[2007] HCA 10
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421[2004] NSWCA 394
Bugmy v The Queen (1990) 169 CLR 525[1990] HCA 18
Charisteas v Charisteas (2021) 273 CLR 289[2021] HCA 29
Cleary v Wilcocks (1946) 63 WN (NSW) 101
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577[2006] HCA 55
Croucher v Cachia (2016) 95 NSWLR 117[2016] NSWCA 132
Cullen v Trappell (1980) 146 CLR 1[1980] HCA 10
Deakin v The Queen (1984) 58 ALJR 367[2000] HCA 63
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538[2015] NSWCA 99
Gray v Motor Accident Commission (1998) 196 CLR 1[1998] HCA 70
Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311
Houda v The State of New South Wales [2005] NSWSC 1053[2005] Aust Torts Reports 81-816
House v The King (1936) 55 CLR 499[1936] HCA 40
James v Hill [2004] NSWCA 301
New South Wales v Ibbett (2005) 65 NSWLR 168[2005] NSWCA 445
New South Wales v Williamson (2012) 248 CLR 417
[2012] HCA 57
Power v The Queen (1974) 131 CLR 623
[1974] HCA 26
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
[2018] HCA 4
R v English (1989) 44 A Crim R 273
R v Filippetti (1978) 13 A Crim R 335
Smits v Roach (2006) 227 CLR 423
[1955] HCA 68
Vakauta v Kelly (1989) 167 CLR 568
Judgment (36 paragraphs)
[1]
Crimes and Courts Legislation Amendment Act 2006 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 99
Legal Profession Act 2004 (NSW)
Motor Accident Injuries Act 2017 (NSW)
Summary Offences Act 1988 (NSW) s 11C
Victims Rights and Support Act 2013 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 51.40
Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Cleary v Wilcocks (1946) 63 WN (NSW) 101
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10
Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44
Director of Public Prosecutions v Brooks [1974] AC 862
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311
Houda v The State of New South Wales [2005] NSWSC 1053; [2005] Aust Torts Reports 81-816
House v The King (1936) 55 CLR 499; [1936] HCA 40
James v Hill [2004] NSWCA 301
New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
R v English (1989) 44 A Crim R 273
R v Filippetti (1978) 13 A Crim R 335
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
State of New South Wales v Spedding [2023] NSWCA 180
State of New South Wales v Williamson [2011] NSWCA 183
Trobridge v Hardy (1954) 94 CLR 147; [1955] HCA 68
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Van Haren v Van Ryn [2023] NSWSC 776
Whitbread v Rail Corporation NSW [2011] NSWCA 130
White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18
Category: Principal judgment
Parties: State of New South Wales (Appellant)
Ebonie Madden (Respondent)
Representation: Counsel:
[2]
M Hutchings with R Coffey (Appellant)
D R Toomey SC with A Canceri and S Boland (Respondent)
[3]
Wotton & Kearney (Appellant)
Blair Criminal Lawyers (Respondent)
File Number(s): 2022/386040
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2022] NSWDC 647
Date of Decision: 16 December 2022
Before: Fitzsimmons SC DCJ
File Number(s): 2021/219758
[4]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[5]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 16 December 2022, the primary judge found the State of New South Wales vicariously liable in tort for the conduct of certain police officers amounting to battery, false imprisonment and malicious prosecution and awarded Ms Ebonie Madden (the Respondent) damages of $320,000 plus interest and costs: Madden v The State of New South Wales [2022] NSWDC 647. The damages award encompassed both general and aggravated and exemplary damages.
The case arose out of events on 30 December 2019 when the Respondent, who had recently been released from prison on parole, was walking with Mr Dylan Turner on Evan Street, South Penrith.
Following a verbal exchange between one of the officers, the Respondent and Mr Turner on Evan Street, two other officers required the Respondent and Mr Turner to stop. The officers gave evidence that they believed the Respondent to be under the influence of a prohibited drug at this time. One said he was also aware of the Respondent's criminal history as a result of his involvement in her earlier arrest on 3 September 2019.
During the course of the interaction between the Respondent, Mr Turner and the police, a bag was placed on the ground. It had been carried by Mr Turner and not the Respondent. A search of that bag later conducted by one of the officers, Senior Constable (SC) Darnton, revealed that it contained a knife and a collection of new male's clothing.
Shortly after the discovery of the knife, the Respondent was arrested for the summary offence of custody of a knife in a public place pursuant to s 11C of the Summary Offences Act 1988 (NSW) (the custody of a knife charge). Following an interaction with a female officer during which the Respondent refused to remove her necklace during a strip search, the Respondent was transported to Mount Druitt Police Station where she was also charged with having custody of clothing reasonably suspected of being stolen contrary to s 527C of the Crimes Act 1900 (NSW) (Crimes Act) (the goods in custody charge) and resisting an officer in the execution of duty contrary to s 58 of the Crimes Act (the resist officer charge).
In a "roadside interview" with the Respondent conducted by SC Darnton on Evan Street, the Respondent denied having any knowledge of the knife in the bag, which she said she borrowed from her mother, but gave an unclear explanation as to the origin of the clothing. When one of the officers returned to the Penrith Police Station, he created a "Facts Sheet outlining the circumstances of the incident that could be used for the charging process" (Facts Sheet). A number of matters were omitted from the Facts Sheet, including that the Respondent had told the officer that she did not know the knife was in the bag and that Mr Turner, and not the Respondent, was in possession of the bag.
The Respondent was refused bail on 31 December 2019 and was remanded in custody. Her parole was subsequently also revoked with the consequence that she was held in custody until 9 June 2020 when the Respondent made a second application for bail in the Downing Centre Local Court. That application was granted on the basis that the "police case [was] weak" and that the brief did not match the Facts Sheet. On 16 June 2020, the earlier revocation of the Respondent's parole was rescinded and the Respondent was released on 17 June 2020.
On 9 January 2020, the Respondent entered pleas of not guilty in relation to each of the charges and on 28 October 2020, following a hearing in the Penrith Local Court, all relevant evidence was excluded and the charges against the Respondent were dismissed.
The primary judge made strongly adverse credit findings as to the evidence of the police officers, and held that the initial stopping and detention of the Respondent on Evan Street was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) such that all physical contact with the Respondent in the context of that detention was a battery. His Honour also held that the Respondent's arrest was unlawful pursuant to s 99 of LEPRA such that she was falsely imprisoned whilst remanded in custody. The primary judge found that s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) did not exclude any civil liability arising from the conduct of the police officers. His Honour also held that the Respondent had been maliciously prosecuted in respect of the "custody of a knife" and "resist officer" charges but not the "goods in custody" charge. This last finding was challenged by Ms Madden.
The principal issues on appeal were:
1. whether the conduct of the trial judge gave rise to an apprehension of bias;
2. whether the detention and arrest of the Respondent pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) was unlawful;
3. whether ss 3B and 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) applied;
4. whether the primary judge erred in finding that the charges against the Respondent were brought without reasonable and probable cause and with malice;
5. whether the loss for which the Respondent was awarded damages was caused by the conduct of the police officers; and
6. whether the primary judge's award of exemplary damages was excessive.
The Court held (Bell CJ and Stern JA agreeing, Leeming JA dissenting as to the lawfulness of the detention but otherwise agreeing) dismissing the appeal:
1. No case of apprehended bias was established. Interventions by the primary judge were principally to explore and clarify the issues being ventilated in the case: [107] (Bell CJ), [210] (Leeming JA), [239] (Stern JA).
Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, considered.
1. The State was given an opportunity at first instance to raise an issue of apprehended bias or to make an application for disqualification but chose not to do so. This amounted to a waiver of any right to complain of bias: [110] (Bell CJ), [210]-[215] (Leeming JA), [240] (Stern JA).
Vakauta v Kelly (1989) 167 CLR 568 and Smits v Roach (2006) 227 CLR 423, referred to.
1. As to the lawfulness of the detention, the primary judge's conclusion was founded on his rejection of police evidence and the State did not overcome the high hurdle that challenges to such credit-based findings require: [122] (Bell CJ), [241] (Stern JA).
Fox v Percy (2003) 214 CLR 118, applied.
1. SC Darnton reasonably suspected that the Respondent had in her possession or under her control something used or intended to be used in connection with an offence, or illicit drugs, thereby engaging the power in s 21(1)(b) or (d) of LEPRA. The circumstances supporting that reasonable suspicion include that SC Darnton was familiar with the Respondent and Mr Turner and their criminal histories and saw the Respondent behave erratically on the street: [216]-[221] (Leeming JA).
2. This was not a case where the advantage enjoyed by a trial judge, who was obliged to assess SC Darnton's credibility and reliability, disentitled an appellate court from interference. The best evidence of SC Darnton's subjective intention is what he said at the time as captured in the body worn camera footage and whether his suspicion was reasonably held emerges from the contemporaneous evidence as opposed to his testimonial evidence years after the event: [229] (Leeming JA).
3. As to the lawfulness of the arrest, it was common ground that Mr Turner was in possession of and carrying the bag at all material times such that neither the bag nor the knife was in the Respondent's custody or possession. A charge under s 527C of the Crimes Act refers to a thing being in the person's custody at the time of their apprehension by police. There is no material difference between the reference to "custody" in s 11C(1) of the Summary Offences Act and s 527C of the Crimes Act: [126]-[127] (Bell CJ), [239] (Stern JA).
R v English (1989) 44 A Crim R 273 and Cleary v Wilcocks (1946) 63 WN (NSW) 101, referred to.
1. The primary judge rejected SC Darnton's evidence that he thought the Respondent was carrying the bag and thus in custody of the knife and the allegedly stolen male clothing. Fox v Percy considerations presented an insurmountable hurdle to the State in challenging the primary judge's conclusions as to the unlawfulness of the Respondent's arrest: [128] (Bell CJ), [239] Stern JA.
2. Although an officer could in good faith believe that the bag was in the possession of the Respondent rather than Mr Turner, the trial proceeded on the basis that an essential component of the definition of custody was the concept of immediacy and the primary judge found that SC Darnton did not have a genuine or honest suspicion that the Respondent, and not Mr Turner, was committing the "custody of a knife" offence. No basis was established to interfere with that credit-based finding: [234] (Leeming JA).
3. The deprivation of a person's liberty effects an "injury" upon that person within the scope of s 3B(1)(a) of the Civil Liability Act. Such deprivation infringes a person's common law right to enjoy freedom of movement in his or her community: [146] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).
Houda v State of New South Wales [2005] NSWSC 1053, New South ales v Ibbett (2005) 65 NSWLR 168, Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311, State of New South Wales v Williamson [2011] NSWCA 183, Trobridge v Hardy (1954) 94 CLR 147, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421, considered.
1. SC Darnton's subjective intention was to deprive the Respondent of her liberty. It did not need to be put to SC Darnton that this was his intention because it was self-evident: [151] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).
2. In circumstances where the primary judge rejected SC Darnton's evidence that he had not realised that the bag was at all material times in Mr Turner's possession, a fact that would have been evident to him on review of the body worn camera footage, SC Darnton cannot have had reasonable or probable cause to suspect the Respondent committed the "custody of a knife" offence for which she was charged, nor the "goods in custody" charge. The two charges shared the common deficiency that the goods in question were contained in a bag that was not in the Respondent's custody at the time of the Respondent's detention and charging by police: [167], [177] (Bell CJ), [235]-[236] (Leeming JA), [239] (Stern JA).
State of New South Wales v Spedding [2023] NSWCA 180, referred to.
1. The decision to include the "resist officer" charge could not be divorced from the "custody of a knife" charge. If SC Darnton did not have reasonable and probable cause in relation to the "custody of a knife" charge, then he did not have reasonable and probable cause in respect of the "resist officer" charge as the search that was performed on the Respondent during which the resistance occurred was predicated on her having been lawfully arrested in the first place: [173] (Bell CJ), [237] (Leeming JA), [239] (Stern JA).
2. The State's causation argument relied heavily on the primary judge's finding that the "goods in custody charge" was not maliciously prosecuted. That finding could not be sustained and, together with the fact that once the discrepancy between the true facts and those on the Facts Sheet became plain bail was granted and the Parole Board reversed its cancellation of parole, this defeated that State's causation argument: [186] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).
State of New South Wales v Spedding [2023] NSWCA 180, referred to.
1. The discretionary nature of the quantum to be awarded by way of exemplary damages engages House v The King constraints on appellate interference. The award of exemplary damages was within the limits of a "proper exercise" of the primary judge's discretion and based upon his close analysis of the facts and assessments of the credibility of the key police witnesses: [191], [200] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, Gray v Motor Accident Commission (1998) 196 CLR 1, Whitbread v Rail Corporation NSW [2011] NSWCA 130, Gray v Motor Accident Commission (1998) 196 CLR 1, Hamilton v State of New South Wales [2020] NSWSC 700, considered.
1. It was not a relevant factor in determining the quantum of damages that the Respondent did not have an unrestrained right to liberty in the sense that she was on parole at the time of her arrest, and subject to ongoing bail conditions. There is a significant qualitative difference between being held in custody and being on parole: [203] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).
Deakin v The Queen (1984) 58 ALJR 367, Bugmy v The Queen (1990) 169 CLR 525 and Power v The Queen (1974) 131 CLR 623, referred to.
[6]
JUDGMENT
BELL CJ: The State of New South Wales (the Appellant or the State) appeals from the decision of Fitzsimmons SC DCJ (the primary judge) in which his Honour found the State liable in tort for battery, false imprisonment and malicious prosecution and awarded Ms Ebonie Madden (the Respondent) damages of $320,000 plus interest and costs: Madden v The State of New South Wales [2022] NSWDC 647 (the primary judgment or PJ). The damages award encompasses both general and aggravated and exemplary damages.
In relation to each of the torts, the State was held to be vicariously liable for the conduct of several New South Wales Police officers, principally Senior Constable (SC) Michael Darnton, SC Lee Kelly and SC Danielle Munt, who were all members of the Nepean Proactive Crime Group, as well as, SC Brett Burnell, SC Brett Nicholls and SC Mac Tamruksa.
As will be outlined more completely later in these reasons, the case arises out of events which occurred at about 4.30pm on 30 December 2019 when the Respondent, who had recently been released from prison on parole, was walking with Mr Dylan Turner (Mr Turner) on Evan Street, South Penrith (Evan Street) and was then stopped, searched and detained by New South Wales Police officers. A substantial part of the interaction between the Respondent and the police officers on 30 December 2019 was captured on body worn camera video recordings.
During the course of the interaction between the Respondent, Mr Turner and the police, a bag containing a knife and a collection of new male clothing was placed on the ground. It had been carried by Mr Turner and not the Respondent. Shortly thereafter, the Respondent was arrested for the summary offence of custody of a knife in a public place pursuant to (the subsequently repealed) s 11C of the Summary Offences Act 1988 (NSW) (Summary Offences Act) (the custody of a knife charge). Following an interaction with police during which the Respondent refused to remove her necklace during a strip search, the Respondent was transported to Mount Druitt Police Station where she was also charged with having custody of clothing reasonably suspected of being stolen contrary to s 527C of the Crimes Act 1900 (NSW) (Crimes Act) (the goods in custody charge) and resisting an officer in the execution of duty contrary to s 58 of the Crimes Act (the resist officer charge).
The Respondent was refused bail on 31 December 2019 and was remanded in custody. Her parole was subsequently also revoked with the consequence that she was held in custody.
[7]
The primary judgment
It is first necessary to provide a short summary of the primary judge's reasons.
His Honour held that the initial detention and search of the Respondent on Evan Street was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA): PJ [234]. Accordingly, all physical contact with the Respondent's person in the context of that detention was held to constitute a battery: PJ [251]-[252]. Moreover, pursuant to s 99 of LEPRA, his Honour held that the Respondent's arrest was also unlawful such that, from the time at which the Respondent was arrested on 30 December 2019 until the time at which she was remanded in custody on 31 December 2019, she was falsely imprisoned: PJ [244], [308].
His Honour found that s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) did not apply to exclude any civil liability arising from the conduct of the Police officers because, pursuant to s 3B(1)(a) of the Civil Liability Act, s 43A does not apply in relation to civil liability of a person in respect of an intentional act done with intent to cause injury. Even if the operation of s 43A was not excluded by s 3B(1)(a), the primary judge held that the circumstances in which the Respondent was detained and arrested were so unreasonable that no police office would properly consider the acts of the Police officers to be a reasonable exercise of their power: PJ [267]-[268].
The primary judge also held that SC Darnton had maliciously prosecuted the Respondent in respect of the "custody of a knife charge" and "resist officer charge" but not the "goods in custody charge". His Honour found that the evidence in relation to the prosecution of the Respondent for the "custody of a knife" and "resist officer charge" was insufficient to support an honestly held belief that there was reasonable and probable cause for the prosecution of those charges to be brought: PJ [295]. Moreover, the primary judge held that there was sufficient malice in that SC Darnton had commenced and pursued the prosecution for a purpose other than the proper invocation of the criminal law, namely a personal animus he had against the Respondent: PJ [301].
The primary judge made the following awards of damages:
(i) $8,000 for general damages for false imprisonment;
(ii) $15,000 for general damages for battery;
(iii) $10,000 aggravated damages for false imprisonment;
(iv) $10,000 aggravated damages for assault and battery;
(v) $20,000 exemplary damages for false imprisonment;
(vi) $20,000 exemplary damages for battery;
(vii) $150,000 general damages for malicious prosecution; and
(viii) $75,000 exemplary damages for malicious prosecution.
(The reference to "assault and battery" in relation to the aggravated damages award of $10,000 was obviously a slip as there had been no general damages award for assault.)
[8]
Factual background
Before moving to consider the State's grounds of appeal, it is also necessary to provide some substantial factual background to the events surrounding the arrest of the Respondent on 30 December 2019.
[9]
Events prior to the arrest on Evan Street
Prior to 30 December 2019, SC Darnton's evidence was that the Respondent was well-known for serious offences and had an extensive criminal history of in excess of 50 charges, including for robbery, property offences and offences involving violence and weapons. In particular, SC Darnton had interacted with the Respondent on 3 September 2019 when she, alongside her former partner Mr Gaige Heckle, was charged with, and subsequently convicted of, several offences connected to the attempted theft of a car in police presence.
The Respondent was sentenced to three years imprisonment with a non-parole period of one year and three months in relation to the 3 September 2019 offences but was released on parole on 5 December 2019. The Respondent gave evidence that following her release from prison and contrary to the conditions of her parole, she had, over a period of days, relapsed into use of the drug "ice". This evidence is supported by a Breach of Parole Report dated 2 January 2020, which will be referred to later in these reasons, in which it is noted that Community Corrections had been contacted by a significant other on 30 December 2019 to report the Respondent's suspected drug use. The Report also recorded that the Respondent had admitted to a relapse into methamphetamine use over the Christmas period.
The Respondent's evidence was that, as of 30 December 2019, she was suffering from borderline personality disorder, anxiety and depression. She also gave evidence that she experienced anxiety around police officers as a consequence of an incident which occurred at the Penrith Police Station when she was fourteen years old. Moreover, her Breach of Parole Report recorded that on 30 December 2019, the Respondent had disclosed a decline in her mental health over the Christmas period.
On the morning of 30 December 2019, Mr Turner and another man, Brett Plummer, had been stopped by SC Kelly and SC Darnton, who were on bicycle patrol in Penrith.
SC Kelly and SC Darnton's evidence was that Messrs Turner and Plummer appeared to be attempting to avoid police so they wanted to "have a chat to them". It was SC Darnton's evidence that Messrs Turner and Plummer had not been effectively stopped but, rather, that it was not uncommon for police officers to have general conversations with lots of people when on patrol. SC Darnton denied that there was any conscious decision to stop and speak to Messrs Turner and Plummer, even though body camera footage captured the two officers riding together before separating to approach the men from different directions.
[10]
The "stop" and search on Evan Street
The Respondent's evidence was that on 30 December 2019, she woke up at her father's house and then attended her mother's home to collect money and a handbag, which she shared with her mother. At around 2.30pm, she met Mr Turner in Penrith and they took a train to Mount Druitt. She then attended Mount Druitt Community Corrections at about 3pm where she met with her parole officer and returned a negative drug test result.
After the meeting with her parole officer, the Respondent returned to Mount Druitt train station with Mr Turner and together they travelled to Kingswood Station and then walked via Evan Street to the Jamison Hotel Pub or "Jammo". The Respondent denied consuming ice between leaving the Mount Druitt Community Corrections facility and being stopped by police on the street.
As the Respondent and Mr Turner were walking down Evan Street, they observed a man sitting in the street who had been arrested by SC Munt and was awaiting the arrival of a caged vehicle.
SC Munt, Kelly and Darnton gave evidence that the house in front of which the man was being arrested was a well-known house believed to be involved in drug supply. The Respondent gave evidence that she was friends with Ms Hayley Reitano Taylor whose partner resided at that address, although the Respondent's evidence was that Ms Taylor was living elsewhere. SC Kelly and SC Darnton gave evidence that they were aware of Ms Taylor's links to the house on Evan Street as well as the association between the Respondent and Ms Taylor.
A verbal exchange took place between Mr Turner and SC Munt on the street in which Mr Turner said words to the effect of, "That's pretty slack making him sit there in the heat," at which point SC Munt replied, "Do you want to join him?" Munt gave evidence that the Respondent replied, "Nah miss you can sit down with him." After the exchange, the Respondent and Mr Turner continued walking down Evan Street.
SC Darnton and SC Kelly then alighted from a police vehicle. As outlined above, SC Darnton was aware of the Respondent's extensive criminal record and that she was on parole. Both officers gave evidence that they believed the Respondent to be under the influence of a prohibited drug at the time. SC Kelly's statement recorded that this was because the Respondent was "laughing and behaving immaturely".
[11]
The arrest on Evan Street
After finding the knife, SC Darnton is recorded as saying the following to the Respondent:
"So, where are you living now Ebonie? Because you are under arrest. My name is Senior Constable Darnton, you are under arrest for custody of a knife in a public place."
At this point Mr Turner responded by saying, "It's mine chief". SC Darnton gave evidence that he did not hear Mr Turner claim ownership of the knife and that because he did not know where the Respondent was living, he considered it necessary to arrest her at this time.
SC Kelly then handcuffed the Respondent which he gave evidence was because of the Respondent's aggression. The following exchange was then captured:
"Turner: I'm on bail dickhead.
Respondent: I don't even know how that [referring to the knife] got in there."
SC Munt then approached the group again. She is captured on the footage saying, "See, that's what happens when you're mouthy, you get searched", at which point SC Darnton reminded SC Munt that the body cameras were on.
SC Darnton conducted a further search of the bag at which point several items of new men's clothing were located. During an interaction with SC Darnton and SC Kelly, Mr Turner stated that the underwear belonged to him and that he had purchased it that day at K-Mart in Mount Druitt.
SC Darnton requested that SC Munt search the Respondent while SC Kelly conducted a search of Mr Turner. SC Darnton then made the following comment:
"Who has the last laugh now, hey? … You're an interesting one, Ebony, I'll give you that. Stealing a car in front of a police officer, that's a first for me"
This was evidently a reference to the earlier charges noted at [17] above.
[12]
The strip search
SC Munt decided after conducting a preliminary search of the Respondent that a more invasive strip search would be required. This was because the Respondent had earlier been reaching down the front of her dress which led to concern that she may be concealing a weapon. A verbal altercation between SC Munt and the Respondent ensued in which the Respondent became agitated. SC Munt attempted to restrain the Respondent by forcing her to sit on the ground but the Respondent resisted on account of her being in a skirt. During this exchange, SC Darnton made comments including, "relax darling", "stop acting like an animal", "behave like an adult please darling" and "you carried on like this last time".
Thereafter, it was determined that the Respondent should be escorted to the caged vehicle, which had then arrived, for a strip search to be conducted. The Respondent co-operated with the strip-search by showing SC Munt the inside of her bra. A parole card from that morning was found in the Respondent's bra during the search. At no point during the search did SC Munt activate her body camera.
SC Munt gave evidence that during the search, she requested that the Respondent remove a necklace she was wearing. SC Munt's evidence was that the necklace was a "safety risk" because the Respondent might swallow it, although she accepted that the Respondent was handcuffed at the time so would not be able to unlatch the necklace. When the Respondent refused to remove the necklace, SC Munt told her to "stop being a tough bitch". Subsequently, a physical altercation ensued in which the Respondent was removed from the vehicle and restrained by two male police officers, SC Burnell and SC Nicholls, so as to facilitate the removal of the necklace. She was then lifted back into the vehicle.
While the search was ongoing, the following exchange was captured:
"SC Kelly: What are we doing with this stuff?
Turner: It's all mine bro I had it with me
SC Darnton: It's yours, where'd you get it from?
Turner: From Kmart, Mount Druitt bro. Promise ya."
SC Darnton and SC Kelly expressed doubt about the items having been purchased from Mount Druitt given that they had stopped Mr Turner in Penrith earlier in the day.
A few minutes later, SC Kelly is captured answering his mobile phone and telling the caller that:
"We just had a run in with Ebonie Madden and her friend… She is kicking off… We were just standing here, and they walked past. She started mouthing off."
[13]
The "roadside interview"
When the audio resumed on SC Darnton's body camera footage, he conducted what the State referred to as a "roadside interview" during which the Respondent was sitting in the back of the caged vehicle.
During the roadside interview, the Respondent denied any knowledge of the knife in the bag but gave an unclear explanation as to the origin of the clothing:
"SC Darnton: Can you tell me why you were carrying around a knife in a public place Ebonie?
Respondent: I didn't know that was in my bag.
SC Darnton: You didn't know that was in your bag?
Respondent: No, I honestly didn't.
SC Darnton: Is that your handbag?
Respondent: Well, I borrowed it yeah - I did… But the clothes in it were mine … I put the clothes and that in there …
SC Darnton: The underwear where was that from?
Respondent: I don't know. I don't know.
SC Darnton: Ok, when did you see - have you - did you see that knife in there before?
Respondent: No, I didn't. No I didn't.
SC Darnton: You never saw it?
Respondent: - Oh do you think I would walk past police with it?
SC Darnton: Did you see the underwear in there?
Respondent: The underwear, yeah, I did …
SC Kelly: The knife was on top of the underwear so I don't know how you missed the knife?
Respondent: Neither do I.
SC Kelly: Where did you get the underwear from?
Respondent: Like I said they were already in the bag
…
SC Kelly: Well we got a version from your friend that was … where you went and picked up that stuff, so do you want to us just tell us where you got it from.
Respondent: I picked up the bag.
SC Kelly: From where?
Respondent: From mum's house.
SC Kelly: Yeah, well your friend said that you guys went somewhere and you - you picked up the underwear from there.
Respondent: Yeah my mum's house.
SC Kelly: No. Well that's not the version he gave. He said that you guys went to a shop.
…
Respondent: We did go down to the shop down here but we got the bag from my mum's house
SC Kelly: When you say the shops down here do you mean K-Mart or the Nepean Centro?
Respondent: Look …. I've got the ha - … Youse asking me where I got the handbag from. I got the bag from my mum's
SC Kelly: Yep and where did you get the underwear from?
Respondent: shop
SC Kelly: Which shop?
Respondent: I don't know. I don't want to answer that.
…
SC Darnton: Listen it's in your bag alright. We reasonably suspect that they're stolen, alright? So tell us where you got 'em from.
…
Respondent: I got the bags from my mum's house.
SC Kelly: Yeah but your friend said that you got those clothes, you purchased those clothes from a shop.
…
Respondent: All clothes are purchased from the shops
SC Kelly: Yeah but where did you get those ones from? He said that you both went and you purchased them from a shop. We just want to know which one.
Respondent: I don't fucking know I don't remember. I've been …
SC Kelly: Well he said it happened today …
Respondent: Yeah, well fuck I don't know ask him
SC Kelly: If we go to the Nepean Centro where K-Mart is at Penrith here are you guys going to be on footage there?
Respondent: No
SC Kelly: No? Why are you smiling then?
Respondent: Huh? Honestly, I don't know. But I'm not going to be on footage down in the Nepean Centro.
…
SC Kelly: So where did you get the clothes then, so we know? …
Respondent: I didn't get them from a shop. I don't know why he's saying "we got them from a shop".
…
Respondent: Why should he lie? Maybe because he doesn't - want you to know it came from my mum's house. I don't know …"
[14]
Creation of the CAN
At about 5.30pm on 30 December 2019, SC Darnton returned to the Penrith Police Station where he created a Computerised Operational Policing Sydney (COPS) event with the event reference number "E7 2810337" and a "Facts Sheet outlining the circumstances of the incident that could be used for the charging process" (Facts Sheet).
Due to the proximity of the events to New Year's Eve, SC Darnton's evidence was that he was "under the pump" when completing the Facts Sheet. He maintained that he spent two hours of overtime work on the Respondent's case but nonetheless conceded that he was aware of matters that were missing from the Facts Sheet.
The primary judge made the following finding as to the matters which SC Darnton included and failed to include in those documents:
"[165] Darnton conceded that he failed to include the following in the NSW Police Facts Sheet in relation to the knife charge:
(a) The plaintiff had told him that she did not know that the knife was in the bag.
(b) The plaintiff said that she had not seen the knife before.
(c) The plaintiff was not in possession of the bag, and instead it was Turner who had custody of the bag.
(d) Turner had admitted it was his knife.
[166] Darnton conceded that he had failed to include the following in the NSW Police Facts Sheet in relation to the good [sic.] in custody charge, despite agreeing that the matters would have been in his mind at the time of drafting the facts:
(a) Turner had claimed ownership of the men's underwear and the t-shirt.
(b) The underwear was men's underwear.
(c) Turner had said he had purchased the items from K-Mart in Mount Druitt."
Although SC Darnton accepted that he was the relevant informant in the matter, he denied any involvement in the prosecution of the matter or in the Respondent's bail determination following 30 December 2019. His evidence was that it had been SC Tamruksa at Mount Druitt Police Station who had prepared the CAN, agreed facts and charge, although he acknowledged that in doing so, SC Tamruksa would have "copied and pasted" his COPS entry into the agreed facts document. SC Darnton agreed that on the evening of 30 December 2019, he had been in contact with SC Tamruksa to direct him as to what charges to lay. On the CAN, SC Darnton was listed as the "Prosecutor".
The Facts Sheet created by SC Darnton was provided to Sergeant Steven Moss who accepted the charges. Pursuant to s 43 of the Bail Act 2013 (NSW) (Bail Act), the Respondent was refused bail at Mount Druitt Police Station and then transferred into the custody of Corrective Services. The decision to refuse bail at this stage was made on the basis that the Respondent was charged with a "show cause" offence, namely the "resist officer charge", and had not shown cause as to why her detention was unjustified.
[15]
Refusal of bail
On 31 December 2019, the Respondent made a bail application at Parramatta Local Court before Magistrate Price.
During the bail application, the Respondent's counsel submitted the following:
"In relation to the facts, the facts are a bit ambiguous in relation to the circumstances of the search and there may be some defence to that as to the reasons aren't outlined in relation to the reasonableness of the search…."
Magistrate Price ultimately refused bail. His Honour's reasons given during the bail hearing were as follows:
"Ms Madden you would be well aware the prosecution are opposing your release on bail more particularly since you are on parole, or I think it's more accurate to say you are on parole for 6 different or discrete offences one … unfortunately being very very similar to the type of offending that's being alleged as recently as yesterday or the one in relation to the Police officer … It's a troubling situation … for someone so young … to have realised that A: that you are on parole for six different offences. There's been at least seven instances in the more recent past where you haven't attended Court and it's been necessary to issue process or more accurately warrants. There's been any number of breaches of conditional liberty and or bail. Against that background this court could not be comfortable with any regime that would overcome those concerns…"
[16]
Revocation of parole
On 2 January 2020, a Breach of Parole Report was filed which stated:
"It is of concern to Community Corrections that Ms Madden has re-offended in the short period she has been subject to parole supervision. Due to Ms Madden being bail refused for her new offences and her history of significant violence, revocation is recommended."
On 20 January 2020, the Respondent's parole order was revoked. The reason for the revocation was noted as:
"… breach of Condition 1 - you must be of good behaviour (outstanding charge/s)."
[17]
Grant of bail and revocation of parole
On 9 June 2020, the Respondent made a second application for bail at the Downing Centre Local Court. Magistrate Milledge was pointed to the discrepancy between the Facts Sheet, which did not disclose that the handbag was being carried by Mr Turner, and [6] of SC Munt's statement which disclosed that Mr Turner was holding the handbag. Her Honour held that these circumstances were sufficient to clear the "change of circumstances" threshold set by s 74 of the Bail Act and reasoned that:
"Very clearly, the statement of the [sic.] main police witness certainly isn't as strong as the police facts read. There are a number of inconsistencies in that statement and also, it's not really clear who the bag belongs to and who the items belong to. So, I do accept there is a significant shift since the last bail application was made and I will allow it to go ahead."
Ultimately, Magistrate Milledge granted the Respondent's bail application. Her Honour is recorded as saying:
"… I think given that the Police case is very different, as I said, to the one earlier, I'm not satisfied that it's a matter that warrants her being detained and for that reason I propose to allow the bail application to go ahead."
By way of notation on the Court Papers, her Honour indicated that the "police case [was] weak" and that the "brief … does not match Police Facts".
On 16 June 2020, the State Parole Authority rescinded its earlier revocation of the Respondent's parole and ordered that the Respondent be released by no later than 4pm on 17 June 2020. The stated reasons for her release were:
"1. The offender has been granted bail on the outstanding charges.
2. The young age of offender." (Emphasis added).
The Respondent was thus in custody between 30 December 2019 and 17 June 2020, a period approaching 6 months.
[18]
The Local Court proceedings
On 9 January 2020, the Respondent entered pleas of "not guilty" in relation to each of the charges. The Crown was ordered to serve its brief of evidence by 6 February 2020.
SC Munt's statement was completed on 10 January 2020. On 9 March 2020, SC Kelly completed his statement but it was not served upon solicitors acting for the Respondent until 9 June 2020, which was the second day of her bail application.
SC Kelly acknowledged in evidence that he did not refer in his statement to the fact that the bag in which the knife and clothing was found was at all times observed by police to be in Mr Turner's possession. Nor did he include in his statement the fact that Mr Turner had claimed ownership of the knife. While SC Kelly acknowledged that those were relevant matters which ought to have been included, his evidence was that their exclusion was justified given the existence of the body worn camera footage.
By way of an email sent to SC Darnton on 8 May 2020, the Respondent's solicitor in the Local Court proceedings confirmed that the only statement she had been served with was that of SC Munt.
A request was made by the Respondent's new solicitor on 22 May 2020 for a "copy of any brief that has been served to date". SC Darnton responded to this email by enquiring whether "we can possibly negotiate and resolve the matter" and stating that the Respondent's former solicitor had a copy of the brief previously served. At this time, SC Darnton had not served or completed his own statement, nor had he served the statement of SC Kelly which was completed on 9 March 2020.
On 9 June 2020, SC Darnton sent an email to the Respondent's solicitor purporting to attach a statement of SC Kelly, dated 9 March 2020, and a statement of SC Nicholls, dated 4 June 2020. However, the statement of SC Kelly was not attached to the email.
Later on 9 June 2020, SC Darnton sent an email to the Respondent's solicitor attaching the statement of SC Kelly and asked, "Can you please kindly advise what the sticking point is with this matter? I am sure that this could be resolved in some way I would think."
SC Darnton's evidence as to his communication with the Respondent's solicitors was that:
"A. I - it's common for me to liaise with defence solicitors in all of my - not all, but a lot of my matters in the earlier stages. Trying to work out if there's any way that the matters can be resolved without having to proceed to a defended hearing.
Q. When did you start that practice?
A. Years and years and years, I would say. I couldn't tell you exactly when. But it's - I think it's just being efficient. It's trying to save time for police. It's saving time for the Court. It's just something that I do with a lot of my - or some of my - matters."
[19]
Grounds of Appeal
By way of a Second Further Amended Notice of Appeal filed on 22 August 2023, the State relies upon six grounds of appeal (with what had originally been ground number 4 not being pressed):
"1 The conduct of the trial judge was such that a fair-minded observer might reasonably have apprehended bias.
2 The trial judge erred in determining the application of the Law Enforcement (Powers and Responsibilities) Act 2002, specifically that:
a. the stopping, searching and detaining of the respondent was not authorised by section 21 (the appellant challenges the factual findings concerning the initial interaction); …
c. that the arrest of the respondent pursuant to section 99 was unlawful. The appellant challenges the trial judge's findings that SC Darnton did not honestly suspect that the respondent had committed the offence for which she was arrested (custody of a knife in a public place) and that alternatives to arrest did not need to be considered due to the nature and seriousness of the offence, nor was the issue of a Field CAN required.
3 The trial judge erred in determining the application of the Civil Liability Act 2002, specifically that:
a. section 3B applied (the appellant challenges the factual findings concerning SC Darnton's intention); and
b. section 43A had no application to the exercise by police of a power contained in the Law Enforcement (Powers and Responsibilities) Act 2002.
…
5 The trial judge erred in finding that the charges against the respondent were brought without reasonable and probable cause and with malice and that there was a malicious prosecution.
6 The trial judge's award of damages for malicious prosecution included compensation for a custody that was not a "natural and probable consequence" of the prosecution (the appellant challenges the trial judge's factual finding as to the cause of the custody).
7 The trial judge's award of exemplary damages was excessive."
The Respondent also filed a Notice of Contention in these terms:
"The primary judge ought to have found, if he did not implicitly do so … that the liability in the false imprisonment and battery claims, associated with the stopping, arresting and searching of the plaintiff, was "based" not on the putative "special statutory powers" conferred by ss 21, 31 or 99 of the Law Enforcement (Powers and Responsibilities) Act, but rather on the non-consensual detention, and physical interference with the person, of the plaintiff, both of which, without more, established liability in the defendant unless it could establish a lawful justification."
[20]
Credit findings
As referred to at [9] above, the primary judge made several adverse findings in relation to the evidence given by the Police officers. In no small part, the Grounds of Appeal seek to disrupt those findings.
Some of the adverse credibility findings made by the primary judge were premised on the primary judge's review of the body worn camera footage. In respect of that evidence, the primary judge enjoyed no greater advantage than this Court on appeal.
However, several of the primary judge's credibility findings were based upon the primary judge's assessment of oral evidence given by the Police officers over nine days, much of which was the subject of intense cross-examination. In relation to this evidence, the primary judge must be taken to have enjoyed a considerable advantage over this Court. As such, this Court will be required to exercise restraint with respect to interference with those of his Honour's findings which are based on those impressions of the witnesses garnered from their oral evidence and should not overturn those findings unless it considers that they were "glaringly improbable" or "contrary to compelling inferences": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [28]-[29].
The primary judge made especially adverse findings in relation to the credibility of SC Darnton, who gave oral evidence over a period of three days. His Honour rejected several aspects of SC Darnton's evidence and concluded that his credit was "overwhelmingly impugned": PJ [192].
First, based on His Honour's review of the body camera footage, the primary judge rejected SC Darnton's evidence that his interaction with Mr Turner and Plummer earlier on the morning of 30 December 2019 was merely a "chat" or "conversation": PJ [192]-[193]. The primary judge went on to find that SC Darnton's evidence that he had not effectively stopped the Respondent and Mr Turner on Evan Street and was just having a chat "lacked credibility": PJ [194]. Similar findings were made in respect of SC Kelly's evidence as to the interaction with Messrs Turner and Plummer: at PJ [188].
Second, the primary judge rejected SC Darnton's evidence that, at the time he stopped and subsequently searched the Respondent on Evan Street, he had in mind the connection between the Respondent's associate Ms Taylor and the house on Evan Street known to be involved in drug supply: PJ [205]. His Honour found that this was not a matter which SC Darnton mentioned in his evidence during the Penrith Local Court proceedings in September 2020. Moreover, when it was later raised over two years later in his evidence before the primary judge, SC Darnton expressed doubt about whether he knew the occupants of that house at the time of the search or whether that was information he found out later: PJ [195]-[196].
[21]
Ground 1
By Ground 1 of the appeal, the State asserted that the primary judge manifested apprehended bias by reason of his interventions during the examination of witnesses and allegedly belittling comments made in relation to the State's submissions. In particular, the State relied on a number of occasions during the hearing in which the primary judge was said to have limited the nature and scope of the cross-examination of the Respondent. It was submitted orally that even if individual exchanges relied upon did not found a case of apprehended bias, the cumulative effect of these passages gave rise to an apprehension that the primary judge was biased.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], the High Court stated that an apprehension of judicial bias arises where (see also Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]):
"…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."
The first occasion referred to by the State was the following exchange:
"Q. Ms Madden, have you discussed giving your evidence with anyone today?
A. No.
Q. You haven't discussed the evidence that you're giving today in Court with your lawyers?
CANCERI: I object to that, your Honour.
COFFEY: I'm not asking about what the discussion is.
HIS HONOUR: Mr Coffey, we all know the answer to that, don't we? Surely she would have discussed it with her lawyers. Mr Canceri's asked evidence-in-chief.
COFFEY: Yes, I understand that, your Honour. Could I ask the witness go out, please?
WITNESS: I didn't discuss--
HIS HONOUR: Just a minute. Why? I'm not going to keep sending her out unless I need to.
COFFEY: Thank you, your Honour. I withdraw the question."
This was an unremarkable exchange, with the primary judge seeking to avoid unnecessarily disrupting the hearing, as he was entitled to do. Pushing on the trial process does not evince a want of partiality: see Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103].
The second occasion relied upon involved the following exchange with reference to the State's trial counsel's cross-examination of the Respondent in relation to an arrest of the Respondent which had occurred whilst she was living at Penrith Youth Refuge in August 2012:
"Q. Do you recall that the police turned up?
A. Yes.
Q. Do you recall that you had put mascara all over your hands, and you threatened the female police officer that you would put it on her?
WITNESS: I don't remember.
OBJECTION. RELEVANCE. LEGAL ARGUMENT. QUESTION ALLOWED
HIS HONOUR: But there is a limit to what extent you cross-examine, in any real detail, about events that happened seven years before.
COFFEY: I might see if I can shortcut it in a different way. And if that's not, I might need to return. But I certainly - could I indicate, I'm very conscious about what your Honour's said in terms of Ms Madden. And I'm not - want to exacerbate the situation for her--
HIS HONOUR: Yes."
Again, this is an entirely unremarkable exchange which could not possibly found or contribute to a complaint of apprehended bias.
[22]
Ground 2
The first aspect of Ground 2 of the appeal concerns whether the primary judge was correct to find that the initial approach and contact by SC Darnton and SC Kelly with the Respondent and Mr Turner was an exercise of power pursuant to s 21 of LEPRA. That section provides as follows:
21 Power to search persons and seize and detain things without warrant (cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37)
(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists -
(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
(2) A police officer may seize and detain -
(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
The State submits that the primary judge erred in finding that, in initially stopping the Respondent and Mr Turner on Evan Street, SC Darnton was exercising a power pursuant to s 21 of LEPRA. Rather, it submits that such a power was not exercised until the point at which SC Darnton informed the Respondent that she would be searched. It will be apparent that only a very short period elapsed between when the Respondent was "stopped" and when she was informed that she would be searched. So much was confirmed by Mr Hutchings, who appeared for the State in the hearing of the appeal. In these circumstances, the materiality of whether the initial "stopping" of the Respondent was an exercise of the s 21 power, and was unlawful, is minimal given, as the primary judge held, the Respondent's subsequent arrest pursuant to s 99 was unlawful (a finding that is also challenged).
[23]
Ground 3
Ground 3 of the appeal concerns whether s 43A of the Civil Liability Act applied to confer a qualified immunity in respect of the State's civil liability.
Section 43A(3) of the Civil Liability Act provides that:
For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
A "special statutory power" is defined by s 43A(2) as a power that is: (i) conferred by statute; and (ii) the "kind that persons generally are not authorised to exercise without specific statutory authority".
Section 43A will not apply if s 3B(1)(a) is engaged. Section 3B(1) provides that:
(1) The provisions of this Act do not apply in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except:
(ia) Part 1B (Child abuse - liability of organisations), and
(i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and
(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and
(iii) Part 2A (Special provisions for offenders in custody)
The State accepted that if this Court found that s 3B(1)(a) was engaged, then its arguments in respect of the application of s 43A of the Civil Liability Act must fail.
At first instance, the primary judge noted that the State conceded that the torts pleaded were intentional acts for the purposes of s 3B(1)(a) but contended that there was no intent to cause an injury and that, in any event, the deprivation of liberty was not an "injury", given the definition of that term in s 11 of the Civil Liability Act.
The primary judge's reasoning in respect of whether there was an intent to cause injury was extremely brief. After referring to Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 and White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18, he said at PJ [258] that:
"For the reasons given I am satisfied that Darnton intentionally detained, arrested and maliciously prosecuted the plaintiff. As a consequence, the plaintiff was subject to an assault and battery by police."
[24]
Ground 5 and the Cross Appeal
By Ground 5 of the Notice of Appeal, the State contended that the primary judge erred in finding that the "custody of a knife charge" and "resist officer charge" were brought against the Respondent without reasonable and probable cause and with malice.
By way of a Cross Appeal, the Respondent argued that the primary judge erred in holding that the "goods in custody charge", unlike the "custody of a knife charge" and "resist officer charge", were brought with reasonable and probable cause.
Before turning to the submissions made in support of this ground and the cross-appeal, it is convenient to set out the elements of the tort of malicious prosecution as recently summarised in State of New South Wales v Spedding [2023] NSWCA 180 at [13] (Spedding):
"The elements of the tort of malicious prosecution were summarised by the High Court of Australia in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) as follows:
(1) proceedings of a kind to which the tort applies (generally, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;
(2) the proceedings were terminated in the plaintiff's favour;
(3) the defendant in initiating or maintaining the prosecution acted with malice; and
(4) the proceedings lacked reasonable and probable cause."
At trial, the State conceded that the prosecution had been initiated by SC Darnton and terminated favourably to the Respondent such that the first two elements were made out.
As to the third and fourth elements of the tort, the following was said in Spedding:
"[36] In relation to the third element of the tort, namely that the defendant must have acted maliciously in initiating or maintaining the prosecution, the High Court observed in A v NSW at [55] that "it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word 'malice'." Later in the judgment, the plurality observed that malice may be inferred including where the dominant purpose underpinning the bringing of proceedings was one "other than the proper invocation of the criminal law": at [93]. This will include where the proceedings are actuated by "an illegitimate or oblique motive": at [91], citing Gibbs v Rea [1998] AC 786 at 804.
…
[39] The existence or satisfaction of the element of malice, however, is insufficient. It must also be demonstrated that the prosecutor, in instituting or maintaining the proceedings, acted "without reasonable and probable cause". In A v NSW at [58], it was observed that:
"the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful."
[40] Earlier, the Court had also referred to the "available material" and what the prosecutor 'made' or 'should have made' of it: at [55]. The absence of reasonable and probable cause entails both subjective and objective elements: A v NSW at [61].
[41] The plurality endorsed as a valuable means of assessing the absence of a reasonable and probable cause what had been said by Jordan CJ in Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at 469. The Chief Justice said that one or more of the following five conditions must be shown not to have existed:
"(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty."
This could be done by the plaintiff proving that the prosecutor did not believe the plaintiff to be guilty, or that the belief in his guilt was based on insufficient grounds: at 469.
[42] The following passage from A v NSW (at [59]) is also important for the State's appeal. It was there said that:
"the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light."
[43] Finally, as was observed in A v NSW at [96]:
"It is well established that where an indictment contains several assignments of perjury or theft, proof that some of them lacked reasonable cause, and were laid maliciously, warrants a verdict for the plaintiff. That rule is not confined to cases where the charge was theft or perjury.""
[25]
Custody of a knife
In relation to the "custody of a knife charge", the State sought to impugn the primary judge's rejection of SC Darnton's evidence as to the creation of the Facts Sheet. His Honour's reasons were as follows:
"[282] For the reasons enunciated, I do not accept the evidence of Darnton as credible, particularly his claim to have merely "forgotten" facts which were fundamentally exculpatory to the charge that the plaintiff had custody of a knife in a public place. Consistent with my earlier findings, I am satisfied that Darnton deliberately omitted from the Facts Sheet, those critical exculpatory facts. Even if the omission of such facts at the time the Facts Sheet was prepared was a mere oversight, which I do not accept, by January 2020 (within a month of the prosecution being instituted), Darnton reviewed the body worn camera footage and would have appreciated the fundamental difficulties in the prosecution of the plaintiff for this offence. Astonishingly Darnton was not prepared to acknowledge, having been seized with this information, that the maintenance of the prosecution for this offence could not be justified, claiming that this was only now with the benefit of hindsight. I do not accept this evidence as credible.
[283] In the circumstances, I am satisfied that Darnton did not honestly believe in this charge."
As to the existence of malice, the primary judge pointed to the following circumstances:
"[300] …
(a) Darnton spoke to the plaintiff in a condescending and mocking manner. He teased the plaintiff in respect to her relationships, suggesting that she had "ditched" and "dropped like a hot potato" her previously known partner, Gaige. In the presence of the plaintiff, Darnton said to Turner, again in a mocking way, "you and Gaige are mates and now you've hooked up with his Mrs".
(b) When Darnton found the knife, he announced in a grandiose tone "breach, breach".
(c) In the absence of any enquiry at all, and knowing the bag had been taken from Turner's possession, Darnton immediately moved to arrest the plaintiff. This was in circumstances where the evidence equally, if not more likely, pointed towards a charge of custody of knife in a public place being laid against Turner.
(d) Darnton informed the plaintiff that she is under arrest in a grandiose tone. Darnton gave the following evidence in this respect (T396 at 46 - T397 at 19):
'Q. The time is 16:31:34. You say the words, "You are under arrest." You don't do so in a traditional fashion, do you?
A. No.
Q. You seem quite overjoyed that you're arresting the plaintiff.
A. Not overjoyed, no.
Q. But you use a mocking tone, don't you?
A. Keeping it light-hearted. She's giving us banter. Well, sorry, not banter. She's giving us - there's a bit of backwards and forwards between both of us. Yes.
Q. You say banter, but you're arresting someone.
A. Keeping it in jest, I guess.
Q. Telling someone that--
A. It was all in jest, I guess.
HIS HONOUR
Q. Telling someone they're under arrest, you're doing so in jest. Is that what you're saying?
A. I guess so, your Honour. Yes.'
(e) Following the plaintiff's arrest Darnton says to the plaintiff 'who has the last laugh now, hey?'. When cross-examined on this comment Darnton said the following (T433 at 26 - 36):
'Q. "Who has the last laugh, now, hey?" That was a spiteful and nasty comment to make, would you agree?
A. It probably wasn't appropriate. I'd accept that.
Q. Cause you're telling her that you're having the last laugh, you're getting her back for being cheeky with you. Correct?
A. No - I, look it probably wasn't the most appropriate thing to say, considering the whole circumstances. All I would say is she was giving us cheek, I guess, a bit of - she was being belligerent, I made a comment back, yeah, it's probably, wasn't appropriate in the circumstances, I accept that.'
(f) During his exchange with the plaintiff, Darnton makes several unjustified and out of context references to his previous interaction with the plaintiff:
'You're an interesting one, Ebonie, I'll give you that. Stealing a car in front of a police officer, that's a first for me'
'Ebonie, behave all right, stop acting like an animal…'
'Behave like an adult please, darling…'
'You carried on like this last time'
'… so, you were out for Christmas, were you?...Wow' (referencing the plaintiff's time spent in custody arising from Darnton's arrest of the plaintiff in September 2019)
(g) Darnton deliberately omitted important exculpatory evidence relevant to the charges laid against the plaintiff in a fact sheet prepared within hours of the plaintiff's arrest.
(h) The relevant omissions were done with the purpose of withholding material information from those who would determine whether the plaintiff should be granted bail.
[301] I accept the plaintiff's submission that Darnton was motivated by a personal animus he had against the plaintiff. This was evident from the way Darnton interacted with the plaintiff on the day in question, his immediate decision to arrest the plaintiff without further enquiry, the mocking and grandiose tone when finding the knife and subsequently arresting the plaintiff. It was further supported by the way Darnton spoke to the plaintiff, unjustifiably accusing her of acting like an "animal" and addressing her in a condescending tone, adopting the phrase "darling". It is no coincidence that during these interactions, Darnton made repeated references to the previous incident in which the plaintiff had directed a degree of violence towards him. Darnton's subsequent conduct in deliberately omitting material exculpatory evidence from the Facts Sheet further supports the finding of malice."
[26]
Resist officer
The State also attacked the primary judge's conclusion that the "resist officer charge" was maliciously prosecuted. It is necessary to set out his Honour's reasoning:
"[291] The plaintiff was charged with contravening s 58 of the Crimes Act in that the plaintiff resisted Senior Constables Burnell, Nicholls and Munt whilst executing their duty. The charge arose from the interaction between the plaintiff and Munt. Whilst the court attendance notice particularises resisting the three senior constables, the Facts Sheet recounts the interaction between the plaintiff and Munt commencing at the time of the alleged search, shortly after her arrest.
[292] The plaintiff's submissions note that the resisting occurred after the plaintiff had been arrested. The Facts Sheet indicate the plaintiff was subjected to a "mandatory search" prior to being placed in the police vehicle. The plaintiff noted that the power to search a person who had been arrested was in accordance with s 27(1) of LEPRA, which empowers a police officer to search the person who has been arrested at any time or after the time of the arrest.
[293] The plaintiff notes that the lawful exercise of a power in accordance with s 27 is predicated on the police having lawfully arrested the person and accordingly, Munt's exercise of the power was similarly dependent upon a lawful arrest by Darnton. The starting point is that an officer who unlawfully arrests a person is not acting in the execution of his or her duty: Coleman v Power and others (2004) 220 CLR 1; [2004] HCA 39 per McHugh J at [118]. His Honour cited with approval the finding of Hedigan J in Nguyen v Elliott (unreported 6 February 1995) that whilst a second officer, in coming to the aid of a fellow officer who had unlawfully arrested and accused, acted in good faith, his conduct was also unlawful, and was not acting in the execution of his duty. McHugh J observed that in Nguyen the court had relied upon the decision of the Full Court of the Supreme Court of Victoria in McLiney v Minister [sic][1911] VLR 347 at 351 where Madden CJ said:
'… it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has the perfect right to use reasonable efforts to beat him off and get out of his custody[.]"
[294] For the reasons already given, I am satisfied that the arrest of the plaintiff for having custody of a knife in a public place was unlawful. Accordingly, the subsequent conduct of Munt, in searching the plaintiff and forcibly removing her necklace, following the arrest, was similarly unlawful. In the circumstances the plaintiff was resisting the three police who were acting unlawfully.
[295] Applying the subjective test, I am satisfied that Darnton did not honestly believe the charge of resist officer in the execution of their duty in circumstances where I do not accept Darnton honestly believed in the offence for which the plaintiff was arrested, being custody of a knife in a public place. In any event, I am satisfied that Darnton had no sufficient basis for a belief in the charge of resist officer in the execution of their duty. Accordingly, I am satisfied that the prosecution brought and maintained in respect to the charges of custody of a knife in a public place, and resist officer in the execution of their duty were brought and maintained without reasonable and probable cause."
[27]
Goods in custody
At PJ [288]-[290], the primary judge held that there was a qualitative difference between the "custody of a knife charge" and "goods in custody charge" and reasoned as follows:
"[288] Whilst the plaintiff initially told Darnton that she did not know where the underwear came from, the plaintiff did acknowledge that she was aware the clothing was in her bag. Further, the plaintiff admitted that the underwear was obtained from a "shop", although she was not prepared to nominate the shop. To this extent, the evidence available to Darnton at the time the charge was laid was qualitatively different to the evidence available in respect to the custody of a knife in a public place. Relevantly, the plaintiff admitted knowledge of these items as being within the bag and, on at least one occasion, stated that they were purchased from a shop.
[289] In the circumstances, I am not satisfied the plaintiff has discharged her evidentiary onus in establishing that the prosecution for this charge was brought or maintained without reasonable and probable cause.
[290] However, a finding that the plaintiff has not made out her claim in respect to this charge does not prevent a finding of malicious prosecution in respect to any of the remaining charges: A v New South Wales at [96] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ."
There is some inconsistency between the primary judge's analysis of this charge and the "custody of a knife" charge. The "goods in custody charge" was that, in contravention of s 527C(1)(a) of the Crimes Act, the Respondent had certain goods "in his or her custody". The charge relevantly involves that a person has a thing in his or her custody at the time of the person's apprehension by the authorities: R v English at 280 referred to at [127] and [166] above.
Although his Honour did note points of distinction between the two charges in terms of the evidence given by the Respondent, the two charges shared the common deficiency that the goods in question were contained in a bag that was not in the Respondent's custody at the time of the Respondent's detention and charging by the police. This was fatal to the charge (and it was perhaps this that led SC Darnton to seeking to have the charges resolved informally prior to the hearing: see [76] above and his inquiry whether "we can possibly negotiate and resolve the matter").
This was the essence of the Respondent's cross-appeal and its logic is, in my opinion, inexorable. The cross-appeal should be allowed.
[28]
Ground 6
By Ground 6 of the appeal, the State submitted that the primary judge's award of damages for malicious prosecution included compensation for the Respondent being held in custody that was not a "natural and probable consequence" of the prosecution.
In assessing the quantum of the general damages for malicious prosecution to be awarded to the Respondent, the primary judge held that:
"[328] A reading of the breach of parole report and subsequent reasons for recission of the parole lead to the finding that the plaintiff's parole was revoked as a consequence of the plaintiff being bail refused on the three charges the subject of the prosecution.
[329] The offence to which the Court has found that the plaintiff was not maliciously prosecuted is the lesser of the three offences. The offence of custody of knife in a public place carried a maximum term of imprisonment of two years whilst the resist officer carried a maximum period of imprisonment of five years. This is to be contrasted with the goods in custody charge carrying a maximum term of imprisonment of six months.
[330] I am satisfied that the natural and probable consequence of the plaintiff's malicious prosecution for the offences of custody of knife in a public place and resist officer was a period of incarceration as a result of the plaintiff being bail refused and having her parole later revoked. It is readily apparent that whilst the laying of charges was a consideration of the parole authority, the predominant reason for the plaintiff's revocation of parole, and the subsequent rescission of that revocation, was the plaintiff being bail refused."
The State argued that, although the charges led to the Local Court and the Parole Authority considering the question of the Respondent's liberty, there was an insufficient causal connection between the charges and the Respondent's resultant detention. Rather, the chain of causation was said to have been severed by the Magistrate's refusal of the Respondent's bail application or, at least, by the Parole Authority's revocation of her parole.
In particular, the State challenged the primary judge's finding at PJ [330] that the only reason for the revocation of the Respondent's parole was the prosecution commenced by SC Darnton. It was submitted that even if the primary judge was correct to find that the "custody of a knife charge" and "resist officer charge" ought not to have been brought, the Respondent would nevertheless have been in breach of the conditions of her parole in respect of the "goods in custody charge" such that it cannot be said that the Parole Authority would have acted differently if the Respondent had only been charged with the goods in custody offence.
[29]
Ground 7
The State, by Ground 7 of the appeal, challenges the primary judge's award of exemplary damages on the basis that it was excessive.
The State's written submissions go beyond a mere challenge to the quantum of the exemplary damages awarded. Thus the State submits that the award of exemplary damages for battery and false imprisonment "should not stand or at least ought to be reduced" and that the award of exemplary damages in the sum of $75,000 in respect of malicious prosecution was "productive of double compensation", the State pointing out that "proof of malicious prosecution (which necessarily includes a finding of malice) does not give rise to an entitlement to exemplary damages unless something over and above malice can be demonstrated: Gray v Motor Accident Commission (1998) 196 CLR 1 (at [12]); Hamilton v State of New South Wales [2020] NSWSC 700 (at [1109])."
Insofar as Ground 7 also challenged the amount of exemplary damages awarded, while the decision to award exemplary damages is not discretionary in nature (Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99 at [92], citing Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1477]), the amount of exemplary damages to award is discretionary. As was observed in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [26]:
"Because exemplary damages are awarded to punish, it is not surprising that their quantification should be treated as a matter for the discretion of the tribunal assessing damages."
The discretionary nature of the quantum to be awarded by way of exemplary damages engages House v The King (1936) 55 CLR 499; [1936] HCA 40 constraints on appellate interference, and the quantum of exemplary damages cannot be challenged where the amount is within the limits of a "proper exercise" of discretion: see James v Hill [2004] NSWCA 301 at [84].
In Whitbread v Rail Corporation NSW [2011] NSWCA 130, McColl JA held:
"[64] The principles as to the quantum of an award of exemplary damages were conveniently collected in James v Hill [2004] NSWCA 301 (at [66] ff) per Tobias JA (Sheller and Hodgson JJA agreeing). Relevantly (at [69]) the "objectives of an award of exemplary damages are to punish the wrongdoer, deter him and others from committing like conduct again, to provide vindication to the victim and to denounce the wrongdoer's behaviour."
[65] If exemplary damages are to fulfil their threefold purpose, they must not merely irritate, they must sting; there is "no necessary proportionality" between the amount awarded as compensation for the damage suffered by the plaintiff and the amount of exemplary damages awarded against the defendant: Harris v Digital Pulse Pty Limited [2003] NSWCA 10; (2003) 56 NSWLR 298 (at [254]) per Heydon JA; cited in Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWCA 338 (at [23]); James v Hill (at [84])."
[30]
Conclusion
For the above reasons, I would dismiss the appeal with costs.
LEEMING JA: I have had the very considerable advantage of reading the reasons for judgment of the Chief Justice in draft. I agree with the large majority of his Honour's reasons. Those reasons enable me to explain the points of difference concisely. I shall not except to the extent necessary repeat the factual and procedural background.
[31]
Ground 1
On ground 1, I agree with the Chief Justice that the State's claim of apprehended bias is not established. I would add that even if that were not so, I would have dismissed the ground because any entitlement to have the primary judge disqualify himself was waived.
The Chief Justice has reproduced the passage from near the end of the trial, when, upon inquiry from the primary judge, junior counsel unequivocally rejected the suggestion that he was making any such application. It was not suggested in this Court that anything happened after that exchange that contributed to the conclusion of apprehended bias. It was recognised in Vakauta v Kelly (1989) 167 CLR 568 at 573, 588; [1989] HCA 44 that there can be no question of waiver where the basis of the claim is in the judgment itself, as opposed to the conduct of the hearing. However, as articulated on behalf of the State in this Court, no aspect of this ground turned upon the reasons of the primary judge, as opposed to his Honour's interventions during the hearing.
In those circumstances, there is no answer to Ms Madden's primary submission, namely, that any basis for complaint had been waived.
Neither the State's written submissions in reply, nor its oral submissions in chief, addressed waiver. Ms Madden confirmed at the hearing that "Our principal position is that the right has been waived by counsel taking no issue". Nothing was said in reply on the point.
Accordingly, it is clear that the ground must be rejected. The principles are familiar and uncontroversial. They emerge from the following passage from the joint judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly at 572, which in turn was reproduced and endorsed in Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 in the joint judgment of Gleeson CJ, Heydon and Crennan JJ at [43], with which Gummow and Hayne JJ agreed at [61]:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
[32]
Ground 2(a)
Ground 2(a) as drafted conflated "the stopping, searching and detaining" of Ms Madden. It is necessary to be considerably more precise. As the Chief Justice explains, there was an initial stopping of Ms Madden and Mr Turner, followed by a formal exercise of a power to detain and search, followed by a purported arrest. Although together they occupied less than three minutes, each was distinct. The second and third were undoubtedly formal exercises of power, while there was a debate as to the nature of the first. But at least two and perhaps all three required separate consideration as to whether the State had satisfied the preconditions on which the exercise of power by the police officers was based. In what follows I shall give time references by reference to the elapsed time on Senior Constable Darnton's body-worn video.
Despite the exchange of submissions on the first 70 seconds of the encounter, I shall pass over this because I cannot see that anything turns on whether, as the primary judge found, there was an exercise of coercive power by the police officers to stop Ms Madden and Mr Turner prior to the explicit exercise of power to detain and search them, or whether as the State maintained this was entirely informal. I did not understand any point to be made that somehow an invalid exercise of coercive power infected the explicitly formal exercise of power 70 seconds later ("You're going to be detained for a search okay?"). If some submission along those lines were to have been advanced, I would have rejected it. The exercise of power to detain and search was different from any exercise of power to stop, and required a separate analysis of whether the preconditions had been satisfied.
The power to detain and search under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was explicitly invoked at around 1:10. By that time, Senior Constable Darnton had seen Ms Madden and Mr Turner behave erratically on the streets, and was aware of their criminal history and parole status. No challenge was made to Senior Constable Darnton's evidence that he believed or at least suspected that both were affected by licit or illicit drugs. Ms Madden's elevated mood is apparent from the body-worn video. As it happens, when she was assessed by a health practitioner the following day, Ms Madden reported that she had a daily consumption of 3 grams of "methamphetamine (eg ice)", either smoked or injected intravenously, with her last use being the day of her arrest.
[33]
Ground 2(c)
This ground was added without (ultimate) objection during the hearing, presumably in the belated appreciation that success in establishing the lawfulness of the actions of the police officers in the first two and a half minutes of their interaction with Ms Madden and Mr Turner on 30 December 2019 goes nowhere if nonetheless the arrest purportedly effected by Senior Constable Darnton at 2:31 was unlawful.
This ground challenges both preconditions to the exercise of the power to arrest under s 99 of the Law Enforcement (Powers and Responsibilities) Act. That power was exercised immediately after discovery of the knife in the bag which had been held by Mr Turner but which Ms Madden had borrowed from her mother and in which were some of her clothes.
It is plain from the body-worn video that the bag is a woman's bag, but it is also plain that it was being carried by Mr Turner, and remained with him for the first two minutes of the interaction, when (at 2:12) the knife was located. It emerged a few minutes later that Ms Madden had borrowed the bag from her mother. To my mind, it is not overly difficult to see how an officer could in good faith believe that the bag was in the possession of Ms Madden, rather than the man with whom she was walking. However, the trial proceeded on the basis that an essential component of the definition of custody was the concept of immediacy, and the primary judge found that Senior Constable Darnton did not in fact have a genuine or honest suspicion that Ms Madden, as opposed to Mr Turner, was committing the offence of custody of a knife in a public place. No basis has been established to interfere with that credit-based finding. It follows that ground 2(c) is not made out.
[34]
Ground 5
I agree that, for the reasons given by the Chief Justice, the challenge to the finding of malicious prosecution for the custody of a knife charge fails, and the submissions in support of the "cross appeal" concerning goods in custody should be allowed. The so-called "cross appeal" challenged no order made by the District Court, but sought different findings concerning this charge, and accordingly should be treated as a notice of contention, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 51.40.
More generally, insofar as this ground necessarily challenged the findings of malice which his Honour imputed to Senior Constable Darnton, I agree with the Chief Justice that no sufficient basis has been established such as to permit this Court to interfere.
Although I have concluded that the initial detaining and search of Ms Madden was lawful, the arrest which followed shortly thereafter was not. Had the arrest been lawful, then I would have concluded that there was reasonable and probable cause for charging Ms Madden with resisting Senior Constable Munt when she was searched and her necklace removed. However, I agree with the Chief Justice that in circumstances where the arrest was not lawful, the resistance offered by Ms Madden in its immediate aftermath is not to be regarded as resistance to an officer in the lawful execution of her duties, and thus this element of the tort is made out. Accordingly I agree with the dismissal of the entirety of this ground.
[35]
Remaining grounds and orders
I agree with, and have nothing to add to, what the Chief Justice has said in relation to grounds 3, 6 and 7. The State's success in relation to ground 2(a) does not flow through to damages, and I see no reason in those circumstances to treat it as materially affecting the discretion as to costs. I accordingly agree with the orders proposed by the Chief Justice.
STERN JA: I agree with the Chief Justice.
As regards ground 1, I also agree with Leeming JA that any entitlement of the State to complain of apprehended bias was waived having regard to the interchange between the primary judge and counsel for the State on the last day of trial.
Given that the Chief Justice and Leeming JA have reached different conclusions as regards ground 2(a) it is appropriate that I briefly indicate the basis for my concurrence with Chief Justice's rejection of this ground. In this regard, the adverse findings of the primary judge as to the credibility of SC Darnton were of particular significance, given that the burden of proving that the detention was lawful rests on the State. SC Darnton claimed in evidence that his knowledge of the connection between the respondent, Taylor and the drug house was a factor of relevance to his decision to search the respondent: PJ [195]. The primary judge found that SC Darnton's evidence was not credible in this regard: PJ [205]. That entails a rejection of a material factor that SC Darnton said had informed his decision to search the respondent. That finding was neither glaringly improbable nor contrary to compelling inferences. None of the other matters relied upon by SC Darnton, as set out at PJ [227], either alone or cumulatively, nor the behaviour of the respondent, as is apparent from the body worn video camera, suffice in that context to satisfy the burden on the State to establish reasonable grounds for the requisite suspicion under s 21 the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
[36]
Amendments
26 July 2024 - insert "the" before "hearing" in [211] so that it reads "the conduct of the hearing"
-replace "judgement" with "judgment" in [223]
-insert "a" before "known drug user" in [223] so that it reads "that a known drug user"
-delete surplus "very" in [227] so that it reads "'history obviously, very'."
-replace "That's" with "that's" in [228] so that it reads "that's what happens"
-delete surplus "that" in [234] so that it reads "found that Senior Constable Darnton"
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: 26 July 2024
On 9 January 2020, the Respondent entered pleas of not guilty in relation to each of the charges and on 28 October 2020, following a hearing in the Penrith Local Court before Magistrate Hiatt which commenced on 16 September 2020, all relevant evidence was excluded and the charges against the Respondent were dismissed.
On 2 August 2021, by way of a Statement of Claim filed in the District Court, the Respondent commenced proceedings against the State for trespass to the person, false imprisonment, assault, battery, malicious prosecution and misfeasance in public office. This last claim was not pressed.
By way of a Second Further Amended Notice of Appeal filed on 22 August 2023, being the first day of the hearing of the appeal, the State appeals from the whole of the primary judgment.
However, as was noted by the Respondent in written submissions and as will be considered in greater detail later in these reasons, the success or otherwise of the appeal largely turns on the disturbance of the adverse credibility findings made by the primary judge in respect of the Police officers who gave oral evidence in the course of an 11 day trial, including as to what they asserted were their reasonable suspicions in relation to the Respondent.
On 27 July 2023, the Respondent also filed a Notice of Contention and sought leave on the first day of the hearing of the appeal to file a Further Amended Notice of Cross Appeal. Leave was granted.
Plummer was searched by SC Kelly and SC Darnton but Mr Turner was not. Nothing of note was uncovered during the search. When conducting the search of Plummer, SC Kelly and SC Darnton gave evidence that they became aware that Mr Turner was on parole for a robbery offence.
The Respondent gave evidence that SC Darnton then asked the Respondent and Mr Turner to "stop", and they complied. Her evidence was that they were not informed at this time that they would be searched.
Although SC Kelly had, at paragraph four of his statement in the criminal proceedings against the Respondent, indicated that the Respondent and Mr Turner were "stopped" by SC Darnton, under cross-examination he gave the following evidence:
"Q. …Would you agree that the video footage commences with Ms Madden and Mr Turner being stationary on the footpath?
A. Yes.
Q. In other words, stopped.
A. Yeah, as a figure of speech they were stopped."
SC Darnton gave the following evidence as to the circumstances in which the Respondent and Mr Turner were ultimately stopped on Evan Street:
"Q. As you saw Mr Turner and Ms Madden, could you describe what they were doing?
A. They were just walking along the - the footpath towards where we were.
Q. What happened then?
A. Senior Constable Kelly and I engaged both of them in conversation. I don't remember who started the conversation, whether it was Senior Constable Kelly or whether it was myself. Yeah, just had a general conversation. Which was common. We - we used to engage people in conversations throughout the - throughout our shift. Just general conversation.
Q. What did you say to Ms Madden and Mr Turner?
A. I - I don't remember - like, I don't remember exactly what was said, it was just exchange pleasantries, I guess. We were just talking backwards and forwards, just - just general conversation…
…
Q. At the time [you were] approaching Mr Turner and Ms Madden on the footpath in the street, what was your intention?
A. My intention at that point? Was just to have a conversation, engage them in conversation… I believe I was just there, just to have a - have a general discussion."
Under cross-examination, SC Darnton added the following:
"Q. Do you disagree with what Senior Constable Kelly has said in the first sentence of paragraph 4?
A. I guess in the sense of stopping - in the sense of actually exercising a power or stopping and having a chat with someone, that's maybe where we disagree.
…
Q. You don't disagree with what Senior Constable Kelly had said in paragraph 4 first sentence, do you?
A. Only in the fact that what I explained that yes, I stopped and spoke with Ms Madden and Mr Turner, but at that point I didn't think that I was exercising my power at that point. I might be - stand corrected, but that's what I didn't think - that's what I thought at the time.
Q. Well, I suggest to you, you were exercising your power to stop under section 21 of LEPRA, would you agree?
A. Well, now that it's being put to me like that and using the other previous example, I would say then yes, I was exercising my power."
Shortly after asking, the Respondent and Mr Turner stopped walking down Evan Street and engaged with the police officer, and SC Darnton and SC Kelly activated their body worn cameras. Those cameras captured 60 seconds of visual footage prior to the audio file commencing. In that footage, SC Darnton can be observed removing a black handbag from between Mr Turner's legs. The Respondent can also be observed walking around the road and on the grass nature strip speaking with SC Darnton and SC Kelly in a jovial manner.
When the audio file commences, the following exchange is captured:
"SC Darnton: So I'm Senior Constable Darnton, I'm from Nepean Police, ok. I'm wearing a Body worn video camera, recording both audio and video.
SC Kelly: So am I.
SC Darnton: And this is Lee, Senior Constable Kelly, he's wearing a body worn video camera too, okay. You're going to be detained for a search okay?
…
Respondent: Oh no, I want a female …
SC Darnton: Hang on, relax.
SC Kelly: We've got a female down there.
SC Darnton: For an item in connection with an offence or a drug okay. Just because of your history obviously, very - what are you doing darling? …"
SC Darnton's question, "what are you doing darling?", was directed to the Respondent who was at that time adjusting and reaching down the front of her dress.
SC Darnton asked the Respondent about where she was living but the Respondent did not answer. SC Darnton then directed the Respondent to stand over on the grass nature strip and asked, "Are you high?" to which Mr Turner replied, "Yeah."
The following exchange was then recorded as SC Darnton began to search through the bag placed on the ground which had been retrieved from between Mr Turner's legs:
"SC Darnton: So you've ditched, you've ditched Gaige hey, dropped him like a hot potato?
Respondent: Yes.
Turner: Straight, Straight away … (indecipherable)
Respondent: Yeah (laughs).
SC Darnton: Wow.
Turner: We're mates brah, that all it is.
SC Darnton: You and Gaige are mates and now you've hooked up with his missus?
Respondent: Yeah (laughs)
Turner: I haven't hooked up with his missues?
SC Darnton: Oh, you're not together?
Respondent: Youse are only making allegations."
SC Darnton then announced, "Breach, breach" upon finding a knife in the bag. SC Kelly is recorded as asking, "Whose bag's that?" to which SC Darnton replied, by way of assertion, "It's Ebonie's." The transcript of this conversation which was in evidence then records that the Respondent (whose first name is Ebonie) replied, "Fuck off", although the sound recording does not support the attribution of these words to her.
After a further exchange with Mr Turner, SC Darnton was captured as saying:
"I like you… yeah I like you, do you like me? … we're going to be seeing more of each other sir".
Later, the body camera footage captured some discussion between the Police Officers about whether a field Court Attendance Notice (CAN) should be issued and if so, in relation to what charge or charges. SC Kelly suggested that a CAN should be issued in relation to the Respondent having custody of a knife and resisting arrest. SC Munt then re-joined the other Police officers and is recorded as saying in respect of the proposed resist charge that "She wouldn't take her necklace off … so we pulled her out of the truck". SC Munt's evidence was that she agreed she was smiling whilst recounting this altercation to the other Police officers and said this was because she thought the whole situation was "ridiculous".
Subsequently, the audio on the body camera footage is paused. There was no evidence as to why SC Darnton elected to pause the audio at that time. Just prior to the audio being paused, SC Kelly can be heard saying in respect of the proposed field CAN, "Just give her the knife".
SC Darnton is then captured as saying:
"Hey if you can't give me an address right now I'm going to be straight up. If I can't confirm where you are living. If you are staying with your mum that's all good but I'm going to take you back and charge you, bail refuse you."
The Respondent provided her address but then indicated that she had seen her parole officer that day and had been advised that she had one week to change her address because she did not want to live with her dad anymore.
A field CAN was ultimately not issued. SC Darnton gave evidence that this was because the Respondent had a history of a number of failures to appear before a court, numerous breaches of bail conditions and because he was unaware of where she was living.
At the time he completed the Facts Sheet, SC Darnton gave evidence that the charges were laid because he believed that they had a reasonable prospect of conviction and that there was sufficient evidence to have the matter put before the Court. He denied that the Respondent being on parole affected his decision and that any omissions from the Facts Sheet were done for the purpose of affecting the Respondent's application for bail, ensuring that the Respondent's parole would be revoked or masking the strength of the prosecution's case.
At the time SC Darnton completed the Facts Sheet, he had not yet reviewed the body worn camera footage. His evidence was that he reviewed that footage "in January at some point" and that, even after doing so, he "still thought there was a chance of conviction, or a reasonable prospect" and that he would "put it before the magistrate and let - let them decide".
Mr Turner was later also issued with a CAN in relation to the offence of goods in custody.
SC Darnton commenced drafting his statement on 25 June 2020 and completed his statement on 29 June 2020. His evidence was that his delay in preparing the statement was a consequence of a heavy workload rather than a belief that the Respondent would plead guilty to the offences. The statement, like the Facts Sheet, did not outline the grounds upon which the search of the Respondent was conducted, in particular SC Darnton's opinion that, due to her connection with Ms Taylor and the house on Evan Street, the Respondent might be taking Mr Turner to the house.
The hearing of the charges commenced on 16 September 2020 at the Penrith Local Court. On 28 October 2020, Magistrate Hiatt excluded all relevant evidence and all three charges with which the Respondent had been charged on 30 December 2019 were dismissed.
The Respondent also sought leave to file the following Notice of Cross-Appeal:
"That the primary judge erred in failing to find that the respondent was maliciously prosecuted in relation [to] the charge pursuant to section 527C(1)(a) of the Crimes Act 1900 (NSW)."
The significance of this aspect of the cross-appeal was to answer an argument on behalf of the State that the prosecution of the "goods in custody charge" was not malicious, and some or all of any damage sustained by the Respondent in relation to the "resist officer charge" and "custody of a knife charge" would have been occasioned in any event.
Third, the primary judge rejected SC Darnton's evidence as to the reasons for his failure to include several matters in the COPS narrative and the Facts Sheet as well as his reasons for including other matters which were said to misrepresent the events of 30 December 2019. His Honour held that:
"[197] … It is incredulous for Darnton to suggest that evidence as to custody of a knife and items of clothing, critical to two of the offences with which he was charging the plaintiff, could be merely "forgotten" in such a short period.
[198] Darnton's explanation for omitting critical evidence in the Facts Sheet as being an oversight because he was "under the pump" is inconsistent with his later concessions, when cross-examined, that he in fact had "plenty of time" to draft an accurate document. Indeed, the evidence established that Darnton had returned to the police station by about 5:30 pm (the COPS entry created at 5:36 pm) and did not leave until 7pm. Darnton conceded that during this period he was only working on the plaintiff's case and, it was in this context, that he conceded he had "plenty of time".
…
[201] Darnton ultimately acknowledged that the disclosure of exculpatory information on the Facts Sheet was of utmost importance in circumstances where a person's liberty depended upon it. I do not accept Darnton's evidence that the critical exculpatory information was simply forgotten at the time of completing the COPS entry, or that it was otherwise a mere oversight."
On the basis of his rejection of SC Darnton's explanation for the omission of the exculpatory evidence from the Facts Sheet, the primary judge held that the omissions were "deliberate and done with the purpose of withholding material information from those who would determine whether the [Respondent] should be granted bail": PJ [202].
Fourth, the primary judge made adverse credit findings in respect of SC Darnton's evidence in relation to his failure to comply with court orders and appropriately provide documents to the Respondent's solicitors for the purposes of the Local Court proceedings. His Honour reasoned that:
"[206] Darnton's disregard for court processes, disclosed in his evidence, reflected poorly on his credit. In accordance with orders of the Local Court the prosecution brief of evidence was to be served by 6 February 2020. This was the responsibility of Darnton, as the informant. He failed to comply with the order, and indeed his own statement as the officer in charge of the prosecution, was not prepared until 29 June 2020. In the interim, Darnton had attempted to engage with the then solicitor for the plaintiff seeking to negotiate a resolution of the various charges. Whilst conceding "from the benefit of hindsight" that it was "wrong" not to serve the brief in accordance with the Local Court order, he later attempted to justify his conduct by claiming that he was unaware that the brief of evidence required to be served needed to include witness statements. This evidence is not credible in circumstances where Darnton was a police officer of some years of experience who would have been aware that a brief of evidence would include all relevant statements in respect to the prosecution. I reject the submission of counsel for the defendant that Darnton might have intended to merely serve a "short brief" in accordance with Reg 25 of the Criminal Procedure Regulation 2017. This submission is inconsistent with the evidence of Darnton. This was not his explanation, and I reject the attempt by counsel for the defendant to seek to justify Darnton's conduct by reference to this Regulation.
[207] Even more concerning was the conduct of Darnton when producing documents in response to a subpoena issued by the plaintiff's defence solicitors. The subpoena required New South Wales Police to produce relevant intelligence reports, no doubt to test the credibility [of] Darnton's claims that he was lawfully exercising the power under s 21 when dealing with the plaintiff. Darnton took it upon himself to produce heavily redacted documents. In cross-examination, he admitted being aware of the process for making a claim of public interest immunity involving such documents. He was aware that this involved engaging the Crown Solicitor's Office who would then attend court and assume conduct of any public interest immunity issue. Darnton admitted that he was not authorised to produce heavily redacted documents. He accepted that he undertook the process of redaction and production, thereby depriving the plaintiff's solicitors of relevant material in defence of the criminal charges, without referring the matter to the Crown Solicitor's Office."
At PJ [189], the primary judge made the following findings in relation to the credibility of SC Kelly:
"…Kelly's explanation for the absence of exculpatory evidence in his statement prepared for the court proceedings lacked creditability [sic.]. His attempt to justify its exclusion in part by suggesting it was contained in the body worn footage was inconsistent with detail otherwise provided in his statement of less significance. Further, his subsequent enquiries with Kmart, in an attempt to inculpate Turner, absent any exculpatory enquiries, was also suggestive of Kelly taking an approach which was less than objective. His justification for the immediate use of handcuffs on the plaintiff, including concerns as to possible injury or escape, was difficult to reconcile with the plaintiff's demeanour in the period leading to their use."
Similarly, at PJ [93], the primary judge held that SC Kelly's failure to include exculpatory evidence in his statement did "not reflect well on his credit".
His Honour also held at PJ [84] that SC Kelly's answers with respect to his evidence that at no stage were the Respondent or Mr Turner physically stopped by himself and SC Darnton were, given SC Kelly's experience as a police officer, "evasive and unconvincing".
In relation to SC Munt, the primary judge held that her denial that her comments towards the Respondent, namely the "mouthy" and "tough bitch" comments referred to at [40] and [45] above, were out of frustration was "unconvincing". His Honour also rejected as credible SC Munt's explanation for her failure to activate her body warn camera whilst interacting with the Respondent, holding at PJ [110] that:
"Munt's evidence in respect to her failure to activate the camera lacked creditability [sic.]. She claimed, during evidence, that she was unsure as to whether the camera was activated, and it was for this reason that she made such an enquiry of her fellow police officer. However, this was inconsistent with the actual video which showed that a colleague specifically asked Munt whether her body video was on at the time the search was conducted. Munt's insistence that she believed the camera was on is inconsistent with the fact that she did not hear the two beeps at any time, and had not warned the plaintiff that the camera was activated. Further, Munt was particularly defensive when cross-examined on her comment in relation to the search being conducted in circumstances where the plaintiff was "mouthy"."
In contrast to the adverse credibility findings made by the primary judge in respect of the Police officers, his Honour found that the Respondent gave evidence in a "straightforward and honest manner". His Honour held at PJ [184] that:
"The plaintiff readily conceded that following her release from prison she relapsed into drug use, having been denied the opportunity to have contact with her son before Christmas. The plaintiff readily conceded as much to her parole officer in the hours before the incident (Ex p22), although an oral drug wipe performed at the time provided a negative test result for all substances. The negative result was consistent with the plaintiff's denials, when remanded in custody, that she had not consumed prohibited drugs in the period prior to her arrest (Ex p14). The plaintiff, in a candid, forthright and unhesitating manner, admitted that she had lied to the admitting nurse at the correctional facility that she had consumed drugs in order to be admitted to the prison's 'butte' program."
The primary judge also held that the Respondent's reaction when she was told she would be searched by police was entirely consistent with her evidence that she felt anxiety around male police officers as a consequence of a strip search incident when she was 14: PJ [185]. While his Honour acknowledged that the Respondent was unable to recall some matters, he found that "her evidence of the events surrounding her arrest was given in a clear and concise manner": PJ [186].
A short time later, the following exchange took place between the primary judge and the State's trial counsel:
"Q. I'll come to strip searching in a moment. Like what happened on this particular occasion. And I'm glad you raised it. But I want to be fair to you about the question I'm asking. It's a pat-down search I'm talking about.
HIS HONOUR: Mr Coffey, I will assume you are being entirely fair. And every question you ask is fair. So, there's no need to preface questions with "in fairness", or "being fair".
COFFEY: I'm sorry, your Honour. I actually didn't realise I was doing it. I'm sorry.
HIS HONOUR: That's all right."
Again, this is an unremarkable exchange, and it was not inappropriate for the primary judge to make the intervention he did.
The next day, the following exchange took place which was relied upon by the State in its written submissions on appeal as one of the several passages which it was asserted "changed the course of the hearing":
"Q. Would you accept the description of the conversation that Senior Constable was having with you as "banter"?
A. I'm not sure.
Q. I ask this question respectfully: do you understand what I mean by the word "banter"?
A. No.
Q. Maybe he was having in [sic.] attempt having some fun with you in relation to the conversation with you?
A. He's trying to.
Q. He was trying to have fun with you?
A. I guess, yeah.
Q. Do you agree that he wasn't trying to be rude to you?
A. No, I think he was being--
CANCERI: I object. It's delving into the mind of the officer. Calling for evidence from this witness about what someone else was thinking at the time. What their objective was.
COFFEY: The question may need to be re-prefaced, your Honour. The angle that I was attempting to lead was about how this witness felt about the conversation in terms of the overall conduct of the police officers. And whether or not it goes towards aggravated damages and exemplary damages.
That's something that's claimed. It's claimed in the pleadings that the conduct of Senior Constable Darnton was taunting this particular plaintiff. And that it was inappropriate conduct.
CANCERI: She said she was embarrassed, your Honour.
HIS HONOUR: I'm sorry to do this, Ms Madden, can you just wait outside for a minute.
IN THE ABSENCE OF THE WITNESS
HIS HONOUR: Mr Coffey, the witness has given evidence-in-chief which I gather was led for a specific reason. And that is that at the age of, I think, 14 she was the subject effectively of a strip search by two male officers.
COFFEY: Yes, your Honour.
HIS HONOUR: In a police station. And she's given evidence about - as I recall - as to how that affected her. She also has given evidence this morning about the fact, when you ask her during this video, as to whether she was intimidated or not, she made the comment that she does get intimidated. Especially by male police officers.
COFFEY: Yes.
HIS HONOUR: My own observation at this stage would seem not unreasonable in light of her evidence she gave yesterday about what occurred to her at the age of 14.
COFFEY: Yes.
HIS HONOUR: Mr Coffey, you'd understand your obligations as cross-examiner. If you're going to pursue this line of enquiry, that you do so in fairness. In light of what this witness said earlier about the fact that she's intimidated. Or she does or can get intimidated by male police officers. Of course, her conduct or her manner could be seen a number of ways.
It could be seen as her not being intimidated or not being worried or otherwise. But it also may be a demonstration of her perhaps being nervous or apprehensive. And this is her way of dealing with it. So, all that I'd say to you is you're entitled to conduct the cross-examination as you see fit in terms of this witness, given her appearance in the video.
But I would simply ask that you be conscious of the evidence she's already given in terms of yesterday. And her experiences with police. And her volunteering this morning that she said in fairness she wasn't really intimidated. Although she does get intimidated by male officers.
COFFEY: Yes.
HIS HONOUR: It's a matter for you. Also, the use of the word "banter". Or the police officers having "fun" with her. I don't know what you're going to make of that. Or what's going to be suggested as to the police officer's behaviour on this day and their interactions with her.
I just thought it was an interesting expression to use the word "banter". When you're talking about a series of police officers who are interacting with someone on the side of the road. I simply make that observation. And I think, Mr Coffey, it's just a matter of understanding.
And particularly given a plaintiff who, on her own evidence, is fairly uneducated. I don't say that pejoratively. Has had experiences with police over the years. Including - I don't think you would even argue with the proposition - it's probably a pretty traumatic experience at the age of 14.
Where she was strip searched. And strip searched naked by two male police officers. And then effectively put naked in a cell. I don't think you would even disagree with the proposition, I wouldn't have thought, that clearly that was a significant event which has had an impact on her.
And subject to anything further you want to say, I would draw a connection between the events that she spoke about yesterday. And her comment earlier that particularly by male police officers she feels intimidated.
COFFEY: Yes, your Honour.
HIS HONOUR: I simply raise it, Mr Coffey. You are the cross-examiner. And I don't in any way seek to restrict or inhibit other than fairness, the cross-examination. And I will give you a reasonable ambit - or wide-ranging ambit - in cross-examination of this witness.
But I would simply ask that you keep in mind who this plaintiff is. And her background. Do you understand what I'm saying, Mr Coffey?
COFFEY: I very much do understand what your Honour's saying. And lest it be said that there's any confusion from my side, your Honour, I had thought that the style which I had adopted was nothing but respectful to this witness.
HIS HONOUR: Mr Coffey, please don't get me wrong. I'm not suggesting your cross-examination until now hasn't been respectful.
COFFEY: Understood.
HIS HONOUR: If I conveyed that, I didn't mean to. All that I'm saying to you is, in terms of propositions you're putting to the witness about her demeanour and the way she is, I would simply ask that you be conscious of the evidence that she's given so far.
COFFEY: Put my client to one side, personally I don't want to make this particular part of her life today, to be more traumatic than it -
HIS HONOUR: I understand that, Mr Coffey. As I say, please don't get me wrong. I'm not being critical of you. And if you've taken it that way, I'm sorry. It wasn't meant to be that way.
COFFEY: I'm glad your Honour raised it.
HIS HONOUR: All I'm saying to you is just be conscious of that, I think, when cross-examining the witness. That's all.
COFFEY: Yes, thank you.
HIS HONOUR: That's why I left the witness outside. Because I think in fairness, I wanted to raise this with you. But I don't want to do it in anyway to suggest that your cross-examination should be curbed or restricted in terms of the areas that you want to explore that are relevant." (Emphasis added.)
For the State to point to this lengthy passage in addition to those already set out in support of the submission that it "changed the course of the hearing" in a way amounting to apprehended bias was fanciful and, in my view, wholly without merit.
The State also pointed to a number of passages which were said to demonstrate that the primary judge had "vigorously question[ed] witnesses called by the State." The first instance of such questioning highlighted by the State was the following exchange which took place during the cross-examination of SC Kelly:
"HIS HONOUR
Q. Senior Constable, I take it you're aware under section 21 in terms of the concept of stopping someone under the section.
A. That's physically stopping them, saying "Stop, don't go any further".
Q. No, I'm just talking about the concept. That section 21(1) you would know, provides the power to stop, search and detain.
A. Yes.
Q. And that stop has a particular meaning within the section.
A. I don't know what the meaning is.
Q. You don't know what the meaning is.
A. You mean stopped, physically stopped them?
Q. No, I'm just asking you, you're a police officer for how many years?
A. Yes. Ten years.
Q. I take it you've exercised powers under section 21 before?
A. Yes.
Q. You understand that there's certain preconditions of exercising those powers.
A. Yes.
Q. One of the powers you have is to stop a person.
A. Yes.
Q. So however that's done, I'm simply asking you about the concept of stopping a person. You understand that stop has a particular concept or meaning under section 21. Do you understand my question?
A. Yes.
Q. So when you would prepare a statement such as the police statement you've prepared here, and you use the very expression stop, you say it's just a figure of speech, but you understand it has a particular meeting [sic.] in the context of police powers.
A. Yes. But I didn't mean it like that. The fact that we're actually physically stopping them, telling them to stop.
Q. Why would you use that expression in a police statement in relation to a prosecution, if you didn't mean it in the context of--
A. Because, yeah, I've made a mistake.
Q. Just let me finish.
A. Yeah.
Q. If you didn't mean it in the context of a section 21 power?
A. Because the fact that we - we both stopped. They stopped and we stopped at that - at the - at the intersection coming together.
Q. But you don't say "we stopped together". The expression you use is, "As a result, Senior Constable Darnton stopped the accused."
A. ..(not transcribable)..accused.
Q. You don't say in that statement "We stopped at the same time". You accept, you used the statement "As a result, Senior Constable Darnton stopped the accused Turner, and the accused Madden".
A. Yes. It was just to have a chat with them. At that stage. I didn't think that we're going to stop, search and detain them.
Q. They're three different concepts.
A. Yeah, well - yeah.
Q. Don't have to do all three.
A. Yeah.
Q. You accept that.
A. Yes.
Q. I'll just go back and ask you, and I asked you some questions before lunch, and having now seen the video a few times, of what occurred at 11.12 in the morning. The body cam starts with you effectively riding down the street, correct?
A. Yes.
Q. At that point was Senior Constable Darnton riding with you?
A. Yes, he was. I - I'm pretty sure you can see in the video, he was beside me at one point or behind me.
Q. But then, and correct me if I'm wrong, as the video plays, I think you can see Senior Constable Darnton following the other two behind on the crossing.
A. Yes.
Q. Was that deliberate?
A. No. Not from what I can recall being deliberate.
Q. You may or may not be able to answer this, but from your perspective, did you know why you separated at a point, and you crossed in front of them, those two persons, whereas Senior Constable Darnton separated from you and rode up behind them? Do you know why he did that?
A. No.
Q. Did it have anything to do with the fact that you intended to stop them and Senior Constable Darnton was effectively going to stop there [sic.] from behind?
A. Not that I can recall. I don't remember any conversation between - between myself and Senior Constable Darnton about stopping them.
Q. So from your perspective, you don't know why Senior Constable Darnton did what he did.
A. No.
Q. Is that what happened? Do you recall Senior Constable Darnton actually separated, and rode up behind them across the crossing?
A. Yeah, I remember just because I can see the body worn, and I can see he came in from behind.
Q. You can see that on the video.
A. Yes.
Q. He seems to be riding behind them on the crossing.
A. Yes.
Q. Then obviously he follows them up to the point where they then are paused or stopped on the pavement.
A. Yes. Yes.
HIS HONOUR: Yes, Mr Canceri."
This passage was also relied upon by the State as one which "changed the course of the trial" but that bold submission was not the subject of any further explanation or submission either orally or in writing. To describe this as an "overstatement" would be charitable.
The State then pointed to the primary judge's intervention during the cross-examination of SC Munt as a further example of questioning that "changed the course of the trial":
"HIS HONOUR
Q. Senior constable, in your evidence when you were asked by Mr Coffey about that, you said you assumed it was switched on?
A. Yeah.
Q. And I think your evidence was that you then asked one of the other police officers, later, if it was on?
A. Yeah. Yep.
Q. And he said it wasn't.
A. Yep.
Q. Why did you ask the police officer if it was on at that stage?
A. Yeah, I guess at that point I believed it was on and I just wanted to confirm with - with him. Yeah, that - that was all. Yeah. I honestly thought it was on, and the - the light - when you look down from this angle, it's quite hard to see the red and the green on the light. So, when you look down, you kind of have to go, like, is it on? So, that's why I asked somebody, like just to confirm, because of what had happened down at the truck. I wanted to confirm, is it, like, can you see the green, like, the red, is it on?
Q. So, that's why you were asking the officer whether it was on?
A. Yeah.
Q. Because you weren't able to make sure it was on?
A. Yeah. Yeah.
Q. See, wasn't it the case where, in fact, the issue as to whether the body camera was on was raised by another police officer, not you?
A. I'm - I can't recall. Yeah.
Q. For the record for both counsel - I'm going off the original transcript, and it might have changed slightly.
COFFEY: I'm sorry, yes.
HIS HONOUR: No, that's all right. The original one of 183.
Q. I want you to assume there's a transcript been produced of it.
A. Okay, yeah, yeah. Yep.
Q. And that there was a conversation where there was a discussion, do you remember, about whether a CAN should be issued or not?
A. There was, yeah. Yes, I do recall that. Yep.
Q. And Senior Constable Kelly said, she has go to go, or can we give her a field CAN?
A. Yep.
Q. I'm not suggesting you remember the exact words--
A. Yeah, yeah.
Q. --but do you remember this discussion?
A. Yep.
Q. And you said she didn't take her necklace off, so we forced it off.
A. Yep.
Q. And Senior Constable Kelly said, "Oh really, resist?" You remember that?
A. Vaguely, yeah. Yeah, sorry.
Q. And Senior Constable Kelly, said, give her a field CAN for resist as well?
A. Yep.
Q. And then it appears that, in fact, what happened was, it was Senior Constable Darnton who said to you--
A. Yeah.
Q. --"was it body worn? Did you have your body worn on?"
A. Yep.
Q. And you asked, "is it green or red?" And Senior Constable Darnton said, "Nothing". And you said, "Okay, then it was off".
A. Yeah. Yep.
Q. So, does that assist your recollection that, in fact, it wasn't you that was actually confirming whether it was on or not? That you were specifically asked by someone else as to whether you'd had it on?
A. Yeah. That - that's fair to say. But I recall kind of going, "oh, is it, is it on?" But I had no reason for it not to be. Yeah.
Q. As I understand from what we heard yesterday--
A. Yeah.
Q. --is there two audible beeps when you turn it on?
A. Yeah, so it will - so, yeah. It'll be beep-beep. Yeah, it'll be on. Yep.
Q. So, you would know if you had turned it on or whether, in fact, it was on from hearing those two audible beeps?
A. Yeah. Yep.
Q. Had you heard those two audible beeps?
A. No, no. Not that I can remember. Yeah.
Q. Why did you then assume that it was on?
A. I just - I - yeah. I can't say. Yeah. I can't say that. Yeah, why I didn't hear it.
COFFEY: Could I just raise, on the new, the better version of the transcript, which I'm--
HIS HONOUR: I'm sorry, yes.
COFFEY: --the number is, just for your Honour's reference, it's at 9.39, which is the time in which the conversation you've just put to the witness, and that's at row 280 - 283 on the new version of the transcript.
HIS HONOUR: Have we got a working copy of that, or have we only got one?
COFFEY: I thought I gave you two, your Honour, sorry.
HIS HONOUR: I think may have, Mr Coffey.
COFFEY: That's all right, I'll just see if we got a spare one."
While the primary judge's intervention in this passage was extensive, it was directed to seeking clarification of the witness' evidence in relation to her body camera, and whether it was relevantly activated. As Mr Toomey SC submitted orally in respect of this and the earlier passages relied upon by the State and which have been set out in extenso above, "on a fair reading of those passages that are complained of, in a modern day trial before a judge alone, they amounted to nothing more than the primary judge's wish properly to explore the issues that were being ventilated before him, both in exchanges with witnesses and with counsel." That submission, which I accept, accords with observations made by Callinan J in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete) at [173]-[176].
With reference to the following passage, the State also submitted that the primary judge was at times "belittling, combative, dismissive, condescending and unduly animated":
"HIS HONOUR: Mr Coffey, I don't understand that that submission can be made good. I mean, what are you suggesting? That given Senior Constable Darnton's evidence that he'd been using these body-cams for a period of time, that he's using this body cam on the day, that Mr Canceri says he accessed it in January, obviously when he provided it--
COFFEY: Yes.
HIS HONOUR: Do you seriously put a submission that I need evidence that at the time he prepared the COTS entry, I need evidence that he had some training in how to access that body-worn footage that he was using that day?
COFFEY: His evidence, your Honour, is that body-worn cameras were new to him--
HIS HONOUR: No, answer my question. Do you say that I need evidence that Senior Constable Darnton knew how to access the footage before I can do anything with that submission?
CANCERI: Can I just assist before I forget to make a submission on this point? Because I often do. Your Honour would take into account the fact sheet, and the fact that Senior Constable Darnton is saying at the end of the fact sheet, by appointment, the accused and/or their representatives can view the body-worn camera footage.
HIS HONOUR: Really, Mr Coffey? Are you seriously making that submission on behalf of the [S]tate, given what's in the fact sheet, given what's in the COTS [sic.] report, where he says "as of that date, it's now available for viewing?"
This exchange may be regarded as robust but does not merit any of the descriptions given to it by the State in the written submissions on appeal and as set out above. It is not inappropriate for a judge seeking to focus on key issues to question submissions by counsel that appear to fly in the face of commonsense or which are excessively technical. In the passage set out above, the apparent premise of the submission that had evidently been made by Mr Coffey, namely that it needed to be proved that the Senior Constable knew how to access body camera footage, flew in the face of what the Senior Constable had said at the end of the Facts Sheet, as Mr Canceri pointed out.
The weakness of Ground 1 of the appeal is made plain in the following exchange between the primary judge and Mr Coffey in the course of final submissions:
"HIS HONOUR: Mr Coffey, how can you seriously make that submission that in terms of 183, when 183 says, "The brief of…of the offence"? How can you seriously make a submission that the order for the service of the brief was really what was contemplated in 183, which effectively is only those documents or that evidence, which is in existence at the time? That is not what 183 says, does it?
Portion of hearing 8/11/2022 that does not appear in Court transcript - prepared by appellant's solicitors from audio recording
COFFEY: Your Honour, I have to disagree with you.
HIS HONOUR: I'm sorry. You disagree with me?
COFFEY: Yes, your Honour.
HIS HONOUR: In what way?
COFFEY: Um, I read that the written statements taken from persons um implies that they've been taken and they're in existence at the time the brief is served, not that, uh, that they need to be obtained, um. Your Honour, I understand your Honour has a different point of view in relation to me, but with respect, my approach here today and all of times appearing before you has to be made … is to make appropriate submissions before you. I am concerned that your Honour has a view that I am not making appropriate submissions because I don't want that to be the case.
HIS HONOUR: Mr Coffey, do you… are you leading to an application, or not?
COFFEY: No, your Honour, but I'm -
HIS HONOUR: - Well, what are you inferring, Mr Coffey? Because let's get this out on the table. Let's get this out and clear now. Are you suggesting that I've either pre-judged this case or I have a view or a personal animus to you which means I should no longer be hearing this case?
COFFEY: No, I don't have a suggestion about it your honour.
HIS HONOUR: Mr Coffey, I would have thought you would accept as an advocate that if I have matters which are of some concern to me in terms of your submissions, that I raise them with you rather than remain silent.
COFFEY: Of course.
HIS HONOUR: Do you accept that?
COFFEY: Of Course, yes, of course. Of Course.
HIS HONOUR: And Mr Coffey, if you wish to criticise me in terms of my approach. You came back after lunch and you've withdrawn a number of submissions which you made either to me in orally this morning or which you have made in writing.
COFFEY: Yes, your Honour
HIS HONOUR: So, in those circumstances, are you suggesting that I am acting other than judicially or properly when interacting with you in the course of these submissions?
COFFEY: No, your Honour…."
The State was given a clear opportunity by the primary judge to raise any issue of apprehended bias or to make an application to the primary judge to disqualify himself but, quite deliberately, chose not to do so. This exchange further undermined the State's first appeal ground.
To adopt the language of Kirby and Crennan JJ (with whom Gummow ACJ relevantly agreed) in Concrete at [105], the comments by the primary judge upon which the State's argument fastened "were understandable and clearly part of dialogue between bench and bar aimed at clarifying the issues in the case".
Ground 1 of the State's appeal should be rejected for the foregoing reasons and also by reason of considerations of waiver. In this context, I agree with Leeming JA's reasons at [210]-[215].
The primary judge held that, in asking the Respondent and Mr Turner to stop, Darnton had exercised powers to "stop and detain":
"[210] … the terms of s 21 of LEPRA … empowers a police officer without a warrant to "stop, search and detain a person". The plaintiff contended that the power to stop was distinct from the power to search and detain for the purposes of s 21. Whilst the defendant, in my view correctly, challenged such a proposition, it agreed that police could be exercising their power under s 21 to stop and detain without proceeding to a search. Such a concession is consistent with a detention being a deprivation of a person's liberty, irrespective of whether, during any such detention, a person is then searched. In the circumstances the first issue can be articulated as follows:
(1) Prior to the plaintiff being told she was to be detained for a search were the police exercising their power to stop and detain pursuant to s 21 of LEPRA?
(2) If the answer is in the affirmative, were those powers exercised lawfully?
…
[215] The evidence establishes the following:
(a) The plaintiff and Turner were walking south on Evan Street when Darnton and Kelly "jumped out" of a police vehicle and walked after them.
(b) Darnton directed the plaintiff and Turner to stop.
(c) The plaintiff and Turner continued walking before stopping in accordance with a second direction from police.
(d) Darnton approached the plaintiff and Turner from behind whilst Kelly walked past the two (on the road) before approaching them plaintiff from the opposite direction, effectively blocking the plaintiff and Turner's path.
(e) Darnton removed a bag, previously being carried by Turner, from between Turner's legs, placing it on the ground some distance from him.
[216] The plaintiff agreed in cross examination that, consistent with the body worn footage, she was free to walk around the grass and footpath whilst speaking to police, and that no police officer had physically touched her until handcuffs were used. She agreed that she had engaged in a handshake with Turner and appeared jovial.
[217] Whilst Kelly acknowledged that he uses the word "stopped" in his statement, he claimed that this was no more than "a figure of speech" and it was not like they "..physically stopped them. We approached them. And they stopped. And we had a talk. We had a conversation." Kelly's reluctance to concede that the plaintiff and Turner were effectively detained must be approached with some scepticism given his evidence of a similar interaction, also involving Darnton, with Turner and his companion earlier in the day. I do not accept Kelly's evidence that the plaintiff would have been permitted to leave if she so desired. The defendant's submission that there is no evidence to the contrary does not advance this issue.[218] In all the circumstances, I find that Darnton and Kelly did stop and detain the plaintiff, and Turner, prior to being told by Darnton that she was to be detained for a search, thereby purportedly exercising their power under s 21."
The primary judge's conclusion that the Respondent was "stopped" within the meaning of s 21 of LEPRA was one that was based upon a combination of matters. The fact that the Respondent was not physically restrained and could walk around was not inconsistent with that conclusion. Her ability to do so was limited and in reality circumscribed by the presence of SC Darnton and SC Kelly. In the language of the primary judge, they were "effectively detained".
The State also submits that the primary judge erred in finding that SC Darnton did not have a suspicion upon reasonable ground as to the existence of certain circumstances set out in s 21(1) of LEPRA at the time at which he exercised the power to search the Respondent (a power which the State accepted was required to be exercised in accordance with s 21).
The primary judge held that:
"[220] The precondition to the exercise of the power is the police officer suspecting "on reasonable grounds" that certain circumstances exist. The grounds upon which the police purportedly exercised their powers, albeit at the time when announcing that the plaintiff would be detained for [re]search [sic.], was that the plaintiff had in her possession or under her control an item in connection with an offence or a drug (s 21(1)(a)) or (21(1)(d)).
…
[224] A relatively brief period elapses between the initial detention and Darnton informing the plaintiff that she was to be detained for a search. The defendant concedes that when this announcement is made Darnton is exercising his power pursuant to s 21, and provided a reason for doing so. For the reasons discussed below, I am not satisfied that the plaintiff's detention for the purposes of the search was lawful, in that the defendant has failed to discharge its evidentiary onus that Darnton had reasonable grounds for suspecting the contended circumstances existed.
[225] In the circumstances, it must follow that any detention prior to Darnton's announcement that the plaintiff would be detained was similarly unlawful. In any event, the plaintiff's initial detention, prior to being told that she was to be detained for [re]search [sic.] was relatively brief, with the more substantial period of detention occurring thereafter."
The primary judge's reasons for concluding that the search was not lawful included his rejection of SC Darnton's evidence, including as to the proximity of the Respondent and Mr Turner to a known drug house: see PJ [227]. The primary judge concluded:
"[230] It is apparent that the plaintiff and Turner were located within the vicinity of an apparent drug house. However, the evidence was that the plaintiff and Turner were walking in the direction of the drug house. It is in this context that Darnton suspected that the plaintiff was taking Turner to the drug house to obtain drugs. This is inconsistent with Darnton's purported suspicion, by reference to s 21(1)(d), that the plaintiff had in her possession a prohibited drug in circumstances where Darnton was suspicious that the pair were walking to the drug house to obtain drugs. Further, if the plaintiff appeared to Darnton to have been affected by the apparent use of a prohibited drug prior to the interaction with police, this is not necessarily consistent with the plaintiff having such a prohibited drug in her possession. If anything, it is consistent with the plaintiff having previously used a prohibited drug. For the reasons traversed earlier, I do not accept Darnton's evidence that at the time of the deciding to detain and search the plaintiff that he had in mind the connection between the plaintiff's associate, Taylor, and the drug house on Evan Street.
[231] In all the circumstances, I am not satisfied that the relevant matters upon which Darnton relied, whether separately or in combination, provided reasonable grounds to suspect that the plaintiff had in her possession or under her control anything used or intended to be used in connection with the commission of an offence, or had in her possession or under her control a prohibited drug.
[232] This finding is fortified by the context in which the detention and search was conducted. The clear inference is that that Darnton's motivation was other than a legitimate exercise of police powers under s 21.
[233] First, it is significant to note that Darnton used the same words for justifying the detention and search of Turner and his companion earlier that day in different circumstances. Second, at the time Darnton pronounced that the plaintiff would be detained for a search the only stated reason for doing so was because of the plaintiff's "history". Third, in the minutes before the detention and search the plaintiff and Turner were involved in a brief verbal exchange with police. Immediately after this exchange Darnton and Kelly left their police vehicle and approached the two from different directions. Shortly before the plaintiff is searched, Munt tells the plaintiff, "that's what happens when you're mouthy… You get searched." It is significant that Darnton immediately reminds Munt that the body worn cameras are activated, clearly in an attempt to warn Munt about saying anything further. After the search is conducted Darnton says to the plaintiff, "who has the last laugh now, hey?" whilst Kelly is later heard on the phone telling a superior officer that they had just had "a run-in with Ebonie Madden" and that she had "started mouthing off".
[234] In all the circumstances, I am not satisfied that the plaintiff's detention and search was lawful."
The primary judge's rejection of SC Darnton's evidence in relation to his basis for detaining and searching the Respondent was strongly influenced by his adverse findings in relation to the Senior Constable's credit, finding it "overwhelmingly impugned": PJ [192]. His Honour's findings in this regard have been referred to at [87]-[93] above.
As the primary judge pointed out at PJ [219]:
"It is for the defendant to prove that the plaintiff's detention was lawfully justified: Ruddock v Taylor [2003] NSWCA 262 at [3] per Spigelman CJ. The burden of proving any facts or circumstances which show that the detention was lawful similarly rests on the defendant: Zaravinos v State of NSW (2004) 62 NSWLR 58 at [12] per Bryson JA (with whom Santow JA and Adams J agreed)."
The written and oral submissions advanced on behalf of the State on this aspect of the appeal did not overcome the high hurdle that challenges to such credit-based or credit-influenced findings require. It is not sufficient simply to assert, as the State did at [39] of its written submissions, that such findings were "wrong". The State's submission that "a police officer encountering an apparently drug intoxicated known drug user, in proximity to a known drug house, must have grounds to suspect that there might be unlawful drugs or unlawful items in their possession" ignores the primary judge's rejection of SC Darnton's evidence as to his knowledge of the so-called drug house (see [90] above). I accept the Respondent's submission that there was nothing glaringly improbable or contrary to compelling inference in the judge's finding that the connection between the Respondent's associate, Ms Taylor, and the drug house were not matters that informed the suspicion.
The second aspect of the second ground of appeal involved a challenge to the primary judge's conclusion that the Respondent's arrest by SC Darnton was not lawful. The unlawfulness of the arrest, as found by the primary judge, was not originally challenged by the State and a challenge was only made on the first afternoon of the appeal by way of filing of the Amended Notice of Appeal.
Section 99(1) of LEPRA provides as follows:
A police officer may, without a warrant, arrest a person if -
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons -
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
As the primary judge observed, the onus was on the State to establish that the Respondent's arrest was lawful, and the two preconditions in s 99(1) were satisfied. The primary judge then said:
"[238] The first pre condition is that the police officer suspects on reasonable grounds that the person is committing or has committed an offence. Darnton clearly proclaims that the reason for the arrest is for the offence of custody of a knife in a public place, contrary to s 11C of the Summary Offences Act, which provides as follows:
"(1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school."
[239] The defendant accepted, quite properly, the following submission made on behalf of the plaintiff:
"85. The word 'custody' is not defined in the Summary Offences Act. The common law defines custody as "the immediate de facto control or charge of the article in question": Ex parte McPherson (1933) 50 WN 25. An essential component of the definition is the concept of immediacy."
[240] As Basten J [sic.] (with whom McColl and Hogan [sic.] JJ agreed) in Dowse v State of New South Wales [2012] NSWCA 337 at [12] observed the suspicion on reasonable grounds that a person has committed an offence "involves an actual and honestly held suspicion on the part of the officer for which, in addition, there must be reasonable grounds", citing with approval the judgment of Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298). As his Honour further observed at [26] "… there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion…".
[241] The defendant contends that Darnton's evidence would be accepted that his suspicion was based on:
(a) the knife was located in a handbag found in a public place;
(b) the bag was a woman's handbag;
(c) Darnton found the plaintiff's identification in the handbag; and
(d) after Darnton found the knife Kelly asked whose bag it was, to which Darnton had responded that it was the plaintiff's. In this respect, the plaintiff nor Turner responded to suggest this was not the case.
[242] The first ground does no more than establish the element of the knife being in a public place. The fact that the bag was a woman's handbag must be considered in the context that the bag, at all times, was being carried by Turner. As the defendant ultimately conceded, the discovery of the plaintiff's identification in the handbag is of no relevance in circumstances where that discovery was not made until after the arrest. As for the discussion as to whom the bag belonged, it was Darnton who immediately claimed that the bag belonged to the plaintiff. The plaintiff hardly had time to respond before Darnton places her under arrest. In any event, what is apparent in the short period between the discovery of the knife and the arrest is that the plaintiff spontaneously expresses shock and surprise at the discovery of the knife, whilst saying, "fuck off".
[243] In any event, the evidence establishes that at all times prior to the initial stopping of the plaintiff and Turner the bag was in the custody of Turner. Following the stop, Darnton removes the bag from between Turner's legs, placing it on the ground before it is searched. I do not accept the evidence of Darnton that he had no appreciation, at the time of arrest, that the bag was being carried by Turner prior to being stopped, or that he had forgotten in the minutes before, that he had removed the bag from between Turner's legs. Given the element of custody necessarily involves the concept of immediacy, the evidence clearly established that at no time was the bag, containing the knife, in the custody of the plaintiff.
[244] In the circumstances, I am not satisfied that Darnton had a genuine and/or honest suspicion that the plaintiff was committing, or had committed, the offence of custody of a knife in a public place. Further, given the matters already identified, I am not satisfied that, assessed objectively, there were reasonable grounds for suspecting the plaintiff had committed the offence. Given the first precondition in s 99(1)(a) was not satisfied, I find that the arrest of the plaintiff was unlawful."
It is evident from these paragraphs that the primary judge's conclusions were informed by his adverse credit findings in respect of SC Darnton. More than that, however, it was common ground that it was Mr Turner who, at all material times, was in possession of and carrying the bag. SC Darnton was quick to assert that the bag was the Respondent's. It was, according to what the Respondent subsequently said, in fact her mother's but, irrespective of that, it was not a bag which the Respondent had been carrying at the time she was detained or arrested. As such, neither the bag, let alone the knife, was in her custody or possession.
It is well established that a charge under s 527C(1)(a) of the Crimes Act in respect of a person who "has any thing in his or her custody" refers to that thing being in the person's custody at the time of the person's apprehension by police. As Gleeson CJ observed in R v English (1989) 44 A Crim R 273 (R v English) at 280, "at least in relation to the element of custody, the offence retains its historical connotation of being caught red-handed"; see also Cleary v Wilcocks (1946) 63 WN (NSW) 101. The "custody of a knife charge" was made pursuant to the subsequently repealed s 11C(1) of the Summary Offences Act (see now s 93IB of the Crimes Act) which provided that a "person must not, without reasonable excuse (proof of which lies on the person) have in his or her custody a knife in a public place or school". There is no material difference between the reference to "custody" as between s 11C(1) of the Summary Offences Act and s 527C(1)(a) of the Crimes Act.
SC Darnton's evidence that he thought that the Respondent was carrying the bag was rejected by the primary judge. Again, Fox v Percy considerations present an insurmountable hurdle to the State in its belated attempt to challenge the primary judge's conclusions as to the unlawfulness of the Respondent's arrest.
Ground 2 of the appeal should, accordingly, be rejected.
The State submitted that s 3B(1)(a) did not apply to exclude the operation of s 43A of the Civil Liability Act on two alternative grounds.
First, it was put that, although the primary judge found at PJ [258] that SC Darnton "intentionally detained, arrested and maliciously prosecuted the [Respondent]", there was a failure properly to differentiate between the intention to do the act amounting to the tort and an intention to injure the Respondent, and that the "evidence about the intent to injure was not present".
Mr Hutchings for the State submitted that SC Darnton's "principal purpose was to enforce the criminal law and as he perceived it" and that he "did not have a specific intent to injure [the Respondent] by doing that".
Secondly, it was put that even if the Police officers intended to "injure" the Respondent, deprivation of liberty does not fall within the definition of "injury" as that term is used in s 3B(1)(a). As the argument on appeal progressed, it became clear that what the State originally put as two alternative grounds in fact coalesced and that the whole argument in fact turned on the meaning of injure in the context of s 3B(1)(a). In short, if "injury" extended to a "deprivation of liberty", it followed that SC Darnton must have had the requisite "intention to injure" because this was the necessary consequence of his detention and arrest of the Respondent. So much was reflected in the following exchange in the course of argument:
"BELL CJ: You accept, do you, that if Houda and Ibbett are correct, Spigelman CJ is correct, do you accept that that's a complete answer to this 3B point?
HUTCHINGS: If they are not distinguished, yes. That must be so."
It was argued on behalf of the Respondent that the stopping of the Respondent, her arrest and the physical acts associated with each detention were acts committed with the intention of depriving her of her liberty and that the deprivation of the Respondent's liberty amounted to "injury" within the meaning of s 3B(1)(a) of the Civil Liability Act such that the application of s 43A is excluded. This submission was consistent with established case law.
Section 3B(1) is contained in Part 1 of the Civil Liability Act. The term "injury" is not defined in that Part of the Act. Section 11, which is contained in Part 2 of the Civil Liability Act, provides that:
In this Part:
injury means personal injury and includes the following:
(a) pre-natal injury,
(b) impairment of a person's physical or mental condition,
(c) disease.
personal injury damages means damages that relate to the death of or injury to a person.
In Houda v The State of New South Wales [2005] NSWSC 1053; [2005] Aust Torts Reports 81-816 (Houda), the plaintiff alleged malicious prosecution, false imprisonment, wrongful arrest and assault following an incident in which a police officer pushed the plaintiff and then, after the plaintiff responded to defend himself, ultimately arrested the plaintiff on charges of assaulting a police officer. In construing the term "injury", as it appears in s 3B(1) of the Civil Liability Act, Cooper AJ reasoned at [335]-[346] as follows:
"[335] For reasons already given I am comfortably satisfied that Constable Stebbing intentionally falsely imprisoned, wrongfully arrested, maliciously prosecuted and assaulted the plaintiff in the sense described earlier.
[336] I am further comfortably satisfied that in doing so he had the intent or purpose to cause injury to the plaintiff in the sense of depriving him of his freedom, restraining with force his mobility, causing him humiliation, damaging his reputation, causing him the emotional upset of having to undergo these experiences and of having a criminal charge hanging over his head as well as the costs and emotional trauma of contesting the charge.
[337] The defendant submits that none of these heads of injury come within the subsection because they are not bodily injury.
[338] The word "injury" is not defined in Part 1 of the Act. It is defined under the heading of "Personal Injury" for the purposes of Part 1A of the Act. It is also defined for the purposes of Parts 2 and 3 of the Act. Accordingly, to determine its meaning in section 3B(1), one must look at the ordinary meaning of the word.
[339] The revised third edition of the Macquarie Dictionary defines injury thus:-
1. Harm of any kind done or sustained.
2. A particular form or instance of harm.
3. Wrong or injustice done or suffered.
4. (Law) the infringement of a right (opposed to damage).
[340] The fifth edition, 2002, of the Shorter Oxford English Dictionary defines it as:-
1. Wrongful action or treatment; violation or infringement of another's rights; suffering wilfully inflicted; a wrongful act; a wrong inflicted or suffered.
2. Intentionally hurtful or offensive speech or words; an insult, an affront, a tort.
3. Hurt or loss caused to or sustained by a person or thing; harm; detriment, damage.
[341] The fourth edition of the Australian Concise Oxford Dictionary defines injury as:
"Physical harm or damage, a wrongful action or treatment, damage to one's good name."
[342] Butterworths Australian Legal Dictionary includes in its definition
"The infringement of some legal right often considered as having a monetary value."
[343] The eleventh edition of Mozley and Whiteley's Law Dictionary defines injury as:
"a violation of another person's right; or a violation of a legal duty to the prejudice of another."
[344] The CCH Macquarie Dictionary of Law revised edition includes in the definition of injury, "the infringement of another's legal right."
[345] In McCracken v Melbourne Storm Rugby League Football Club 2005 NSWSC 107 at paragraph 41, Hulme J said that the words of this section should be given their ordinary English meaning.
[346] In my view the word "injury" is not limited to bodily injury it extends to all forms of injury including the classes of injury which I have held were within the intention of Constable Stebbing to inflict upon this plaintiff." (Emphasis added.)
Those classes of injury included the deprivation of liberty and the consequences of malicious prosecution. In New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (Ibbett) at [11], Spigelman CJ made reference to Houda in support of his conclusion that he could "see no reason why the word "injury" in s 3B(1)(a) should not be given its natural and ordinary meaning." In holding that the term "injury" in s 3B(1)(a) should not be construed with reference to the definition of "injury" in s 11 of the Civil Liability Act, the then Chief Justice reasoned as follows:
"[5] The word "injury" is defined to mean "personal injury" for purposes of P2, a Part which is headed "Personal injury damages". I can see no reason to apply that definition to the word "injury" appearing in s 3B(1)(a) for five reasons.
[6] First, the respective Parts of the Act deal with distinct matters and nothing suggests that terminology is intended to bear the same meaning wherever deployed.
[7] Secondly, each Part of the Act has its own definition section with Pt 1, in which s 3B appears, containing generally applicable definitions in s 3, for example, of the word "damages".
[8] Thirdly, the definition sections in each Part contain repetition of the same definitions, indicating that each Part is to be regarded as discrete. (See, for example, the definitions of "personal injury" in s 5 for Pt 1A, of "injury" in s 11 for Pt 2, of 'personal injury' in s 27 for Pt 3 and in s 51 for Pt 7; and also the definition of 'negligence' in s 5 for Pt 1A and in s 27 for Pt 3.)
[9] Fourthly, when Parliament intended to pick up a definition section from one Part and apply it to another, it did so expressly, perhaps most forcefully for present purposes two subparagraphs later in s 3B(1)(c) which excluded:
"3B Civil liability excluded from Act
(1) …
(c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products."
[10] Fifthly, there is a direct contrast between the use of the word "injury" in s 3B(1)(a) and the invocation of the definition of "personal injury" in s 3B(1)(c).
Basten JA accepted this reasoning in Ibbett at [218].
Although Ipp JA's construction of s 3B(1) differed from that of Spigelman CJ in some respects, his Honour held in Ibbett at [125] that:
"… irrespective of whether the ordinary meaning of the word is attributed to "injury", or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress."
The analysis proffered by Spigelman CJ in Ibbett has subsequently been adopted in several decisions of this Court: see, for example, Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 at [191]-[192]. Moreover, in State of New South Wales v Williamson [2011] NSWCA 183 at [53], Campbell JA, with whom Hodgson and Macfarlan JJA agreed, held that:
"I do not need to express a final view on whether deprivation of liberty is "injury" within s 3B(1) in light of my conclusions about the effect of the present claim being a mixed one, though State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [11] per Spigelman CJ, [218] per Basten JA leaves open the possibility that it is."
In my respectful opinion, the reasoning of Spigelman CJ (with Basten JA agreeing) in Ibbett, when read in conjunction with his Honour's apparent approval of Houda, goes a little further than simply leaving "open the possibility" that deprivation of liberty could amount to an "injury". It is not a stretch of language to say that a deprivation of a person's liberty effects an injury upon that person. Once it is accepted, as Ibbett did, that "injury" in the context of s 3B(1)(a) need not be a personal injury, then deprivation of liberty may readily be conceived of as involving injury. Such deprivation infringes a person's common law right to enjoy freedom of movement in his or her community. In Trobridge v Hardy (1954) 94 CLR 147 at 152; [1955] HCA 68, Fullagar J observed that the "mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights."
The State submitted that the effect of New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 (Williamson) was to transpose the s 11 definition of "injury" to s 3B(1)(a) of the Civil Liability Act, thereby impliedly overturning Ibbett. That submission must be rejected. Williamson concerned the construction of the statutory provisions which fix the maximum costs that can be awarded in personal injury damages matters. It did not concern the construction of "injury" in s 3B(1)(a) of the Civil Liability Act.
At first instance, the primary judge was not satisfied that Williamson overruled Ibbett and, in particular, Spigelman CJ's reasoning, noting that the High Court in Williamson was specifically determining the definition of personal injury damages contained in the Legal Profession Act 2004 (NSW) by reference only to Part 2 of the Civil Liability Act.
Since the decision in Ibbett, the Civil Liability Act has been amended on at least 29 occasions. In particular, s 3B has been amended by the Civil Liability Amendment Act 2006 (NSW), Crimes and Courts Legislation Amendment Act 2006 (NSW), Civil Liability Legislation Amendment Act 2008 (NSW), Victims Rights and Support Act 2013 (NSW), Motor Accident Injuries Act 2017 (NSW) and Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW). Yet, the Parliament has taken no steps to define the meaning of "injury", as that term is used in s 3B(1) of the Civil Liability Act.
As was held in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [52] (per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), in relation to the construction of the Building and Construction Industry Security of Payment Act 1999 (NSW) and the NSW Court of Appeal's interpretation of that Act in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 (Brodyn):
"This understanding of the scheme of the Security of Payment Act accords with the earlier decision of the Court of Appeal of the Supreme Court of New South Wales in [Brodyn]. In the present case, the Court of Appeal followed Brodyn in this respect. It was right to do so. It would have been a strong thing for that Court, as indeed it would be for this Court, to have taken any other course. Since the decision in Brodyn, the Parliament of New South Wales has twice had occasion to revisit the Security of Payment Act to make substantial amendments to its provisions. No amendment was made to alter the effect of the decision in Brodyn. That circumstance is a powerful reason for rejecting any suggestion that the understanding of the legislation adopted in Brodyn, and given effect in the decision of the Court of Appeal in this case, was other than a faithful reflection of the intention of the legislature." (emphasis added).
In detaining and then arresting the Respondent, SC Darnton's subjective intention was to deprive the Respondent of her liberty. Had this been done lawfully, no question of liability would have arisen. The primary judge's conclusion that the detention and arrest was not lawful removed a defence or justification that would otherwise have been lawful. The subjective intention of the police officer remained clear. Contrary to submissions advanced by the State, it did not need to be put to SC Darnton that his intention was to deprive the Respondent of her liberty. That was self evident.
So also it was to conflate subjective intent with motivation or purpose to submit, as the State did, that SC Darnton's purpose was to enforce the law. In fact, that purpose was given effect by depriving the Respondent of her liberty. That was exactly what SC Darnton intended. Where this was not justified, the deprivation of "liberty" amounted to an injury within the meaning of s 3B(1)(a).
For all these reasons, Ground 3 of the appeal should be rejected.
The State submitted that, in circumstances where the bag in which the knife was found was a women's handbag, SC Darnton's failure to record the fact that Mr Turner was holding the handbag at the time the Respondent and Mr Turner were stopped by police was neither a ground to find an absence of reasonable and probable cause nor to find malice. Reference was made to that portion of the interaction between SC Darnton and the Respondent reproduced at [52] above in which the Respondent said "I didn't know that was in my bag". SC Darnton had evidently assumed it was the Respondent's bag because he told her that he was going to ask her some questions "about some items that were located in your handbag". Shortly thereafter, however, he asked the Respondent whether it was her handbag to which she replied that she had borrowed it from her mother.
The State also submitted that Mr Turner's claims of ownership of the knife lacked credibility and his evidence could not exclude a suspicion or reasonable belief in the Respondent's guilt.
In any event, the State argued that it was not determinative that Mr Turner was holding the handbag prior to the search on the basis that it was not contested that the handbag was owned by the Respondent's mother and had been borrowed by the Respondent that day. It was put that there was a reasonable basis for SC Darnton to have believed that either the Respondent and Mr Turner were in joint possession of the knife, or that one or the other was in possession of the knife.
The State accepted in its written submissions that it would have needed to be proven that the Respondent had the intention and ability to exercise control and ownership over the knife to the exclusion of all other people: R v Filippetti (1978) 13 A Crim R 335. The Respondent relied upon the act of possession, as described in Director of Public Prosecutions v Brooks [1974] AC 862 at 866, as being what is to one's knowledge, physically in one's custody or under one's physical control, pointing out that at all material times, the bag containing the knife was in Mr Turner's possession.
The State pointed out in its written submissions that SC Darnton denied that he did not honestly believe in the charge. That submission was correct but the critical point is that SC Darnton's denial was evidently not accepted by the primary judge. In light of the totality of reasoning of the primary judge and his undoubted advantage in seeing SC Darnton give evidence over some three days, his Honour's conclusion was not so glaringly improbable that this Court should interfere with it.
As to the State's submission that the fact that Mr Turner held the handbag immediately before the search "was not in any way determinative", the charge was "custody of a knife in a public place". The knife was in the bag that was at all material times being held by Mr Turner until it was searched by the police. The State did not explain how the knife was in the Respondent's custody when she was not in possession of the bag nor how it was alleged that the Respondent knew what was in the bag. It was faintly submitted that "there was a reasonable basis to suspect and believe that the Respondent and Mr Turner were in joint possession of the knife." The State could not point to any authorities in support of this notion of joint possession. At first instance the State's counsel had accepted that for the entire time the police had both Mr Turner and the Respondent in their sight, the Respondent did not have custody of either the knife or the goods which were the subject of the "goods in custody charge".
This concession was well made in light of well established authority and Gleeson CJ's decision in R v English at 280, noted at [127] above.
In circumstances where the primary judge rejected SC Darnton's evidence that he had forgotten or not realised that the bag was at all material times in Mr Turner's possession - a fact that would also have been evident on any revision of the body worn camera footage which showed him taking the bag from Mr Turner - SC Darnton cannot have had reasonable or probable cause to suspect the Respondent of committing the offence for which she was charged.
Important in the context of the primary judge's findings was the fact that SC Darnton gave evidence that he viewed the body worn camera footage very shortly after the Respondent's bail was initially refused. This footage clearly showed that it was in Mr Turner's custody. The cross-examination which no doubt strongly influenced the primary judge was as follows:
"Q. Did you do anything at that point in time about amending the facts sheet, Senior Constable?
A. No. I didn't.
Q. You were just hoping that Ms Madden would plead guilty and that would be the end of it. Correct?
A. No.
Q. Why didn't you amend that important document called the facts sheet, Senior Constable, when you watch a video footage?
A. Yeah. I should - it should have been done. Yes. It should have.
HIS HONOUR: I think the question is why it wasn't.
WITNESS: I don't know, your Honour. I don't know.
CANCERI
Q. You knew that Ms Madden was languishing in jail on remand?
A. Yes.
Q. You'd been notified of her unsuccessful bail application on 31 December 2019. Had you not?
A. Just - yeah. Just dissemination. Yeah.
Q. So, it would have been most important after you watch a video footage in January, February, 2020, to amend the facts sheet?
A. I would say yes. Well, in hindsight now, I know that. Yes. It - it should have been done. Yes.
Q. Not only did you not amend it to include such things as Mr Turner carrying the bag, and you grabbing the bag from between Mr Turner's legs, but you also didn't put in all of the exculpatory information concerning the goods in custody charge. Did you?
A. No."
It should also be noted that the primary judge's finding that SC Darnton entertained a personal animus towards the Respondent was not challenged on appeal. The State accepted, in euphemistic terms, that SC Darnton's manner and tone in interacting with the Respondent during the course of her arrest were "not ideal" and "less than ideal" but then submitted that that was insufficient to find impropriety of purpose. This submission overlooks the other matters that contributed to the primary judge's finding of malice, set out in detailed reasons.
For all the above reasons, the State's attack on the primary judge's findings in relation to the malicious prosecution of the custody of the knife charge must fail.
The State's submissions on appeal did not attack this reasoning per se but rather contended that the Respondent was in fact resisting SC Munt and that it was reasonable for SC Darnton to rely on SC Munt's report of this conduct. Whilst it may be accepted that that would ordinarily be so, the decision to include the "resist officer charge" cannot be divorced from the "custody of knife" charge in respect of which the Respondent had been wrongfully arrested.
If, as the primary judge held (as it was open to him to do) that SC Darnton did not have reasonable and probable cause to prefer the charge concerning custody of the knife, it would follow that he did not have reasonable and probable cause to prefer the "resist officer charge" as the search that was performed on the Respondent during which the resistance occurred, and the attempt forcibly to remove the Respondent's necklace, was predicated on her having been lawfully arrested in the first place.
This aspect of Ground 5 of the appeal should also be rejected.
Further, as already noted, the primary judge rejected SC Darnton's evidence that he did not appreciate that the bag was in fact in Mr Turner's rather than the Respondent's custody at all material times, and that it was open to his Honour to reach that view.
In any event, as seen in [168] above, from the time the body worn camera footage was viewed shortly after the Respondent's arrest, SC Darnton became aware of this fact and did not amend the Facts Sheet to reflect this fact and expose the weakness in the Crown case although conscious that the Respondent was on remand with bail having been refused. SC Darnton lacked reasonable and probable cause, even on his own evidence, from the time he saw the body worn camera footage. Malicious prosecution may lie equally in the maintenance as well as the initiation of a prosecution: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [59].
In Spedding, it was held that:
"[291] In order to prove that the harm from an intentional tort ought sound in damages, the injured party is required to prove, first, causation, namely, that the tortious act caused the harm and, second, that the tortfeasor had an actual or presumed intention to cause the harm. The tortfeasor's intention to cause the harm will be presumed if the harm is the natural and probable consequence of the tort. Thus foreseeability of harm has no role to play in limiting the injured party's damages. These propositions were confirmed with respect to the tort of injurious falsehood in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [13]-[14] (Gleeson CJ), [73]-[79] (Gummow J), [114] (Kirby J). This Court has treated these principles as being of general application for the recovery of loss for intentional torts: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [100] (Spigelman CJ, Mason P and Grove J agreeing).
[292] Causation is a question of fact. While most of the authorities on causation in tort derive from the tort of negligence, the basic principles still apply to intentional torts:
(1) a tortious act need not be the sole or principal cause of harm to be compensable; it is sufficient if it is a material or contributing cause of harm;
(2) the wrongdoer must take the injured party as he or she finds him or her. Thus a wrongdoer who causes a pre-existing medical condition in the injured party to become symptomatic is liable for such harm as the wrongdoer (who bears the onus) cannot establish would have eventuated but for the tortious harm: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; and
(3) a wrongdoer is not relieved of the consequences of the wrongdoing because the injured party would not have suffered as he or she did unless other contributing factors had existed: Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ) and 170-171 (Windeyer J); [1965] HCA 34."
The State's argument on causation assumed and relied heavily upon the primary judge's conclusion that the "goods in custody charge" was not prosecuted maliciously. As, for reasons already given, I would uphold the cross-appeal in relation to that charge, the Respondent's argument cannot be sustained. So much is also borne out by the fact that, once the true facts had emerged before Magistrate Milledge, and the discrepancy between those facts and that which was contained in the original Facts Sheet became plain, bail was granted (see [68]-[69] above), the Parole Board reversed its earlier cancellation of parole and the Respondent was released from remand where she had unwarrantably been held since January 2020, a period of over 5 months.
Appeal ground 6 does not succeed.
In the same case, Whealy JA observed that:
"[214] In Australian law, an award of exemplary damages is intended to punish the defendant and also to deter the defendant, and others, from behaving in the same or similar reprehensible manner. The objects of such an award encompass condemnation and admonition of the defendant and his behaviour. The purpose of damages of this kind is to mark out the court's strong disapproval of the conduct and to visit retribution on the person thus sanctioned. It also embraces the notion that such an award will assuage the victim's potential desire or need for revenge and thus avoid any temptation to engage in self-help likely to endanger the peace. Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8-13; Uren v John Fairfax and Sons Pty Limited [1966] HCA 40; 117 CLR 118 at 138; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) LexisNex[i] s Butterworths [7.2] at 98-99.
[215] The type of conduct that will attract an award of exemplary damages has been described as "conduct showing a conscious and contumelious disregard for the plaintiff's rights": XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 at 472 per Brennan J. It has plainly been recognised in cases where trespass to the person has been alleged against police officers who have been shown to have acted in a high-handed and contumelious fashion: Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78; Knight v State of New South Wales [2004] NSWSC 791 per Hoeben J."
The primary judge's decision to award exemplary damages was entirely consistent with these valuable statements of authority. In respect of the false imprisonment and battery, the primary judge held the following in relation to the award of exemplary damages:
"[316] In respect to exemplary damages, it is important that any such award reflects the disapproval of the court in the conduct of the police involved and to deter such conduct in the future. It is readily apparent that the detention and search of the plaintiff was in direct response to the comments made by Turner and the plaintiff to Munt. The later "mouthy" comment by Munt, in the context of the search, and the "last laugh" comment by Darnton, self-evidently demonstrates that the police motivation in detaining and searching the plaintiff was improper, and entirely inappropriate.
[317] As part of their duties, police are interacting with members of the public on a daily basis. It is important that police not abuse the special powers vested in them, involving the deprivation of a citizen's liberty, merely in response to comments made by members of the public such as those which occurred in the present case. The award of exemplary damages reflects the court's detestation and abhorrence for the police conduct. It is intended, in part, to deter police in the future engaging in such conduct. It is in these circumstances that it is appropriate that an award of exemplary damages is made. I award the plaintiff $20,000 by way of exemplary damages for false imprisonment and a further $20,000 in respect to the battery."
The State submitted that there was insufficient evidence to permit a finding that SC Darnton detained and searched the Respondent because of the comments she made to SC Munt and that this matter, alongside the suggestion that his true motivation was to get the "last laugh", was not a proposition that was put to SC Darnton.
By way of response, the Respondent submitted that:
"It is tolerably clear that that award was based not only upon the misleading conduct engaged in by SC Darnton in concealing information from the Local Court, but also upon the generally high-handed fashion in which the police officers, especially SC Darnton, treated the respondent at the scene. Exemplary damages are not infrequently awarded in respect of malicious prosecution. A case in which it has been found that a police officer has deliberately withheld or concealed exculpatory evidence is a classical case for such an award, particularly where that conduct has been found to have been calculated to influence the outcome in a bail decision."
I agree with this submission.
The exculpatory matters that were held to have been deliberately concealed or withheld from the Facts Sheet were identified by the judge at PJ [165]-[166] as including:
"(a) The Respondent telling SC Darnton him that she did not know that the knife was in the bag;
(b) the Respondent saying to him that she had not seen the knife before;
(c) the Respondent not being in possession of the bag, and instead it was Mr Turner who had custody of the bag;
(d) Mr Turner having admitted it was his knife.
(e) Mr Turner having claimed ownership of the men's underwear and the t-shirt that were the subject of the "goods in custody" charge;
(f) the fact that the underwear was men's underwear;
(g) the fact that Mr Turner had said he had purchased the items from K-Mart in Mount Druitt."
In addition, Mr Toomey submitted with some force that the statement by SC Darnton in the Facts Sheet that:
"The Accused was cautioned and asked about the knife and the clothing. She was unable to articulate to police how she came into possession of the clothing items and was unable to supply police with a reasonable excuse for possessing the knife"
implicitly and misleadingly asserted that Respondent accepted that she was in possession of the knife but was unable to provide a reasonable excuse for that possession.
A decision as to whether to award exemplary damages is, as the State accepted, necessarily impressionistic and it is clear that the primary judge found that SC Darnton in particular had behaved in a high-handed way towards the Respondent. His award of exemplary damages was within the limits of a "proper exercise" of his discretion, and based upon his close analysis of the facts and assessments of the credibility of the key police witnesses.
The State's submission that the award of exemplary damages in respect of malicious prosecution entailed "double compensation" did not rise above assertion and was not elaborated upon in oral argument.
A basic element of two of the charges, namely the custody of the knife and goods at the time of the arrest, was never able to be sustained and, on the primary judge's findings, SC Darnton well knew that the Respondent had not been in custody of the bag containing the two items at the time of her detention.
The State also put that a relevant factor in determining the quantum of damages ought to have been that the Respondent did not have a right to unrestrained liberty on the basis that she was on parole. I find this a most unattractive submission. There is a significant qualitative difference between being held in custody and being on parole. As the State itself submitted, citing Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31; Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, the purpose of the legislature in fixing minimum terms (and thus providing for release on parole) is "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time". See also Power v The Queen (1974) 131 CLR 623 at 629; [1974] HCA 26.
The primary judge was well aware that the Respondent had only recently been released on parole at the time of her arrest. The practically inevitable effect of her arrest on the charges was her return to full time custody where she remained for almost 6 months until the grant of bail and the reversal of the cancellation of parole in circumstances where, even if, contrary to the primary judge's finding, SC Darnton did not realise at the time of the Respondent's arrest that she was not in custody of the bag (and therefore the knife and goods contained in it which were suspected of having been stolen), on his own evidence, he became aware of this fact when he viewed the body worn camera footage in January 2000 but did not amend the Facts Sheet to reflect this or make a statement accurately setting out the position until many months thereafter in breach of the Court's order for the police brief to be served by 6 February 2020 (see [72] above).
The State also submitted that the primary judge erred in awarding interest on the exemplary damages, referring in this context to PJ [339]. Although s 18(1) of the Civil Liability Act precludes the payment of interest on damages awarded for non-economic loss, that section does not apply to intentional torts. In Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10 at 22, it was held that "the award of interest should always be approached in a broad and practical way [and] should not be allowed to assume disproportionate importance…". See also Van Haren v Van Ryn [2023] NSWSC 776 at [52]-[55], [92], where Chen J awarded interest in respect of an award of exemplary damages arising from an assault and battery.
It is by no means clear that the primary judge did award interest on the amount of exemplary damages. In the table at PJ [338], his Honour set out the various amounts he awarded in respect of each of the torts he held had been committed. This table is effectively reproduced at [15] above, and totalled $308,000. Of this amount, $115,000 was in respect of exemplary damages. His Honour then said:
"[339] I attribute $200,000 of this sum [of $308,000] to the past, and in accordance with MBP (SA) Pty Limited v Gogic (1991) 171 CLR [6]57, I calculate interest at 2% per annum for three years from 30 December 2019 (rounding up).
[340] The total assessed amount, including interest, is $320,000."
While the arithmetic is not precise, it would appear that the amount excluded from the award of interest almost entirely subsumed that awarded in respect of exemplary damages.
It is with respect difficult to see why in circumstances where there was no answer, nor could there be an answer, to Ms Madden's submission that any entitlement on the part of the State had been waived, the ground was not abandoned.
Senior Constable Darnton was also personally familiar with Ms Madden's behaviour in his presence some 13 weeks earlier. There is no doubt that this was at the forefront of his mind, when he said "Stealing a car in front of a police officer, that's a first for me" (3:15). His evidence about this was summarised at [122]-[123] by the primary judge:
Darnton gave detailed evidence of the earlier interaction with the plaintiff on 3 September 2019. As part of an ongoing investigation relating to Heckle, he had detected a stolen vehicle in Cranbrook. The owners of the vehicle were contacted and attended the scene. Whilst interacting with the owners, Heckle, in the company of the plaintiff, attempted to steal the motor vehicle.
Darnton gave detailed evidence of a subsequent altercation with Heckle and the plaintiff whilst they were both occupants of the vehicle they were attempting to steal. This included the plaintiff seeking to obstruct police who were attempting to enter the vehicle and remove Heckle from the driver's seat. Eventually both were arrested and charged with various offences. A search of the stolen vehicle detected items including an imitation firearm, baseball bat, drug paraphernalia, identity documents, sledgehammer, ski mask balaclava, tools, and clothes. Subsequent enquiries in relation to the identification documents revealed that those documents were linked to previous break and enters and robberies. In cross examination, Darnton conceded that the plaintiff had not been charged with possession of these items, and instead, Heckle had made admissions that these items were his.
Senior Constable Darnton also knew, from his encounter with him earlier that day, that Mr Turner was on parole for the offence of robbery in company.
In those circumstances, I would conclude that Senior Constable Darnton reasonably suspected that Ms Madden had in her possession or under her control something used or intended to be used in connection with an offence or illicit drugs, thereby engaging paragraphs (b) or (d) of the power in s 21(1) of the Law Enforcement (Powers and Responsibilities) Act.
The primary judge reached the opposite conclusion, for reasons given at length. At [229] his Honour put to one side Ms Madden's participation in attempting to steal a motor vehicle in September 2019, on the basis that it had not been suggested that she knew the items in the vehicle were known to her, and in any event, three months had elapsed. I respectfully agree that that fact alone would not suffice.
The Chief Justice has reproduced the balance of his Honour's reasoning, which is at [230]-[234] of the primary judgment. The main point made in [230] is that a known drug user was walking towards, rather than away from, a house associated with the supply of illicit drugs. This reasoning proceeds on a false premise. His Honour had earlier found (at [195]-[196]) that Senior Constable Darnton did not at the time link the exercise of power to detain and search Ms Madden with her proximity to a nearby house associated with drugs, thereby rejecting one aspect of the case advanced by the State. That finding was based on his oral evidence, but I note that it is corroborated by the absence of any mention of that fact in the contemporaneous documents, including the COPS entry and Fact Sheet. Accordingly, the analysis for the purposes of determining a reasonably held suspicion does not turn on the proximity of the incident with a house associated with illicit drugs.
The other point made by the primary judge at [230] was that a suspicion that a person had taken drugs is "not necessarily consistent with [her] having such a prohibited drug in her possession" and, if anything, "is consistent with [her] having previously used a prohibited drug". Both propositions may be accepted, but they do not contradict the proposition that a person who is obviously affected by drugs may reasonably be suspected of having drugs in her possession. It is not unknown for people to acquire more drugs than they need for immediate use.
The primary judge proceeded to fortify his conclusion by three considerations stated at [233].
The first was that Senior Constable Darnton used the same words as had been used earlier in the day (when he encountered Mr Turner) where the circumstances were different. I do not see how that materially bears upon the matter. There are only so many ways in which the statute may be complied with, and well-trained officers might be expected to use similar language when exercising the power conferred upon them.
The second was that the only reason for the search stated at the time was Ms Madden's "history". That statement needs to be assessed in context. As recorded on the body-worn camera, Senior Constable Darnton said, "You're going to be detained for a search okay?". Ms Madden immediately said "Oh no, I want a female" (1:14), and was told a female officer was available. The explanation continued, "For an item in connection with an offence or a drug okay. Just because of your history obviously, very". Senior Constable Darnton then interrupted himself to say "what are you doing darling?" The tone is mostly professional although also, regrettably, condescending. The interruption reflects the officer's reaction to the fact that Ms Madden's erratic behaviour changed, and she reached into the inside of the top of her dress and appeared to be moving an item. With the benefit of hindsight, it seems likely that this was her parole card, which she was carrying (at least when Senior Constable Munt conducted a search a few minutes later) inside the top of her dress. True it is that Senior Constable Darnton did not return to giving an explanation for the exercise of the power. But the issue for present purposes is whether there was a reasonable suspicion entitling him to exercise a coercive power. In those circumstances, not much can be drawn from the fact that he merely said "history" and then interrupted himself by reason of Ms Madden's unexpected conduct.
The third point rested upon a statement by Senior Constable Munt saying, after Ms Madden was arrested, "that's what happens when you're mouthy" (2:51), and Senior Constable Darnton then saying "We've got our cameras on, Sarg" (2:56). It is not clear whether Senior Constable Munt was addressing Ms Madden or Mr Turner or both of them, although it is clear that Mr Turner's profanities towards the police officers were stronger than those of Ms Madden, and seconds beforehand, he had said "I'm on bail dickhead" and "I'm just saying, fuck" in response to Senior Constable Munt asking "Put your hands out please". I would accept, as did the primary judge, that Senior Constable Darnton's reminder that the cameras were on was intended to remind her that it was necessary to act professionally. But I do not see how any of those statements bear greatly upon whether or not Senior Constable Darnton genuinely believed he was entitled to search the woman's bag being carried by Mr Turner. Nor do I see how his later statements "Who has the last laugh now, hey?" (3:21) and his description to a superior officer that they had had a "run in with Ebonie Madden" who had "started mouthing off" undermines the genuineness of his belief. The former comment was unnecessarily gratuitous, the latter was not inaccurate, but neither greatly bears upon whether there was a reasonably held suspicion, which fell to be addressed at the commencement of their encounter, rather than after the discovery of the knife and apparently stolen clothes and the profanities offered by Ms Madden. I accept that statements and conduct after the event can be employed to impute an earlier state of mind. But it seems that this aspect of the reasoning of the primary judge turned upon the proposition that the purpose of the search was in retaliation for the rudeness of Ms Madden and Mr Turner. That reasoning is unpersuasive. The decision to conduct a search was formed in the first minute of the interaction. The nature of body-worn cameras is that the first 30 or 40 seconds of sound is not recorded, but there is nothing in the critical period - the period before the power was exercised - to suggest an improper purpose of pay-back for rude language. More generally, the fact that Ms Madden was known to Senior Constable Darnton, and even if it be the case that he disliked her, does not prevent his forming a reasonably held suspicion that she might be carrying illicit drugs or items connected with crime.
The trial judge saw Senior Constable Darnton cross-examined over two full days, and was very critical of his credibility. As the Chief Justice observes, there are limitations upon this Court's power to intervene with findings of fact that are likely to have been influenced by the oral evidence of a witness. However, the best evidence of whether there was a reasonably held suspicion is found in the video and audio captured at the time, and the documents prepared by Senior Constable Darnton later in the immediate aftermath of that afternoon. By that I mean that the best evidence of his subjective intentions is what he said at the time, and the best evidence of whether his suspicion was reasonably held likewise emerges from the contemporaneous evidence, as opposed to his testimonial evidence years after the event. In short, I do not think that this is a case where the advantage enjoyed by a trial judge, who was obliged to assess Senior Constable Darnton's credibility and reliability and who formed a poor view, disentitles an appellate court from interfering with the findings of fact.
I did not understand the primary judge to have found that Senior Constable Darnton, when he said that the search was being conduct "for an item in connection with an offence or a drug", did not subjectively hold the requisite suspicion. It is true that his Honour found at [232] that "Darnton's motivation was other than a legitimate exercise of police powers under s 21", but that finding falls short of a rejection that the officer in fact suspected that Ms Madden was carrying drugs or an item connected with an offence. On whether there was an objective basis for a reasonable suspicion, the appearance of Ms Madden and Mr Turner coupled with their criminal history and parole status is not in dispute, and on the facts of this case sufficed.
I would conclude that this ground is made out, insofar as it relates to the validity of the detaining and search which led to the discovery of the knife in Ms Madden's mother's bag which had been carried by Mr Turner.