State of New South Wales v Spedding

Introduction

1. The State of New South Wales (the Appellant or the State) appeals from a judgment (the primary judgment or PJ) of Justice Harrison (the primary judge) in which William Harrie Spedding (the Respondent or Mr Spedding) successfully sued in tort for malicious prosecution, misfeasance in public office and collateral abuse of process and was awarded damages of $1,484,292 plus interest and costs (PJ at [323]). The judgment sum plus interest was later quantified at $1,797,181 (Spedding v State of New South Wales [2023] NSWSC 34). The damages awarded comprised components of general damages for non-economic loss, for reputational damage, aggravated and exemplary damages, legal costs, future treatment expenses and interest.
2. In respect of each of the torts, the State was held to be vicariously liable for the conduct of Inspector Gary Jubelin (Jubelin), Detective Sergeant Moynihan (Moynihan) and Detective Senior Constable Brennan (Brennan) (collectively the Police Officers). The State was also held to be vicariously liable for the conduct of the Office of the Director of Public Prosecutions (ODPP) who the primary judge also held liable for the tort of malicious prosecution.
3. Mr Spedding did not, however contend that the Director of Public Prosecutions (the DPP) committed the torts of misfeasance in public office or collateral abuse of process.
4. By Further Amended Notice of Appeal dated 13 June 2023, the State appeals from the whole of the primary judgment, attacking both the findings on liability and the assessment of damages. Mr Spedding filed a Notice of Contention.
5. The case arises out of the disappearance of a 3 year old boy, William Tyrrell, from a house in Kendall, NSW, on 12 September 2014. Kendall is a relatively small town approximately 35 kilometres from Port Macquarie. Mr Spedding was, for a period of time, a person of interest and indeed a prime suspect in that disappearance.
6. From February 2015, Jubelin had been the Supervising Officer of the William Tyrrell Investigation, referred to as Strike Force Rosann, and worked very closely with Moynihan and Brennan including speaking with them on a daily basis. Moynihan was referred to in various documents as the Officer in Charge but it is plain from the evidence of both Jubelin and Brennan that Brennan also had this status, from early April 2015. There were regular briefings. Brennan and Moynihan had carriage of the investigation under Jubelin's direct supervision. Brennan and Jubelin attended Mr Spedding's bail application in June 2015 and his ultimate trial. Brennan remained in contact with the DPP or delegates of the DPP right up until the trial in his capacity as detective in charge of the investigation.
7. Notwithstanding Jubelin's early identification of Mr Spedding as the prime suspect in William Tyrrell's disappearance, by 15 June 2015, Jubelin, in a Strike Force Investigation Progress Report, noted that "[h]aving assessed all the evidence gathered as of this point in time [10 June 2015] investigators are of the view there is a likelihood Spedding is not responsible for the abduction of William Tyrell. The strategies implemented have been complex and aggressive and have not resulted in any additional inculpating evidence" (emphasis added).
8. One of the aggressive strategies that had been implemented by that time and, critically, as part of the William Tyrell investigation process, was the arrest and charging of Mr Spedding in relation to various and serious counts of alleged child sexual assault dating back to 1987. In the course of the hearing before the primary judge, documents were produced by the State that disclosed that Mr Spedding's arrest and the laying of charges in relation to the historical child sexual assault allegations formed an important part of a written strategy authored by Jubelin and implemented by each of Jubelin, Moynihan and Brennan to further the investigation into the disappearance of William Tyrell in various ways that will be explained in detail later in these reasons.
9. On 22 April 2015, in the full glare of a media pack which the primary judge held, in a finding not challenged by the State, had been tipped off by Jubelin or someone operating on his instructions, Mr Spedding was arrested and charged in relation to the alleged historical sexual assaults from 1987. Mr Spedding had not been charged in relation to those alleged sexual assaults at the time they were alleged to have occurred or when the allegations had first been made. Further, as shall be seen, in a judgment delivered on 17 May 1987 which was available to the Police Officers at the time of Mr Spedding's arrest in 2015, Justice Gee of the Family Court of Australia had found that the allegations against Mr Spedding were the product of coaching from his former wife, Cathryn, and her sister, Christine.
10. It should be noted at the outset that Mr Spedding was found not guilty of these offences on 5 March 2018 when they eventually came on for trial. Mr Spedding applied for and was awarded costs pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (PJ at [20]) in relation to his prosecution for those alleged offences. It was the prosecution in respect of those charges that Mr Spedding alleged was malicious, and also amounted to misfeasance in public office by the Police Officers and the tort of collateral abuse of process.
11. In essence, Mr Spedding's case before the primary judge was that his arrest and the charges of historical sexual offending which were laid against him with some urgency during the investigation into William Tyrrell's disappearance were done so for an improper purpose, namely to further the investigation into the disappearance of William Tyrrell and involved his malicious prosecution, misfeasance in public office and the commission of the tort of collateral abuse of process by the Police Officers.

The causes of action

1. To understand the attacks on the primary judge's reasons, it is first desirable to identify the elements of the three torts which the primary judge held had been committed and to identify the authorities relating to some of the particular legal issues that arose on appeal.

Malicious prosecution

1. 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.
2. Although the first element of the tort appears relatively straightforward, one key aspect of any claim for malicious prosecution is the identification of the "prosecutor" or "prosecutors" at any given time.
3. The person who initiates a prosecution may differ from the person who maintains it. Moreover, identification of the prosecutor is not a matter of merely identifying a person who is literally or formally named as the "prosecutor" on Court process and, as Mr Free SC, who appeared in the appeal for the State, accepted, there may be multiple prosecutors.
4. These propositions all flow from the fact that, in Davis v Gell (1924) 35 CLR 275 at 282-283; [1924] HCA 56 (Davis), Isaacs ACJ said, in an important passage, that for the purposes of this tort (with emphasis added): "the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position."
5. In the present case, the primary judge's conclusion that each of the Police Officers was a prosecutor for the purposes of the tort of malicious prosecution at the commencement of the criminal proceedings on 22 April 2015 was not challenged although whether each (or indeed any) of the Police Officers continued to hold that status so as to have maintained the prosecution after the ODPP formally took over the carriage of the prosecution which, in the current case, occurred by the end of April 2015, was a point vigorously contested on appeal. In this context, pursuant to s 9(4)(a) of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act), the Director of Public Prosecutions is deemed to be the prosecutor in connection with the prosecution of proceeding concerned once the ODPP takes over the carriage of the proceedings. That formal statutory position does not, however, mean that those responsible for initiating proceedings as prosecutor may not continue to hold that status for the purposes of the tort.

Misfeasance in public office

1. Although it has been observed that "[n]otoriously, the elements of the tort of misfeasance in public office were, and are, unsettled" (Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225]), controversy centres around the ambit of the requirement that the impugned act requires an exercise of public power: see, for example, Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 (Ea). No issue in relation to that element of the tort arose in the present case as the acts said to involve the misfeasance in public office were the arrest and charging of Mr Spedding on 22 April 2015.
2. The power to arrest (without a warrant) was conferred by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the power to charge was conferred by s 48 of the Criminal Procedure Act 1986 (NSW).
3. Section 99 of the Law Enforcement (Powers and Responsibilities) Act relevantly provides: "(1) A police officer may, without a warrant, arrest a person if-- (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons-- (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law."

Collateral Abuse of Process

1. This tort was described by Lord Denning in Goldsmith v Sperrings [1977] 1 WLR 478 at 489 as follows: "In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law."
2. In McKechnie v Campbell (1996) 17 WAR 62 at 74, Owen J observed that: "A court will not sit idly by and allow its processes to be abused by litigation that is not brought for a purpose which falls within the range of purposes for which the processes exist. It is a doctrine that has its roots in public policy considerations. The proper functioning of the justice system and the administration of its processes is very much a matter of public interest."
3. It is not to the point that the impugned proceedings involve a valid cause of action if their predominant purpose is collateral to the vindication of rights or the enforcement of just claims: Williams v Spautz (1992) 174 CLR 509 at 522-3; [1992] HCA 34 (Spautz); Grainger v Hill (1838) 4 Bing (N.C.) 212; 132 ER 769 at 773-774 (Grainger).
4. The elements of the tort of collateral abuse of process were identified in Burton v Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 (Burton) at [42], namely: 1. the alleged tortfeasor must have instituted a legal process for an improper purpose which was the sole or predominant purpose; 2. the legal process in question must have been misused in order to obtain some advantage or benefit "entirely outside" that afforded by the legal process invoked - hence, a collateral advantage; 3. the process in question must have been deployed in furtherance of the alleged tortfeasor's improper purpose by way of an overt act or threat, distinct from pursuit of the proceeding itself according to its ordinary course - though in certain circumstances, the commencement of proceedings can be a sufficient act where there has been some prior improper conduct on the part of the alleged tortfeasor; and 4. in New South Wales at least, authority currently requires that the claimant have suffered special damage.

Factual Context

1. The key facts divide into three broad periods: those in relation to the alleged historical sexual assaults and the family law proceedings between Mr and Mrs Kearns in which allegations against Mr Spedding were made; those relating to the investigation into the disappearance of William Tyrrell leading up until and involving Mr Spedding's arrest and his being charged with the 1987 alleged sexual assaults; and finally those relating to the maintenance of the criminal proceedings against Mr Spedding subsequent to his arrest and the ultimate dismissal of those charges in 2018.
2. Without intending any disrespect, it is convenient to refer to various persons below by their first names so as to more easily distinguish between them. It is also necessary to anonymise the names of various persons who were minors at the time of the events in question.

Events of the 1980s

1. The relevant events commence in 1981. By that time, Mr Spedding's first marriage had broken down. There were three children of that marriage (PJ at [22]).
2. In November 1981, Mr Spedding began living with Ms Cathryn Hillsley (Cathryn), who herself had two children from a previous marriage: RT and JT (PJ at [22]). Mr Spedding and Cathryn married in 1982 and they had one daughter, LS, in 1983. In 1984, Mr Spedding adopted RT and JT (PJ at [22]). At this time, Mr Spedding, Cathryn, RT, JT and LS resided in Victoria (PJ at [23]).
3. It should also be noted that Cathryn's brother is Jeffrey Hillsley (Jeffrey), who had been convicted of murder and has an extensive criminal record involving the sexual assault of children, as set out in R v Hillsley [2005] NSWSC 652. It will be necessary to refer later in these reasons to evidence that he had sexually assaulted JT and LS whilst on parole in early 1987.
4. While residing in Victoria, Mr Spedding and Cathryn socialised with another couple, Daniel Kearns (Daniel) and Irene Kearns (Irene), and their children, NK, TK and DK (together, the Kearns children) (PJ at [24]).
5. In mid-December 1986, Cathryn informed Mr Spedding that their marriage was over and took RT, JT and LS to her parents' house in Dundas, New South Wales. Very shortly thereafter, Daniel informed Irene that their marriage was also over, and took his children to Cathryn's parents' house in Dundas in order to reside with Cathryn (PJ at [23]-[24]).
6. At this point, Irene commenced custody proceedings in the Ballarat Magistrates' Court which, on 29 January 1987, were resolved in her favour. Consent orders were made in the Family Court in Melbourne which granted her sole custody of the Kearns children with some access afforded to Daniel.
7. After this occurred, on 24 February 1987, the Community Services Child Protection Department in Victoria received a notification about the Kearns children being allegedly sexually abused by Irene and began an investigation. In March 1987, that investigation was terminated on the basis that the allegations of abuse were unsubstantiated (PJ at [25]).
8. Separately, Mr Spedding and Cathryn were engaged in custody proceedings in relation to their own children. On 4 March 1987, the Family Court at Parramatta ordered that Mr Spedding have access to RT, JT and LS every second weekend, commencing on 11 April 1987 (PJ at [25]). Mr Spedding was at the time living in a caravan on a property owned by a friend of his in Campbelltown, NSW.

Events of 2014: Disappearance of William Tyrrell and Initial Police Investigation

1. The allegations set out above did not attract any further legal attention until the events of 2014-2015, set out below. It was these events which directly gave rise to Mr Spedding's tortious claims and the award of substantial damages to him by the primary judge.
2. As noted at the outset of these reasons, on 12 September 2014, William Tyrrell, a three-year-old boy, disappeared from his foster grandmother's house in Kendall. At the time, Mr Spedding was living in Bonny Hills, roughly 20 minutes' drive from Kendall, with his wife, Margaret Spedding (Margaret) and her four grandchildren, aged between nine and fifteen years old. Mr Spedding also had business premises in Laurieton.
3. On the morning of 6 September 2014, Mr Spedding, who was self-employed as a refrigeration mechanic and general white goods repairman, had received a phone call from William Tyrrell's foster grandmother, who was in need of a washing machine repairman. He arranged to attend upon her house on 9 September 2014 at 11am. He did so, for around 45 minutes.
4. On 12 September 2014, the day of the disappearance of William Tyrrell, as Mr Spedding later told police, he and his wife went to his grandchildren's school assembly, from around 10am until 12pm and he spoke to several people, watched one grandchild receive an award and viewed a play at the school, before returning to work.
5. On 18 September 2014, Mr Spedding returned to the home of William Tyrrell's foster grandmother to complete the repairs to her washing machine.
6. On 19 September 2014, he attended Port Macquarie Police Station at the request of Police who were investigating the disappearance of William Tyrrell. He gave Police permission to download his mobile phone and allowed them to copy his message book and diary. He also made a statement. He did not hear anything further from the Police until 20 January 2015 (PJ at [3]).
7. On 19 January 2015, the Police obtained search warrants in respect of Mr Spedding's home and business premises. These were executed on 20 January 2015, including at his home at 7am on that day. This was extensively covered by the media, evidence of which was before the primary judge at trial. Mr Spedding was conveyed to Port Macquarie Police Station where an ERISP was conducted by Moynihan and Constable Stephen King (King). Margaret Spedding was also conveyed to Port Macquarie Police Station for an interview (PJ at [4]-[7]).

Mr Spedding's arrest and imprisonment

1. On 22 April 2015, Mr Spedding was arrested at his home in Bonny Hills. The arrest was initially effected by Jubelin and then apparently repeated by Brennan.
2. Certain media reporters had been at Mr Spedding's home from early that morning and a great degree of publicity was afforded to the news of his arrest (PJ at [14]). As noted in the introductory section of these reasons, the primary judge held that the press was tipped off in this regard, a finding unchallenged on appeal. At PJ [200], his Honour held that: "Although Inspector Jubelin disavows any knowledge of who informed the media outlets that Mr Spedding was to be arrested, I am satisfied that despite his denial, either he or an officer under his command and in accordance with his direct instructions, let the television stations and other news organisations know that a suspect in the disappearance of William Tyrrell was to be apprehended or arrested and that Mr Spedding's address at the relevant times was given to them. That arrest was transparently unrelated to the so-called subject matter of the charges and unarguably related to the perceived collateral advantage of pressuring Mr Spedding in a quite different context. Public attention in the media was in my finding a specific and intentionally engineered aspect of creating that pressure." After his arrest, Mr Spedding was then taken to Port Macquarie Police Station and charged with historical sexual assault of both JT and LS, concerning various alleged offences committed in the caravan in Campbelltown on 11-12 April 1987. Bail was refused by the Police and refused again by the Local Court on 23 April 2015. He was remanded to Cessnock Correctional Centre.
3. The CAN listed Moynihan as the "OIC (Prosecutor)", Brennan as the creator of the document and as having apprehended Mr Spedding. Seven offences were listed, two against JT and five against LS. Two charges (one against JT and one against LS) were of common assault, and the balance of the charges were of sexual intercourse with a person under the age of 10 years, contrary to s 66A of the Crimes Act 1900.
4. The CAN had attached to it a Facts Sheet in which Moynihan and Brennan were described as the "Arresting Officer"; Moynihan was additionally listed as the "Informant".
5. There was a further Facts Sheet described as "Full Facts" which listed both Moynihan and Brennan as "Police Informants". It referred to "the allegations made by the victims" and to statements as having been obtained from them. It did not refer to the fact that one of the complainant's statements made no reference to having been sexually assaulted in a way that formed the subject matter of five of the charges. It also did not refer to the fact that the Police had not obtained any statement from RT, the eldest of the three children who was in the caravan on the night of the alleged sexual assaults. Speaking to RT was on Brennan's task list which he drew up on 16 April 2015 (see [116] above).

Further Police Investigation and Prosecution

1. On 5 May 2015, Brennan read the Gee Judgment for the first time despite it having been in the Police's possession since a copy of it was seized on 20 January 2015. He did so on a plane from Sydney to Melbourne. So much was accepted at trial (PJ at [135]). Brennan agreed that reading the judgment made him think that there may be issues with Cathryn and that it "to a degree" called into question her credibility and reliability. He also accepted that Gee J's observation in his judgment as to Cathryn's "unhealthy concern for construing innocent matters having sexual overtones" would have caused him concern in relation to her credibility and that "it would have been of extreme concern to [him] that there was a suggestion of Cathryn and Christine tutoring the children into making allegations."
2. Brennan's trip to Victoria was to interview TK and DK, and their father, Daniel. This trip was made at the direction and with the approval of Jubelin. Jubelin accepted that, before charging Mr Spedding, he knew that there was an allegation that the Kearns children had been sexually assaulted by him. In Jubelin's Exhibit E strategy document, however, they had been referred to as "three other definite victims" and they had also been referred to as victims in the Full Facts Sheet (see [130] above).
3. On 6 May 2015, meetings were held with TK and DK. Brennan volunteered in cross-examination that "I think there was a need to talk to them". Brennan created two documents, each described as "Investigator's Note", both dated 18 May 2015, of his separate meetings with TK and DK although Brennan's handwritten notes of the interviews were also in evidence. Both meetings were held together with a Detective Senior Constable Semken, and a Detective Sergeant Bell of Victoria Police.
4. The note regarding TK records in part and with emphasis added: "- [TK] has no direct memories of Bill SPEDDING other than she was told about him when living with Cathryn in a negative light and SPEDDING was spoken about as a "bad man" who was almost used to frighten the children − Does not believe she has ever met SPEDDING and does not allege any sexual abuse − Believes SPEDDING was used as a tool in custody / family law court proceedings concerning the children. …. − Has vague recollection of being "coaxed" into making allegations against SPEDDING and mother and being shown dolls by members of HILLSLEY family − Does not believe she was sexually abused and the allegations made in 1987 to be false − Lived solely with mother Irene after custody awarded following family law court matter and has good relationship with her − No allegations of abuse against mother and only speaks very highly of her".

Jubelin's Book

1. On 20 August 2020, a book, written by Jubelin and entitled I Catch Killers, was published. Extracts were tendered and Jubelin was cross examined by reference to it. It was referred to in some detail in the primary judgment, in particular the following lengthy passage (with added emphasis): "On 23 April, Margaret screams, 'No!' as we tell her husband Bill he is under arrest and needs to come with us. Walking with him away from his house back to our unmarked car, I look at the long line of TV trucks and hire cars on the road beyond it and wonder: What the fuck has happened? How do all these journalists, from every major outfit in the country, know that this was happening today? I didn't tell them. God knows who in the police hierarchy did. I'm furious. Margaret shouts at the photographers and cameramen crowding closer towards us: 'Get off the property! Right now!' They fall back, wide enough only for the car to move forward. Camera flashes fire at Bill through the windows. This evening, I guess, Margaret will sit in her empty house and watch her husband's arrest on the television news. I hope she's shocked; the charges against him are shocking - the alleged sexual and physical assault of two girls, aged three and six, in 1987 - but I did not invent them. It's taken months of careful work to get to where we are today. Unlike the first, rushed raids on Bill's home and business, this moment has been planned for, tested and carefully considered. I know the damage those television images will wreak in Margaret's home, as well as in the homes of William's foster parents and his biological family. That's why I wanted to avoid them. But once you take hold of a line of investigation, you have to follow where it leads and, from the moment I took over this investigation, Bill has been the main thread I was given. The allegations that form the basis of these sexual assault charges are not connected to William. They come instead from the same Crime Stoppers tip-off that brought Bill into Hans's reckoning when he was running the case. The alleged crimes date back decades. While Bill was not charged at the time, or after, once we received this report it was our responsibility to follow it up. I've spoken to both of the alleged victims. One of these women's medical records from the time also suggest an assault took place. Even then, the decision to act on this evidence was not one I made alone. I spoke to my old team member, Nigel Warren, who worked on the Barbara Saunders and Terry Falconer murders and who now leads a team of his own in the Sex Crimes Squad, asking him to take a look at what we'd gathered. Nigel's work now regularly involves prosecuting historical child sex offences and I trust him. He'll always do the right thing for the right reasons. He said we had the statements of the alleged victims, one of which seemed to be corroborated by the medical evidence. Nigel had seen cases prosecuted with less, he told me. I also asked the advice of friends, without naming Bill but saying, 'I'm about to pull the trigger on a guy's life'. I knew that Bill's name had already been linked publicly to the investigation into William's disappearance. Charge him with these crimes and there was no way to hide it. Get it wrong and I destroy him. At the least, there would be public court hearings in which he would be accused of being a paedophile. I told my friends we had the evidence of the alleged victims. 'What other options have you got?' they asked me. The police's own lawyers also looked at the brief of evidence before any final decision was made. Their advice was that there was enough to go ahead. As a cop I can't ignore that. As a cop, I wouldn't be doing my job if I did not also try to take advantage of the extra pressure this will put on Bill by seeing if I can gather evidence to rule him in or out of any role in William's disappearance. Bill is silent during the drive to Port Macquarie Police Station. Once we arrive, a custody sergeant reads him his rights, his fingerprints are taken and he is shown into a jail [sic, gaol]) cell ahead of tomorrow's court hearing. Anyone would find this frightening. If he is hiding something, maybe this will be enough to crack him open. Maybe it will be enough to make Margaret think about him differently. In the evening, after Bill has been interviewed about the sexual assault allegations, which he denies, I speak to him about William. He must be feeling that the ground beneath his feet is now much more uncertain and I want him to know that we are waiting, should he stumble. A thin man, Bill looks back at me coldly. He denies having anything to do with William's disappearance. Late into the night, the light from the strike force's room in the police station shines amid the darkness. Inside that room, I am working, still trying to find a missing three-year-old. Beneath it, in the cells, Bill must know his life has changed for ever. *** Bill is not our only line of inquiry. So far, we've spoken to 18 known sex offenders who live among the acre blocks and rural properties that lie within a 30-kilometre radius of Benaroon Drive, and another 60 who live further beyond it. There seem to be so many such offenders on this stretch of the Mid North Coast. It's as if they've settled on this quiet, overlooked backwater like mosquitos. One of them, Gavin (not his real name), is now Bill's cellmate at Cessnock Correctional Complex where the white goods repairman is waiting for his next bail hearing. We monitor their interaction. Both men live near each other in Kendall and both have past links to Wellington, yet it seems they have never met before. While Bill is in the cell, I go back at him again. We launch a covert operation, the details of which are kept within our strike force and the bosses who authorise it. It seems to work [sic]. Bill continues to insist he was nowhere near Benaroon Drive when William went missing. That's it, I think. He didn't do it. On 8 June, I update the strike force's investigation plan, to say that, accepting on the balance of probabilities, Bill was not involved in William's abduction and we need to refocus our investigation. I know Bill's reputation and his business have been ruined, the three kids who lived with him and Margaret have been taken away, and Margaret herself has suffered greatly. I must have made her doubt her husband. But this is a murder investigation. Justice is what matters here, not injury. I needed to be certain. Yes, getting here was painful, but as the person leading the investigation, I had to weigh up the cost of charging Bill against the cost of doing nothing and found the scales did not balance. The cost of doing nothing was heavier. All that's left is for the child sexual assault charges to play out in court. *** On 17 June, Bill's lawyer tells the Supreme Court he should be released on bail, arguing that someone else, a 'known paedophile', had access to the alleged victims of his assaults at the time they happened. That paedophile was his then brother-in-law, Jeffrey Hillsley. It's possible, the lawyer argues, Hillsley committed these offences, not Bill. After eight weeks in prison, Bill is released on bail. The case moves slowly through the courts and, a year later, he is still fighting it, with no trial scheduled to take place until another year has passed, and which is then delayed again until 2018. When finally it gets to the New South Wales District Court, Bill's lawyer argues that the allegations against him were made to Crime Stoppers by his ex-wife, following a bitter divorce. He argues that evidence has been lost and witnesses have died in the decades since the offences were allegedly committed. The presence of Hillsley in Bill's life at that time also means it cannot be proved who committed the offences, if any did take place. The judge says he [sic, she] believes no jury could say for certain that Bill's guilty and, on 5 March 2018, throws out the charges against him. Walking away from the court, I feel a deep sense of sympathy. Sympathy for the women who were the alleged victims and who told the police about the most awful alleged crimes being committed against them. Sympathy for Margaret, Bill's wife, who has been an innocent bystander in all of this. Sympathy for the scrutiny and sheer pressure that we put Bill under. But it was the right thing to do to charge him. Going to court is usually a bruising experience and not every criminal charge results in a conviction, although it is rare to have your whole case thrown out like this one. I'd still rather take a case to court and lose than never go to court in the first place. Sometimes, like when I fought with Trevor as a schoolboy, you just have to take your lumps."

The primary judgment and key findings of the primary judge

1. One feature of the primary judgment is that, with a number of exceptions, on various issues his Honour set out submissions made by the respective parties without always expressly indicating which submissions he accepted or found persuasive. For his Honour to have found, however, as he did that each of the torts had been committed by each of Jubelin, Brennan and Moynihan, the primary judge must necessarily be taken to have found that: 1. the criminal proceedings were commenced for the predominant purpose of procuring an advantage or benefit outside that afforded by the legal process invoked, namely to advance the investigation into the disappearance of William Tyrell; 2. that this was an invalid or unauthorised act, done for a predominantly improper purpose; 3. that it was done maliciously; 4. that the institution of proceedings was without reasonable and probable cause; and 5. that the maintenance of proceedings was without reasonable and probable cause.
2. Insofar as the primary judge held that the Police Officers, by their actions in commencing proceedings, acted for the predominant collateral purpose of advancing their investigation into the disappearance of William Tyrrell, his Honour did not hold, nor was it contended, that the Director of Public Prosecutions was ever aware of the improper and collateral purpose found to have been held by the Police Officers.
3. His Honour considered the charges concerning LS and JT separately, first considering the material available to the Police Officers when Mr Spedding was charged in relation to LS (see PJ at [132]ff). His Honour noted that, although Brennan had not read it at the time of the commencement of the criminal proceedings, that material included the judgment of Gee J in Kearns v Kearns.
4. The primary judge further noted (at PJ [142]) that Mr Spedding's case was put on alternative bases. The primary contention was that the "officers" did not hold an honest belief in the case against him, and the second contention was that any honest belief lacked an objectively sufficient basis. This formulation picked up, as his Honour noted, the manner in which the High Court addressed the issue in A v NSW at [77].
5. His Honour undertook an extensive review of the evidence over the course of the period both prior to and after the laying of charges against Mr Spedding and the termination of the criminal proceedings in his favour.

Damages

1. In respect of non-economic loss, the primary judge awarded $550,000 across the three torts that were made out, implicitly rejecting the State's submission that damages should effectively be awarded only for malicious prosecution as the other two torts did not add any further liability (PJ at [305]). His Honour went on to justify this finding by noting that Mr Spedding suffered a "long and painful ordeal" and took into account the harsh bail conditions to which he was subject, involving separation from the step-grandchildren for whom he had previously cared. His Honour also noted the "harsh and cynical strategy" of the Police which, in his Honour's view, was "never viable, nor was it proper" (PJ at [207]), and the ongoing effects this had had on Mr Spedding's amenity of life. The primary judge further noted that included in this damages award was a sum calculated at $1,300 per day for the period in which Mr Spedding was detained in custody (some 58 days).
2. In respect of reputational damage, which both parties accepted was a separate head of damage in malicious prosecution, his Honour awarded a sum of $300,000. This was despite the State's objection that most of the damage accruing to Mr Spedding's reputation concerned his status as a person of interest in the Tyrrell investigation, and did not flow from the charges which were ultimately brought and prosecuted. Rejecting this submission, his Honour said (at PJ [310]-[311]): "There can be no doubt that Mr Spedding was a suspect in that disappearance. That is what led the police to him in the first place. It is in my view erroneous to suggest, as the State suggests, that damages for injury to his person, his liberty, his reputation or fame due to being identified as a person of interest in that disappearance are not available because he was never prosecuted for any aspect of his alleged involvement in that crime or that no such involvement is suggested. It is clear, as I have found, that Mr Spedding's prosecution for the alleged historical child sex offences was inextricably woven into the police strategy to investigate that crime. The fact that Mr Spedding was never charged with it is entirely beside the point. Mr Spedding became associated with the disappearance of William Tyrrell as the direct and inevitable result of his arrest and prosecution on unrelated matters. The public perception of Mr Spedding as the perpetrator or prime suspect in the disappearance was directly engineered by the Strike Force. Despite the submission that Mr Spedding was not entitled to damages for injury to his reputation because he was never prosecuted for any aspect of his alleged involvement in that crime or that no such involvement is suggested, the State submitted in complete contradiction of that submission that any damage to his reputation or fame due to his malicious prosecution should be considered in the context of his having already been identified as a suspect in the disappearance of William Tyrrell at the time the proceedings against him were instigated. The State has asked the rhetorical question, "How much more reputational damage did he suffer as a result of being charged?" As I have attempted to make clear, the distinction is an illusion. Mr Spedding's arrest on the charges brought against him carried not only the risk that he would be associated with the disappearance of William Tyrrell but were almost sardonically instituted and maintained purposefully to take advantage of that very ambiguity."

Grounds of Appeal

1. In broad overview, to the extent that the primary judge held that the DPP (and delegates) committed any of the torts, the State challenges such conclusions on appeal.
2. In relation to the tort of malicious prosecution, the State contends, correctly, that the Director did not institute the criminal proceedings, with the ODPP only taking carriage on 30 April 2015. Further, the State contends that, whatever the propriety or collateral nature of the purpose of the Police Officers in commencing the criminal proceedings, there was no basis for concluding that the DPP had any improper purpose or was actuated by malice.
3. Insofar as the State, via the actions of Jubelin, Moynihan and Brennan, was held to be liable for the malicious institution and maintenance of Mr Spedding's prosecution, the State contended that the Police Officers ceased to be "prosecutors" in the relevant sense when the ODPP took over the carriage of the proceedings on 30 April 2015. As such, the State contended that the primary judge erred in holding that the Police Officers maintained the proceedings thereafter and that it was illegitimate for the primary judge to rely (as he did) on various matters after that date to demonstrate the absence of a reasonable and probable cause for the institution and maintenance of the proceedings.
4. The State also amended its Notice of Appeal to challenge any finding by the primary judge that the initiation of proceedings by the Police Officers (as opposed to their maintenance) was without reasonable and probable cause so as to amount to malicious prosecution.
5. It is convenient to consider the matters raised on appeal by reference to each separate tort.

Consideration - Malicious Prosecution

1. The primary judge's findings in relation to malicious prosecution are the subject of Grounds 1-5 of the Further Amended Notice of Appeal (including additional ground 1A) and also the Notice of Contention.
2. Grounds 1-5 are in the following terms, noting that grounds 4 and 5 are confined to the findings of liability solely in relation to the DPP and his delegates: "1. The trial judge erred in finding that Detective Senior Constable Brennan ("Brennan") and Detective Chief Inspector Jubelin ("Jubelin") and Detective Sergeant Moynihan ("Moynihan") maintained the prosecution, and on that basis were liable for malicious prosecution, beyond April 2015. 1A. If the trial judge found that the prosecution was instituted without reasonable and probable cause, his Honour erred in doing so. 2. The trial judge erred in making findings of malice, on the part of Brennan, Jubelin, Moynihan, the Director of Public Prosecutions and unidentified officers of the Office of the Director of Public Prosecutions ("ODPP"), on the basis of findings about the character of material that was available to those people, without making relevant findings that each individual had actual knowledge of such material at the time they engaged in relevant acts of instituting or maintaining the prosecution. 3. The trial judge erred in making findings of malice, on the part of Brennan, Jubelin, Moynihan, the Director of Public Prosecutions and unidentified officers of the ODPP, by failing to consider the implications of particular evidence by reference to particular points in time at which relevant acts of instituting or maintaining the proceedings occurred. 4. The trial judge erred in finding that the Director of Public Prosecutions personally and other unidentified officers of the ODPP maintained the prosecution for the dominant purpose of justifying the public resources that had been expended upon the suspected role of the respondent in the William Tyrrell investigation, to justify his public identification as a person of interest in the disappearance and the ongoing media attention surrounding his apprehension and thereby acted maliciously. 5. The trial judge erred, including in light of the plaintiff's case as pleaded and argued, in relying on the absence of evidence from the Director of Public Prosecutions and/or his delegates as a matter that supported an inference that each acted with an improper purpose of justifying the public resources that had been expended upon the suspected role of the respondent in the William Tyrrell investigation, to justify his public identification as a person of interest in the disappearance and the ongoing media attention surrounding his apprehension."

Initiation of proceedings - grounds of appeal 1A and 2

1. It is convenient, first, to consider the question of malicious prosecution as at the time of initiation of the proceedings and up to 30 April 2015 when the ODPP took over carriage of the matter and the DPP was deemed to be the prosecutor pursuant to s 9 of the DPP Act.
2. In this context, the State accepted or did not ultimately challenge the primary judge's findings that each of Jubelin, Brennan and Moynihan were prosecutors at the time of initiation of the criminal proceedings. To the extent that, by appeal ground 1A, the State called into question whether the primary judge had found that the criminal proceedings had been initiated without reasonable and probably cause, there is no doubt that he did so. At PJ [193], the primary judge expressed himself unambiguously: "I am satisfied that the criminal proceedings were initiated and maintained against Mr Spedding without reasonable and probable cause."
3. The question of whether the elements of malice and absence of reasonable and probable cause on the part of the Police Officers were established at the time of the initiation of the criminal proceedings must, of course, be considered by reference to what was known or available to the Police Officers at that time. Matters that only became known or available to the Police Officers after the initiation of the criminal proceedings cannot be used to impugn their institution as an act of malicious prosecution. There are elements of what may be described as a "timing point" in both the second and third grounds of appeal (see [220] above).
4. A separate point of law raised by ground 2 of the appeal is thrown up by the reference to "actual knowledge" in that ground. It was submitted on behalf of the State that the question of whether a relevant prosecutor lacked reasonable and probable cause could only be considered by reference to what he or she actually knew at the time of the initiation of proceedings. This submission should be rejected. Paragraph [58] of A v NSW extracted at [39] above refers to what material was "available" to a prosecutor, and makes it clear that that material must be considered in two ways. The second way is identified in the final sentence of [58], and is introduced by the word "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."

Did the Police Officers continue as prosecutors or maintain the proceedings after the ODPP took over carriage of the criminal proceedings on or about 30 April 2015? - Appeal Ground 1

1. The primary judge held that the Police Officers continued to maintain the criminal proceedings even after the ODPP had formally taken over carriage of the proceedings.
2. The State, in its oral submissions, accepted that there may be multiple prosecutors and, consistently with Davis, that the question is to be considered by looking to the substance of the matter, as opposed to the form. In that context, it is perhaps notable that s 9 of the DPP Act only "deems" the DPP to be the prosecutor once the ODPP has taken over carriage of the matter.
3. The decision in Landini, discussed in some detail at [23]-[30] above, was a case where police officers responsible for initiating a prosecution were found to have maintained it as a matter of substance in part because of the control of information germane to the prosecution and the withholding of that from the prosecuting authority and thus the accused to whom disclosure was required. Lamont, referred to at [35] above, was an analogous case where it was held that a private complainant would maintain proceedings maliciously "if he withholds information in the knowledge of which the police would not prosecute". In the present case, it was the Police Officers' withholding of information from the ODPP (and also Mr Spedding) that warranted the conclusion that they maintained proceedings notwithstanding the formal position after 30 April 2015 when the ODPP took over the criminal proceedings.
4. Brennan signed a s 15A Disclosure Certificate in relation to the criminal proceedings on 9 November 2016 in which he acknowledged awareness of his disclosure obligations under s 15A of the DPP Act. It is to be presumed that he was aware of those serious obligations at all material times. The terms of s 15A of the DPP Act have been set out at [19] above.
5. Disclosures were made to Mr Spedding's lawyers (and, it is reasonable to assume, the DPP at the same time) on 23 April 2015, 9 June 2015, 18 March 2016 and 5 December 2016. This latter disclosure included a series of affidavits and statements from the Kearns v Kearns Family Court proceedings in 1988-1989.
6. Of particular significance in terms of lack of disclosure is the fact that the Investigator's Notes of the interviews with the Kearns children and Mr Daniel Kearns were not disclosed until 18 March 2016 even though the interviews had taken place in early May 2015 and written up as formal Notes shortly thereafter. Moreover, in his Statement also served on 18 March 2016 and as noted at [170]-[173] above, Brennan, although referring to his call with RT on 27 January 2016, failed to refer to RT's statement to him that he "was there to see his mother make the whole thing up". This had not been disclosed to Mr Spedding's defence team nor, it may be inferred, the DPP by the time the indictment was presented on 10 June 2016.

Malice

1. Appeal ground 3 is that: "The trial judge erred in making findings of malice, on the part of Brennan, Jubelin, Moynihan, the Director of Public Prosecutions and unidentified officers of the ODPP, by failing to consider the implications of particular evidence by reference to particular points in time at which relevant acts of instituting or maintaining the proceedings occurred."
2. The primary judge's finding of malice have been noted at [200]-[201] above. Malice was inferred from the improper purpose that his Honour found underpinned the commencement of the proceedings. That finding was entirely justified, and was laid bare in Exhibit E and confirmed by the terms of Jubelin's later book. His Honour's conclusion that "[t]he frenetic and poorly conceived arrest of Mr Spedding could never in my view have been justified and was clearly malicious" did not involve a failure "to consider the implications of particular evidence by reference to particular points in time at which relevant acts of instituting or maintaining the proceedings occurred", as contended in appeal ground 3. As already noted, the improper purpose from which malice on the part of the Police Officers was inferred was not shared by the ODPP.
3. It is true that the primary judge, at PJ [204], went on to observe that "this is one of those cases where malice can also be inferred from the absence of reasonable and probable cause" (emphasis added) and in this context observed that "[b]y the time of Mr Spedding's trial, it was clear that the case against him was hopeless and doomed to fail." This last observation appears to be the source of the formulation of appeal ground 3 but, as the emphasised word "also" makes plain, this was an additional basis for finding of malice. No attack was made on the finding of malice inferred from the improper purpose of the Police Officers in commencing the proceedings. That necessarily existed at the time of the commencement of the prosecution. Accordingly, appeal ground 3 fails.

Director of Public Prosecutions not liable for malicious prosecution

1. An independent aspect of the appeal related to the primary judge's holding that the Director of Public Prosecutions was liable for malicious prosecution. Appeal ground 4 was that: "The trial judge erred in finding that the Director of Public Prosecutions personally and other unidentified officers of the ODPP maintained the prosecution for the dominant purpose of justifying the public resources that had been expended upon the suspected role of the respondent in the William Tyrrell investigation, to justify his public identification as a person of interest in the disappearance and the ongoing media attention surrounding his apprehension and thereby acted maliciously."
2. The language of this ground reflects the allegation made by Mr Spedding as recorded in PJ [203] rather than any finding by the primary judge in terms to this effect. The Court was not taken to any material which would have justified a finding in terms of this allegation and no independent ground was advanced by way of Notice of Contention as to how the element of malice was said to have been established against the DPP. More importantly, and a reason why this aspect of the appeal must be upheld, is that the improper or unauthorised purpose of the Police Officers in arresting and charging Mr Spedding, from which the primary judge inferred malice on their part, was never disclosed to the ODPP.
3. The fact, as held by the primary judge at PJ [204], that, "by the time of Mr Spedding's trial, it was clear that the case against him was hopeless and doomed to fail" does not itself establish malice on the part of the DPP. In submissions on appeal, it was contended for Mr Spedding that, notwithstanding the absence of material to support the allegation that the ODPP maintained the prosecution for the dominant purpose of justifying the public resources that had been expended upon the suspected role of the respondent in the William Tyrrell investigation, malice could be inferred from the absence of reasonable and probable cause. That was not how the allegation of malice as against the ODPP was pleaded or particularised, and in those circumstances, we do not think it fair or properly open to advance an alternative, unparticularised allegation of malice on the part of the ODPP to justify a finding of malice against the DPP or the ODPP.

Consideration - Misfeasance in Public Office

1. The primary judge's findings in relation to misfeasance in public office are the subject of Grounds 6-8 of the Further Amended Notice of Appeal in the following terms: "6. The trial judge erred in finding that Brennan and Jubelin engaged in misfeasance in public office. 7. The trial judge erred in treating the maintenance of criminal proceedings against the respondent as an exercise of public power by Brennan and Jubelin for the purposes of misfeasance in public office when the public powers in question were identified as the arresting and charging of the respondent and the commencement of criminal proceedings. 8. The trial judge, in determining the claim for misfeasance in public office, erred in relying on evidence of matters postdating the arresting and charging of the respondent and the commencement of criminal proceedings as a basis for finding that Brennan and Jubelin acted maliciously."
2. In its Statement challenging findings of fact, the State challenged the primary judge's finding that: "there was an "unauthorised act", for the purposes of the tort of misfeasance in public office, in the form of the "institution and maintenance" (J[210]) of the criminal proceedings, and that in relation to such act Brennan and Jubelin acted in bad faith: J[205]-[212]."
3. At PJ [209], the primary judge held that "[i]n relation to the element of malice, what is required is proof that the defendant acted in bad faith, which may be established by showing either that the defendant's unauthorised act or acts were carried out with the intention of harming Mr Spedding or that the unauthorised act or acts were carried out with reckless indifference to the harm that was likely to ensue: Northern Territory of Australia v Mengel at 347".
4. At PJ [212], his Honour noted that "Mr Spedding relies on the evidence and submissions put forward in respect of the element of malice in his claim for malicious prosecution".
5. There is perhaps some force in appeal ground 7 insofar as his Honour made reference in PJ [210] to the institution and maintenance of proceedings on the footing that the maintenance of proceedings for the purpose of the tort of malicious prosecution does not obviously or necessarily involve the exercise of public power or authority by the police for the purposes of the separate tort of misfeasance in public office which requires an unauthorised act of public power. As the State submitted in reply: "What is lacking is an identification by the trial judge of how the "maintenance" of criminal proceedings involves any act of public power by the police. It matters not what a police officer may expect may happen as a result of the exercise of a public power. That expectation is not itself an exercise of public power. Contrary to RS[45], the prosecution of the charges on indictment by the ODPP is not a continuation of the exercise of power by the police in issuing a court attendance notice."

Consideration - Collateral Abuse of Process

1. The primary judge's findings in relation to collateral abuse of process are the subject of Grounds 9-11 of the Further Amended Notice of Appeal in the following terms: "9. The trial judge erred in finding that Brennan and Jubelin engaged in collateral abuse of process. 10. The trial judge erred in treating the maintenance of criminal proceedings against the respondent as an act of abuse of process by Brennan and Jubelin when the relevant act was the use of the machinery of the criminal law by the police officers, which was confined to the arresting and charging of the respondent and the commencement of criminal proceedings. 11. The trial judge, in determining the claim for collateral abuse of process, erred in relying on evidence of matters postdating the arresting and charging of the respondent and the commencement of criminal proceedings as a basis for finding that Brennan and Jubelin used the machinery of the criminal law for an improper purpose."
2. In its Statement challenging findings of fact, the State challenged the following purported finding of fact, referencing PJ [217]-[218] and [305]-[315]: "That the maintenance of the prosecution for an improper purpose involved, on the part of Brennan and Jubelin, an act of collateral abuse of process." The paragraphs of the judgment cited by the State do not support the State's assertion that the primary judge's finding of collateral abuse of process was referable to the maintenance of the prosecution as opposed to the commencement of proceedings.
3. It must be observed that, although there was no doubt that the primary judge found that this tort had been established against the Police Officers, his reasoning was spare, presumably because of his earlier more extensive findings that the criminal proceedings were used as a vehicle to further the investigation of Mr Spedding as a suspect in the disappearance of William Tyrrell, and that this was the predominant purpose for his arrest.
4. The claim for collateral abuse of process was made against each of the Police Officers, including Moynihan, and not just Jubelin and Brennan. The absence of any reference to Moynihan in grounds 9-11 of the Notice of Appeal or in the UCPR r 51.36(2) statement may reflect the fact that he was identified as the Officer in Charge and the Prosecutor on the Court Attendance Notice by which the criminal proceedings were commenced and, as such, was undoubtedly a party to those proceedings: see [57] above. The State appeared to accept on appeal that Brennan who, with Moynihan, was described as an informant on the Facts Sheet accompanying the CAN, was also a party to the charging and thereby the criminal proceedings commenced against Mr Spedding.

Consideration - Damages

1. The State appeals against the primary judge's award of damages on the following grounds: "12. The awards of damages in respect of non-economic loss, aggravated and exemplary damages were manifestly excessive. 13. In determining damages for non-economic loss, the trial judge erred in treating the loss and damage associated with the respondent being a suspect in the disappearance of William Tyrrell as being relevantly attributable to the criminal prosecution of the respondent."
2. As noted earlier in these reasons, on 20 February 2023, the primary judge ordered judgment in favour of Mr Spedding in the sum of $1,797,181 (which comprised $1,484,292 plus interest of $312,889). The principal sum comprised: 1. general damages, for all three torts combined, of $550,000 (which included $75,400, being $1,300 per day for each of the 58 days Mr Spedding spent in custody); 2. "reputational" damage caused by the malicious prosecution of $300,000; 3. aggravated damages arising from the malicious prosecution of $200,000; 4. exemplary damages of $300,000; 5. legal costs of $109,292 (incurred in defending himself from the malicious prosecution); and 6. future treatment costs of $25,000.
3. Although ground 13 is a separate ground, it would appear that it is also relied upon as an explanation for the manifest excess alleged in ground 12. It is appropriate that it be addressed before ground 12 since the question of manifest excess is affected by the determination of ground 13. As there is no cross-appeal on damages, it is not necessary for this Court to assess damages for itself unless it is satisfied that a lesser award of damages is warranted.
4. For the reasons given above, Mr Spedding is entitled to damages from the State on the basis of its vicarious liability with respect to the following torts: 1. malicious prosecution by Jubelin, Brennan and Moynihan constituted by malicious institution of criminal proceedings against him in the Local Court, which were maintained until the presenting of the indictment by the Office of the Director of Public Prosecutions and thereafter until the conclusion of the trial of Mr Spedding and the entry of verdicts of acquittal; 2. misfeasance in public office by Jubelin, Brennan and Moynihan constituted by the wrongful arrest of Mr Spedding on 22 April 2015 and his subsequent charging; and 3. the tort of collateral abuse of process by Brennan and Moynihan.

Ground 13: whether the primary judge erred in treating the loss and damage associated with Mr Spedding being a suspect in the disappearance of William Tyrrell as being relevantly attributable to the criminal prosecution of the respondent

1. In the Court below, the State argued that damage caused to Mr Spedding by reason of his being identified as a person of interest in the disappearance of William Tyrrell (the disappearance) was not compensable. The primary judge rejected that argument, finding at PJ [310] that on the facts the prosecution of the alleged historical child sex offences was "inextricably woven into the police strategy to investigate [the disappearance]" and Mr Spedding became associated with the disappearance "as the direct and inevitable result of his arrest and prosecution on unrelated matters". Thus, the primary judge did not differentiate between the damage suffered by Mr Spedding as a result of the failed prosecution, and the damage he suffered by reason of being publicly identified as a suspect in the disappearance. The State submitted that the primary judge was in error in incorporating into the award the fact that Mr Spedding was publicly identified as a suspect in the disappearance and the consequences of that identification.
2. This issue was important because, as was accepted by the State, the reputational damage and associated stressors on Mr Spedding were significantly greater because of the alleged association with a high profile investigation into the disappearance than had he simply been charged with historic child sex offences.
3. The State submitted that the primary judge's approach was founded on the following two matters, of which only the second was challenged: 1. the prosecution of the historic child sex offences was woven into the police strategy to investigate the disappearance (which the appellant accepted was an available inference); and 2. Mr Spedding became associated with the disappearance as the direct and inevitable result of his arrest and prosecution on unrelated charges.
4. The State submitted that (2) was inconsistent with the primary judge's findings that before the police became aware that Mr Spedding had been accused of historical child sexual assault, he was a person of interest (from late 2014), experienced a distressing police search and confronting interviews in January 2015, was the subject of significant media attention in that regard and had the children who resided in his home removed by the Department of Family and Community Services (FACS). The State contended that the "long and painful ordeal" to which the primary judge referred at PJ [306] was "primarily" about his public identification as a suspect in the disappearance, which was not compensable.

Ground 12: alleged manifest excess

1. Manifest excess is a conclusion which does not require the proof of patent error since it is sufficient if the determination made is that it was not open to the primary judge to award damages for non-economic loss (which will be used compendiously to describe general damages for pain and suffering, aggravated damages and exemplary damages) in the amount that his Honour did. The assessment of non-economic loss involves the exercise of discretion: Moran v McMahon (1985) 3 NSWLR 700. Accordingly, it is necessary for the State to show a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. This requires the Court to be satisfied that the judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, failed to take into account a material consideration, or where upon the facts the outcome is unreasonable or plainly unjust.
2. Even if the Court considered that House v The King error existed, there is no need for such intervention if no lesser damages are warranted on this Court's analysis of the respective torts.
3. In substance, the State argued that the damages awarded for non-economic loss were manifestly excessive because they were outside the range established by previous decisions.
4. While comparables are a guide, they cannot be used to fetter a discretion to assess damages by reference to the circumstances of the particular case. Further, whereas sentences of imprisonment can be compared without regard to the date of their imposition, monetary damages cannot be separated from the time of their award because of the effect of inflation. The indexation of the maximum amount relating to damages for non-economic loss in ss 16 and 17 of the Civil Liability Act 2002 (NSW) is a statutory recognition of this effect. Although by reason of s 3B(1)(a) of the Civil Liability Act these provisions do not apply to intentional torts, it is necessary that the diminishing value over time of a nominated sum be taken into account. The Court has considered all of the awards of damages which are alleged to be comparative and taken them into account in the assessment of whether the present award is manifestly excessive. As each case turns on its own facts, there is no utility in reciting the facts and awards referable to each case to which the Court was referred.
5. The State submitted that child sex abuse is a lesser offence than murder and that, accordingly, the general damages in the present case ought be substantially less than awarded in cases involving malicious prosecution for murder. This is, at best, a questionable proposition and on further analysis cannot be accepted for the reasons which follow.

1. The maximum penalty is regarded as representing the legislature's assessment of seriousness of the offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. The maximum penalty for murder is life and has been since the death penalty was abolished for that offence in 1955. At the time of the alleged offending, 1987, the maximum penalty for an offence under s 66A of the Crimes Act (sexual intercourse with a child under 10 years) was 20 years' imprisonment (as set out in the table above).
2. However, since that time the maximum penalty for the conduct alleged against Mr Spedding has increased from 20 years' imprisonment to life imprisonment. In 2003, the maximum penalty was increased to 25 years' imprisonment. In 2009, the maximum penalty for a non-aggravated form of sexual intercourse with a child under 10 remained at 25 years' imprisonment but for the aggravated form (which was introduced by the amendment), which applied in particular circumstances, including when the victim was under the offender's authority, the maximum penalty was life imprisonment. In 2015, the maximum penalty for the non-aggravated form of the offence was increased from 25 years' imprisonment to life, following a recommendation of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders (New South Wales, Joint Select Committee on Sentencing of Child Sexual Assault Offenders, Every Sentence Tells a Story - Report on Sentencing of Child Sexual Assault Offenders, (October 2014) at 35 (Report 1/55, n 2, recommendation 5)). In the Second Reading Speech for the Crimes Legislation Amendment (Child Sex Offences) Bill 2015, child sexual assault was described as a "depraved, cruel and truly awful crime" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 May 2015 at 407).
3. Thus, by the time of the laying of the charges on 22 April 2015, the legislature can be taken to have regarded the offences in counts 1, 4, 5 and 6 as being as serious as murder (though a lower maximum was applicable because of the timing of the alleged offending and the date of the trial).
4. However, the view of the legislature, while relevant, is not necessarily the most relevant one in the present context since the view of the public at large also plays a considerable part. Child sexual offenders are commonly regarded as sick, dangerous recidivists who are incapable of self-restraint or rehabilitation. Such is the disgust with which child sex abuse is regarded, it is well known that, while incarcerated, suspected or convicted offenders are required to be housed separately from the general prison population because of the violence against them which could be expected otherwise to ensue. Vigilante conduct by members of the public against such offenders can be extreme: see, for example, AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46. In R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1, Sheller JA said, at [20]: "The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim …"

Conclusion

1. The State submitted that the damages award in the present case is, whether viewed in whole, or by reference to its component parts, "without compare in the context of malicious prosecution claims proved against the State". So much may be accepted. However, the egregiousness of the conduct for which the State is vicariously liable is also "beyond compare". The high-handed, self-serving, grand-standing undermining of the criminal justice system by the relevant police officers in arresting, charging, opposing bail and maintaining the prosecution against Mr Spedding has no relevant comparator in the reported cases in New South Wales. One can only hope that its standing as the worst case is never repeated and is never superseded by conduct that is even worse.
2. The award of damages in the present case has not been shown to be manifestly excessive. Accordingly ground 12 is not made out.

Orders

1. Although we have held that appeal ground 4 should succeed in relation to the finding of malicious prosecution by the DPP, that success does not affect the ultimate outcome as the State remains vicariously liable for the tortious conduct of the Police Officers.
2. Accordingly, the order of the Court is: "Appeal dismissed with costs".

Amendments 09 August 2023 - Name appearing in first bracket updated to read "Daniel" - [156] 09 August 2023 - "interviewswere" replaced by "interviews were" - headnote, paragraph 7 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: 09 August 2023