State of New South Wales v Beck; Commissioner of Police v Beck

Proceedings before Adams J 27In the malicious prosecution proceedings, Mr Beck relied upon his affidavit sworn 10 December 2010 (Blue 11) and affidavits from three of the four people who were with him at the time of the incident (Mr McHenry - Blue 5; Ms Shillitoe - Blue 8; and Mr Saba - Blue 97). Each gave oral evidence and was cross-examined. 28Mr Beck also tendered in his case the respective police statements: Sergeant Sullivan's statement dated 29 October 2006 (Blue 53-56); Sergeant Deas' statement dated 13 October 2006 (Blue 50-52); as well as reports signed by Acting Inspector Dempsey on 25 September 2006 (Blue 42-43); Sergeant Sullivan on 26 September 2006 (Blue 44-47); the court attendance notice (Blue 62) and the facts sheet (Blue 63-65). The police statements were admitted into evidence in Mr Beck's case without any limitation as to the use to which they might be put. 29No evidence was adduced by the defendant in the malicious prosecution proceedings. The circumstances in which that decision was made require some explanation, since (at [46]) the primary judge prefaced his factual findings with a statement as to the worthlessness of the police statements on the basis that the respective officers had not been called and cross-examined on those statements. The primary judge noted the course of events in this regard from [17]-[19] of his reasons.

"No case" application 30At the close of Mr Beck's case for damages, the State made an application under Rule 29.9 of the Uniform Civil Procedure Rules 2005 (NSW) for the dismissal of the proceedings on the ground that, on the evidence given, a judgment for the plaintiff could not be supported (Black 111.37). Mr Beck, as it was open to him to do, declined to argue the question raised by that application. Accordingly, pursuant to Rule 29.9(4), the Court could not make an order under Rule 29.9. It then fell to the State to elect either to adduce evidence or to make an application under Rule 29.10 (Rule 29.9(5)). The State elected to take the latter course (Black 115.35). 31On an application under Rule 29.10, the applicant (here the State) must satisfy the Court that, on the evidence given, a judgment for the 'beginning party' (here, Mr Beck) could not be supported. As the primary judge noted, in dealing with a submission of "no case to answer" it is said that the question is to be approached by taking the evidence of the plaintiff at its highest. 32His Honour rejected the application by the State for judgment under Rule 29.10. He did so on the basis that, assuming for the purposes of the "no case" application that Mr Beck's evidence was true, the statement of Sergeant Sullivan was fundamentally contradicted by Mr Beck's evidence. His Honour concluded that the police prosecutor could not honestly have believed the case that was instituted or maintained when it was based on a fabrication. In other words, taking Mr Beck's evidence at its highest, his Honour concluded that the police officer prosecuting the case had fabricated evidence against Mr Beck. In so doing, his Honour thus excluded (or had no regard to) the possibility that the contradiction between the police statements and the evidence called for Mr Beck could have been the product of something other than fabrication (such as, for example, an honest but mistaken belief by the police officers who made the statements on which the decision to prosecute Mr Beck was based). The complaint now made is in effect, that once his Honour had reached that conclusion on the no case application his Honour simply translated the finding on that application to a finding on the substantive case. 33In his Honour's later published reasons for rejecting the "no case to answer" application, the primary judge expressly adopted the test in Hunt v Watkins (2000) 49 NSWLR 508 and found that, taking the evidence of Mr Beck at its highest, the charge against Mr Beck was fabricated and there was ample evidence upon which a judgment for Mr Beck could be supported ([38]). 34At [44], his Honour concluded that if the evidence of Mr Beck and the three other witnesses were accepted then there could be no doubt that Sergeant Sullivan "well knew where the truth lay" and that the statement of facts attached to the court attendance notice was false "in every crucial respect". His Honour concluded that it followed from this that Sergeant Sullivan knew that Mr Beck was not guilty and that this was sufficient to establish absence of reasonable and probable cause to bring the criminal prosecution. 35At [45], his Honour found that if Mr Beck and his witnesses were accepted then the dominant purpose of Sergeant Sullivan was to procure a conviction upon facts he knew to be fabricated, believing that, in truth, Mr Beck had committed no criminal offence. 36His Honour's decision on the Rule 29.10 application, during the course of the hearing, had the consequence, pursuant to Rule 29.10(4), that the State was then not able to adduce evidence or further evidence in the proceedings except by the leave of the Court. 37No application for leave to adduce evidence was made by the State (Black 148.19). It may be, from my review of the transcript of the earlier discussion between Counsel and his Honour, that no such application was made having regard to what had fallen from his Honour. At Black 140.15, his Honour said that he did not think he would be minded to give leave to the State to attempt to weaken the plaintiff's case and made the observation that to do so would destroy the whole purpose of the proceeding. Whatever the reason, a forensic decision was made by the State at that point not to seek leave to adduce evidence in its defence. 38His Honour, having formally refused the application for judgment under Rule 29.10, then proceeded immediately to find against the State, saying that "[i]t follows, I think, that I must give judgment for the plaintiff". The question of damages was reserved and his Honour proceeded to hear argument as to damages, reserving his reasons on the ruling that had been made on the State's application under Rule 29.10. 39Thus, his Honour seems to have proceeded on the basis that the conclusion reached for the purposes of the "no case" application was necessarily determinative of the case in favour of Mr Beck without further consideration or balancing of such evidence as there was in support of the defendant's case or that contradicted the plaintiff's case. 40Pausing here, I note that the common law rule on a "no case to answer" application, explained in Tate v Johnson (1953) 53 SR (NSW) 492 and James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448 as noted in the commentary to Rule 29.10 in Ritchie's, was that if a "no case" submission was made the Court had a discretion whether to put the defendant to an election about calling evidence before ruling on the "no case" submission and would ordinarily require the defendant to make such an election (Laurie v Raglan [1942] 1 KB 152; Alexander v Rayson [1936] 1 KB 169). Furthermore, the ordinary position at common law was that a defendant was not permitted to call further evidence once a "no case to answer" application had been made and determined by the Court (Builders Licensing Board v Mahoney (1986) 5 NSWLR 96). 41The procedure under the Rules, however, now permits evidence to be given if leave is granted. Nevertheless, in the course of argument on the "no case" application, the primary judge had expressed the opinion that such leave would only rarely be given (see Black 138.8).

Primary judgment 42On the material that was in evidence before his Honour, there were material differences between Mr Beck's version of events and that contained in the statements of Sergeants Sullivan and Deas (and in the facts sheet attached to the court attendance notice) going to whether it was possible for the police officers to have seen Mr Beck urinating in the gutter when they turned into Pelican Street (or, if they could, whether they could have seen his penis at the time). 43The police statements, in effect, put Mr Beck as standing at the rear of a parked black Peugeot hatchback, facing north or angled towards Oxford Street, with his penis clearly exposed and making no attempt to conceal it. Mr Beck said that he was standing at the "B pillar" of the hatchback with his back to Oxford Street and that he had concealed his penis with his left hand while urinating. Further, there were differences between the respective versions of events as to whether, when Sergeant Sullivan got out of the police car and spoke to Mr Beck, Mr Beck had continued to urinate and made no attempt to conceal himself from Sergeant Sullivan, as the police version asserted; and as to Sergeant Sullivan's statement that he had heard Mr Beck refer to himself, in a conversation between Inspector Dempsey and Mr Beck, as a "fag", which Mr Beck vehemently denied doing and which was regarded by Mr Beck as a derogatory term. 44The critical differences, for the purposes of whether there was reasonable cause to institute and maintain a prosecution against Mr Beck for offensive conduct, went to where Mr Beck was standing when urinating in the gutter in Pelican Street (which went to whether the police officers could have seen what their statements recorded them as having observed) and to the general location (which went to the question whether a person who might have been in the vicinity could have observed what Mr Beck was doing). 45There was no denial by Mr Beck that he had urinated in the gutter. That said, in his detailed s 173 response Mr Beck somewhat inconsistently stated that "[t]here is no reference [seemingly in the statements by Sergeants Sullivan and/or Deas] to physical evidence in source documents such as the wet mark on the ground that one would leave after urinating" (Blue 205K) (contradicted by his earlier statement at Blue 192D-J). 46Significantly, there was an inconsistency between the statements of Sergeants Sullivan and Deas (repeated in the facts sheet) and the statement of Inspector Dempsey and evidence of Mr Beck and Mr Beck's witnesses as to whether Mr Beck appeared to be intoxicated. 47His Honour summarised the evidence given by the three witnesses called by Mr Beck (at [12] to [16]). His Honour found that each of Mr Beck and the three witnesses was a truthful, or candid, witness and each was reliable ([16], [44] and [46]). His Honour accepted Mr Beck's evidence. 48At [46], his Honour set out his decision on the evidence, stating that: ...In light of the failure of [the State] to call the police officers, their statements, although providing evidence of the facts asserted in them, are worthless in respect of any matters contradicted by the sworn testimony given before me. I have no doubt that I should accept the evidence of the plaintiff and the other witnesses as truthful and reliable. In short I am satisfied that Sergeant Sullivan and Sergeant Deas fabricated not only the circumstances in which they first saw the plaintiff and what he was then doing but also his position in the street and in respect to the parked car. They also lied about the light whether from street lighting or Hungry Jack's, at the place where the plaintiff was standing. In my view, also, (in this respect supported by the evidence of Sergeant Dempsey) they lied about the plaintiff's sobriety (probably to remove one of the reasons for not going to the SPC). (my emphasis) 49His Honour continued at [46] to say: I do not accept, either, that the toilet facilities at Hungry Jack's were available simply to members of the public as distinct from patrons, or that the plaintiff would have been able to use the toilets at the Sydney Police Centre or that there was any other public toilet available to him in the near vicinity. It follows that the conclusions which I have stated above as to the inferences that follow from acceptance of the witnesses' evidence remain appropriate. 50At [47], his Honour said: I should add that I do not accept that Sergeant Sullivan's account of the conversation - nor that of Sergeant Deas, to the extent that it corroborates it - is truthful in respect of those parts in which it differs from that given by the plaintiff. Moreover, even if it were accepted, it certainly does not demonstrate that the plaintiff was "rude, abrupt, dismissive of his actions, [with] no respect for rank". Insofar as the plaintiff's denial of the officer's allegation goes, asserting that he had his back to Oxford Street, he did not attempt to lie at all but was telling the truth as both officers well knew. As I said above, their characterisation of the nature conversation [sic] was itself manufactured. 51His Honour, in considering the exemplary damages claim, said (at [68]): In this case, the actions of Sergeants Sullivan and Dias [sic] were proved to be deliberate, concerted, elaborate, reprehensible and contumelious involving the making of false statements (a criminal offence under s 85 of the Criminal Procedure Act 1986) and an attempt to pervert the course of justice (an offence under s319 of the Crimes Act 1900). These are serious offences against public justice, involving far more than an assault on the rights of the plaintiff. The condemnation of the Court must be unmistakeably demonstrated. 52At [69], his Honour added that the response of the officers whose responsibility it was to consider whether action should be taken against Mr Beck was "woefully inadequate", noting that the allegations made by Mr Beck against Sergeants Sullivan and Deas were extremely serious "involving the commission of criminal offences". His Honour noted that Mr Beck's response to the first s 181D notice indicated that Mr Beck was with friends on the occasion in question but that no attempt had been made to interview them and that the response to the 30 January 2008 notice included statutory declarations of those persons but that no investigation as to the truthfulness of the Sergeants' statements had been undertaken. His Honour considered that there had been a "gross failure of responsible management" that enlivened the relevance, to the assessment of exemplary damages, of a passage in NSW v Ibbet [2006] HCA 57; (2006) 229 CLR 638 at 646-647 to the effect that the assessment of exemplary damages in a case of conscious and contumelious disregard by the police of plaintiff's rights "should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen".

Appeal in malicious prosecution proceedings 53The State's appeal from the malicious prosecution decision, apart from taking issue with the amount awarded by way of exemplary damages if the decision is otherwise to stand, challenges the decision in essence on two bases: first, it is submitted that his Honour did not take into account or give any weight to the evidence setting out the police officers' version of events; and, second, it is submitted that the serious findings made in respect of the conduct of Sergeants Sullivan and Deas required satisfaction to the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336), to which his Honour made no reference in the reasons. 54Criticism is also made of various of the findings made by his Honour that are said either not to have been open on the evidence or to have been inconsistent with material in Mr Beck's case that favoured the police officers' version of events. 55The State contends that his Honour erred: (a) in holding that documents tendered in Mr Beck's case which contained material favourable to the State's case were "worthless" (ground 4); (b) in failing to find that the said documents and other evidence contained material favourable to the State (ground 5); (c) in failing to assess the contents of the said documents and other evidence and allot weight thereto in light of the remainder of the evidence (ground 6); (d) in making findings amounting to criminal conduct on the part of Sergeant Sullivan and Sergeant Deas without having applied the Briginshaw test to the evidence (ground 7); (e) in making the following findings of fact (ground 8): (i) that Sergeants Sullivan and Deas fabricated the position of Mr Beck in the street and in respect of the parked car; (ii) that Sergeants Sullivan and Deas lied in statements about the light including light from Hungry Jacks; (iii) that Sergeants Sullivan and Deas lied that toilet facilities at Hungry Jacks were only available to patrons and not the public; (iv) that Sergeants Sullivan and Deas lied that toilet facilities were not available to Mr Beck at the Sydney Police Centre; (v) that Sergeants Sullivan and Deas lied that public toilet facilities were not available in the near vicinity; (vi) that Sergeants Sullivan and Deas lied about Mr Beck's state of sobriety and demeanour; and (vii) that Mr Beck was not facing angled towards Hungry Jacks when first seen by Sergeants Sullivan and Deas. (f) in not finding to the contrary in respect of each of the findings of fact the subject of ground 8 of the grounds of appeal (ground 9); and (g) in the assessment of the amount of exemplary damages (ground 10). 56I consider those grounds of appeal as follows.

Grounds 4-6 - evidentiary weight of the police statements in circumstances where the defence adduced no evidence 57These grounds go to the assessment by his Honour of the evidence before him and, in particular, to his Honour's statement (at [46]) that the statements of the police officers (presumably including in this not only Sergeants Sullivan and Deas but also the statement of Inspector Dempsey), though providing evidence of the facts asserted in them, were "worthless" because the police officers had not been called to give evidence. 58Senior Counsel for the State, Mr Neil QC, submits that the State was entitled to have his Honour consider material favourable to the State that was contained in the documents tendered by Mr Beck, even though it did not call oral evidence in the case, and that his Honour erred in principle in failing to assess such material in light of all of the evidence. Reference was made in this regard to R v Higgins (1829) 3 C&P 603; 172 ER 565; Jack v Smail (1905) 2 CLR 684; R v Williamson [1972] 2 NSWLR 281; and Ceva Logistics (Australia) Pty Limited v Redbro Investments [2013] NSWCA 46. Mr Neil submits that the question was one of the weight to be attached to evidence that was not tested in cross-examination and that his Honour erred in dismissing outright the evidence as worthless. 59Mr Neil pointed to the statement of Inspector Dempsey, for example, as recording the contemporaneous version of events given by Sergeants Deas and Sullivan as to Mr Beck's initial attitude, though he concedes that Inspector Dempsey's statement did not support the statements made by Sergeants Sullivan and Deas as to Mr Beck's state of sobriety. 60Mr Neil submits that if his Honour had considered all the material favourable to the State, giving it such weight as his Honour saw fit prior to making his decision as to which version to accept, there was a realistic prospect that his Honour may not have been satisfied to the requisite standard that Mr Beck had proven his case and therefore that the State has been deprived of a reasonable opportunity to have its case fully considered at law and the matter should be remitted for a new trial. 61Counsel for Mr Beck, Mr Cleary, submits that his Honour was entitled completely to reject the version of events outlined in the police statements that had been tendered, on the basis that they were not called as witnesses, and to accept Mr Beck's version of events. 62As to his Honour's description of the police statements as worthless, Mr Cleary submits that, properly understood, his Honour's reasons make clear that he accepted that the untested statements of the police officers provided evidence of the facts asserted in them but was of the view they were of no weight (hence worthless) insofar as they contradicted the sworn testimony of Mr Beck and the three witnesses called by Mr Beck. 63Mr Cleary submits that the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 permitted an inference to be drawn that the evidence that could have been given by the police officers would not have helped the State's defence and entitled his Honour more readily to draw the inference that the criminal prosecution was based on fabricated evidence (that being an inference that he submits is open from the other evidence adduced in Mr Beck's case). 64As to the drawing of adverse inferences from the fact that the police were not tested in cross-examination as to the version of events set out in their statements, there was an explanation for the fact that the police officers were not called upon in the defence case, namely, the forensic disadvantage to which the State was put when its "no case" application was dismissed. However, that would not preclude the drawing of a Jones v Dunkel inference in favour of Mr Beck. Indeed, Jones v Dunkel was a case where an adverse inference was said to be properly available in circumstances where Counsel had unsuccessfully asked for a verdict by direction and could not then call the relevant witness to give evidence. Windeyer J (in the majority) said (at p 331): I have written this lengthy excursus to make it clear that the proper inference to be drawn from the absence of [the truck driver] from the witness-box is not to be cut down because his counsel by asking for a verdict by direction could not thereafter call him as a witness. Had counsel wished to preserve a right to call evidence if the judge should rule that there was a case to answer, he could have asked for a non-suit. The idea that this course was not open is, I have sought to show, based on a misconception. Moreover, the words which counsel used when he applied for a verdict show that he accepted the consequences of the course he took and knowingly elected not to call evidence. The jury, when they asked, should therefore have been told fully of the inference they could draw from the silence of [the truck driver] whom counsel had deliberately chosen not to call. 65The statement of Counsel to which his Honour had there referred was to the effect that when Counsel asked for a direction to the jury to return a verdict for the defendants it was indicated that he would not call any evidence (at p 300.4). As I read the transcript there was no such statement made in the present case although it was appreciated that leave would be necessary to adduce evidence if the no case application were to fail. 66Relevantly, a Jones v Dunkel inference would permit his Honour, where there were competing inferences available on the evidence, more comfortably to accept Mr Beck's version of events but it would not permit a positive finding that had the police officers been tested in cross-examination that evidence would have been damaging to the defence case (HML v R (2008) 235 CLR 334; Cross on Evidence, JD Heydon, 8th edn [1215]). Therefore I have difficulty with the proposition that the fact that the police officers were not called carried with it the inevitable consequence that the divergence between the evidence called in Mr Beck's case and the police statements warranted an inference that one or more of the police officers had knowingly falsified his or their evidence. In any event, what was necessary was for his Honour to have had regard to all the evidence, including the untested police statements for what weight his Honour considered they were worth, (and to apply the Briginshaw standard before making findings of criminal conduct against the police officers) in determining the question of liability once the no case application had failed. It appears from the manner in which his Honour proceeded immediately to find for Mr Beck as a consequence of failure of the no case application that his Honour did not at that point do so. 67It is submitted by Mr Cleary that there is no unfairness in his Honour's acceptance of Mr Beck's version of events, since it was the State that made the decision not to call any witnesses at the trial, the consequence of which being that Mr Beck's version of events, as corroborated by his witnesses, was accepted by his Honour. However, a finding by his Honour that no or little weight could be placed on the unsworn and untested police statements is one thing; a dismissal out of hand of those statements as worthless is another. The manner in which his Honour proceeded, immediately from rejection of the Rule 29.10 application, to a finding that it "followed" that judgment should be entered for Mr Beck on his claim indicates that his Honour did not at that point consider the weight, if any, to be attached to parts of the police statements that were or might be said to be inconsistent with Mr Beck's case and simply assumed that acceptance of Mr Beck's evidence proved that the police officers were lying. This was not a case where his Honour reserved his judgment on liability. He announced judgment immediately as a consequence of the finding on the "no case to answer" application and the fact that no application was made for leave to adduce evidence by the State at that stage. 68In that regard, his Honour appears to have failed to use the advantage available to him as a trial judge by failing to have regard to the totality of the evidence, which included the unsworn and untested police statements. 69Grounds 4-6 are in my view made out.

Ground 7 - findings of fabrication 70The second main ground of appeal relates to the findings that Sergeants Sullivan and Deas fabricated their evidence and deliberately committed criminal offences under s 85 of the Criminal Procedure Act 1986 and s 319 of the Crimes Act 1900 (at [68]). His Honour recognised that such conduct involved the commission of serious offences against public justice. His Honour may (in describing the conduct as "concerted") also have intended a finding that there was collusion between the two officers or that they acted in concert in so doing, though this was not expressed as such. 71It is not disputed that such findings were very serious. There is no doubt (and this was not disputed by Mr Cleary) that his Honour was required, before making findings of criminal conduct on the part of the police officers, to approach the determination of such matters with "much care and caution, weight being given to the presumption of innocence and exactness of proof expected" (Briginshaw at 347), and to have an actual persuasion, on the balance of probabilities, of the relevant matters giving rise to such a conclusion. 72The complaint made in respect of those findings is that there is nothing in the judgment from which one could infer that his Honour had had regard to the level of satisfaction required for such a finding to be made, namely the application of the so-called Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). Mr Neil submits that his Honour's reference to the police statements being "worthless", and the lack of any acknowledgement in his Honour's reasons as to the need for there to be a high degree of satisfaction on the balance of probabilities as to those findings, suggest that his Honour had not done so. Mr Cleary maintains that it was not necessary for his Honour to make specific reference to the Briginshaw standard. 73I accept that it was not necessary that his Honour articulate in his reasons the need to apply the Briginshaw standard and as an experienced judge it would be expected that he had done so. However, his Honour's conclusion that a verdict for Mr Beck must automatically follow from the finding on the "no case" application, coupled with the lack of any reference to the level of persuasion required by Briginshaw, suggests that his Honour did not at that stage turn his mind to any evidence (such as it was) that could be consistent with a genuine belief on the part of the police officers that Mr Beck had committed the offence with which he was being charged and that there was reasonable cause for him to be charged. 74It is submitted by Mr Cleary that the inference open to be drawn from the acceptance of Mr Beck's evidence was that, to the extent that the police statements were contradicted by Mr Beck's evidence, the police statements must have been false and Sergeant Sullivan must have known this. However, the giving of inconsistent or contradictory accounts does not of itself necessarily bespeak fabrication or dishonesty. 75His Honour does not appear to have addressed at all the possibility that there might have been an innocent explanation for the fact that evidence in the police statements that was contradicted by Mr Beck's evidence, notwithstanding that in another context his Honour was prepared to attribute an innocent explanation for discrepancies in the witness accounts (namely, the distance from the Oxford Street intersection where the incident occurred). 76As adverted to above, his Honour proceeded on the basis that if Mr Beck's evidence (and that of his witnesses) were to be accepted then it must automatically follow that the police officers' version of events was fabricated. That does not, in my opinion, necessarily follow. Some of the contradictory statements could readily be explicable by differences in perception of distance: such as whether Mr Beck was at the rear of the parked car or was standing; a metre or so further south at the B pillar behind the front passenger seat; others might be referable a question of imprecision in the wording - such as the stance of Mr Beck or angle of his body. 77The most stark disparity between evidence contained in the two police statements on the one hand and the evidence of Mr Beck and his witnesses (consistent with the statement of Inspector Dempsey) is that as to Mr Beck's state of sobriety or intoxication. However, intoxication was not an essential element of the offensive conduct charge. I accept that one would not expect experienced police officers to be mistaken as to the signs of intoxication. His Honour considered that they had lied on this issue in order to remove a basis for Mr Beck's excuse of reasonable necessity.. 78Ultimately, with respect to his Honour, I cannot be satisfied that the Briginshaw standard was properly applied, having regard to the manner in which his Honour treated the conclusion reached on the "no case" application as determinative of liability on the malicious prosecution case. 79Mr Cleary submits that there has been no miscarriage of justice, since the police had the opportunity to be heard. I do not accept that submission. It is one thing to argue that the State is bound by the consequences of forensic decisions made in the course of running a trial, it is another to say that serious findings of criminal conduct should be made against individual police officers who have not in a practical sense had the opportunity to respond to such accusations, and where it is not apparent that his Honour took into account the possibility of human error on their part. 80Ground 7 is made out.

Grounds 8 and 9 - Factual findings 81The State challenges the making of the seven findings of fact identified in ground 8 of the notice of appeal. Reliance was placed in this regard on the statement in House v The King [1936] HCA 40; (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ at 503), to the effect that an appellate court may exercise its own discretion, in substitution for that of the trial judge, if the judge has acted upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect the judge, has mistaken the facts or has not taken into account some material consideration. 82However, what is challenged by grounds 8 and 9 is not the exercise of a discretion but the process of fact finding itself. Therefore, what must be shown by the State (bearing in mind that the challenged findings cannot have been based on adverse findings of credit in respect of the police officers' statements as they were not cross-examined) is, as explained in Abalos v Australian Postal Commission (1990) 171 CLR 167 by McHugh J, that his Honour failed to use, or palpably misused, his advantage as trial judge in that his Honour's advantage in that regard could not be sufficient to explain or justify the relevant conclusion (noting the qualification placed on what was said in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [27], [30]-[31] as to the duty of this Court on a rehearing of this kind).

Ground 8(i) - finding of fabrication of position of Mr Beck in the street and in respect of the parked car 83His Honour was satisfied that Sergeants Sullivan and Deas had fabricated "not only the circumstances in which they first saw [Mr Beck] and what he was then doing but also his position in the street and in respect of the parked car". Mr Neil submits that his Honour did not allow for the fact that the police could simply have been mistaken as to those matters, noting that his Honour was prepared to accept that Mr Beck's friends could simply have been mistaken in their evidence as to the distance Mr Beck was from Oxford Street. While an explanation for this may well be that his Honour had seen and heard the evidence of Mr Beck's friends in the witness box, it does illustrate that an inconsistency in recollections of the event is not necessarily an indication of fabrication of evidence.

What was the evidence as to the position of Mr Beck in the street and in respect of the parked car? 84The first police statement, prepared by Sergeant Sullivan on 26 September 2006 and signed by Sergeant Deas on 2 October 2006, (Blue 44) relevantly recorded that: Sergeant Deas was driving the vehicle and turned left into Pelican Street. Immediately both Sergeants Sullivan and Deas observed a male person ... standing on the eastern footpath of Pelican Street with his penis exposed and urinating towards the gutter. There was a black Peugeot hatch back ... parked on the eastern side of Pelican Street and the male person was standing on the footpath adjacent to the rear near side of this vehicle and urinating towards the gutter. There was no other vehicle parked on Pelican Street between Oxford Street and the location of this black Peugeot and the male person was in clear view of patrons walking on Oxford Street and also numerous patrons who were sitting in the Hungry Jacks premises which is located on the corner of Oxford and Pelican Streets. 85Sergeant Deas was driving the vehicle in question. His view of Mr Beck must therefore have been from the driver's seat of the car, turning left into Pelican Street. There was no dispute that there were no cars parked behind the Peugeot closer to the Oxford Street intersection. Hence, his view of Mr Beck would have been at an angle but not obstructed by other cars. Sergeant Sullivan's view, as the passenger, would necessarily have been a view straight down the eastern footpath of Pelican Street as the car turned the corner. 86Sergeant Deas' later statement (Blue 50 at [4]) recorded that "immediately on turning into Pelican Street from Oxford Street" he saw Mr Beck: ... standing on the Eastern footpath urinating into the gutter. He was adjacent to the rear of a black Peugeot Hatchback ... which was parked at the kerb. [Mr Beck] was angled toward Oxford Street and the Hungry Jacks restaurant on the opposite corner of Oxford and Pelican Street ... 87Sergeant Sullivan's later statement (Blue 53 at [6]-[8]) relevantly recorded that: ...We turned from Oxford Street into Pelican Street and I immediately saw [Mr Beck] standing on the eastern footpath with his penis exposed urinating in the gutter. [Mr Beck] was clearly visible from Oxford Street and Pelican Street. [Mr Beck] was standing adjacent to the rear of a black Peugeot Hatchback ... which was parked on the eastern kerb of Pelican approximately fifteen metres south of the intersection of Oxford Street. [Mr Beck] had made no attempt to conceal himself as he urinated in the gutter and he was angled towards Oxford Street and the Hungry Jacks restaurant located on the opposite corner of Oxford and Pelican Streets. 88Both Sergeant Deas and Sergeant Sullivan recorded in their statements that Mr Beck was clearly visible whilst urinating (Deas at [9]; Sullivan at [9], where Sergeant Sullivan said that there was an unobstructed view of Mr Beck urinating with his penis clearly exposed "as soon as we turned into Pelican Street"). Sergeant Sullivan noted in his statement that there was no other vehicle parked on Pelican Street between the rear of the black Peugeot and Oxford Street. 89Inspector Dempsey, who attended the scene shortly after but did not observe the incident, reported that the area where the incident occurred "was only a very short distance from Oxford Street" and to the incident having occurred directly opposite the Hungry Jack's restaurant (Blue 42S). 90In his response to the s 173(5) notice, Mr Beck had said that he had walked about 15 to 20 metres south of the Oxford Street intersection (Blue 190N) and that the parked car was "about 20 metres south" facing a southerly direction (Blue 191D). In that statement, Mr Beck said that he had "stepped into the gutter" and that his back was "turned towards Oxford Street and four friends [were] slightly in front and opposite [him] and within [his] eyesight" (Blue 191F). Mr Beck said that he had had an unobstructed view south (and that his right hand was holding onto food that he had purchased - a chicken kebab). 91Mr McHenry's affidavit deposed that he had crossed Pelican Street to the same side as Hungry Jacks "opposite the Wig Shop about 15 metres south of Hungry Jacks" and that he saw Mr Beck "standing opposite us across the road behind a parked car ... facing [i.e. south down Pelican Street] the direction the car was facing and ... standing in the middle of the parked car, just behind the front passenger door (Blue 6 [7]-[8]). At Black 95N-P he said that Mr Beck's back was facing towards Oxford Street at the time of urination. 92Ms Shillitoe deposed to Mr Beck being "on the opposite side of the road, about 15 metres from Oxford Street and Hungry Jacks" and that he was "standing in the middle, between the front of the car and the back of the car and facing the direction of the car". She said she could see his head and shoulders (Blue 9 at [8]-[9]). At Black 78 she said she could "only just sort of see his silhouette". At Black 81C, she said that she could see that Mr Beck was facing her. In her affidavit, Ms Shillitoe had said that she saw Mr Beck "standing behind a car on the kerb". At Black 81L, she clarified that to say that he would have been "in the middle of the car", and that "he was standing on the pavement behind the car to the middle of the car to what my presumption was [sic] that he was standing in the middle of the kerb". 93Mr Saba deposed that Mr Beck had "fallen behind slightly"; that they had walked about 20 metres from Oxford Street south and that he turned and saw someone "standing opposite us across the road, behind a parked car". He said he could see the man's head and shoulders, that the man "was facing south and his back was to Oxford Street, he was about halfway between the front of this car and the rear of this car eating a chicken kebab skewer" (Blue 98 [9]-[10]). He said that he could not see what the man was doing (other, it seems, than eating a chicken kebab skewer) from where he was standing. At Black 102H, he agreed that Mr Beck was looking in the direction of the street in which his car was parked then said he was "look[ing] straight at us" and went on to say that he could clearly see Mr Beck holding a chicken kebab in his mouth. 94Mr Beck's affidavit evidence was that, although he had previously estimated that his location was approximately 20 metres south of Oxford Street, he had since measured the distance. He said that he had stopped opposite the Wig Ship on the eastern side of Pelican Street 38 metres south of Oxford Street facing in a southerly direction. He said that he had stepped off the footpath into the gutter and stood next to a black Peugeot hatch back adjacent to the B pillar of the car (that being located behind the front doors and separating the front from the rear doors). He said he was facing south and his back was facing Oxford Street. 95At [12]-[15] of his Honour's reasons, his Honour summarised the evidence of the three persons who had been with Mr Beck and had given evidence in his case. His Honour accepted Mr Beck's evidence as to the distance he was from Oxford Street, stating that the estimation of distances was difficult and that he was satisfied that the lesser distances to which Mr Beck's three friends had deposed were mistaken ([16]). When referring to the evidence as to Mr Beck's position in the street and in relation to the car, his Honour noted that the three other witnesses had been taken to photographs of the scene and when this was done their evidence supported the distance of 38 metres to which Mr Beck had deposed. 96His Honour (at [32]) then said that, if Mr Beck and the other witnesses told the truth, Sergeant Sullivan's account constituted "an elaborate, deliberately false fabrication". His Honour said: There is simply no room for mistake or misunderstanding. Leaving aside the plaintiff's position vis-à-vis the parked car, he was significantly further down Pelican Street than 15 metres, and was facing away from both Oxford and Hungry Jack's which was behind him to his right. It follows from these facts alone that it was impossible for Sergeant Sullivan to have seen the plaintiff's penis when the police vehicle turned the corner and also impossible for the patrons of Hungry Jack's to have done so at any time, as Sergeant Sullivan must have appreciated. (my emphasis) 97In fact, Mr Beck himself had initially estimated the distance at around fifteen metres. Therefore, if his later measurement of the scene was correct, as his Honour accepted it was, everyone present on the night who had expressed an opinion as to distance was mistaken. Again, this indicates that an incorrect assertion as to distance is not necessarily an indication of deliberate fabrication of evidence. 98As to Mr Beck's position in relation to the car, with no parked car behind the Peugeot, differences between the witnesses and the police as to whether Mr Beck was standing at the rear or adjacent to the rear or adjacent to the B pillar could readily be explicable to one or other of the witnesses or the police simply being mistaken as to the distance Mr Beck was at or the position where he stood vis-à-vis the car without anyone having necessarily fabricated his or her evidence. 99There is a clear inconsistency between the statements on the one hand that Mr Beck's back was turned towards Oxford Street and that he was facing down Pelican Street in the direction the Peugeot was facing and the police version that he was angled towards Hungry Jack's. However, given the evidence of Ms Shillitoe and Mr Saba, it seems that at least his head and shoulders may have been angled towards the western side of the street, which suggests the possibility that Mr Beck's body may have been angled to some degree in that direction. 100His Honour went on to say: The plaintiff was not at the rear of the parked car, but in the centre of the cabin, which must necessarily have concealed him below the waist from any patron of Hungry Jack's, not to speak of the police. 101After referring to (and implicitly accepting) Mr Beck's evidence that his penis was already in his underpants when the police car stopped, his Honour concluded that the police officers did not see Mr Beck's penis at any time. 102In circumstances where all the witnesses (including Mr Beck) and the police had initially estimated the distance at somewhere between 15-20m from Oxford Street, there is no basis for a finding that the police fabricated their evidence as to distance. As to the angle at which Mr Beck was standing, accepting the evidence of Mr Beck's witnesses at least the upper part of his body seems to have been angled towards the opposite side of Pelican Street (for him to be looking straight at his friends across the road and for the chicken kebab to be visible in his mouth, as Mr Saba said) and hence might explain a description of Mr Beck as angled at least partly towards Hungry Jack's. 103The position of Mr Beck vis-à-vis the car is by no means conclusive of fabrication on the part of the police, since there was no car parked behind the Peugeot and on any view Mr Beck was towards the rear of the car and standing in the gutter (though Ms Shillitoe at one stage seemed to suggest he was not in the gutter but on the kerb). 104As to the opinion, expressed in the police statements, that Mr Beck was clearly visible to patrons in the Hungry Jack's restaurant, there was no consideration seemingly given by his Honour to the possibility that, again, this was an error of judgment - i.e., that the police officers mistakenly believed that to be the case having regard to what they had themselves seen. (A similar explanation might perhaps have been available for the evidence as to Mr Beck's penis being exposed - namely, that they saw him urinating or thought he was urinating, and assumed that what they were seeing was his penis rather than, say, his hand covering it or attempting to do up his fly - although that would not explain the discrepancy between the different versions as to whether he continued to urinate after the police car stopped; and in any event no such explanation was proffered in the absence of oral evidence of the police officers.) 105Therefore, while it was certainly open to his Honour to accept the evidence of Mr Beck and his witnesses as to Mr Beck's position in the street and vis-à-vis the car, the finding of deliberate fabrication as a necessary result of acceptance of their evidence, seems to me to bespeak a misuse of the advantage his Honour enjoyed as the trial judge.

Ground 8(ii) - fabrication as to lighting 106At [46], his Honour said that Sergeants Sullivan and Deas: ... also lied about the light, whether from street lighting or Hungry Jacks, at the place where the plaintiff was standing." 107Sergeant Sullivan's statement (at [23]) was that "[t]he area where [Mr Beck] had his penis exposed urinating is illuminated by street lighting along with lighting from business and high rise residential premises in the immediate vicinity" (Blue 56M). Sergeant Deas similarly said (at [9]) that "[t]he area is illuminated by street lighting along with the lighting from business and high rise residential premises in the immediate vicinity". (Blue 52G). Inspector Dempsey's report, highly relevant in that he was not the subject of his Honour's criticism or any findings of fabrication and he had also attended the scene, was that the area where the incident occurred was "well lit" (Blue 42S). 108Mr McHenry gave no evidence in his affidavit about the light but said that he could not see what Mr Beck was doing from where he was standing. He said in the witness box that: it was dark and there was not a lot of street lighting (Black 84T); that there was light from Hungry Jack's but there "wasn't a lot of illumination" from Hungry Jack's where they (presumably there not referring to Mr Beck who was opposite) were standing; there was not a lot of lighting from houses or apartments (Black 84X); that it "wasn't too dark to see him" (Black 93P), but thought that was also because he knew what he was wearing; agreed with his Honour that he could make out Mr Beck's features as distinct from some sort of generally shadowy form (Black 93U); and then said, again, (at Black 95O) that it was dark, when explaining why he was shocked later to find out that Mr Beck had been in trouble because he was urinating in the street. 109Ms Shillitoe said it was "very dark" (Black 775); accepted that there would have been lights coming from Hungry Jack's (Black 77T); said it was not light where she was standing (Black 78G); and she did not recall any light at all where Mr Beck was standing (Black 78G). She did not recall if she had been able to see Mr Beck's features. 110Mr Saba said (at Black 97) that it was pretty dark and there was not much lighting (Black 97T), not that it was pitch black but that there "wasn't much light" (Black 109T). Mr Saba could nevertheless see sufficiently well to describe Mr Beck as having the chicken kebab in his mouth though he said it was not light enough to see a person's features. 111Mr Neil submits that photographs tendered by Mr Beck show that there was a light pole near where Mr Beck claimed to be standing and two other lights on the opposite side not far from Hungry Jack's. 112Relevantly, neither Sergeant Sullivan nor Sergeant Deas referred in their statements to the light from Hungry Jack's and there was no suggestion of fabrication by Inspector Dempsey. In light of that, the ability of at least Mr Saba to see a chicken kebab in Mr Beck's mouth and the variety of the descriptions of the area and lighting where Mr Beck was standing, it is difficult to see how a finding of fabrication could have been made on this issue applying the Briginshaw standard.

Grounds 8(iii)-(v) - fabrication as to use of toilet facilities at Hungry Jack's, Sydney Police Centre or public toilets in the vicinity 113After the abovementioned extracts from [46], and after a statement as to the evidence of Mr Beck's sobriety and demeanour (to which I refer later), his Honour went on to say: I do not accept, either, that the toilet facilities at Hungry Jack's were available simply to members of the public, as distinct from patrons, or that the plaintiff would have been able to use the toilets at the Sydney Police Centre or that there was any other public toilet available to him in the near vicinity. 114At the outset, it is not clear to me that his Honour was here making a finding that Sergeants Sullivan and Deas had fabricated any evidence as to this issue, although I accept that the word "either" suggests that his Honour was treating the rejection of the propositions that followed as being in the same category as his findings of fabrication that preceded them. 115Certainly, there was nothing in the police statements positively asserting as fact any of the propositions that his Honour stated, in the extract at [113] above, that he did not accept. Rather, what Sergeant Sullivan records in his statement is that he put to Mr Beck the proposition that he could have used toilet facilities (either across the road at Hungry Jack's or at the Sydney Police Centre) (Blue 55C-K). Mr Beck's response to those propositions was, in effect, that he was intoxicated; that the last time he went to Hungry Jack's the toilets were really dirty; and that he could not get into the Sydney Police Centre without a warrant card and would not go there anyway (Blue 55D). In Mr Beck's response to the s 173(5) notice he said that when the police asked him about Hungry Jack's he had said that "[t]he last time I was there the toilets were closed, at Kings Cross they nailed the toilet door shut." 116Mr Neil submits that the proposition that Mr Beck could have gone across the road to Hungry Jack's was a reasonable assumption but that in any event there was no evidence in the statements by Sergeants Sullivan and Deas to support the proposition that they falsely advanced a positive proposition that toilets were available at Hungry Jack's to persons in the position of Mr Beck; nor was there any assertion in the police statements that the toilets were available for use by Mr Beck at the Sydney Police Centre. As to the proposition that the police statements asserted that there were other public toilets available to Mr Beck in the near vicinity, he notes that Sergeant Sullivan recorded no more than a question by Sergeant Deas as to why he had not gone around the corner. 117If this was indeed a finding of fabrication (and I doubt it was), there was in my view no basis for it to be made.

Ground 8(vi) - fabrication as to state of Mr Beck's sobriety and demeanour 118Also at [46], his Honour expressed the view, that he said was supported by the evidence of Inspector Dempsey, that Sergeants Sullivan and Deas had "lied about the plaintiff's sobriety (probably to remove one of the reasons for not going to the SPC)". As to the parenthetical comment, Mr Neil submits that this was no more than speculation without any evidentiary basis. I agree. Moreover, Mr Beck's explanation that he did not have his warrant card with him (and could therefore would not have gained entry to the SPC) would have ruled out the possibility that he could have gone to the SPC anyway, so there would have been no logical reason for Sergeant Sullivan to have lied about Mr Beck's sobriety for the reason his Honour speculated. 119Leaving aside his Honour's speculation as to why the police officers would have lied about Mr Beck's sobriety, this is the one aspect of the police officers' statements that in my view could support an inference that they had fabricated evidence. It is difficult to postulate a scenario where Sergeants Deas and Sullivan could have been mistaken in the descriptions they gave as to Mr Beck's condition, when compared with Inspector Dempsey's account and the evidence of the three friends, unless Mr Beck had been able, at least for a short time, to present himself to them as a relatively sober individual. 120However, given the other findings of fabrication where I consider his Honour misused his advantage as a trial judge, the troublesome evidence of sobriety does not remove my concern as to the overall conclusion of fabrication. 121At [47], his Honour added that he did not accept that the account of Sergeant Sullivan (nor that of Sergeant Deas to the extent that it corroborated it) was truthful in respect of those parts in which it differed from that given by Mr Beck. His Honour went on to say that: Moreover, even if it were accepted, it certainly does not demonstrate that the plaintiff was "rude, abrupt, dismissive of his actions [with] no respect for rank". ... As I said above, their characterisation of the nature conversation [sic] was itself manufactured. 122In that regard, however, Inspector Dempsey's statement recorded a similar assessment of Mr Beck, namely that "[h]is demeanour was initially arrogant and flippant however when further spoken to he became more rational and understood to some extent that his actions would bring serious consequences" (Blue 42O). 123In the absence of any basis for suggesting that Inspector Dempsey had fabricated his evidence, there is no basis for concluding that Sergeants Deas and Sullivan were not truthful in their view as to Mr Beck's demeanour simply because his Honour formed a different view as to whether Mr Beck's account of events portrayed him in a bad light in this regard.

Ground 8(vii)- fabrication as to which way Mr Beck was facing 124This has been considered in relation to ground 8(i) above. Mr Neil submits that his Honour failed to take into account the material favourable to the police's version of events in relation to where Mr Beck was facing when first seen by them. I consider that submission to be well founded. Mr Neil also submits that on Mr Beck's version of events there was no reason for the police to stop and speak to him, which is inconsistent with the fact that they did so immediately after turning into the street and observing him. It is not necessary to speculate on why the police officers chose to stop and speak to Mr Beck.

Conclusion as to grounds 8 and 9 125I consider that grounds 8(i), (ii) and (vi) (but only in relation to demeanour), and the corresponding grounds in 9, have been made out.

Ground 10 - Damages 126This issue does not strictly arise as in my opinion the State has succeeded on its appeal as to liability. However, I consider its appeal as to quantum below. 127At [48] to [66], his Honour summarised the evidence as to the impact of the malicious prosecution on Mr Beck's reputation and career as a police constable. Mr Cleary notes that this was not challenged. His Honour then referred to the principles set out in NSW v Zreika [2012] NSWCA 37. His Honour concluded that the response of Sergeants Sullivan and Deas, in considering whether a criminal prosecution should have been commenced, was "woefully inadequate". In so doing, however, his Honour appears to have had regard to what was done by other police officers in response to the s 173(5) notice, which post-dated by some months both the decision to institute proceedings and the withdrawal of the charges. 128His Honour awarded exemplary damages in the amount of $80,000. As already noted, the amount of general damages that was awarded was $50,000. Mr Neil submits that the award of exemplary damages was manifestly excessive even if his Honour's findings against the police were to be accepted. 129Mr Neil notes that in Zreika the police had acted in a way that resulted in the plaintiff being incarcerated for a lengthy period of time and an award of exemplary damages of $100,000 was reduced on appeal to $50,000. He also points to the outcomes in NSW v Deify [2007] NSWCA 303, where an award of exemplary damages of $25,000 was reduced on appeal to $10,000, and in Zaravinos v NSW (2004) 62 NSWLR 58, where an award of $25,000 was considered to be a "not inconsiderable" sum to cover all classes of damages. 130Mr Cleary submits that the award of damages was not excessive. He accepts that the reasoning that led to the exemplary damages award included not only that the conduct of Sergeants Sullivan and Deas was serious and involved criminal offences ([68]) but also that there was no attempt made by Sergeant Sullivan to interview Mr Beck or his friends in relation to the incident prior to instituting proceedings. However, his Honour goes on to refer to the fact that no investigation was undertaken by Superintendent Crandell, notwithstanding the serious consequences for a criminal prosecution of Mr Beck. Superintendent Crandell's conduct cannot be relevant to the issue as to whether the proceedings were maliciously commenced or maintained. 131What appears to be argued in that regard is that "failures" or "inadequacy" in the subsequent investigation of the complaints should be taken into account in punishing misconduct that occurred at an earlier time. This illustrates the separateness of the conduct of Superintendent Crandell from that of the prosecuting officer. That conduct, in my opinion was not a relevant consideration to take into account even if the implicit criticism of Superintendent Crandell were warranted (which, for reasons I set out below, it is not). 132If the findings of fabrication were to stand, exemplary damages should certainly be ordered to mark disapproval of the conduct of the police officers in fabricating the evidence that led to the claim. The question is whether his Honour's discretion miscarried in the sense that he took into account the conduct of Superintendent Crandell in determining what level of damages should be ordered. In my opinion, it did. I am not satisfied that this was a relevant consideration. 133Mr Cleary accepted that the criticism that was made by his Honour in relation to the investigation seemed to suggest that the award for exemplary damages was in part to reflect a need for training and discipline for past abuses. The proposition thus put in support of the exemplary damages award was to the following effect. First, that his Honour's reasoning (at [69]) should be understood as being that there was such blatant misconduct in fabricating evidence in the context of the malicious prosecution case that an award of exemplary damages was required in order to punish and deter future such conduct. Second, that his Honour was fortified in the view that it was necessary so to punish and deter that conduct with an award of that amount because his Honour considered that in a subsequent investigation arising out of those facts there had not been a proper investigation of the matters that had been raised by Mr Beck. 134However, such a formulation emphasises the separateness of the two events and the two courses of conduct. Apart from the fact that I see nothing inappropriate in the Superintendent approaching the task then before him (of determining whether the recommended reduction in rank should be approved) on the basis that Mr Beck's evidence be accepted at its highest, the award of exemplary damages was to mark the Court's disapproval and censure of quite different conduct. 135In my opinion, his Honour therefore took into account an irrelevant consideration in the making of the award. Having regard to the authorities to which this Court was taken, and in particular Zreika, I consider that an award of $40,000 would have been justified by way of exemplary damages, bearing in mind that Mr Beck was not arrested or incarcerated but also that the purpose of exemplary damages is to express condemnation of the actions of the police officers who on this hypothesis would be found to have committed criminal offences in connection with the charges brought against Mr Beck.

Conclusion 136I consider that the appeal should be allowed and the matter remitted for hearing. 137Rule 51.53 requires Court not to remit for new trial unless substantial injustice would result. The allegations made by Mr Beck about the conduct of the police were very serious. It is in my view in the public interest that they be properly determined and hence that there would be substantial injustice if the appeal were not to be remitted.

Prerogative relief proceedings 138In the second set of proceedings, the Commissioner seeks leave to appeal from the decision by his Honour quashing the decision made by Superintendent Crandell on 22 September 2008. The Commissioner seeks to appeal from this decision on the grounds that his Honour erred: (i) in finding that the decision made by Superintendent Crandell on 22 September 2008 was manifestly unreasonable; (ii) in the test that his Honour applied to the question whether there was an offence; and (iii) in finding that the section 173(5) notice did not include the nature of the proposed order. 139The second appeal ground in the draft notice of appeal was not pressed.

Should leave to appeal be granted 140The Commissioner requires leave to appeal the decision quashing the 22 September 2008 decision of Superintendent Crandell by reason of s 101 of the Supreme Court Act 1970 (NSW). Grant of leave is opposed by Mr Beck on the ground that the Commissioner has not provided substantial reasons for appellate review (referring to what was said in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 as to when it is appropriate for leave to appeal to be granted - there, in respect of an interlocutory decision). 141The Commissioner contends that leave should be granted in this case as the proposed appeal raises an issue of legal and public importance involving the conduct of the processes of the NSW Police Force. The issue so identified is whether the test when making a decision under s 173 is whether an actual offence has been committed (as it is contended was the thrust of his Honour's decision) or whether (as the Commissioner contends) the test is whether the conduct could reasonably be thought by the decision-maker to come within the category of misconduct. 142I consider that the appeal sought to be maintained by the Commissioner does raise an issue in the public interest and that leave to appeal should be granted.

Decision by the primary judge 143In the prerogative relief proceedings, Mr Beck relied upon an affidavit sworn by him on 30 July 2010 (Blue 101). The Commissioner relied upon affidavits of each of Superintendent Hayes and Superintendent Crandell (the respective decision makers). 144His Honour considered (at [79]-[81]) the decision made by Superintendent Crandell on 22 September 2008. His Honour concluded that it should be quashed on the ground it was a manifestly unreasonable decision. 145At [79], his Honour criticised the content of the notice in that he said that the notice could scarcely be said to have identified the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the proposed order was intended to be made (s 173(5)(a)) if the basis for the allegations in the notice (i.e., the statements made by the relevant police officers) was not disclosed. 146At [80], his Honour said that more fundamental was the character of Superintendent Crandell's conclusion as to the conduct of Mr Beck. His Honour said: If the plaintiff's position was as he and his witnesses described it, it was impossible that any person whether in the restaurant or otherwise could have seen his person and, although they might have guessed that he was urinating, they could not have known that this was the fact. There was no basis ... without actually determining which of the conflicting accounts was the truth - a task which, manifestly, the Superintendent did not undertake - for acting otherwise than accepting that the plaintiff had attempted to conceal himself and had succeeded in doing so in a situation where he had to relieve himself then and there. No reasonable person would have taken any offence at what the plaintiff had done. No reasonable decision maker could have concluded otherwise. Moreover, it was also unreasonable in this sense to conclude that, on the plaintiff's account, his conduct was "highly likely ...[to amount to] a criminal offence". Quite apart from this, it seems to me that the finding that the plaintiff's conduct was so "seriously inappropriate and unacceptable" and deserved the adverse consequences specified in the order was so manifestly unreasonable as to have vitiated the exercise of the statutory discretion proposed [sic] in the Superintendent.

Appeal 147The jurisdiction being exercised by his Honour when reviewing the decision made by Superintendent Crandell was a supervisory jurisdiction. Mr Beck had sought relief under s 69 of the Supreme Court Act 1970 against the Commissioner of Police in the nature of certiorari. 148Mr Beck contended that the decision was infected by jurisdictional error in that the decision made by Superintendent Crandell was so unreasonable that no reasonable person would have come to the same conclusion, invoking the so-called Wednesbury test of unreasonableness (derived from Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-233). 149In Associated Provincial Picture Houses, Limited v Wednesbury Corporation, Lord Greene MR said at 230: It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere ...; but to prove a case of that kind would require something overwhelming. 150The question to be determined by his Honour was thus whether the 22 September decision was one that was "illogical, irrational or lacking a basis in findings or inferences of fact supported by logical grounds", to adopt the words of Spigelman CJ in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, (2005) 138 LGERA 11 at [129] (with whom Beazley JA, as her Honour then was, and Tobias JA agreed). See also Westfleld Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [121]-[131], and [135]. 151In Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 at [104]-[109], Tobias JA noted the distinction between what the Court considered was unreasonable and a decision that the Court considered was so unreasonable that no reasonable body could have come to it, concluding that the relevant unreasonableness in the decision must be something shown to be irrational, absurd or implausible.

(i) Ground 1- error in finding the decision manifestly unreasonable 152Section 173 of the Police Act provides that the Commissioner may take action with respect to a police officer's misconduct or unsatisfactory performance. 153Mr Neil submits that, in reviewing the decision made by Superintendent Crandell, his Honour did not correctly apply the Wednesbury test but, rather, impermissibly proceeded to review the decision on the merits (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 42). In Minister for Immigration and Citizenship v Li [2013] HCA 18 Hayne, Kiefel and Bell JJ noted (at [66]) that there is an area in which the decision maker has a genuine and free discretion which resides within the bounds of legal reasonableness and indicated that courts should be conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. 154At [72] in Li, their Honours refer to the concept of "manifestly unreasonable" as where a decision maker may be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned irrationally or illogically. 155Mr Neil submits, and I accept, that the conclusion that Mr Beck's conduct was "seriously inappropriate and unacceptable" (and capable of amounting to a s 4(1) offence at least at a prima facie level) was not unreasonable. 156Mr Cleary argues that, critical to his Honour's conclusion that Superintendent Crandell's decision was manifestly unreasonable, were his Honour's findings as to the evidence contained in the statements of Mr Beck and the three witnesses called by him as to Mr Beck's conduct and the conclusion reached by his Honour that this evidence could not support any finding that Mr Beck had either acted in an offensive manner or had committed any offence under s 4(1) of the Summary Offences Act 1988. Mr Cleary points to his Honour's conclusion (at [26]) that, on Mr Beck's account of events, Mr Beck had committed no offence (as I understand it, on the basis that, if no one was capable of seeing his penis while he was urinating, no one could reasonably have considered that this was offensive conduct). He further contends that if, as Mr Beck said he was, Mr Beck was unable to prevent himself from urinating then the defence of reasonable necessity would apply such that he would have committed no criminal offence. 157However, as Mr Neil points out, the notice under s 173(5) raised matters of alleged misconduct in light of the Police Code of Conduct. This was not an inquiry as to whether an offence had occurred. Superintendent Crandell proceeded in my view appropriately in considering whether there had been misconduct on the basis of an assumption that Mr Beck's own version of the relevant events were to be accepted. 158It is submitted by Mr Neil that, on Mr Beck's version of events, had there been a bystander or pedestrian on the eastern side of Pelican Street at the relevant time that person would have seen an intoxicated man urinating in the street covering his penis with his left hand whilst holding a kebab with his other hand and that it was not manifestly unreasonable for Superintendent Crandell to consider that such a bystander or pedestrian would or could be offended. Furthermore, it is submitted by Mr Neil that even if, on Mr Beck's version of events, his conduct did not constitute an offence, an opinion by Superintendent Crandell that it was highly likely that it did would not vitiate his decision that Mr Beck's conduct was seriously unacceptable and inappropriate conduct for an off-duty police officer. I agree. 159It could not in my view be said to be manifestly unreasonable for Superintendent Crandell to come to the view that, on Mr Beck's own version of events, Mr Beck's conduct was "seriously inappropriate and unacceptable" and did not comply with the spirit of the Police Code of Conduct. 160Mr Neil also submits that his Honour erred in taking into account the oral evidence of Ms Shillitoe, Mr Saba and Mr McHenry at the hearing, in determining whether the Superintendent's decision was vitiated. He submits that this evidence was irrelevant, not being something that was before Superintendent Crandell. It is not necessary in light of the conclusion I have reach above to consider this additional submission. However, I accept that the reasonableness or unreasonableness of a decision can only be based on the material before the relevant decision maker or to which the decision maker should and would be able to have had regard. 161In the present case, Superintendent Crandell in effect applied the "no case" to answer test. He considered Mr Beck's version of events at its highest. There was no unreasonableness in so doing. Whether he reached the conclusion that his Honour would have done is not the test. The conclusion that Superintendent Crandell reached was one that in my opinion was open to him even accepting, as Mr Cleary emphasised, that Mr Beck's belief was that he acted out of reasonable necessity.

(ii) Ground 3 - correct test for offence under s 4(1) Summary Offences Act 162The second ground pressed on this appeal is as to whether his Honour erred in the test applied to the question of whether there was an offence in respect of s 4 of the Summary Offences Act 1988 (NSW), which prohibits a person from conducting himself or herself "in an offensive manner in or near, or within view or hearing from, a public place". 163At [21] to [25], his Honour referred to R v Smith [1974] 2 NSWLR 586, Stutsel v Reid (1990) 20 NSWLR 661 and R v Benson (1882) 8 VLR (L) 2 to the effect that it is not necessary that some person should have seen the conduct. At [23], his Honour noted that the focus is "on the anticipated response of the reasonable person who might have witnessed the conduct in question". 164His Honour then referred to the statement by Sully J in Spence v Loguch (unreported, 12 November 1991 at p 10), where his Honour cited with approval Inglis v Fish [1961] VR 607 (at 611 [25]- [30]): It is not necessary that the case for the prosecution must contain, in order to establish a prima facie case of an offence, evidence that some such reasonable person was in fact offended. It is sufficient that ... such behaviour occurred in a place where the presence of members of the public might reasonably have been anticipated; and in such circumstances where such behaviour could be seen by any member of the public who happened to be present if he were looking... 165In Inglis, Pape J had said that behaviour can be offensive "notwithstanding that no member of the public is present, or (if there be members of the public present) that nobody is offended, provided such behaviour occurred in a place where the presence of members of the public might reasonably have been anticipated; and in circumstances where such behaviour could be seen by any member of the public who happened to be present if he were looking" (at 611.25-30) (my emphasis). 166It is submitted by Mr Neil that this is a reference to an "hypothetical person"; i.e., the hypothetical ordinary reasonable person. I agree. 167At [26], his Honour said: On the facts here, (putting aside the contrary evidence of the police sergeants) it is clear that there was no person at all in the vicinity who was capable of seeing what the plaintiff was doing. It follows that, on the plaintiffs account, he had committed no offence. (my emphasis) 168It is submitted by Mr Neil that it is implicit in the above that his Honour found that Mr Beck's version of events was not capable of amounting to an offence because there was no one there present (i.e., no one in Pelican or Oxford Street at the relevant time) who was capable of seeing what Mr Beck was doing and that it was because of this that there was no prima facie case against Mr Beck. 169Mr Neil does not suggest that his Honour did not state the correct test as to what was required for a contravention of s 4(1); rather, it is contended that his Honour failed to apply that test. 170The conclusion by his Honour, in the way expressed by him, does in my view incorrectly focus on whether there was anyone physically present in the street at the time who could reasonably have been offended at the conduct. As I understand Inglis and Spence, the relevant question would be whether, if there had been an ordinary reasonable person in the street at the relevant time (the hypothetical ordinary reasonable person), that person could have seen and been offended by Mr Beck's conduct. Mr Cleary submits that on Mr Beck's evidence the answer to this would be in the negative, since Mr Beck said that he had concealed his penis while urinating. But whether it was concealed or not the hypothetical ordinary reasonable person could reasonably have been offended by the act of urination in the street. The challenge to his Honour's reasons in this respect is that his Honour misapplied the hypothetical person test. I consider that criticism to be made out. 171Although nothing turns in practical terms on this challenge to his Honour's reasons, since the relevant issue is whether the decision of Superintendent Crandell was one that no reasonable decision-maker could have made, applying the Wednesbury test of unreasonableness as understood in the authorities referred to above, in my opinion, this ground is made out.

(iii) Ground 4 - content of notice 172At [56], his Honour commented that the s 173(5) notice issued on 30 January 2008 did not inform Mr Beck of "the proposed nature of the order", except that it would be made under s 173(5). His Honour said that he would deal with the "obvious unfairness" of that omission in connection with the proceedings for prerogative relief. 173Nothing seems to have turned on this criticism of the s 173(5) notice when his Honour came to determine that the decision made by Superintendent Crandell on 22 September 2008 should be quashed (rather, what was there the subject of criticism, at [79], was whether the notice had identified all the relevant facts and circumstances on the basis of which it was intended to make the proposed order). Nevertheless, Mr Neil contends that the notice (at Blue 136-138) did adequately set out the nature of the proposed order, in that it stated that: In accordance with section 173(5), Police Act 1990, I hereby give you notice that I am considering making a reviewable order against you in the following terms. That pursuant to section 173(2)(a), Police Act 1990, that you be reduced in increment from Constable Level 5 to Constable Level 3. 174There can be no doubt that the nature of the order that Superintendent Murdoch (who had issued the notice) was considering had been identified in the notice issued to Mr Beck. However, in circumstances where his Honour does not appear to have taken that into account when determining to quash the September 2008 decision, the fact that the statement by his Honour at [56] was incorrect does not take matters any further. 175Insofar as his Honour was critical of the fact that the 30 January 2008 notice did not disclose the "the basis for the allegations in the notice" because it had not disclosed the statements made by the relevant police officers, this suggests that a notice under s 173(5) must refer to the evidence of the relevant facts and circumstances on which the allegation of misconduct or unsatisfactory performance is based and that a statement of the facts and circumstances said to amount to misconduct or unsatisfactory performance is not sufficient. I disagree. 176The s 173(5) notice summarised the assertions of the relevant police officers that they had observed Mr Beck "whilst off duty standing on the footpath with your penis clearly exposed urinating in the gutter whilst facing Hungry Jacks Restaurant"; the opinion of the police officers that the patrons of Hungry Jack's would have had a clear view of his actions; and that Sergeant Sullivan's evidence suggested that Mr Beck had made no attempt to conceal himself while spoken to by the police officers and continued to urinate during the verbal exchange. It also referred to the allegation by both Sergeant Sullivan and Inspector Dempsey that Mr Beck had behaved in a rude, unprofessional and uncooperative manner throughout the incident and subsequent events; and quoted statements made by Sergeant Sullivan in that regard. 177The notice expressed Superintendent Murdoch's concern both that there were grounds to conclude that Mr Beck had behaved in "an unacceptable and potentially illegal and obscene manner, by urinating in a public place with [his] penis exposed" and as to the lack of remorse or contrition, or recognition of wrongdoing, that Superintendent Murdoch said appeared to have been demonstrated by Mr Beck's "alleged attitude towards other police officers". 178The notice then quoted extracts from the New South Wales Police Code of Conduct and Ethics as to Private Conduct and as to Statement of Values, to which I have already referred. 179While it is true that Mr Beck was not provided at that time with copies of the statements that had been made by the relevant police officers, he had in my opinion been adequately notified of the facts and circumstances on which Superintendent Murdoch stated that he was considering making the order to reduce Mr Beck's increment as constable. 180Mr Neil notes that Mr Beck provided a detailed and extensive response to the notice and submits that there was no unfairness to Mr Beck even if the notice was not adequate. It is not necessary to determine this since there was no challenge based on procedural unfairness to Mr Beck. 181Mr Cleary submits that the fact that the notice, while identifying the allegations and the proposed order, did not set out or contain the relevant statements said to support the allegations was a legal error (namely, a failure to comply strictly with the terms of s 173(5) of the Police Act) and that s 173(5) is a provision that provides police officers with procedural fairness (referring, by analogy, to the decision of the High Court in relation to procedural fairness provisions in the Migration Act 1958 (Cth) in SAAP v MIMIA [2005] HCA 24; (2005) 228 CLR 294). 182Whether or not Mr Beck may have had a basis to complain of procedural unfairness in the manner in which he was notified of the relevant facts and circumstances on the basis of which the order referred to in the s 173(5) notice was being considered, it is clear from his Honour's reasons that what was fundamental to his Honour's decision to quash the notice was "the character of Superintendent Crandell's conclusion as to the plaintiff's conduct" and that there was no basis, without Superintendent Crandell actually determining which of the conflicting accounts was the truth, for Superintendent Crandell to act otherwise than to accept that Mr Beck "had attempted to conceal himself and had succeeded in doing so in a situation where he had to relieve himself then and there". His Honour concluded on the basis of those matters that no reasonable person would have taken any offence at what Mr Beck had done and no reasonable decision maker could have concluded otherwise (at [80]). 183I consider the notice adequately sets out the allegations made against Mr Beck and that, to the extent that his Honour found otherwise, Ground 4 is made out.

Conclusion as to appeal re prerogative relief 184I would grant leave and allow the appeal.

Orders 185In the appeal by the State from the decision in the malicious prosecution proceedings I would make the following orders:

1. Appeal allowed.
2. Orders made by Adams J be set aside.
3. The matter be remitted to the Common Law Division for re-hearing.
4. Respondent to pay appellant's costs of the appeal. Costs of the proceedings before Adams J to abide the outcome of the re-hearing. 186In the application by the Commissioner for leave to appeal in the prerogative review proceedings I would make the following orders:
5. Leave to appeal be granted.
6. The draft notice of appeal stand as the notice of appeal in the proceedings.
7. The appellant pay the applicable filing fee in respect of the notice of appeal within seven days but all further requirements of the rules with respect to its filing and service be dispensed with.
8. Appeal allowed.
9. Set aside primary judge's order quashing the decision made on 22 September 2008 by Superintendent Crandell.
10. The respondent to pay the appellant's costs of the amended summons seeking leave to appeal and the appeal.

Amendments 23 February 2015 - Typographical error to coversheet 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: 11 September 2015