms Abed's claim was largely successful, other than her claims for aggravated and exemplary damages which the primary judge refused to award. The damages of $215,089 awarded by the primary judge against all three defendants included the following components:
[16]
(1) The State's appeal
67There are four parts of the State's appeal.
68The first part concerns the challenge to his Honour's findings of false arrest and false imprisonment. The State contends that his Honour erred in finding that Ms Abed should have been given some explanation by the arresting officers of the reason for her arrest, beyond being informed that she was under arrest for assault.
69The second part concerns the challenge to his Honour's findings that the prosecution against Ms Abed was maintained without reasonable and probable cause and maliciously as from 5 April 2007 until Ms Abed was released from custody on 19 June 2007. Related to this issue is the notice of contention of Ms Abed which seeks to uphold the finding of malicious prosecution as from 10 May 2007 or such other date, up until 19 June 2007, as determined by the Court.
70The third part concerns the State's challenges to the primary judge's finding on damages. The State contends that his Honour failed to differentiate between the assessment of damages against the State on the one hand and Ms Younis and Mr Younis on the other. The circumstances requiring differentiation were said to be the temporal difference in the primary judge's findings concerning the malicious prosecution claim. On his Honour's findings the State was liable for malicious prosecution as from 5 April 2007 (at [121]), whereas Ms Younis was liable from an earlier date: 8 December 2006 (at [161]), and Mr Younis was liable from the morning of 9 December 2006: at [176]. (The reference in [176] to "8 December 2006" is clearly an error, as may be observed from his Honour's finding at [170]).
71The State also contends that the components of damages for future economic loss ($45,000) and future treatment expenses ($15,000) were not justified in the absence of appropriate findings by his Honour.
72The fourth part concerns the primary judge's findings on apportionment and failure to determine the State's cross-claim against Ms Younis and Mr Younis.
[17]
(2) Ms Younis and Mr Younis' cross-appeal
73Ms Younis and Mr Younis filed a notice of cross-appeal, out of time, on 14 August 2014. An extension of time was sought. This was opposed by the other parties in their written submissions. However no oral argument was advanced against the grant of an extension of time and no prejudice to the State or Ms Abed was identified. Nor was it suggested that the State and Ms Abed did not have an adequate opportunity to respond to the cross-appeal at the hearing. In the circumstances, an extension of time should be granted.
74There are three parts of this cross-appeal.
75The first part concerns a challenge to the primary judge's award of damages against Ms Younis and Mr Younis (jointly and severally liable with the State) for false arrest and false imprisonment of Ms Abed. There is a related challenge to his Honour's failure to determine the State's cross-claim in accordance with his findings on apportionment as between the State and Ms Younis and Mr Younis.
76The second part concerns a challenge to his Honour's finding that Ms Younis and Mr Younis are liable in damages for malicious prosecution in circumstances where it was said that their actions did not deprive the police or the DPP of the discretion to not charge and/or to withdraw the charges against Ms Abed.
77The third part concerns a separate challenge by Mr Younis to the finding that he aided and abetted Ms Younis in the malicious prosecution of Ms Abed.
[18]
(3) Ms Abed's cross-appeal
78There are two parts to Ms Abed's cross-appeal.
79The first part concerns the award of damages of $10,000 for false arrest and $10,000 for false imprisonment. These are challenged by Ms Abed as being inadequate. In addition, Ms Abed challenged his Honour's decision not to award aggravated or exemplary damages.
80The second part concerns two elements of the award of damages for malicious prosecution - $125,000 in general damages and the $45,000 cushion for future economic loss. These are challenged as being inadequate. Although not the subject of a ground of appeal, there is a related challenge raised in Ms Abed's written submissions to the award of $10,089 for past economic loss. His Honour's assessment of this amount is said to be erroneous, and significantly below what should have been awarded. Ms Abed also challenged his Honour's decision not to award aggravated or exemplary damages for malicious prosecution.
81One further matter should be mentioned. At trial, the primary judge refused to allow an amendment to Ms Abed's pleading to add a claim of use of excessive force by the police officers. That interlocutory decision is not challenged on appeal. Nonetheless the notice of cross-appeal challenged his Honour's finding (at [71]) that the force used by the arresting officers was, in the circumstances, warranted and contended that his Honour erred in not awarding damages for use of excessive force (grounds 3 and 4). Unsurprisingly Ms Abed did not seek to support these grounds by any written or oral submissions. Accordingly these grounds may be put aside.
[19]
(a) Did the primary judge err in finding that the arrest and imprisonment of Ms Abed was unlawful?
82It is convenient to deal together with the State's challenges to the findings that Ms Abed was unlawfully detained and imprisoned, as these findings are based on the same factual circumstances (detailed above at [25]-[28]).
[20]
False arrest
83The primary judge found that it was open to the arresting officers (Constable Ling and Constable Burraston) to reach or have a reasonable suspicion based on reasonable grounds that an assault, at law, upon Ms Abed had occurred: at [62]. He also found that when they arrested Ms Abed she was told that she was under arrest for assault, however Ms Abed was not given any further explanation by the arresting officers at that time. Whilst his Honour accepted that Ms Abed was not fluent in the English language, he considered that some explanation of the reason for her arrest should have been given to her by the arresting officers. He observed that Ms Abed's reply (to any such explanation) may have altered the subsequent course of events that transpired: at [64]. His Honour concluded that the failure of the arresting officers to provide any explanation as to the circumstances of the alleged assault (on Ms Younis) and the manner of the arrest constituted a trespass upon Ms Abed: at [65].
[21]
False imprisonment
84The primary judge found (at [67]) that the time of Ms Abed's arrest at the Austral property was approximately 7.57 pm on 8 December 2006. She was then taken to the Green Valley Police Station where her LEPRA rights were given to her in the presence of an interpreter. Ms Abed subsequently participated in a recorded interview with police at 11:00 pm on 8 December 2006 in the presence of an interpreter. His Honour found that it was during this interview that Ms Abed was informed, for the first time, of the reason for her arrest. In these circumstances his Honour found that Ms Abed had established her claim of false imprisonment: at [67].
[22]
Principles governing arrest
85The common law requires that an arresting officer inform the arrested person of the true ground on which the arrest is made: Christie v Leachinsky [1947] AC 573, which this Court held in Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 at [24] reflects the common law in New South Wales. It was common ground that this principle is now reflected in the LEPRA, s 201: see Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 at [29].
86Section 201 relevantly provides:
"201 Supplying police officer's details and giving warnings
(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:
(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.
(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):
(a) if it is practicable to do so, before or at the time of exercising the power, or
(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.
...
(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):
(a) a power to search or arrest a person.
...".
87As noted in Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 at [21] (Leeming JA; Ward and Emmett JJA agreed) LEPRA expressly presupposes the continued existence of the police officer's powers at common law. This follows from s 4(1) which states that the Act does not limit the functions, obligations, and liabilities that a police officer has as a constable at common law, unless it otherwise provides expressly or by implication.
88The rationale for the principle stated in Christie v Leachinsky was explained by Ipp JA in State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9] as follows:
"The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591-592) per Lord Simonds; Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155 (at 3162, [21]) per Clarke LJ."
89Further, as Beazley JA noted in Johnstone v State of New South Wales at [43], Ipp JA's observation that persons are entitled to know why they are being arrested, itself has an underlying rationale, namely, that a person is not to be deprived of her or his liberty without lawful cause.
90Both parties referred to the decisions of State of New South Wales v Delly and Johnstone v State of New South Wales. It is sufficient to refer to two matters which those judgments may be taken to establish, as confirmed in Hamod v State of New South Wales (Hamod) [2011] NSWCA 375 at [425].
91First, it is not necessary for the arrested person to be told the precise charge at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person's liberty has been restrained. This requirement is sometimes described in terms that the arrested person be told the "true reason" for the arrest, or the "substance of the reason" for the arrest.
92Secondly, what is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is: Johnstone v State of New South Wales at [56]. As this Court said in Hamod at [425]:
"The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case."
[23]
Was Ms Abed informed of the true reason for her arrest?
93It was not in contest on appeal that the offence for which Ms Abed was arrested was assault and that the arresting officers so informed her at the time of her arrest.
94The issue in the present case is relatively narrow. Was Ms Abed given sufficient detail of the reason for her arrest? Here the particular circumstances relied upon by the State for why it was not practicable for the arresting officers to provide any further detail at the time of her arrest was the suggested language difficulties in communicating with Ms Abed.
95In his affidavit evidence at [8], Constable Ling described the circumstances of the arrest as follows:
"Constable BURRASTON and I walked around the front of the house and jumped another gate. I walked with her to the behind the rear fence to another building. It looked to me like a large shed. As I approached the side of the other building, I saw a lady that I know to be the accused, Hayem ABED. She was holding a long white thin pole. I saw a spike in the end of it. She was about 5 metres away from Constable BURRASTON and I.
I said, 'Put that down. Put it down and walk out here'.
The accused said, 'Why, I have just been washing, why?'
I saw the accused put the white pole down and pick up another similar white pole. She was now about 2 metres away from Constable BURRASTON and I.
Again I said, 'Put that down and come out here'.
Constable BURRASTON was saying the same thing also. The accused walked out to where Constable BURRASTON and I were. Constable BURRASTON took hold of her right arm and I walked to her and took hold of her left arm. Constable BURRASTON and I pushed the accused to the ground. After a short struggle, the accused was handcuffed.
I said, 'I am Constable LING and this is Constable BURRASTON from Green Valley Police Station. You are under arrest for assault. You do not have to say or do anything, but anything you say or do may be recorded and later used as evidence. Do you understand that?'
The accused said, 'Why, why. I have been washing'
I said, 'When we get back to at the station I will get an interpreter for you and explain everything again'.
The accused was trying to turn around and kept saying, 'Why, why'." [Emphasis added]
96When cross-examined Constable Ling agreed (at Black 282M-T) that:
Ms Abed appeared to be confused as to why she was being arrested and yelled out "Why, why?";
when he directed Ms Abed to do things in English, she clearly understood what she was told to do and responded appropriately, such as when called upon to "put the rod down";
[24]
(b) Did the primary judge err in finding the State liable for malicious prosecution of Ms Abed as from 5 April 2007?
108The primary judge referred (at [73]) to A v New South Wales [2007] HCA 10; 230 CLR 500 where the joint judgment stated at [1] that for a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1)that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2)that the proceedings were terminated in favour of the plaintiff;
(3)that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4)that the defendant acted without reasonable and probable cause.
109The primary judge noted (at [78]) that there was no issue as to the first two elements. The issues raised by the State were whether the prosecutors acted maliciously and without reasonable and probable cause.
110The primary judge found that Constable Burraston acted with reasonable and probable cause in charging Ms Abed with the offence of break and enter with the intent to commit murder on 8 December 2006: at [85]. He further found that there was no improper purpose in her laying the charges: at [88].
111The primary judge referred to the course of the police investigations and evidence gathering from 9 December 2006 to 2 April 2007: at [90]-[92]. He found (at [102]) that as at 5 April 2007, Constable Burraston had the following facts and circumstances before her in relation to the offences with which Ms Abed had been charged:
"· The '000' call by Ms Younis to police on 8 December 2007.
· The electronic record of interview with Ms Abed that Constable Burraston conducted on 8 December 2006.
· Knowledge of Ms Abed's fractured ribs as told to her by Ms Abed, but not investigated by Constable Burraston.
· Statements made by Ms Younis as to what she said occurred on the evening of 8 December 2006, specifically:
Ms Abed, carrying a knife, climbed over a six feet high colorbond fence.
Ms Abed smashed the bathroom window of Ms Younis' house, (the glass falling on the inside) before climbing in the window 145cm above the ground.
The dining-room chair against the window when Ms Abed, who had lived in the house, would know where the outside door was located.
The location of the knife in the yard as shown by the Ms Younis to the police.
[25]
Submissions
117The State's challenge to the primary judge's findings of malicious prosecution concentrated on three aspects. The first concerned findings as to the state of knowledge of Constable Burraston as at 5 April 2007 concerning the strength of the Crown case. The second concerned the finding against Constable Burraston of improper purpose in writing the 2 April 2007 letter in connection with Ms Abed's bail application in the Supreme Court. The third concerned the finding that both the police and the DPP maintained the charges against Ms Abed from 5 April to 20 June 2007 without reasonable and probable cause and maliciously.
118It is convenient to first address the findings of improper purpose. It was common ground that if this challenge succeeds then the finding of malicious prosecution by the State cannot stand.
[26]
(1) Did the primary judge err in making findings as to the knowledge of Constable Burraston as at 5 April 2007?
119The State contended that the primary judge erred in finding (at [102]) that Constable Burraston knew, as at 5 April 2007, that the possibility of an alibi defence had been notified by Ms Abed's lawyers to the DPP on 15 March 2007, and that the forensic report dated 2 April 2007 revealed that the DNA testing of the knife could not identify useful DNA links with Ms Abed.
[27]
Discussion
120In my view, the primary judge erred in arriving at each of these factual findings.
121As to Constable Burraston's knowledge of the possibility of an alibi defence based on the contents of an email from Ms Rofe to Constable Burraston dated 15 March 2007 (which she gave evidence that she did not recall being aware of at the time), his Honour seems to have overlooked two matters.
122The first is that there was evidence from which an inference could be drawn that Constable Burraston was on leave at least from 23 March 2007 and possibly earlier. This inference can be drawn from Ms Rofe's follow up email sent to Constable Dews on 23 March 2007, in the absence of Constable Burraston (Blue 205). In cross-examination, Constable Burraston could not recall how long she had been on leave prior to 2 April 2007 (Black 428F). It seems that a notice to produce had been issued in relation to her leave records but ultimately neither party tendered any documents on this issue. Nor did the cross-examiner return to this issue after its significance had been raised by the primary judge (at Black 428L-M).
123The second is that the fact Constable Burraston took no steps in March 2007 to act on Ms Rofe's request in her email of 15 March 2007 to obtain certain information is consistent with her not having read the email at about that time. Nor was it suggested to her in cross-examination that having received the email, she had failed to act on the request in the email.
124The onus was on Ms Abed to establish that Constable Burraston had received Ms Rofe's email of 15 March 2007 on or about that date. In view of the doubt as to whether Constable Burraston was on leave at that time, combined with the other matters referred to above, I do not consider that the primary judge's factual finding was justified by the evidence.
125As to the date of receipt of the forensic report, it seems that his Honour's finding (at [101]) that this report was in the possession of "the Crown" from 3 April 2007, was based on an inference from the date of the report itself. There was no direct evidence to this effect. His Honour also seems to have overlooked two matters. One is the unchallenged evidence of Constable Burraston that the forensic report on DNA evidence was outstanding at 2 April 2007 (Black 444W-X). The other is that the local court mention instruction sheet dated 11 April 2007 recorded that the DNA results were an outstanding matter (Blue 251).
126Moreover, the parties had agreed at trial that the DPP first received the DNA results report on 20 April 2007 (Black 577O) and his Honour made a finding to this effect: at [112]). The finding that Constable Burraston had knowledge of the forensic report as at 5 April 2007 must be set aside.
127In my view, ground 7 of the State's appeal is made out.
[28]
(2) Did the primary judge err in finding that Constable Burraston wrote the 2 April 2007 letter for an improper purpose?
128The State complained that the proposition that Constable Burraston wrote the 2 April 2007 letter for the purpose of keeping Ms Abed in custody was never put to her in cross-examination. The State pointed to there being no evidence of any prior or subsequent dealings between Constable Burraston and Ms Abed that would be suggestive of animus on the part of Constable Burraston, or provide a motive for keeping Ms Abed in custody.
129It was said that Constable Burraston should have been provided with an opportunity to deal with this issue, and as this had not occurred the finding should be set aside: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [69]-[75] (Heyden, Crennan and Bell JJ).
130Counsel for Ms Abed sought to uphold the finding against Constable Burraston in relation to the 2 April letter. It was contended that Constable Burraston's motivation by animus or improper purpose may be inferred from an analysis of the prosecutor's state of mind. In oral argument, counsel contended that the improper purpose of Constable Burraston, in writing the letter regarding the bail application, was for the purpose "to buy time in order to look for further evidence" (AT 11/9/14, 32, lines 9-10).
131For the purpose of this argument it may be assumed, without deciding, that Constable Burraston is to be taken to be a real prosecutor in relation to sequence 1 because of the active step she took towards the advancement of the prosecution case in writing the 2 April letter. Although there was no evidence that this letter was provided to Hidden J at the bail application on 5 April 2007, his Honour seems to have proceeded on the basis that it was. Such an inference is reasonably available from the circumstance that the letter had been requested by the ODPP on 22 March 2007, in connection with Ms Abed's bail application, which had been listed in the Supreme Court on 27 March 2007 and was ultimately dealt with on 5 April 2007 (Blue 202). The State did not contend otherwise on appeal. It is not in dispute that Constable Burraston was the prosecutor in relation to sequence 2 at the time she wrote this letter.
[29]
Discussion
132The focus of the State's challenge is the finding of the primary judge that the purpose of the 2 April letter was to keep Ms Abed in custody: at [108].
133In deciding the issue of malice in a case such as the present involving a public prosecution, initiated by a police officer and subsequently taken over by the DPP in relation to sequence 1, it is necessary to keep in mind the statement in the joint judgment in A v New South Wales at [41]:
"... where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be a factual importance in deciding the issue of malice".
134The joint judgment continued as [42]:
"In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in a case of a prosecution instituted in a bureaucratic setting where the prosecutor's decision is subject to layers of scrutiny and to potential review."
135To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique" motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales at [91].
136Examples of an improper purpose include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However as the joint judgment in A v New South Wales emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose: A v New South Wales at [92].
137With these principles in mind I turn to the circumstances of the 2 April letter. A number of observations may be made.
138First, Constable Burraston wrote the 2 April letter on the day she returned from leave. The reference to a "strong police case" repeated the grounds upon which the DPP had opposed previous bail applications by Ms Abed, including as recorded in the local court mention instructions dated 28 February 2007 (Blue 249S). The cross-examiner secured a concession by her that this description of the prosecution case was contrary to her mindset at the time (Black 445N). However Constable Burraston immediately qualified her answer and made it clear that her concession reflected her state of mind seven years after the event and that she could not recall her state of mind at the time of writing the 2 April letter (Black 445P-R and 446G-H). Insofar as the 2 April letter was relied upon to establish malice, it was not put to Constable Burraston that she made the representation in that letter for the purpose of keeping Ms Abed in custody.
139Secondly, an inference that Constable Burraston had an "additional purpose" to "buy time" to look for further evidence cannot to be drawn merely because a "consequence" of Ms Abed's unsuccessful bail application was that she remained in custody (AT 11/9/14, 32, lines 10-18). Further, this asserted "additional purpose" was never put to Constable Burraston in cross-examination.
140Thirdly, no relevant connection was demonstrated between Ms Abed remaining in custody in April 2007 and the suggested beneficial effect for the prosecution in terms of collecting further evidence against her.
141In my view, ground 9 of the State's appeal is made out. The finding of improper purpose against Constable Burraston as at 5 April 2007 must be set aside.
[30]
(3) Did the primary judge err in finding that both the police and the DPP acted maliciously?
142I now turn to the finding of improper purpose against both "the police and the DPP" as from 5 April 2007 (at [121]). The State contended that Ms Rofe's conduct was the very antithesis of malice and that his Honour's conclusion that the proceedings were maintained for the improper purpose of keeping Ms Abed incarcerated is unsustainable.
143The State pointed to Ms Rofe's consideration of the available evidence, and in particular the alibi defence, belatedly notified to her by Ms Abed's solicitors. It was said that this caused Ms Rofe to have Constable Burraston obtain further evidence concerning the telephone numbers to corroborate Ms Abed's alibi defence. It was also said that this caused Ms Rofe to question the strength of the evidence available against Ms Abed for the offence originally charged. This led her to speak with Crown Prosecutor Degnan on 10 May 2007 about the original charge and, upon being advised that one of the elements could not be made out (relating to intent to murder), to have a lesser charge preferred against Ms Abed. The State emphasised that when the enquiries in relation to the alibi defence concluded on 2 June 2007, Ms Rofe again reconsidered the charges and her recommendation that they be withdrawn was accepted by Crown Prosecutor Degnan and ultimately the Director.
144Ms Abed contended that a finding of improper purpose was available "at least" by 10 May 2007. It was said that it was improper to maintain sequence 1 in circumstances where Crown Prosecutor Degnan had given an oral direction to Ms Rofe to withdraw this charge and replace it with the lesser charge.
145In oral argument, counsel for Ms Abed initially acknowledged that there would be no improper purpose in the DPP maintaining sequence 3 if Ms Rofe had acted on this direction on 10 May 2007 (AT 11/9/14, 29, lines 28-32). Counsel later withdrew this concession and contended that even sequence 3 was not available on the evidence, and that Ms Rofe had an improper purpose in causing this charge to be laid against Ms Abed. This proposition was never put to Ms Rofe. Nonetheless Counsel said that the prosecution was "hell bent" on continuing with charges that they knew were "hopeless", because the Crown case relied solely upon the complainant's version, and there was no supporting evidence (AT 11/9/14, 30, lines 16-30). However, in cross-examination Ms Rofe firmly rejected the suggestion that, as at 10 May 2007, she had come to the view that the whole case would ultimately be withdrawn (Black 639H-T, 643Q).
146A little later in oral argument, Counsel for Ms Abed made the following submission in relation to the position at 10 May 2007:
... it is improper to be hell bent, come what may, in prosecuting someone when you know that it is not available on the evidence. You know that, as opposed to your mind set being, I think it's a weak case, but nonetheless it's one that is sufficiently available to continue on with (AT 11/9/14, 31, lines 33-37).
[31]
Discussion
147Although his Honour referred to the "behaviour" of "both the police and the DPP" on and after 5 April 2007, it needs to be borne in mind that since 14 December 2006 the prosecutor on sequence 1 was, relevantly, the DPP. Putting aside the 2 April letter, which has been addressed above, the police, and in particular Constable Burraston, did not take any active step, in the relevant sense, in maintaining the prosecution on sequence 1 after 5 April 2007. Their role was to carry out further investigatory tasks as requested by the DPP.
148Nonetheless, it is common ground that Constable Burraston was the prosecutor on sequence 2 (breach of bail undertaking), and it seems that she laid the new charge in sequence 3, at the direction of Ms Rofe (Blue 217).
149The primary judge inferred that each of Ms Rofe and Constable Burraston had the improper purpose of keeping Ms Abed incarcerated having regard to the three particular matters identified in [121]. That is, his Honour seems to have inferred malice from a finding of absence of reasonable and probable cause to maintain the prosecution.
150Absence 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".
151In 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."
152However, 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].
153With these principles in mind I turn to the three particular matters identified by the primary judge (at [121]) from which the inference of malice was drawn.
[32]
Maintaining sequence 1
154The first matter is maintaining, and not withdrawing, sequence 1 in the face of evidentiary difficulties, in particular the telephone records.
155As to the telephone records, these first became available to Ms Rofe on 20 April 2007. It was necessary however to obtain confirmation from the persons whose numbers had been called that it was Ms Abed, and not someone else, who had made the phone calls on the evening of 8 December 2006. As already mentioned, those inquiries were not concluded until 2 June 2007.
156Whatever criticisms might be made concerning the speed at which those inquiries were pursued by Ms Rofe, or conducted by the police at her request, in my view, an inference cannot be drawn from taking steps to obtain evidence to corroborate Ms Abed's alibi defence that Ms Rofe maintained the proceedings for the improper purpose of keeping Ms Abed incarcerated.
157As to his Honour's reference to "other" evidentiary difficulties, this may be taken to be a reference to difficulty in relying solely on the complainant's evidence, there being no DNA evidence linking Ms Abed to the knife found in the yard at Ms Younis' property, and no suitable fingerprints around the bathroom window for comparison. The absence of inculpatory evidence from these sources needs to be viewed in context. The primary judge had found that Constable Burraston, on the information available to her on 8 in December 2006, had reasonable probable cause in charging Ms Abed with the offence in sequence 1. The prosecution case against Ms Abed was always dependent upon the acceptance of the evidence of the complainant, Ms Younis. The subsequent inquiries which failed to produce any corroborative evidence did not change that position. The State contends, correctly in my view, that what materially altered the position and ultimately led to the withdrawal of charges was the alibi defence.
158The focus of argument on appeal was directed to the proposition that the DPP, and in particular Ms Rofe, maintained the prosecution after 10 May 2007 in the knowledge that the prosecution was "hopeless", that is, there was no basis on which it could be successful. It is to be noted that this proposition was not put to Constable Burraston in cross-examination.
159As to Ms Rofe, the cross-examiner put the proposition that by 10 May 2007 she had come to the view in relation to sequence 1 that a reasonable person would not, from the evidence, draw the inferences from facts known to her that Ms Abed was guilty of that charge. Ms Rofe disagreed. She explained that she had discussed the inappropriateness of that charge with Crown Prosecutor Degnan and in particular whether or not it was worthy of being dealt with in the District Court or the local court, taking into account the background, criminal history and various other matters (Black 556C-G).
160Later in cross-examination it was put to Ms Rofe that as at 10 May 2007 her view was that there was no sufficient material available that would make it likely that the case would succeed at committal in terms of establishing that Ms Abed had entered Ms Younis' property. Ms Rofe disagreed, explaining that the committal test was satisfied, accepting that the complainant's version (Black 639M-O). She also disagreed with the proposition that by 10 May 2007 she had significant doubt as to the veracity and accuracy of Ms Younis' statement (Black 639P-Q). The cross-examiner then asked whether Ms Rofe thought it was a "strong case". She responded that she could not recall her views at the time, but that she did speak with Crown Prosecutor Degnan about the inappropriateness of sequence 1 and the appropriateness of an alternate charge, and that having spoken to him there were a number of issues raised which required further consideration (Black 639R-T).
161Towards the end of cross-examination a series of questions were put to Ms Rofe directed to the proposition that it was appropriate for her to consider whether sequence 1 should be replaced by sequence 3 before undertaking further more detailed deliberations as to whether all charges should be withdrawn. Ms Rofe said that was exactly "the steps that I took" (Black 654K-M). This evidence was not challenged.
162In my view, it should not be inferred that Ms Rofe maintained the prosecution on sequence 1 after 10 May 2007 in the knowledge that it was "hopeless". She was considering whether the matter should proceed in the Local Court, whether alternative charges should be preferred and reviewing the whole matter. She did not act for an improper purpose of keeping Ms Abed incarcerated.
[33]
Delay in withdrawing sequence 1
163The second matter is the delay in withdrawing sequence 1, once the oral direction had been given by Crown Prosecutor Degnan to withdraw it on 10 May 2007 together with the laying of a lesser charge, which ultimately was the subject of sequence 3.
164In cross-examination Ms Rofe explained that, before she could proceed to substitute a charge for sequence 1, she was required, as a matter of standard ODPP practice, to obtain the views of the officer-in-charge (in this case, Constable Burraston) and the victim's, and that she could not lay sequence 3 until this had occurred (Black 2/646N - 651R). Ms Rofe said that Crown Prosecutor Degnan had given her a number of charges to consider on 10 May 2007, as possible alternatives to sequence 1, and that she considered that it was appropriate to review the case as a whole, including pursuing a number of requisitions concerning evidentiary matters which had not yet been answered (Black 2/631X-632J, 2/645H-M). Ms Rofe said that her mindset at the time was that she didn't know where the matter was going to head. She considered it was possible that all charges might be withdrawn. She deferred seeking the victim's views on withdrawing the charge on sequence 1, and substituting the charge on sequence 3, until she was in a position to have one conversation with the victim, if the decision was ultimately made by the DPP to withdraw all charges (Black 2/651N-V).
165Ms Rofe gave evidence that she had taken steps to inform Ms Abed's solicitors that a review of the case was taking place (Black 2/652K-M, 2/654M-656X) and that she was dealing with a number of other pressing matters which also required attention (Black 647R-V).
166It was put to Ms Rofe in cross-examination that it would have been appropriate for her to have spoken to the officer in charge (Constable Burraston) and the victim (Ms Younis) shortly after 10 May to inform them of the oral direction that had been given by Crown Prosecutor Degnan. Ms Rofe agreed that it would have been, but that was not the way the matter "unravelled" (Black 656O-Q). It was also put to Ms Rofe that it would not have been inappropriate for her to have spoken to Ms Younis and Constable Burraston sooner rather than later after 10 May. She agreed with these propositions (Black 656R-U). Nonetheless, it was not shown that the time taken by Ms Rofe to consider the whole matter after 10 May 2007 and obtain the views of the officer in charge and the victim involved unreasonable delay on her part. Nor was it put to Ms Rofe that she delayed obtaining the views of the officer in charge and the victim for the improper purpose of keeping Ms Abed incarcerated. In my view, no improper purpose can be inferred from the time taken to withdrawn sequence 1.
[34]
Laying of sequence 3
167The third matter is the laying of sequence 3, when the same evidence could not support sequence 1. The difficulty with this aspect of his Honour's reasoning is that it overlooks the reason why Crown Prosecutor Degnan recommended that a lesser charge be preferred against Ms Abed. This was because inquiries by Ms Rofe of Ms Younis led her to question the strength of the evidence in support of sequence 1 and Crown Prosecutor Degnan had advised that consideration should be given to a lesser charge and that the Local Court was the more appropriate jurisdiction.
168It should not be inferred that Ms Rofe, who was acting in accordance with the advice and direction of her superiors (relevantly, Crown Prosecutor Degnan) caused this charge to be instigated for an improper purpose of keeping Ms Abed incarcerated. Nor should it be inferred that Constable Burraston, who initiated sequence 3 on the direction of Ms Rofe, did so for an improper purpose of keeping Ms Abed in custody. No such proposition was put to her in cross-examination. She was acting on the direction of Ms Rofe of the ODPP. His Honour's finding failed to have sufficient regard to the organisational setting in which the decision to prosecute on sequence 3 was taken: see A v New South Wales at [41].
169In my view, his Honour erred in finding that either the DPP or the police (which may be taken to be a reference to Constable Burraston) had an improper purpose of keeping Ms Abed incarcerated.
170Ground 10(b) of the State's appeal is made out.
[35]
(c) Did the primary judge err in finding the proceedings were maintained in the absence of reasonable and probable cause?
171The conclusion reached above in relation to malice is sufficient to dispose of the appeal by the State on the malicious prosecution cause of action. In light of the State's success on this ground, which was the principal issue argued on this aspect of the appeal, I do not consider it necessary to address the State's additional challenge on the issue of reasonable and probable cause (ground 10(a)), which raises a detailed factual inquiry.
[36]
(d) Did the primary judge err in finding that Ms Younis and Mr Younis were jointly and severally liable with the State for malicious prosecution of Ms Abed?
172Both Ms Younis and Mr Younis gave evidence at the trial. The primary judge made adverse credit findings against each of them. He found that the evidence of Ms Younis concerning the break in by Ms Abed and threat to kill her was inherently untrue: at [160].
173His Honour further found that Ms Younis was instrumental in the initiation and continuation of the prosecution of Ms Abed in circumstances in which the prosecution was without reasonable and probable cause: at [160].
174His Honour had earlier recorded a concession by counsel for Ms Younis and Mr Younis that should the Court conclude that the State was liable for malicious prosecution, then Ms Younis and Mr Younis were jointly and severally deemed to be prosecutors by virtue of their involvement: at [147].
[37]
Ms Younis
175His Honour concluded that Ms Younis' liability commenced from 8 December 2006, being the date she made the 000 call to the police, and the police laid the charge against Ms Abed. In reaching this conclusion he took into account the fact that from 8 December 2006 until the time the charges were withdrawn in June 2007, Ms Younis did not in any way concede to the prosecution that what she described as the actions of Ms Abed was untrue: at [161].
[38]
Mr Younis
176The primary judge found that Mr Younis did not know of the fabrication of evidence by Ms Younis at the time when he spoke to her on the phone whilst held at the Green Valley Police Station: at [165]. However, his Honour rejected the evidence of Mr Younis that the boxes/crates (which he said were on Ms Abed's side of the colorbond fence) were used by Ms Abed and Ms Younis and himself to step up and talk over the colorbond fence, given the deterioration in the relationship between them: at [169]. His Honour found that Mr Younis had placed the boxes/crates on Ms Abed's side of the colorbond fence in an attempt to add efficacy to Ms Younis' allegations: at [170]. He further found that by this action, Mr Younis knew by the morning of 9 December 2006 of the allegations against Ms Abed by Ms Younis, and knew them to be false: at [170].
177His Honour also found that Mr Younis was able to "gain financially" by supporting Ms Younis' allegations and keeping Ms Abed incarcerated: at [171]. This finding was based on the actions of Mr Younis in March 2007 in causing a lapsing notice to be issued in order to have Ms Abed's caveat against the Austral property removed, and his further actions in purportedly serving the lapsing notice on Ms Abed at her last known address (the Austral property) knowing at that time that she was incarcerated and that she would not become aware of the lapsing notice or that her caveat would likely be removed, which is what occurred: at [172].
178His Honour concluded that Mr Younis aided and abetted Ms Younis to maintain her accusations and allegations up to and including her evidence at the trial before his Honour when he knew her allegations to be untrue: at [176].
[39]
Submissions
179Ms Younis and Mr Younis contended that the primary judge erred in finding them liable in damages for malicious prosecution, because he did not make a separate finding that their actions deprived the police or the DPP of the discretion to not charge Ms Abed and/or to withdraw the charges.
180A separate contention was advanced by Mr Younis that, as he was not a complainant, he could not be held liable in damages for malicious prosecution.
181Three arguments were advanced in support of the first contention. First it was said that if the State is not liable for malicious prosecution, then the judgment against Ms Younis and Mr Younis would fall away, because there would be nothing to apportion.
182Secondly, it was said that, contrary to his Honour's finding, counsel appearing for them at trial did not make the concession recorded by his Honour at [147]. It was argued that the "concession" made by counsel (at Black 769M) only related to the "maintenance of the prosecution".
183Thirdly, it was said that, as a complainant and witness respectively, Ms Younis and Mr Younis could not be liable for damages for malicious prosecution because they had not played "an active role in the conduct of the proceedings", such as by "instigating" the proceedings or "setting them in motion" and that the prosecutor had an independent discretion whether to charge a person, or withdraw a charge which had been earlier laid.
[40]
Must the actual prosecutor be a party to the wrongdoing?
184It is useful to commence by considering the premise of the first contention. The premise is that a person who is not technically a prosecutor cannot be liable for malicious prosecution of another unless the prosecutor is also liable.
185Claims for malicious prosecution are commonly brought against the prosecutor and sometimes against additional defendants. Nonetheless, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself or herself was party to the wrongdoing: Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218 at [39]-[40] (Basten JA; Giles and Santow JJA agreeing). As noted by Basten JA, the authorities for this proposition include Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; 53 CLR 343 at 379 and 381-382 (Dixon J) and Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255] (Brooke LJ).
186The first contention must be rejected.
[41]
Was a concession made at trial?
187In oral closing submissions at trial, counsel for Ms Younis and Mr Younis referred to his "written submissions" and the "concession that I have appropriately made in regards" to "that" and stated that he did not need to "address you in regards to that at all" (Black 769M).
188The "concession" in counsel's written submissions at trial (Black 887-889) followed a reference at para 35 to an extract from part of the headnote in Martin v Watson [1996] AC 74. The written submissions continued:
"36. Based on the above principle of law, and more specific to the Second and Third Defendants, is a concession that needs to made in the event that the Court determines that the Plaintiff has made out her case, and in particular, has been able to prove that the Second and Third Defendants, or the Second Defendant on her own, or alternatively, the Third Defendant on his own. Further and in doing so, acted dishonestly and with malice in the complaint made against the Plaintiff, and continued and maintained such complaints to the relevant officers of the First Defendant.
37. The concession is, based on the above assumptions to be made as findings (if they are made), is that if the Court so determines that the First Defendant is liable, then it is also open to the Court to determine that the Second and Third Defendants, jointly or severally, are also deemed Prosecutors by virtue of his/her, and their involvement.
...
40. Much of the Court's determination in regards to the liability of the second Defendant will rest on whether a finding favourable to the Plaintiff is made That is, if the Court finds that the Second Defendant was either lying, untruthful, not accurate, or a fictitious material witness of truth, then she's obviously deemed to be a Prosecutor within the common law, and may otherwise be held liable to the Plaintiff for damages (see the concession made above)." (Black 887-889)
189Whilst the State did not embrace on appeal the language of being "jointly and severally deemed to be prosecutors" in para 37 of the Youris' written submissions, the State contended that the primary judge correctly regarded a concession as having been made to the effect that if it be found that the complaint was made dishonestly and with malice, and if the State be found liable for malicious prosecution, then it would be open to his Honour to find that Ms Younis and Mr Younis would also be liable for malicious prosecution.
190In my view, the State's submission should be accepted. The primary judge did not err (at [147]) in relying upon the concession made by counsel for Ms Younis and Mr Younis. The fact that counsel's oral submission at trial was prefaced by a reference to "the maintenance of the prosecution", did not detract from or otherwise qualify the substance of counsel's concession made in his written submissions.
[42]
"Maintenance" of a prosecution
191In State of New South Wales v Landini [2010] NSWCA 157, Macfarlan JA (Tobias JA and Sackville AJA agreeing) at [52]-[59] referred to the acts which are capable of constituting the "maintenance" of a prosecution for the purposes of the tort of malicious prosecution. It is unnecessary to repeat what is there stated. The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution.
192In A v New South Wales at [34] the joint judgment recognised that the identification of the appropriate defendant in a case of malicious prosecution is not always straightforward: "To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (citing John G Fleming, The Law of Torts (9th ed 1998, LBC Information Services) at p 676). Their Honours continued at [35]:
In Martin v Watson, a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had 'in substance procured the prosecution' ([1996] AC 74 at 89). The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation ([1996] AC 74 at 89). Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand (Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208), that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge.
193Reference should also be made to that statement in Commonwealth Life Assurance Society Ltd v Brain, which was referred to in Martin v Watson (at 81), where Dixon J said at 379:
It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible [authorities omitted].
194Ms Younis and Mr Younis pointed to the statement by Richardson J in a New Zealand case, that one should never assume that tainted evidence persuaded the police to prosecute: Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 199. Richardson J continued (at 199) that:
"In some very special cases, however, the prosecutor may in practical terms be obliged to act on apparently reliable and damning evidence supplied to the police."
195The statements by Richardson J reflect public policy considerations that members of the community should be encouraged to aid the police in their function of investigating and prosecuting breaches of the criminal law without exposing themselves to an allegation of malicious prosecution. This consideration, together with the independent discretion exercised by prosecutors, led Richardson J to conclude that the circumstances in which third parties are to be regarded as having instigated a prosecution should be "rare and exceptional" (at 199).
196Two observations may be made. The first is that, as Isaacs ACJ stated in Davis v Gell [1924] HCA 56; 35 CLR 275 at 282-283, it is necessary to consider the whole circumstances of the case not merely the setting of the law in motion by the institution of proceedings by the prosecutor. The conduct of the complainant (or a witness) before and after making the charge must also be taken into consideration.
197The second is that it is unnecessary to decide in the present case, whether the circumstances in which third parties are to be regarded as having instigated a prosecution by the police or the DPP should be "rare and exceptional". Accepting the need for a cautious approach where a prosecutor, either the police or DPP, has an independent discretion, a third party may be regarded as having instigated or procured or maintained a prosecution where the discretion of the prosecuting officer, whether the police or the DPP, is misled by false information concerning facts relating to the alleged offence, which facts can be within the knowledge only of the complainant: Commonwealth Life Assurance Society Ltd v Brain at 379; Martin v Watson at 86-87.
198I next consider the evidence of what occurred in the prosecution of Ms Abed.
[43]
Ms Younis
199The first relevant date is 8 December 2006 when the charges were laid against Ms Abed. On this date Ms Younis made an entirely false complaint to the police against Ms Abed concerning an alleged serious offence. Ms Younis was the only person who could directly testify about the alleged break and entry into her home and assault by Ms Abed. The discretion of Constable Burraston, as the prosecutor laying the charges on sequence 1 and 2, was misled by that false information. As a practical matter, Ms Younis procured the prosecution.
200Thereafter, on 10 May and 22 May 2007, Ms Younis adhered to her false allegations when she was asked by Ms Rofe to recount her recollection of the incident. It is true that the DPP, which had formally taken over the prosecution on 14 December 2006, had an independent discretion whether or not to pursue or withdraw the charges or to lay other charges. However, all times up until the decision was reached in early June 2007 to withdraw the charges, the prosecution may be regarded as being maintained by Ms Younis as the complainant, as the DPP was relying on her version of the events. It was not until inquiries corroborating the alibi defence (notified by Ms Abed) had been concluded on 2 June 2007, that the discretion of the prosecutor was no longer misled by that false information.
201Accordingly, Ms Younis, in the relevant sense, "maintained" the prosecution of Ms Abed up until the beginning of June 2007. Ms Abed established that Ms Younis did so maliciously and without reasonable and probable cause. Ms Younis fabricated the critical evidence against Ms Abed and at all times she knew of the falsity of the charge against Ms Abed.
[44]
The challenge to the findings against Mr Younis
202Mr Younis challenged two factual findings of the primary judge. One was that he had placed the boxes/crates on Ms Abed's side of the colorbond fence in an attempt to add efficacy to Ms Abed's allegations. The other was that Mr Younis was able to "gain financially" by supporting Ms Younis' allegations by the steps taken by him to remove the caveat against the property lodged by Ms Abed whilst she was incarcerated.
203Review of these critical findings is to be undertaken in accordance with the well-known principles in Fox v Percy [2003] HCA 22; 214 CLR 118 at [28], [29]. Insofar as the primary judge made credibility findings, he had the very considerable advantage of seeing the relevant witnesses give their oral evidence and was thus able to bring to bear aspects of judgment and appraisal that is simply unavailable to this Court: Fox v Percy at [23].
204Mr Younis submitted that his Honour's findings were glaringly improbable: Fox v Percy at [29]. No attempt was made in the written submissions to demonstrate why this was so.
205In oral argument, counsel for Mr Younis contended that having regard to the finding by the primary judge that Mr Younis did not know of the fabrication of evidence at the time he spoke to Ms Younis by phone when she was at the police station on the evening of 8 December 2006, it was "glaringly improbable" that by the following morning he would know that the allegations were false (AT 11/9/14, 10, lines 42-45). Counsel further contended without elaboration that the primary judge should have found that Ms Younis maintained a lie to her husband at all times up to and including the time of the hearing of the proceeding below. A number of observations may be made.
206First, Mr Younis gave evidence that he had discussed with his wife what happened to her, later on the evening of 8 December 2006 (Black 697O-X). Mr Younis also gave evidence that in his experience his wife was an honest person who would not lie to him (Black 697U). Even accepting his Honour's finding that Mr Younis was not aware of the fabrication by Ms Younis at the time she made the call to the 000 operator on the evening of 8 December 2006, the alternative hypothesis, which his Honour accepted, that Ms Younis had told her husband by the following morning, the truth about the alleged break and enter by Ms Abed was not glaringly improbable.
207Secondly, his Honour's rejection of the evidence of Mr Younis concerning the use of the crates to talk to Ms Abed over the colorbond fence, was a finding clearly open on the evidence, given the deterioration in the relationship between them, a matter which his Honour had regard to in making this finding.
208Thirdly, the complaint by counsel for Mr Younis that the proposition that Mr Younis placed the crates on Ms Abed's side of the colorbond fence was not put to him, is incorrect. This proposition was squarely put to Mr Younis and he denied it (Black 699R). The primary judge disbelieved his evidence. It has not been demonstrated that this conclusion is erroneous by reason of incontrovertible facts or uncontested testimony, or that it is glaringly improbable or contrary to compelling inferences.
209Fourthly, it is to be noted that counsel for Mr Younis made no submissions seeking to support the appeal ground challenging to his Honour's finding that Mr Younis stood to "gain financially" by supporting Ms Younis' allegations in keeping Ms Abed incarcerated: at [171] (see AT 11/9/14, 7, line 37).
210The challenges to his Honour's factual findings against Mr Younis must fail.
211At trial it was accepted by counsel for Mr Younis, in oral closing submissions, that Mr Younis could be liable for malicious prosecution if it was found that he "assisted" or "aided or abetted" his wife in making a false complaint to the police (Black 769J-L). The primary judge so found against Mr Younis. Mr Younis participated in the fabrication of evidence against Ms Abed, knowing of the falsity of the charge against Ms Abed. Ms Abed established that Mr Younis did so maliciously and without reasonable and probable cause.
212Grounds 2, 3 and 4 of Ms Younis and Mr Younis' cross-appeal are not made out.
[45]
The appeal with respect of the issue of damages
213It is convenient to address together Ms Abed's challenges to the award of damages for trespass and false imprisonment.
[46]
(a) Trespass and false imprisonment
214In assessing damages for trespass, his Honour took into account that an important safeguard for individual liberty was that an arrested person be told the purpose and reason for an arrest. He also took into account that the failure of the arresting officers to so advise Ms Abed had occurred in circumstances where Ms Abed was from a different cultural background and had no knowledge of the law or her rights. Against this his Honour accepted that, in the circumstances of what the police knew at the time, the arrest was only "technically deficient": at [66]. His Honour awarded $10,000 damages for trespass.
215In assessing damages for false imprisonment, his Honour noted that the period during which Ms Abed was falsely imprisoned was about 3 hours. He took into account that Ms Abed had a right to know why she had been arrested and that during this period she was protesting her innocence and asking "why". He also took into account the short length of time during which she was falsely imprisoned. His Honour awarded $10,000 damages for false imprisonment: at [68].
[47]
Submissions
216Ms Abed contends that both of these components of damages are palpably inadequate. In their place she claimed $20,000 for trespass and $45,000 for false imprisonment, plus interest.
217Counsel for Ms Abed contended that the arresting officers deliberately, and without proper reason, did not provide Ms Abed with any real particulars about the reason for her arrest, despite her repeated requests. It was further contended that significant physical force was used to arrest Ms Abed, which probably would have been avoided if a proper explanation had been given to her. It was said that these circumstances warranted an award for aggravated and exemplary damages.
[48]
Discussion
218The assessment of damages for trespass and false imprisonment involved an evaluative judgment by the primary judge. Like any decision assessing general damages, an appellate court in reviewing a determination of this kind must adopt a constrained approach: Costa v The Public Trustee of NSW [2008] NSWCA 223 at [37], [39] (Ipp JA) and [103]-[105] (Basten JA).
219The test for judicial intervention in regard to the assessment of general damages was expressed by Mason J in Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571 at 585 as follows:
The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.
220As noted by Ipp JA in Costa v The Public Trustee of NSW at [38], Mason J put the test slightly differently at 586 in Wilson v Peisley, when he said that the test was whether the decision fell within "the appropriate limits of a sound discretionary judgment". Ipp JA said at [38]:
"A decision falls outside the appropriate limits of a sound discretionary judgment when the amount of damages awarded is wholly erroneous. This, in substance, is little different from the test in House v The King (1936) 55 CLR 499 'If upon the facts it is unreasonable or plainly unjust'."
221Here it is not suggested that the primary judge acted on a wrong principle of law or that he misapprehended the facts. The contention of Ms Abed must be taken to be that the amount of damages awarded is so inordinately low as to be a wholly erroneous estimate of the damage suffered: Wilson v Peisley at 585.
[49]
Trespass to person
222The circumstances of Ms Abed's arrest and his Honour's findings have been set out above. A number of observations may be made.
223First, the contention that the failure of the arresting officers to provide real particulars about the reason for her arrest was "deliberate" conduct must be rejected. No such proposition was put to them in cross-examination by counsel for Ms Abed. Further, the failure of the arresting officers must be viewed in its proper context. As already mentioned, the police were responding to an urgent call for help by the alleged victim of a serious crime. They were on high alert and acting on limited information. The apprehension of the alleged offender (Ms Abed) occurred very quickly, once they observed her at the front of her shed at the property. The arresting officers told her that she was under arrest for assault. Their failure, as found by the trial judge, was a "technical deficiency". Nothing in the circumstances in which the arrest occurred may be taken to suggest that the failure of the police was "deliberate".
224Secondly, the contention that "significant force" was used to arrest Ms Abed is inconsistent with his Honour's finding (at [71]) that it was reasonable for the police to seize her arms and, if necessary, force her to the ground to handcuff her. Further and contrary to Ms Abed's contentions, his Honour was not satisfied that the discomfort she felt in her broken ribs when on the ground was the result of a knee from one of the arresting officers on the back of Ms Abed: at [71].
225Thirdly, at trial, counsel for Ms Abed claimed damages for trespass to person of $15,000, plus interest (at Black 829Q). No sufficient reason has been shown why Ms Abed ought be allowed to depart from her position taken at trial and seek a higher damages award on appeal: Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71. Nor can it be said, in light of the claim for $15,000 damages at trial, that the award of $10,000 damages for trespass is so inordinately low that it is a wholly erroneous assessment by the primary judge.
[50]
False imprisonment
226His Honour correctly assessed that the length of the detention (about 3 hours) was short. This length of time is largely accounted for by the time taken to convey Ms Abed to the police station, process her through the custody desk, and arrange the assistance of an interpreter to interview her. I am not persuaded that the primary judge erred in his discretionary decision to award an amount of $10,000 damages.
[51]
Aggravated and exemplary damages
227Particulars must be given of the facts and circumstances on which a party relies to establish a claim for exemplary or aggravated damages: Uniform Civil Procedure Rules 2005 (NSW) r 15.7 and 15.8. In the present case Ms Abed stated in para 15 of her fourth further amended statement of claim that she relied upon the same particulars of her claim of malicious prosecution as the particulars of the conduct of each defendant in her claim for "punitive damages" (Red 18).
228Notably, none of the particulars of malicious prosecution, given under para 8A of the fourth further amended statement of claim, relate to the claims of false arrest or false imprisonment (Red 15-16). It seems however that no objection was taken by the State at the trial to the absence of relevant particulars.
229The primary judge rejected the claim for aggravated and exemplary damages in relation to both trespass and false imprisonment. He reasoned that the "technical nature" of the deficiencies in the process of arrest and charging Ms Abed were not such to constitute factors of aggravation, nor was there any proper basis established for exemplary damages: at [69]. He rejected Ms Abed's claim that the arresting officers used excessive force at the time of her arrest: at [70]-[71].
[52]
Relevant principles
230The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.
231Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40; 117 CLR 118 at [ ] (Windeyer J).
232Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect "detestation" for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (Gray v MAC) [1998] HC 70; 196 CLR 1 at [14].
233In State of New South v Riley [2003] NSWCA 208; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that "Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing". However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court's disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.
234In New South Wales v Radford [2010] NSWCA 276; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:
[97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.
[53]
Discussion
235The factors relied upon by Ms Abed as constituting aggravation in relation to the arrest and false imprisonment were that the arresting officers "deliberately" did not provide Ms Abed with any real particulars about the reason for her arrest and that they used "significant" physical force to arrest her. These factors have already been addressed above in the context of the challenge to the award of ordinary compensatory damages. For the reasons given there, these factors are not made out.
236The same factors seem to be relied upon by Ms Abed for the claim for exemplary damages. Again, it has not been demonstrated that his Honour erred in concluding that there was no proper basis for awarding exemplary damages. The conduct of the police in this case does not call for the Court to express its disapproval beyond the award of ordinary compensatory damages.
237Grounds 1, 2 and 5 of Ms Abed's cross-appeal are not made out.
[54]
Interest
238In her fourth amended statement of claim Ms Abed claimed interest on damages (Red 2F). This claim was pressed before the primary judge in her written submissions at trial (Black 829). However, his Honour did not provide any reasons why he did not allow the claim for pre-judgment interest.
239The Court has power to award interest up to judgment in proceedings for the recovery of money, including damages, to be calculated at such rate as the Court thinks fit on the whole or any part of the money and for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect: s 100(1) Civil Procedure Act 2000 (NSW).
240Prior to 1 July 2010 the default rate of pre-judgment interest was equivalent to the rate of post-judgment interest as specified by UCPR r 36.7(1) and as set out in UCPR Sch 5. From 1 July 2010 the default rate of pre-judgment interest allowed for periods after 30 June 2010 is no longer equivalent to the default rate of post-judgment interest. Rather, UCPR r 6.12(8) provides that the rate of interest (that is taken to be claimed if no other rates are specified) is 4% above the cash rate published by the Reserve Bank in December and June each year.
241In her written submissions on appeal, Ms Abed's claim for interest in respect of damages for trespass and false imprisonment seems to be calculated using the default rate of pre-judgment interest. However, it is generally accepted that an appropriate interest rate to allow on pre-trial non-economic loss is 4%, subject to the right of a trial judge to adopt a different rate in the circumstances of a particular case: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; 171 CLR 657 at 664 and 666; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 288-289. No submission was advanced by Ms Abed as to why an interest rate of 4% should not be applied here.
242Accordingly, Ms Abed should be awarded interest at 4% on the amount of $10,000 for trespass and $10,000 for false imprisonment, in each case from 8 December 2006 to the date of judgment (27 September 2013). This amount in each case is calculated as $2,724.38 ($10,000 x 4% p.a. x 2486 days).
[55]
(b) Malicious prosecution
243I have concluded above that the State is not liable for the malicious prosecution of Ms Abed. Accordingly, it is unnecessary to deal with the State's challenge to the components of the damages in respect of future economic loss ($45,000) and future treatment expenses ($15,000).
244It remains necessary however to address Ms Abed's challenge to some of the components of the damages since her appeal grounds are also pressed against Ms Younis and Mr Younis, who are liable in damages for malicious prosecution.
245It is to be noted that at trial Ms Younis and Mr Younis took the position of adopting the State's submissions on damages (Black 769U-W). However, on appeal, the written submissions of Ms Younis and Mr Younis did not address Ms Abed's challenges to the damages award, nor did their counsel seek to make any submissions on this topic during oral argument. Nonetheless I have had regard to the submissions made on these issues by the State when considering Ms Abed's challenges.
[56]
General damages
246The primary judge awarded Ms Abed $125,000 in general damages. It was common ground that she was incarcerated from 8 December 2006 for a period of 6 months and 17 days. His Honour accepted the evidence of Dr Phillips, a psychiatrist, that Ms Abed developed a psychological condition as a consequence of her imprisonment.
247In his first report dated 4 June 2010, Dr Phillips concluded that Ms Abed had failed to make a "complete recovery from the major depressive disorder with co-existing anxiety symptoms", which he had diagnosed on 7 April 2010. In his second report dated 22 August 2012, Dr Phillips diagnosed Ms Abed (who he had reassessed on 1 December 2011) as suffering from an "adjustment disorder with depressed mood" and expressed his opinion that "it was the matters linked with Ms Abed's (wrongful) imprisonment which triggered the development of her serious mental health problems".
248The primary judge concluded (at [129]) that having regard to Ms Abed's cultural background and isolated life with her then husband (who treated her callously by abandoning her for another woman without notice, then subjecting her to physical violence, following which she found herself in prison a day or two later, knowing she had committed no criminal offence) must have been a bewildering, humiliating and frustrating experience, from the time she was first taken into custody and during the following six months.
[57]
Submissions
249Ms Abed contended that the assessment of general damages was inadequate taking into account a number of matters, including: the period of her incarceration; that she suffered psychiatric injuries as a consequence; that she decompressed psychologically towards the end of her incarceration; that she required medication for "stress" whilst in custody; that she lost her employment and was displaced upon her release from custody; that her reputation in her local community and in Palestine was tarnished; that her experience in custody included being scared and intimidated by inmates; she was upset and contemplated suicide; that she required psychiatric treatment in custody; and was prescribed medication for depression following her release from custody.
250Ms Abed contended that an award of not less than $250,000 was appropriate. This is the amount which she had claimed at trial.
[58]
Discussion
251The written submissions of Ms Abed accepted that the primary judge had acknowledged and accepted (at least inferentially) each of the elements relied upon as supporting Ms Abed's claim for general damages. It was not suggested that his Honour ignored any relevant consideration. Further, no complaint is made in relation to the primary judge's conclusion (at [129]) as to the effect on Ms Abed of her incarceration.
252Accordingly Ms Abed's contention may be taken to involve the proposition that the general damages of $125,000 is so inordinately low as to be a wholly erroneous estimate of the damage suffered. As mentioned above, an appellate court must adopt a constrained approach when reviewing a determination of this kind: Costa v The Public Trustee of NSW.
253No argument was developed as to why his Honour's decision did not fall within the appropriate limits of a sound discretionary judgment. His Honour took into account the relevant medical evidence and the effect on Ms Abed of her incarceration which his Honour described as a "bewildering, humiliating and frustrating experience".
254Ms Abed contends for a 100% increase in the amount of general damages. An award of general damages of $125,000 is not an insubstantial amount in all the circumstances. I am not persuaded that $125,000 general damages is so inordinately low that it is outside the limits of a sound discretionary judgment. Intervention by this Court is not warranted. Ground 6 of Ms Abed's cross-appeal is not made out.
[59]
Past economic loss
255The primary judge awarded Ms Abed $10,089.00 for past economic loss. It seems that this amount is the total of the amounts Ms Abed in fact earned in the last 4 weeks of the 2005/2006 financial year (being $1,840) and the amount she earned in the period from 1 July 2006 until her arrest on 8 December 2006 ($8,249).
[60]
Submissions
256Ms Abed challenged this award as being inadequate on two bases. First, it was said that the primary judge had obviously erred in awarding an amount for past economic loss which simply represented Ms Abed's actual earnings in the six month period prior to her arrest and detention.
257Secondly it was said that in reassessing damages this Court should take into account that Ms Abed was totally incapacitated and incapable of engaging in paid employment between 8 December 2007 and 27 September 2013. It was contended that she had a capacity to earn not less than $375 gross per week prior to her detention. On this basis, counsel for Ms Abed contended that her total past probable (net) earnings were $109,323. Counsel accepted that a deduction should be made for her period of actual employment (of not more than 4 months) during which she was paid $22 per hour. This deduction was calculated as $3,344. Accordingly Ms Abed claimed past economic loss of $105,979, together with interest from 8 December 2006, and damages for loss of superannuation benefits calculated at 9% of the past economic loss, totalling $9,538.11.
258The State conceded the error identified by Ms Abed in his Honour's award for past economic loss (at Orange 33S). The State also accepted that Ms Abed had pleaded a claim for, and is entitled to be awarded damages for, the loss of superannuation benefits in respect of such amount as may be awarded for past economic loss, as well as interest on past economic loss (Orange 105S). Mr Younis and Mrs Younis made no submissions on this issue, either in writing or orally.
259Although the challenge to this component of damages was not the subject of a specific ground in Ms Abed's notice of cross-appeal, it is appropriate for the Court to deal with the matter. Both Ms Abed and the State addressed the matter in their written submissions, and no objection was raised by Ms Younis or Mr Younis to the Court dealing with the matter.
[61]
Discussion
260At trial Ms Abed claimed a "buffer" for past economic loss in her amended statement of particulars, but no amount was specified (Red 26Y). Her written submissions at trial were brief, contained in only three paragraphs, and included a claimed "buffer" of $150,000. The primary judge observed that the documentary evidence supporting Ms Abed's economic loss was sparse: at [134]. Her employment history was limited. She had worked with her former husband in the plant nursery at the Austral property between 1995 and 2004, as to which there was no documentary evidence of income. She also had casual employment as a nursing assistant for a period of approximately 6 months prior to the incident in December 2006.
261The award of $10,089 by the primary judge reflected Ms Abed's actual earnings over a 26 week period prior to her arrest. His Honour did not give any reasons why the past economic loss should be so confined to a period of 26 weeks. No submission to this effect had been made at trial by the State or by Ms Younis and Mr Younis. The State submitted at trial that the evidence was insufficient to make findings as to actual loss suffered by Ms Abed and it was therefore not an appropriate case for an award of a buffer. Alternatively, the State submitted that an approximate amount for a buffer could not exceed $20,000 (Black 867F-J).
262The primary judge's assessment of damages for past economic loss may be taken to be erroneous. It is necessary for this Court to reassess this component of damages. It was not suggested that there were any relevant credit findings which would prevent this Court dealing with the matter.
[62]
Reassessment of past economic loss
263Damages for the loss of earning capacity (both past and future) are awarded to the extent that the diminution in earning capacity is or may be productive of financial loss: Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; Husher v Husher [1999] HCA 47; 197 CLR 138 at [7]. Thus it is necessary to identify both what capacity has been lost and what economic consequences will flow from that loss.
264Ms Abed contended on appeal that a more precise calculation of loss was possible in respect of past economic loss, unlike her approach at trial. It was said that, but for a period of actual work of about four months (in 2010), Ms Abed otherwise was unable to obtain employment for the whole of the period 8 December 2007 to trial in May 2013 because of her ongoing psychological symptoms arising from her arrest and detention.
265Any assessment of a past hypothetical proposition must be speculative to a degree: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at [639-640]; Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 at [60] (Basten JA). The materials available to the Court in the present case are less than ideal. Nonetheless I now turn to the evidence.
266Ms Abed was 46 years of age at the time of her arrest in December 2008. She lost her employment as a casual nursing assistant with the Moran Group at that time due to her incarceration. Ms Abed was assessed by Dr Phillips on 7 April 2010. He recorded the history given by Ms Abed which included that she would like to return to work, but that she did not think she could do so at that time (Blue 333E). Dr Phillips expressed the view that Ms Abed's prognosis was "relatively poor". This was because, amongst other things, she had become isolated, had no immediate family, was unemployed, and had chronic and pervasive depression spectrum and anxiety spectrum problems (Blue 337S-T).
267Ms Abed was also assessed by Dr Phillip Brown, consultant psychiatrist and psychologist. Dr Brown recorded a more positive attitude of Ms Abed following his assessment of her on 13 May 2010. Ms Abed described herself as being motivated to find a job and engaged in seeking such (Blue 477I-J). Dr Brown expressed the opinion that Ms Abed's psychological symptoms were not of such a degree that she would be unable to work with them (Blue 477H-I).
268Ms Abed agreed in cross-examination that when she saw Dr Brown in May 2010, she told him that she had applied for work in homecare again, and that at the time she thought she could undertake such work (Black 232K-T). Ms Abed did obtain employment as a homecare assistant later in 2010 (Black 226S). She was unable to say for how long (Black 226U).
269Dr Phillips reassessed Ms Abed on 1 December 2011, and provided a second report dated 22 August 2012. This recorded Ms Abed's additional history of having worked at around Christmas 2010 for a homecare company, assisting ill people within the community for approximately four to five months, finishing in February/March 2011. She told Dr Phillips that she felt unable to cope with the stress of the job and this was the reason for her not continuing (Blue 341U-V). Ms Abed gave evidence that she stopped working because she had difficulty being patient with older people when providing homecare (Black 218F-K, U-V). Ms Abed decided to travel to visit her mother in Palestine during July 2011. She told Dr Phillips that she was away from Australia for approximately three months (Blue 342W-X). Ms Abed agreed in cross-examination that she visited her mother in Palestine because she was ill, but she denied that this was the reason she gave up her job.
270Ms Abed told Dr Phillips in December 2011, that she was "somewhat improved" by the time of her return from Palestine (Blue 343C). Dr Phillips expressed the opinion in his second report that he did not foresee a return to the workforce in the short term (Blue 349N).
271At trial, Ms Abed gave evidence that she commenced studying a computer course at TAFE, it seems in early 2013, for two days a week. She had continued with that course for about five months up to the date of the trial in May 2013 (Blue 219F-M). She gave the following evidence in chief concerning the sort of work she was now seeking (Black 219T-220F).
"Q. What is the sort of work that you're now seeking to get with the benefit of your training that you're now undertaking with the computer?
A. INTERPRETER: I would like to have my earlier homecare job if I can but the application form that they ask people to fill before they can get employment, they must indicate that they know a lot about computers, Microsoft and things like that.
Q. The problem that you had described about losing your temper and screaming at the older people, is that a problem because of the way you felt do you still have those feelings?
A. WITNESS: No, I feel better.
Q. You feel better?
A. WITNESS: Yes, better now. Seven years now I try to - for - but I go overseas and stay a long time and back again.
Q. You say you feel better. Are you back to a point like you were in terms of the way you feel before you went to gaol?
A. WITNESS: Yes. Now I feel better. Now I use computer. I'm on the Skype with my family, my friend overseas, always."
272Dr Phillips agreed in cross-examination that the steps taken by Ms Abed towards retraining herself and the evidence she gave at trial (as referred to above) pointed in the direction of favouring the probabilities of Ms Abed's return to work. Dr Phillips also agreed that his opinion in his second report that Ms Abed's prognosis "remains relatively poor" required revision "reluctantly". By this he explained that he was not saying he did not think Ms Abed could not make an improvement, but there were difficulties in treating someone from a different culture who was not very skilled in English (Black 307M-O).
273In his report of May 2010, Dr Brown had expressed the opinion that Ms Abed should be expected to have no ongoing psychological condition from her imprisonment and its consequences after her court action was determined and she finds employment (Blue 479C-D). Dr Brown gave evidence at trial that Ms Abed's evidence concerning her undertaking a computer course at TAFE and her determination to work in a nursing home again, supported his view concerning her prognosis (Black 535P-536D). There was no challenge to Dr Brown's evidence on these matters.
274The medical evidence underlying the claim for past economic loss supports the view that there is a sufficient connection between Ms Abed's ongoing psychological symptoms arising from her arrest and detention in December 2006 and her inability to work in her chosen field, at least up until about mid 2010.
275In respect of the period after May 2010, the evidence supports the conclusion that Ms Abed was fit for work, she was motivated to apply for jobs as a nursing assistant and that she in fact obtained employment as a homecare assistant for a period of about four to five months in late 2010, up until about February/March 2011. I would not assess any loss in the period July 2010 to March 2011. Although she was challenged in cross-examination, the evidence does not permit a finding that the reason she left her job in March 2011 was to travel to Palestine to visit her ill mother. Rather, the evidence supports a finding that her ongoing psychological disorder caused her difficulties in dealing with older people as part of her nursing homecare job. It may be reasonably inferred however that Ms Abed would have travelled to Palestine in July 2011 to visit her mother even if she had not suffered psychological symptoms arising from her arrest and detention.
276The evidence of the impact of any psychological symptoms on Ms Abed's earning capacity during 2012 is sparse. It is largely based on Dr Phillip's pessimistic view that Ms Abed would not return to the workforce in the short term due to the ongoing psychological symptoms. It seems that by the beginning of 2013 the impact of the psychological symptoms on Ms Abed were beginning to dissipate.
277The past probable (net) earnings of Ms Abed for the period 8 December 2006 to 30 June 2010 totalled $47,200, and for the period March 2011 to 27 September 2013 (excluding the three months from July to September 2011) totalled $43,249. (These figures are taken from the calculations in the written submissions of Ms Abed, to which no objection was taken by the other parties). I would assess the past economic loss for these two periods as 75% of that claimed. The discount of 25% allows for the fact that there may have been some periods of unemployment or underemployment. I would round up the amount to $67,840. Pre-judgment interest from 8 December 2006 to 27 September 2013 should be added to this amount. The usual method is to calculate the average rate of interest for the period of calculation and apply it as if the whole loss was sustained for half the period of the loss: Cullen v Trappell [1980] HCA 10; 146 CLR 1 at 19; Elite Protective Personnel v Salmon [2007] NSWCA 322 at [84]. This amount is calculated as $19,290.82 (being $67,840 x 8.35% p.a. x 2486 x ½).
278In addition, Ms Abed is entitled to the loss of superannuation benefits on $67,840 calculated at 9%, being $6,105.60. It is to be noted that counsel for Ms Abed did not contend that the appropriate figure for past loss of superannuation benefits was 11% of the relevant figure: Najdovski v Crnojlovic at [53].
[63]
Future economic loss
279The primary judge made an award of $45,000 as a "cushion" for future economic loss. His Honour's reasons (at [136]-[140]) took into account Ms Abed's attempts to find work upon her release from custody despite her continuing psychological symptoms; her evidence that she would like to return to the workforce; Dr Phillips' somewhat pessimistic assessment of Ms Abed's work prospects; and his Honour's observations of Ms Abed when giving evidence and taking into account her work before the incarceration, together with her determination to find work.
[64]
Submissions
280Ms Abed submitted that the primary judge erred in failing to give due weight to the opinion of Dr Phillips regarding Ms Abed's "chronic and pervasive depression spectra syndromes", her generally poor prognosis and her failed attempt to return to paid employment. It was argued that if a buffer was to be awarded it should be calculated on the basis of a further 5 years of incapacity assessed at pre-injury earnings of not less than $375 net per week, giving an award of a minimum of $76,404 (assuming a deduction of 15% for vicissitudes), plus loss of superannuation benefits, calculated at 11.79%, in the amount of $9,008.03.
281The State accepted that Ms Abed ought to have been awarded, in addition to the cushion of $45,000, an amount representing damages for future loss of superannuation benefits calculated by reference to the cushion. No submission was made by the State or Ms Younis or Mr Younis that the appropriate figure was not 11.79% as contended by counsel for Ms Abed.
[65]
Discussion
282At trial Ms Abed claimed future economic loss of $260,340.67 in her amended statement of particulars (on the assumption that she would have worked full time as a nursing assistant until the age of 67). Alternatively she claimed a "buffer" for the diminution in her earning capacity on the open labour market (Red 27P-W). In her closing submissions Ms Abed claimed a buffer of $200,000 (Black 832L).
283As mentioned above, on appeal Ms Abed advanced a more limited claim. She claimed a "buffer" or "cushion", calculated on the basis of a further five years of incapacity, in an amount of approximately $76,000, plus the loss of superannuation benefits.
284It is not suggested that the primary judge took an incorrect approach in awarding a "cushion" for future economic loss. Rather, Ms Abed's challenge concerns his Honour's assessment of the amount of the "cushion". His Honour had the benefit of assessing her in the witness box and took into account her work history before her arrest and detention and her subsequent determination to find work following her release: at [140]. His Honour also had the benefit of the medical evidence concerning the prognosis for Ms Abed. His Honour referred to the somewhat pessimistic view of Dr Phillips about Ms Abed's work prospects. It is clear that his Honour gave greater weight to Ms Abed's own evidence regarding her determination to find work. His Honour also had the more optimistic views of Dr Brown, although he did not refer to this evidence in his reasons.
285In my view, it has not been demonstrated that a "buffer" or "cushion" for future economic loss of $45,000 is so inordinately low that it is outside the appropriate limits of a sound discretionary judgment. Ground 8 of Ms Abed's cross-appeal is not made out.
[66]
Loss of future superannuation benefits
286Ms Abed claims as a component of her future economic loss, the loss of her superannuation benefits under the Superannuation Guarantee (Administration) Act 1992 (Cth) calculated by reference to the "cushion" of $45,000. Up until 30 June 2013 the relevant prescribed percentage was 9%. As a result of amendments made by the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth), that percentage increased from 1 July 2013 to 9.25% and from 1 July 2014 to 9.5%. Further increases of 0.5% will occur each year commencing from 1 July 2015 up until the year commencing 1 July 2019 at which time the percentage will be 12%.
287It was not suggested by either the State or Ms Younis and Mr Younis that the primary judge had purposively made no allowance for lost future superannuation benefits, because this loss was to be compensated in the lump sum given by way of a "cushion".
288It is common practice for awards of damages to include an amount on account of the employer's superannuation benefit, without actuarial evidence. Such an approach is justifiable on the basis of the application of a certain and simple "rule of thumb", especially in circumstances where the amount involved would not justify the expense of an expert report: Zorom Enterprises v Zabow [2007] NSWCA 106; 71 NSWLR 354 at [57] (Basten JA; McColl JA agreeing).
289Counsel for Ms Abed did not explain in submissions how the figure of 11.79% was obtained. It may be assumed however that this figure reflects the conventional approach of using 11% (Najdovski v Crnojlovic at [53]) and makes some allowance for the future increases in the prescribed percentage under the Commonwealth legislation. It is unnecessary to address what, if any, allowance for future increases in the prescribed percentage would be appropriate. As the figure put forward by counsel for Ms Abed was not disputed by the other parties, they may be taken to have conceded that it is an appropriate figure to be used in the circumstances of this case.
290The calculation of the lost future superannuation benefit is $5,305.50 ($45,000 by 11.79%). It was not suggested that this amount should be discounted.
[67]
(c) Did the primary judge err in not awarding Ms Abed aggravated and/or exemplary damages for malicious prosecution?
291It is unnecessary to address Ms Abed's challenge to the primary judge's rejection of her claim for aggravated and exemplary damages against the State (ground 7 of her cross-appeal), in light of my conclusion that the State is not liable in damages for malicious prosecution.
292The primary judge did not separately address in his reasons Ms Abed's claim for aggravated and exemplary damages against Ms Younis and Mr Younis (Black 831D-G, K-N). There is no appeal by Ms Abed in this regard. In these circumstances, no occasion arises to consider whether an award of either aggravated and/or exemplary damages was warranted against them.
[68]
(d) Did the primary judge err in awarding damages against Ms Younis and Mr Younis for the false arrest and false imprisonment of Ms Abed?
293Although the primary judge made no findings against Ms Younis or Mr Younis of liability to Ms Abed arising from her false arrest and false imprisonment by the State, his Honour proceeded to order a single judgement against all defendants of $215,089, which included a component of $10,000 for false arrest and $10,000 for false imprisonment: at [182]. Ms Younis and Mr Younis contended that the inclusion of these two components in the judgment was an error.
294The State sought to uphold these components of the judgment against Ms Younis and Mr Younis on two bases.
295The first was said to arise from Ms Abed's claim for damages against Ms Younis or Mr Younis for the tort of intentional infliction of harm: see Bunyan v Jordan [1937] HCA 5; 57 CLR 1; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471. This claim was pleaded, in the alternative, in paragraph 13A of Ms Abed's fourth further amended statement of claim (Red 17Q-S).
296The second was said to arise from the State's cross-claim against Ms Younis and Mr Younis alleging the tort of maliciously inducing arrest: see Gibbs v Rea [1998] AC 786 at 797; Martin v Watson; Spautz v Butterworth (1996) 41 NSWLR 1 at 26-27; Mutton v Baker [2014] VSCA 43 at [29]; and New South Wales v Hunt [2014] NSWCA 47 at [49] and [66]. This claim was pleaded in paragraphs 3 and 4 of the State's amended first cross-claim (Red 69).
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Discussion
297There are a number of difficulties with the State's attempt to uphold these two components of the judgment against Ms Younis and Mr Younis.
298First, his Honour did not find it necessary to consider Ms Abed's alternative claim for intentional infliction of harm.
299Secondly, at trial it was not contended by Ms Abed that the damages she claimed in respect of the malicious prosecution cause of action (at Black 830-831) were any different to the damages she claimed in respect of her alternative cause of action for intentional infliction of harm.
300Thirdly, paras 3 and 4 of the State's cross-claim is a claim by the State for indemnity or contribution against Ms Younis and Mr Younis, not a claim by Ms Abed against Ms Younis and Mr Younis.
301Accordingly, ground 1 of Ms Younis and Mr Younis' cross-appeal should be upheld and the judgment against them should be reduced by $20,000. There remains however the issue of the State's cross-claim against them which the primary judge failed to determine. I deal with this issue below at [306]ff.
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(e) Did the primary judge fail to differentiate the liability of the State and Ms Younis and Mr Younis for malicious prosecution of Ms Abed?
302It is unnecessary to address this issue (raised by grounds 11 and 12 of the State's appeal), having regard to my conclusion that the primary judge erred in finding the State liable for malicious prosecution.
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(f) Did the primary judge err in not determining the State's cross-claim against Ms Younis and Mr Younis?
303Both the State and Ms Younis and Mr Younis contended that the primary judge erred in not determining the State's cross-claim. It is common ground that although he made findings with respect to apportionment of liability in relation to the malicious prosecution of Ms Abed, his Honour did not proceed to make any orders on the cross-claim.
304Although this was an error by the primary judge, it is not ultimately material in view of my conclusion that his Honour erred in finding the State liable for malicious prosecution. Once that finding is set aside, as it should be in my view, no question of apportionment arises as between the State on the one hand and Ms Younis and Mr Younis on the other hand in relation to the malicious prosecution of Ms Abed.
305Further, no question of apportionment arises as between Ms Younis and Mr Younis. They did not file cross-claims against each other seeking contribution or indemnity, and their counsel did not seek to make any submissions on appeal as to how their liability to Ms Abed for damages for malicious prosecution should be apportioned between them (AT, 11/9/14, 13, lines 23-29).
306There remains for consideration the State's cross-claim against Ms Younis and Mr Younis for indemnity or contribution in respect of the tort of maliciously inducing arrest. This claim was pressed by the State in its closing submissions at trial (at Black 869-870). It seems that the primary judge overlooked dealing with it. This was an error. It is possible however for this Court to deal with matter on a rehearing under s 75A of the Supreme Court Act 1970 (NSW). The primary judge made sufficient findings in relation to the conduct of Ms Younis and Mr Younis when dealing with the malicious prosecution cause of action.
307As to Ms Younis, the primary judge found (at [160]) that her evidence was inherently untrue and that the complaints made in the 000 call to the police on 8 December 2006 were malicious, that is, made for an improper purpose. Ms Younis deliberately and falsely invented the accusations which she communicated to the police officers and which led directly to the arrest of Ms Abed. Her conduct meets the description of Spigelman CJ in Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [35] as that of persons who "generally actively sought that result". She is a person who caused or procured an arrest to occur motivated by malice and without reasonable and proper cause: New South Wales v Hunt at [49] (Leeming JA, Barrett JA and Tobias AJA agreeing); Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [110]-[119] (Ipp JA, Hodgson JA and Handley AJA agreeing).
308As to Mr Younis, he has the benefit of the primary judge's favourable finding (at [165]) that he was not aware of Ms Younis' fabrication of the circumstances of the alleged offence by Ms Abed, when he spoke to her by mobile phone on the evening of 8 December 2006 whilst present at the Green Valley Police Station. He is not a person who caused or procured an arrest to occur.
309As to apportionment, it is just and equitable, in my view, having regard to Ms Younis' responsibility for the damage caused to Ms Abed by the false arrest and false imprisonment for the period of approximately three hours, that the State have a complete indemnity from Ms Younis in respect of its liability to Ms Abed in respect of the same damage.
310In the result, ground 16 of the State's appeal should be allowed and judgment should be given against Ms Younis on the cross-claim for indemnity.
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Costs
311The Court has not had submissions on costs taking into account the outcome of the appeal, including whether it is appropriate to revisit the matter of costs at first instance. It may assist the parties however if I indicate my tentative views in relation to the costs in this Court, and one aspect of costs in the Court below.
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Costs in this Court
312As between the State and Ms Abed, the State has achieved some substantial success on appeal and Ms Abed has been largely unsuccessful in her cross-appeal, except for the award of pre-judgment interest on general damages of $20,000. An available approach would be to take a global view of the matter and order Ms Abed to pay a percentage of the State's costs referable to its appeal and Ms Abed's notice of cross-appeal as between them. An appropriate percentage seems to me to be 65%.
313As between Ms Abed and Ms Younis and Mr Younis, Ms Abed has been successful in obtaining an increase in two components of the damages. Ms Younis and Mr Younis have failed in their challenge to the malicious prosecution cause of action, but have enjoyed limited success in reducing the amount of the judgment in respect of two components totalling $20,000. Overall Ms Abed has achieved far greater success in resisting the challenge to the findings of malicious prosecution and obtaining a higher award of damages against Ms Younis and Mr Younis. Again, taking a global approach, I would be inclined to order that Ms Younis and Mr Younis pay 90% of Ms Abed's costs of the proceedings in this Court as between them.
314As between the State and Ms Younis and Mr Younis, the State has been successful, relevantly, in obtaining indemnity from Ms Younis but not against Mr Younis. Ms Younis and Mr Younis have been unsuccessful in seeking to apportion liability in respect of the award of damages against them for malicious prosecution of Ms Abed. I consider that Ms Younis should pay the State's costs of the appeal as between them, and that there should be no order as to costs as between the State and Mr Younis in view of their respective lack of success against the other on appeal.
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Costs in the Court below
315In relation to the costs below, I would not be inclined to alter the costs order made in favour of Ms Abed against the State simply because the judgment in respect of the malicious prosecution cause of action has been set aside on appeal. However, these parties should be given the opportunity to make submissions on the costs below.
316As between Ms Abed and Ms Younis and Mr Younis, there is no reason to alter the costs order made below in favour of Ms Abed.
317As between the State and Ms Younis and Mr Younis, Ms Younis should pay the State's costs of the cross-claim. The State should pay Mr Younis' costs of the cross-claim.
318If the relevant parties are unable to reach agreement on the question of costs in this Court, they should serve short written submissions on costs outlining the costs orders sought and the reasons for those orders within the time frames proposed below. These submissions should also address any other necessary orders, such as restitution in relation to part of the judgment sum, if already paid by the State to Ms Abed. I would propose that any such application be dealt with on the papers.
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Conclusion and orders
319The State has succeeded against Ms Abed in setting aside the finding of malicious prosecution, but not the findings of trespass and false imprisonment. Accordingly the award of damages against the State should be reduced to $20,000, but pre-judgment interest at 4% pa ($5,448.76) should be included in respect of the period 8 December 2006 to 27 September 2013.
320Ms Younis and Mr Younis have failed in their challenge to the findings that they are liable for the malicious prosecution of Ms Abed.
321Ms Abed has succeeded in increasing certain components of the award of damages against Ms Younis and Mr Younis. The judgment against them should be $283,541.92. This is comprised of: general damages for malicious prosecution of $125,000; past economic loss of $67,840, plus pre-judgment interest of $19,290.82; loss of past superannuation benefits of $6,105.60; future economic loss of $45,000; loss of future superannuation benefits of $5,305.50; and future medical expenses of $15,000.
322The State should have a complete indemnity against Ms Younis in respect of its liability to Ms Abed for trespass and false imprisonment. The State's cross-claim against Mr Younis should be dismissed.
323I propose the following orders:
(1)Appeal by the State of New South Wales (the State) allowed in part.
(2)Cross-appeal by the first respondent (Hayam Abed) allowed in part.
(3)Cross-appeal by the third respondent (Khalil Younis) allowed in part.
(4)Set aside the orders made by Sorby DCJ on 27 September 2013.
(5)In lieu thereof order:
(i)judgment for the plaintiff against the first defendant in the sum of $25,448.76;
(ii)judgment for the plaintiff against the second and third defendants in the sum of $283,541.92;
(iii)judgment on the amended first cross-claim for the cross-claimant against the first cross-defendant in the sum of $25,448.76;
(iv)dismiss the amended first cross-claim against the second cross-defendant with costs;
(v)the second and third defendants pay the plaintiff's costs of the proceedings in the District Court;
(vi)the first cross-defendant pay the cross-claimant's costs of the amended first cross-claim.
(6)Otherwise reserve questions of the costs below and in this Court.
(7)In default of agreement as to costs or any further orders consistent with these reasons for judgment, direct:
(i)the State to file and serve within 14 days of the date of delivery of judgment its proposed short minutes of order together with short written submissions;
(ii)Ms Abed and Ms Younis and Mr Younis to file and serve their proposed short minutes of order, together with short written submissions in reply within 14 days after service on them of the State's written submissions contemplated by the previous order, with the State to have a further 7 days after receiving those submissions to reply.
(8)Note that the Court will determine the issue of costs on the papers.
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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: 05 December 2014
Parties
Applicant/Plaintiff:
State of New South Wales
Respondent/Defendant:
Abed
Legislation Cited (10)
Bail Act 1978(NSW)s 50(1)
Civil Procedure Act 2000(NSW)s 100(1)
Law Enforcement (Powers and Responsibilities) Act 2000(NSW)ss 4, 201
she had three broken ribs sustained two days previously and had attended Fairfield Hospital for radiological investigation;
she was "not strong" and could not have climbed the colorbond fence, nor could she have climbed through the bathroom window on account of her broken ribs;
she denied that she had a knife in her hand or had threatened Ms Younis and had broken the bathroom window. When shown the knife she said she did not own it and suggested that the police "fingerprint" the knife;
when asked if she understood "everything I have said to you today" she replied "I know but they're lying darling"; and
she had not left her residence that afternoon.
29Ms Younis was also taken (separately) to Green Valley Police Station. She gave a statement to police, which she signed at 11.45 pm, that:
at about 5.00 pm on that day she observed Ms Abed "jump over" the dividing fence and enter the backyard of the front property;
Ms Abed was armed with a large knife with a black handle held in her right hand which was outstretched and pointed towards Ms Younis;
Ms Abed walked towards her with the knife in hand;
Ms Younis retreated to her house and locked the door; Ms Abed then knocked on the door and said "If you don't open the door I will break the door and kill you";
she next heard a smash in the bathroom and when she walked into the bathroom she observed Ms Abed to be "crawling" through the bathroom window and that she was holding the same knife;
she then ran into her bedroom and locked the door and telephoned Mr Younis, who advised that the police "would come and help";
she heard a scraping sound through the door and assumed the sound was a chair being dragged along the tiles;
she exited the bedroom and walked into the bathroom where she observed a chair to be under the window;
she walked back into her bedroom and subsequently observed Ms Abed to be climbing over the dividing fence between the two properties.
30Ms Abed was charged with two offences (at 11.38 pm) on 8 December 2006:
(1)break and enter the dwelling house of Ms Younis and, while present on those premises, assault Ms Younis with intent to murder her, contrary to s 110 of the Crimes Act 1900 (NSW) (sequence 1);
(2)breach of bail undertaking given pursuant to a bail condition imposed on 1 December 2006, contrary to s 50(1) of the Bail Act 1978 (NSW) (sequence 2).
31The prosecutor listed on the Court Attendance Notice for sequence 1, and the application to the local court on sequence 2, was Constable Burraston.
32Ms Abed was refused police bail on 9 December 2006, and was again refused bail on 11 December 2006 by Magistrate Giles.
trespass - $10,000;
false imprisonment - $10,000;
malicious prosecution - $195,089 comprising:
(i)$125,000 in general damages;
(ii)$10,089 for past economic loss;
(iii)$45,000 cushion for future economic loss; and
(iv)$15,000 for future medical expenses.
he did not perceive that Ms Abed needed an interpreter to understand English at the time of her arrest.
97In her oral evidence in chief, Constable Burraston said that there were "language difficulties" and that Ms Abed had "minimal English" (Black 332Y). However, in cross-examination, Constable Burraston confirmed that Ms Abed dropped the pole when called upon by Constable Ling to do so, and that when Ms Abed picked up a second pole she also dropped that pole when called on a number of times to do so (Black 338V-X). Constable Burraston also confirmed that Ms Abed said that she was just doing her washing (Black 339H).
98Ms Abed gave evidence that the "pole" she was holding was a curtain rod about 3½ feet long (Black 132-133). She also gave unchallenged evidence that when she first saw the police she was in front of her shed holding the curtain rod and a curtain in her hand (Black 126G-J).
99The primary judge made the following findings (at [63]-[64]), which were not challenged on appeal by the State:
although Ms Abed was not fluent in English, she had sufficient understanding of the English language to comply with the command of Constable Ling to drop the "pole" when asked to do so;
the "pole" was a curtain rod;
at the time of her arrest, Ms Abed was a middle aged woman dressed in a tracksuit, which she described as her "bedclothes", and had not attempted to run away;
the arresting officers were not under any threat from Ms Abed;
that Ms Abed asked the arresting officers "why" on a number of occasions, having been told that she was under arrest for assault.
100The following observations may be made.
101First, it is tolerably clear on his Honour's findings that the arresting officers observed that Ms Abed had a sufficient understanding and command of the English language to ask "why" Constable Ling had commanded her to put down the "pole" and walk over to him. She also clearly asserted in her response to this command, that she had just been doing her washing, which no doubt the arresting officers would have understood to be an assertion that she had been engaged in a lawful activity.
102Secondly, there is a contradiction in the justification given by Constable Ling to Ms Abed, at the time of the arrest, for not providing any more information as to the reason for the arrest. Constable Ling deflected Ms Abed's questions "why" she had been arrested, by stating that he would get an interpreter and "explain everything again" when they got back to the police station. But on no view had Constable Ling told Ms Abed the "true reason" for her arrest, namely, that they suspected that a person had broken into the home of Ms Younis and threatened her using a knife, and that they further suspected that Ms Abed was the person who had committed that offence. The first time this explanation was given was at about 11.00 pm, when the police interviewed Ms Abed.
103Thirdly, it is of particular significance that the primary judge found that Ms Abed had not attempted to run away when confronted by the police. Indeed Ms Abed complied with the commands of the police on each occasion when she was told to drop the "pole", which his Honour found was a curtain rod. It is also significant that his Honour found that the police were not under any threat from Ms Abed. She did not show aggression to the police. There was nothing remarkable or out of the ordinary in her holding a curtain rod and a curtain.
104Fourthly, whilst it may be accepted that the arresting officers were on high alert and acting on limited information from the alleged victim, Ms Younis, they had already secured the knife on Ms Younis' side of the property, and as his Honour found, they were not under any threat from Ms Abed.
105Taking into account all of the above circumstances of (in particular, that Ms Abed did not flee when confronted by police, she did not show aggression, she complied with the commands of the arresting officers, and although not fluent in English, she communicated to the arresting officers that she had been engaged in her household activities) in my view, no error has been demonstrated in the primary judge's finding that more detail was required as to the reason for the arrest at the time of the exercise of that power by the arresting officers. The challenge to his Honour's finding of trespass to person must fail.
106No separate submissions were advanced by the State in support of the challenge to his Honour's finding of false imprisonment between 7.57 pm and 11.00 pm. It follows that this challenge must also fail.
107Grounds 1 - 6 of the State's appeal are not made out.
The statement of Constables Ling and Ginn and the 'doubts' arising from those statements. Those doubts concerned the veracity of Ms Younis.
Ms Abed's lawyers had advised the DPP on 15 March 2007 that there was the 'possibility of an alibi defence'.
On 3 April 2007, the DAL database report issued revealed that the DNA testing of the knife could not identify useful DNA links with Ms Abed."
112The State challenged the last two factual findings made against Constable Burraston.
113The primary judge found that at the time of the bail application in the Supreme Court on 5 April 2007 there were "significant doubts" concerning the Crown case such that at that time the prosecution of Ms Abed was not maintainable in relation to the break and enter offence: at [105]. He found that Constable Burraston actively prosecuted Ms Abed up to this point when she knew that the Crown case was "weak": at [106]. He found that as at 5 April 2007 the prosecution case on this charge was not maintainable because it had so many doubts and inconsistencies known to, or which should have been known to, Constable Burraston: at [107].
114His Honour further found that "in these circumstances" the letter written by Constable Burraston on 2 April 2007 in connection with Ms Abed's bail application was for an improper purpose - namely, to keep Ms Abed in custody - and was therefore malicious: at [108].
115The primary judge noted that between 5 April 2007 and the release of Ms Abed on 19 June 2007, the police and DPP continued to try to find evidence to support the Crown case in relation to sequence 1. He referred (at [112]-[120]) to various steps taken by Ms Rofe during this period, including her discussions with Crown Prosecutor Degnan and Constable Burraston.
116His Honour concluded (at [121]) that both the police and the DPP (from 5 April 2007 to 19 June 2007) by maintaining and not withdrawing sequence 1 once the decision was made to withdraw it, together with the action of laying sequence 3 when the same evidence could not support sequence 1, had acted without reasonable and probable cause and were malicious, the improper purpose being to keep Ms Abed incarcerated.