"167 Despite the number of (trained) police officers in the bedroom - five, immediately after the confrontation - not one gave evidence of having seen the plaintiff with a knife. It is scarcely conceivable that, had the events occurred as Constable Jackson said they did, and the plaintiff had been in possession of the knife, he would not have produced it; or, at least, that he would have been able to conceal it.
168 Given the plaintiff's condition when he entered the Gaffney house, he could not have armed himself with the knife without leaving blood, and his DNA, on it (he was not carrying anything that he could have used to avoid physical contact with the knife) and he could not have taken it from the kitchen drawer without leaving blood smears on the floor and the furniture in the vicinity.
169 And it is scarcely credible that, had the knife been in its later location when the plaintiff was arrested and removed, it would have escaped the combined examination of Constables McAlister, Philpott and Deissel, although I have not overlooked that, on Mr Mansfield's (untested) account, it may have been concealed amongst bedding.
170 So far as I can ascertain from the evidence, the one police officer who remained at the house throughout the relevant time (although he was not present at any time when the plaintiff was) was Inspector Murphy. Yet he was one of two participating police officers who did not give evidence. …
171 This is not, of course, an investigation into who was responsible for taking the knife from the kitchen drawer and placing it in the bedroom. I am satisfied, however, that it was not the plaintiff. I am satisfied, having regard to the absence of DNA or fingerprints on it, that its removal was effected by a person (or persons) aware of the significance of those forensic investigations and the means of avoiding leaving such evidence. And I am satisfied that it was placed in the bedroom by a person or persons aware of the significance its presence would have in the prosecution of the plaintiff. It follows that I am satisfied that it was taken from the kitchen drawer and placed in the bedroom, after the plaintiff's departure, by one or more of the police officers. I am not in a position to make a specific finding as to who that was. In fact, for present purposes, that does not matter. What matters is what Detective Briggs knew, as at 28 March when he charged the plaintiff with these offences, and thereafter, up to the time of the hearing, when he maintained them. …
172 … Although I cannot be satisfied that Detective Briggs was himself personally involved in placing the knife in the bedroom, I am satisfied that he was aware that that was done, by a police officer or officers after the plaintiff had been removed from the scene. In part, that satisfaction derives from my conclusions concerning the next issue, the failure to take appropriate steps to preserve the scene and relevant evidence."
(c) The critical incident
183 The "next issue" with which her Honour dealt related to the declaration at about 1.30pm on 6 February 2003 of what is referred to in the Police Guidelines as a "Critical Incident". The relevance of this issue, as her Honour noted at [173] of her reasons, was that a "Critical Incident" ought to have been "declared" immediately upon the arrest of the respondent so that appropriate procedures could have been implemented to ensure that the evidence at the scene was preserved rather than, as her Honour found, "deliberately destroyed".
184 This last observation followed on from her Honour's assertion at [127] of her reasons (extracted at [162] above) that the event to which she there referred was "deliberately engineered" for what can only be described as an illegitimate purpose. Her Honour laid the sole blame for that situation at the feet of Murphy who called in the contract cleaners to clean the house before the crime scene had been properly investigated by suitably trained and equipped officers.
185 This finding was established by her Honour to support, at least in part, her conclusion that Briggs was aware that the knife had been placed in the bedroom by a police officer or officers after the respondent had been removed from the scene.
186 The Guidelines relevant to the declaration of a "Critical Incident" were issued in 2002 for use by the NSW Police Service. They defined such an incident as including, relevantly, "serious injury arising from a police operation". When such an incident eventuates a specialised investigation team known as a "Critical Incident Investigation Team" (CIIT) is to be appointed to investigate the incident. If a delay occurs before a CIIT arrives at the scene, the Guidelines require the most senior officer at the scene to take steps to preserve the scene for fingerprinting and appoint an officer to secure it.
187 Her Honour acknowledged (at [176]) that there was a deal of argument at trial as to whether the occurrences at the Gaffney house became, or were known to be, a "Critical Incident". This depended upon whether those present appreciated that the respondent had sustained a "serious injury", a term which was not defined in the Guidelines. However, at [177] her Honour found that a Critical Incident existed because, as was later recognised by the officers concerned, the injuries to the respondent qualified as "serious".
188 In the circumstances her Honour considered (at [179]) that it was necessary to focus upon the conduct of Briggs and his state of knowledge or awareness of the extent of the respondent's injuries.
189 It was acknowledged that until the arrival of Murphy, Briggs was the most senior officer present and it was therefore his obligation (if by reason of the extent of his understanding of the respondent's injuries, the event constituted a "Critical Incident") to preserve the scene for fingerprints and appoint an officer to secure it. Her Honour noted (at [181]) that neither Briggs nor Murphy, on the latter's arrival, took any of those steps. Of course, by the time Murphy arrived the respondent had been removed from the scene and he (Murphy) was not aware, at least firsthand, of the extent of the respondent's facial injuries.
190 The appellant submitted that until the respondent's admission to hospital neither Briggs nor any other police officer was, or should have been, aware that the respondent's injuries were "serious". Nevertheless, her Honour noted at [183] that Briggs accepted the proposition put to him in cross-examination that "serious injury" equated to injury sufficient to require emergency medical treatment such as admission to the Accident and Emergency Ward of a hospital for treatment. However, her Honour acknowledged (at [184]) that at the time of the respondent's arrest, and notwithstanding the amount of blood on him and in the bedroom, Briggs did not believe that the respondent's injuries were serious. It was therefore not obvious to him that the incident ought to be characterised as a "Critical Incident".
191 At [185] her Honour stated that Constable Jennings, the officer at the Wagga Wagga Police Station in charge of the Custody Management Record, took a similar view. On Jennings' recollection of the respondent's arrival at the police station, he was not suffering from injuries that she would have classed as serious. She did make arrangements for his transfer to hospital but that, she said, was standard procedure where capsicum spray had been used.
192 At [186] her Honour accepted that the Custody Management Record, which was quite detailed, tended to support Jennings' view. It recorded that the respondent had:
"bruising around his right eye, blood dripping from his cheek, a 2cm cut to the right cheek, and pain to the right knuckles, an abrasive burn with skin off his big toe and one next [to] the right foot, an abrasive burn with skin off on the left foot, and a 3cm cut along the heel and middle toe; a 1.5cm cut on left arm near the elbow, a cut between pointer and middle fingers of the left hand, and grazing on the right forearm".
193 This record was consistent with the contents of the ambulance report recorded by her Honour at [187]. The ambulance report made no reference to the respondent's face and/or torso being covered in blood. In fact, the respondent was transported to hospital in a police car rather than in the ambulance as, according to Jennings, he exhibited signs of aggressiveness.
194 At [188] her Honour recorded that at 11.18am Briggs spoke by radio to the operator and was recorded as saying when asked for a situation report:
"Yeah, one in custody, he … they might want to have a look at him there … . All I want is Crime Scene if they're coming …:"
195 When asked whether anyone had been injured he is recorded at [189] by her Honour as replying:
"Well, there is actually some matter, apart from the initial traffic stuff, there's a number of assaults on police … as well as an unlawful entry, break and enter type situation in order to avoid us. I'll explain it all later. It's sort of a bit hard (ui) [sic, unintelligible] just to explain everything."
196 On the basis of the foregoing the primary judge concluded:
"190 On balance, I have concluded that the position adopted on behalf of the plaintiff ought to be accepted. The photographs demonstrate that a very substantial amount of blood had been shed in the bedroom. There was no evidence that Constable Jackson was injured in such a way as to shed blood. All of the blood must have come from the plaintiff. It was obvious that some of his injuries were facial. That is sufficient to alert a prudent senior police officer that a serious incident had occurred, and to trigger the procedures laid down by the Guidelines. Indeed, in his radio call, Detective Briggs advised those at the police station that the plaintiff ought to be examined. This was a radio call on which reliance was placed by the defendant, but it demonstrates to me that Detective Briggs was, at the very least, aware that the plaintiff had suffered injury requiring investigation. That, alone, raises questions about Detective Briggs' failure to secure the scene. He was not responsible for what occurred after the arrival of Inspector Murphy, and his assumption of control of the situation. But if Detective Briggs had, as he was required to do, notified the Duty Officer in Sydney that a Critical Incident had occurred, then the other procedures - the appointment of a CIIT - would inevitably have followed. It would not have been possible for Inspector Murphy to call in the cleaners and destroy the scene.
191 But, as I have said repeatedly, and I remind myself, this is not a general inquiry into the conduct of Detective Briggs and his colleagues. His failure to take the necessary steps are relevant only if it can be inferred that they were for a reason from which a further inference of malice, or absence of reasonable and probable cause, can be drawn.
192 If, for example, it were concluded that Detective Briggs' failure to implement the procedures resulted merely from an error of judgment on his part in the evaluation of the level of seriousness of the plaintiff's injuries, then no adverse inferences concerning the prosecution could be drawn. If, on the other hand, it could be inferred that Detective Briggs failed to act in order to protect the position of, for example, Constable Jackson, then, plainly, adverse inferences could be drawn."
197 Her Honour therefore posed for herself in the last sentence of [192] of her reasons a test that, in our respectful view, required significant probative evidence before the inference to which reference was there made could be drawn. In other words, her Honour was correctly acknowledging that before an adverse inference as to one of the two elements of malicious prosecution she was considering could be drawn against Briggs, it would be necessary for the evidence to establish, directly or inferentially, that he had appreciated that the respondent's injuries were sufficiently serious as to result in a Critical Incident but that he deliberately failed to declare such an incident in order to protect the police officers concerned in the incident including, in particular, Jackson. We will return to the applicable standard of proof.
198 We note, at this stage, that the question which arises from [192] is what in Jackson's position needed protection which could be achieved only by failing to declare a Critical Incident and thereby not securing the scene for further investigation and, in particular, fingerprinting? In our opinion the only conduct of Jackson that might have required such protection was if he had admitted to Briggs that he had unlawfully assaulted the respondent by striking him on his face with his baton or Briggs suspected that he had done so. For reasons that will become apparent, in our view there is no evidence which would support such a finding, whether by inference or otherwise.
199 The primary judge then turned to the evidence given by Briggs as to what he was told by Jackson. At [193] she opined that it must have been "quite obvious" to Briggs that something untoward had, or very probably had, occurred in the bedroom. She noted that he had given evidence that after the respondent was removed from the scene he asked Jackson what had happened. At [194] her Honour set out that part of Briggs' evidence that she apparently regarded as significant to her findings. Relevantly, that evidence was that Jackson discovered the respondent under the bed; the bed ended up on top of Jackson; there was a struggle and the bed was flipped but Jackson pushed it off him; he was then at one end of the bed and the respondent at the other and there was a pushing/pulling situation. Jackson then utilised his capsicum spray, which had no effect. Ultimately, he then used his baton.
200 Her Honour then recorded at [194] Briggs' evidence as to his knowledge of what had transpired between Jackson and the respondent. Relevantly, that evidence was:
"He struck him once when going one way and hit the arm and on the back and going back on the other arm, I believe.
…
And then the pushing and pulling of the bed continued and then Mr Hathaway has allegedly picked the bed up and then Jackson has been able to utilise the baton and strike him on the leg, and that was when - anyway, Mr Hathaway started letting go of the bed, or something. And then not long after that anymore pushing and pulling.
…
I believe I asked him about the lacerations, I believe, and he said, basically it wasn't to do with him … or he was unsure as to how that occurred."
201 In light of Briggs' evidence, the primary judge came to the following conclusions:
195 He [Briggs] did not believe that the laceration he had observed to the plaintiff's face could have been caused by a baton blow to the head. He thought that was more consistent with what had occurred earlier, when the [respondent] was running and jumping over fences. He also said that he had been informed (he now knew incorrectly) that, before his entry to the house, the [respondent] had been seen to be bleeding from the head.
196 On this account, it must have been obvious to an experienced Detective even at that early stage that serious questions would be asked concerning the events in the bedroom. That does not mean that he was not entitled, at that point, to accept, at face value, the account given by Constable Jackson. But that account exposed those very questions. It is therefore inexplicable that he did not take more decisive action to preserve the scene. It was not sufficient merely to ask for Crime Scene Detectives to attend, and, when told that they were not available, to do nothing further. That he did not take further action, I consider, was attributable to his recognition of the possibility that Constable Jackson had exceeded the bounds of propriety in his response to the [respondent's] conduct.
197 I am satisfied also, that, although Detective Briggs was not responsible for what Inspector Murphy did, he was aware of its impropriety and of the likelihood that this was done for the purpose of frustrating any subsequent investigation. Even in the absence of the declaration of a Critical Incident, the area remained the scene of a serious crime.
198 It is, therefore, an inevitable conclusion that Detective Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and therefore maliciously.
199 The improper purpose was the support of Constable Jackson in his assertions about the [respondent], and to strengthen the case against the [respondent]. It also was to perpetuate the fiction that had been created by the placement of the knife in the bedroom, and protect the police involved."