State of New South Wales v Madden

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:

M Hutchings with R Coffey (Appellant) D R Toomey SC with A Canceri and S Boland (Respondent)

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

[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.]

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.

JUDGMENT

1. 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.
2. 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.
3. 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.
4. 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).
5. 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.

The primary judgment

1. It is first necessary to provide a short summary of the primary judge's reasons.
2. 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].
3. 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].
4. 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].
5. 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.)

Factual background

1. 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.

Events prior to the arrest on Evan Street

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The "stop" and search on Evan Street

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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".

The arrest on Evan Street

1. 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.
2. 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."
3. 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.
4. 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.
5. 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.

The strip search

1. 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".
2. 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.
3. 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.
4. 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.
5. 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."

The "roadside interview"

1. 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.
2. 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 …"

Creation of the CAN

1. 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).
2. 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.
3. 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."
4. 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".
5. 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.

Refusal of bail

1. On 31 December 2019, the Respondent made a bail application at Parramatta Local Court before Magistrate Price.
2. 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…."
3. 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…"

Revocation of parole

1. 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."
2. 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)."

Grant of bail and revocation of parole

1. 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."
2. 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".
3. 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).
4. The Respondent was thus in custody between 30 December 2019 and 17 June 2020, a period approaching 6 months.

The Local Court proceedings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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."
8. 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."

Grounds of Appeal

1. 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."
2. 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."

Credit findings

1. 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.
2. 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.
3. 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].
4. 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].
5. 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].
6. 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].

Ground 1

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.
2. 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."
3. 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].
4. 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.

Ground 2

1. 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.
2. 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).

Ground 3

1. 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.
2. 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".
3. 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)
4. 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.
5. 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.
6. 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."

Ground 5 and the Cross Appeal

1. 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.
2. 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.
3. 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.
4. 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.""

Custody of a knife

1. 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."
2. 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."

Resist officer

1. 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."

Goods in custody

1. 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."
2. 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.
3. 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").

Ground 6

1. 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.
2. 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."
3. 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.
4. 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.

Ground 7

1. The State, by Ground 7 of the appeal, challenges the primary judge's award of exemplary damages on the basis that it was excessive.
2. 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])."
3. 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."
4. 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].
5. 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])."

Conclusion

1. For the above reasons, I would dismiss the appeal with costs.
2. 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.

Ground 1

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.
2. 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.
3. In those circumstances, there is no answer to Ms Madden's primary submission, namely, that any basis for complaint had been waived.
4. 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.
5. 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.

Ground 2(a)

1. 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.
2. 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.
3. 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.

Ground 2(c)

1. 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.
2. 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.
3. 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.

Ground 5

1. 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.
2. 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.
3. 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.

Remaining grounds and orders

1. 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.
2. STERN JA: I agree with the Chief Justice.
3. 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.
4. 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).

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