Supreme Court of the ACT|2018-06-29|Before: McWilliam AsJ

The Commonwealth of Australia v Marsh [2018] ACTSC 189 (29 June 2018)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL - TORTS - Malicious Prosecution - Whether absence of reasonable and probable cause - whether no evidence for a material finding on malice - appeal allowed with costs

A v New South Wales [2007] HCA 10; 230 CLR 500

Asim v Penrose [2010] NSWCA 366

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027

Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251

Fox v Percy [2003] HCA 22; 214 CLR 118

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; 241 CLR 390

Lewis v Australian Capital Territory [2018] ACTSC 19

Lule v New South Wales [2018] NSWCA 125

Malek v Remondis Australia Pty Ltd [2015] ACTSC 135

Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78

New South Wales v Landini [2010] NSWCA 157

Noye v Robbins; Noye v Crimmins [2007] WASC 98

R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245

Thomas v New South Wales [2008] NSWCA 316; 74 NSWLR 34

Tisdall v Webber [2011] FCAFC 76; 193 FCR 260

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Mr N Williams SC with Ms A Mitchelmore (Appellants)

1. This appeal arises from a brief interaction of a few seconds that took place outside the City Police Station on Boxing Day, 26 December 2012, between a police officer, the plaintiff and a blue bicycle. The plaintiff was subject to bail conditions that included refraining from consuming intoxicating liquor. He had just taken a breath test for the presence of alcohol which he had failed, and was in the process of running away from the police station, with the police officer pursuing him. The plaintiff handled the bike and it got in the way of the police officer's pursuit, causing injury to his right shin. The plaintiff was arrested by the police officer a short time later in a nearby carpark.

2. The interaction with the bike resulted in a charge being laid for obstructing a public officer of the Australian Capital Territory under s 147.1(1) of the Criminal Code Act 1995 (Cth) (the Code). Mr Marsh was also to be brought before the Court pursuant to s 56A(2) of the Bail Act 1992 (ACT), for breach of his bail conditions.

3. Two days later, on 28 December 2012, the Magistrates Court refused Mr Marsh bail. On 3 January 2013, Mr Marsh entered a plea of not guilty and the matter was adjourned for a brief of evidence to be prepared. On 31 January 2013, a further charge was made for an offence pursuant to s 24 of the Crimes Act 1900 (ACT) (the Act), for assault occasioning actual bodily harm.

4. On 9 May 2013, the Director of Public Prosecutions offered no evidence in relation to the charges under s 147.1(1) of the Code and s 24 of the Act.

5. On 29 September 2015, Mr Marsh commenced civil proceedings in the court below, alleging a number of causes of action, two of which were malicious prosecution and false imprisonment.

6. The plaintiff was successful on those two claims, with the Magistrate awarding damages to the plaintiff, Mr Luke Marsh, in the sum of $35,000 plus costs on 10 April 2017. That figure comprised $25,000 for malicious prosecution, including $5,000 in exemplary damages, and $10,000 for false imprisonment.

7. The first appellant is the Commonwealth of Australia (Commonwealth), sued as joint tortfeasor pursuant to s 64B of the Australian Federal Police Act 1979 (Cth), as the tortious claims were made against a member of the Australian Federal Police (AFP). The second appellant is the police officer concerned, Senior Constable Paul Yates (SC Yates). The appellants seek to overturn the judgment in its entirety and to have the claims in the court below dismissed. In the alternative, the appellants seek to have damages reassessed.

8. The main factual matters disputed on appeal are whether the police officer acted with malice in bringing the charges that were not pursued, what the police officer genuinely believed as to the plaintiff's intention in handling the bike, and whether the police officer's belief had reasonable grounds.

9. The parties were each represented by junior and senior counsel, who assisted the Court both during the hearing and through their written submissions, parts of which have been incorporated and thereby adopted in the reasons that follow.

10. This appeal is by way of rehearing, pursuant to ss 274 and 276 of the Magistrates Court Act 1930 (ACT): Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 3; Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 (Malek) at [11].

11. A rehearing is not a retrial. The appellant still carries the onus of showing that the decision appealed from ought to be reversed: Powell v Streatham Manor Nursing Homes [1935] AC 243 at 249. The general powers of this Court hearing an appeal from the Magistrates Court are set out in r 5052 of the Court Procedures Rules 2006 (ACT). No party sought to adduce further evidence on appeal.

12. There are two principles which have particular relevance to the malicious prosecution claim. First, the court is obliged to conduct a real review of the trial and of the magistrate's reasons, and has the power to weigh the evidence and draw conclusions, though bearing in mind the advantage of the magistrate in having seen and heard the witnesses: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]; Malek at [13].

13. Second, it is the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts. In deciding what the proper inference to be drawn is, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551.

14. In numerous grounds of appeal contained in the amended appeal filed on 13 June 2017, the appellants attack three overarching findings: the first concerning the element of malice; the second concerning an absence of reasonable and probable cause; and the third concerning damages.

15. I have grouped the various complaints into five issues or grounds. Ground 1, as to malice, concerns complaints that there was no evidence for the following findings:

(a) The finding of malice based on SC Yates being primarily motivated by his dislike of Mr Marsh;

(b) The finding that SC Yates thought Mr Marsh's bike was stolen; and

(c) The finding that Mr Marsh was well known to SC Yates personally or by reputation and SC Yates' attitude towards Mr Marsh appeared to be contemptuous and dismissive.

16. Ground 3 concerns complaints that SC Yates was denied procedural fairness in relation to those three findings.

17. Ground 5, as to the absence of reasonable and probable cause, concerns complaints that the Magistrate failed to apply the correct legal test in drawing the inference that SC Yates did not have a genuine belief that he was assaulted, in that:

(a) The Magistrate assessed the objective sufficiency of the allegation of assault on the basis of information (CCTV footage) not available to SC Yates at the time the allegation was investigated.

(b) The Magistrate wrongly considered an absence of genuine belief that the bike was 'thrown' as sufficient to negate reasonable and probable cause as to an assault.

18. Grounds 2 and 4 concern a failure to give adequate reasons for the findings that are the subject of Grounds 1 and 5.

19. Ground 6 is that the Magistrate erred in awarding any damages.

20. The respondent (the plaintiff in the court below) seeks to uphold both the findings made by the Magistrate and the sum awarded. The respondent contends that, properly understood, the Magistrate did not find SC Yates to be a credible witness.

21. The respondent submits that, in respect of the claim for malicious prosecution, the factual findings on the elements of malice and absence of reasonable and probable cause were open on the evidence, and should not lightly be overturned on appeal. He submits that the relevant test for the absence of reasonable and probable cause element is not merely the genuineness of the police officer's belief that he was assaulted. The respondent also submits that the CCTV makes clear that the charge of assaulting SC Yates could not be substantiated, and that on the test as set out in A v New South Wales [2007] HCA 10; 230 CLR 500 (A v NSW) at [64] and [66], SC Yates could not have held the view that Mr Marsh was probably guilty of the offence of assaulting SC Yates.

22. On the question of damages for false imprisonment, the respondent points to the absence of any challenge to the factual finding on liability and submits that $10,000 was a modest figure to award, in circumstances where, but for the tortious actions of the defendants, Mr Marsh would not have been in custody from 26 to 28 December 2012, when he was refused bail by a court.

23. As argued by Senior Counsel for the appellants, the appeal really turns on Ground 5 and, for the reasons that follow, I accept that the Magistrate erred in applying the correct legal test when considering whether there was an absence of reasonable and probable cause.

24. The Magistrate appears to have been diverted by semantics over the term 'throw' and whether the language used by the police officer matched an analysis of CCTV footage. Given the nature of the charge laid against the plaintiff, the assessment should have focused first upon whether a police officer, faced with a person causing a previously stationary bike to move even accidentally into the path of a person who was injured by it, genuinely perceived that such conduct was intentional; and, second, upon whether there were objectively reasonable grounds for that belief.

25. There was also no evidence for at least one of the complaints made under Ground 1 as to the opinion of SC Yates that the bike was stolen, and I have found that this finding was a material part of the Magistrate's reasoning on malice.

26. These two errors, directed to two different elements of the claim for malicious prosecution, are sufficient to dispose of that claim and it is unnecessary to deal with the other complaints.

27. As to damages for the unlawful arrest/false imprisonment, the basis for the figure can be inferred from what was earlier set out in the Magistrate's reasoning at [106] - [110] and insufficient cause has been shown to intervene on the $10,000 amount awarded.

The charges giving rise to the malicious prosecution claim

28. An understanding of the charges is necessary for assessing whether they were brought with malice and whether there was reasonable and probable cause for commencing their prosecution.

29. The first charge was described in the reasons of the Magistrate delivered on 10 April 2017 (Reasons) as s 174.1(1), but in fact it is s 147.1(1) of the Code, which is in the following terms:

147.1 Causing harm to a Commonwealth public official etc.

(1) A person (the first person) commits an offence if:

(a) the first person engages in conduct; and

(b) the first person's conduct causes harm to a public official; and

(c) the first person intends that his or her conduct cause harm to the official; and

(d) the harm is caused without the consent of the official; and

(e) the first person engages in his or her conduct because of:

(i) the official's status as a public official; or

(ii) any conduct engaged in by the official in the official's capacity as a public official; and

(ea) the public official is a Commonwealth public official; and

(eb) if subparagraph (e) (i) applies - the status mentioned in that subparagraph was status as a Commonwealth public official; and

(ec) if subparagraph (e) (ii) applies - the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official.

(f) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer - imprisonment for 13 years; or

(g) in any other case - imprisonment for 10 years.

30. The second charge was for assault under s 24 of the Act, which is in the following terms:

(1) A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

(2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 7 years.

31. The victim of the alleged charges was obviously SC Yates. There was no dispute that a member of the AFP was a Commonwealth public official.

32. The informant on the charges was Sergeant Stuart Bonner, who gave evidence in the court below.

33. The emphasised words make it clear that an element of the offence under s 147.1(1) of the Code is the intention of the plaintiff. There is no intention element under s 24 of the Act. The plaintiff's complaint of malicious prosecution was directed to the charge under s 147.1 of the Code, as it was the more grave charge and would have resulted in a substantial risk of imprisonment if the plaintiff had been convicted. The fact of that charge being laid also meant that on 28 December 2012, when the plaintiff was brought before the Magistrates Court, s 9D of the Bail Act 1992 (ACT) operated, with a presumption against bail for a charge of a serious offence where another charge for a serious offence is pending or outstanding.

34. Starting with some uncontroversial facts, Mr Marsh attended the City Police Station in compliance with certain bail conditions, which also included a condition that he not consume intoxicating liquor. Upon arrival, he was asked to submit to breath analysis by a constable on duty. He complied with that request. It returned a positive indication and a second breath analysis was then conducted. As the result of the second breath test came through (also positive), SC Yates maintained that he turned to another police officer and said, "he's going to run".

35. That instinct was right, for Mr Marsh immediately left the police station through the two sets of front sliding doors. The two sets of doors created an airlock, but also meant that Mr Marsh could only walk until the second doors opened and he was then able to run down the steps to a blue bike that he had ridden to the police station. He had left the bike in front of a small brick retaining wall for a garden bed in the immediate vicinity of the sliding doors to the main entrance of the police station. SC Yates pursued him out of the door on foot.

36. The Statement of Facts in respect of the s 147.1(1) charge relevantly alleged:

[SC Yates] observed [Mr Marsh] run from the City Police Station front office and he suspected the defendant had breached his bail and pursued him.

As [SC Yates] approached [Mr Marsh], he identified himself as a Police Officer and directed him to stop.

[SC Yates] observed [Mr Marsh] pick up his blue mountain bike from the ground and attempt to leave the area. [SC Yates] directed the defendant in a loud clear voice:

[SC Yates]: "Marsh, stop now! You're under arrest!"

[Mr Marsh] look [sic] directly at [SC Yates], he raised the blue mountain bike off the ground and intentionally threw the blue mountain bike directly at [SC Yates].

The blue mountain bike struck [SC] Yates' lower right leg with considerable force, causing him to stumble.

[Emphasis added.]

37. The emphasised words are those on which the Magistrate focused attention in the reasoning discussed below.

38. The statement in evidence of SC Yates, dated 4 January 2013, contained the same allegations. SC Yates stated:

I observed the defendant look directly at me, he then raised the blue mountain bike and threw it at me, striking my right shin. The force [of] the mountain bike striking me caused me to stumble forwards and lose my balance.

39. In cross-examination, SC Yates stated that he had not viewed the existing CCTV footage before making his statement or before the hearing. He stated his belief on 26 December 2012 was that Mr Marsh threw his bike at him to aid his escape.

40. Mr Marsh's evidence was that he was not directed to stop, nor was he notified he was under arrest when exiting the police station, or at any time during the ensuing pursuit. Mr Marsh denied that he 'threw' the bicycle at SC Yates. His evidence was that he had run for his bike because he did not want to leave it behind, but he heard the doors open and footsteps running at him or towards him, whereupon he immediately dropped the bike and kept running. His version of events was that SC Yates had tripped over the bike.

41. As stated above, there was CCTV footage of the incident (without sound) and it was viewed again on appeal. According to the time counter on the CCTV, the time taken from Mr Marsh exiting the building, picking up and dropping the bike and then the police officer colliding with the bike was approximately two seconds.

42. CCTV footage taken from different cameras at different angles shows Mr Marsh picked up a blue bicycle that he had left just outside the police station, by one handle bar. The front wheel of the bike was facing towards the station. As SC Yates fast approached and Mr Marsh was within a matter of metres from him, the front wheel left the ground as Mr Marsh released the bike. It fell in the path of SC Yates while Mr Marsh ran away. SC Yates' legs became entangled with the bicycle, but he managed to get free of it and avoid falling over it by diverting his course and stepping up onto the small retaining wall forming the boundary to the garden bed, and then continued his pursuit of Mr Marsh.

43. Both parties move out of sight of the cameras at that point, however it was uncontroversial that Mr Marsh ran in the direction of a carpark across Northbourne Avenue, commonly referred to as Pitts carpark.

44. Critically, the CCTV footage was not of such proximity or quality in terms of resolution as to be able to see Mr Marsh's eyes and where he was looking at any time, as opposed to which direction his head was facing.

45. After the incident, the bike was seized and not returned to Mr Marsh. SC Yates was questioned about this in cross-examination as follows:

Did you make any attempts to return the bike to Mr Marsh? - No...

...

Did you think he stole it? -Pardon?

Did you think it wasn't his? - I was unaware of had - whose bike it was.

Whose bike did you think it was? - I suspect that it was Mr Marsh's bike but, again I probably should have seized the item.

...

Why did you MPR [Miscellaneous Property Record] the push bike when it wasn't your matter? --- I'm unsure why. But why I did it is part of the front office duties in relation to property - miscellaneous property. It's one of the front-office desk duties. Again, the bike should have been seized and I acknowledge that.

Yes. Earlier you said, "I should have seized it"? - Well, someone should have seized the bike.

...

Why should you have seized it? - If it was used in the commission of an offence then it probably should have been seized. Again, I MPR'd the bike. I acknowledge that. Probably it was the improper form to use, or procedure to use.

And when you said "I should have seized it"? - Well, I said I should have seized it. Someone should have seized the bike.

[Emphasis added]

46. Evidence was also given by Sergeant Bonner in relation to the bike in Mr Marsh's possession. His evidence was:

...my recollection is that we were concerned that it wasn't his bike, we needed to put it into out secure property system so we knew where it was and it was kept safe and I have a recollection of an investigation being spoken about in relation to locating the origin of the bike.

Did you speak to Mr Marsh about its origin? - No.

47. Mr Marsh was known to SC Yates prior to the incident occurring. His history with Mr Marsh dated back to the end of 2009, early 2010. He first met him when he found him urinating in front of members of the public in a street in Canberra. His subsequent dealings with Mr Marsh included situations where Mr Marsh was intoxicated or making threats against police. SC Yates had read alerts of the AFP system concerning Mr Marsh's interaction with police for the purpose of carrying out his duties. Part of his oral evidence was that, "I formed the opinion that Mr Marsh was anti-police, quite violent and often violent when intoxicated".

48. The hearing in the Magistrates Court took place on 7, 8 and 9 December 2016, with the Reasons published when the orders were made.

49. The Magistrate dealt first with the CCTV, finding as follows (at [14]):

At no time does Mr Marsh look at the police officer and at no time does...he propel the bicycle towards the police officer. There is no action on the part of Mr Marsh that could properly be described as a throw as understood by the ordinary use of that word.

50. Her Honour found (at [24]) that Mr Marsh's description of the events leading to his exit from the police station and his handling of the bike were "completely consistent with the CCTV exhibited".

51. The Magistrate did not make a finding either way as to the words that SC Yates recalled saying, or shouting, at the time.

52. The Magistrate made the following findings (at [43]-[48]) about SC Yates' evidence:

43. [SC] Yates was cross examined in relation to his description of Mr Marsh "throwing" the bike. His response was to the effect that a throw did not necessarily involve lifting up the bike and that despite being shown the CCTV footage he still would describe the actions of Mr Marsh as a throw.

44. In all the circumstances it is difficult to accept that a police officer working for the period of time that [SC] Yates was working at the City Police Station would not have been aware of the CCTV at the front of that station. It is also difficult to accept that [SC] Yates took no part in preparing the statement of facts, and indeed his evidence in this regard is contradicted by Sergeant Bonner.

45. The disposal of Mr Marsh's bicycle without any attempt to return it to him on the grounds that the officer thought it may have been stolen is indicative of the attitude of [SC] Yates toward Mr Marsh. The assertion of taking Mr Marsh as he finds him was unconvincing. In all the circumstances it seems that Mr Marsh was well known to [SC] Yates either personally or by reputation. [SC] Yates had a suspicion that Mr Marsh was in breach of his bail conditions. [SC Yates] then formed the view that Mr Marsh was going to behave in a violent way, and was contemptuous and dismissive.

46. [SC] Yates was either wilfully blind to the discretion in relation to arrest on breach of bail conditions or failed in his duty to consider the matter.

47. In any event I am satisfied that [SC] Yates was well aware that Mr Marsh had not thrown or propelled the bicycle towards him. He went to some lengths in evidence to try to explain why he had used the word thrown rather than a more appropriate word consistent with the position taken by him in the witness box which was more 'propelled'. I found these explanations unconvincing and indicative of the inaccuracy of his version of events to have been exposed, particularly in the context of his statement where he gave a version of events as follows:

"As I exited the main doors I observed the defendant pick up a blue mountain bike from the ground and attempt to mount it. I ran towards the defendant and said: "Marsh, stop now! You're under arrest!" I observed the defendant look directly at me, he then raised the blue mountain bike and threw it at me striking my right shin. The force of the mountain bike striking me caused me to stumble forwards and lose my balance."

48. [SC] Yates was content to have the charge pressed as a result of his negative opinion of Mr Marsh. He was confident that in light of Mr Marsh's reputation little effort would be made to genuinely investigate the matter and indeed this is what transpired. I am also satisfied that [SC] Yates was aware that CCTV footage would have been available and was content not to agitate for its collection because it would be unlikely to support his version of events.

[Emphasis added]

53. The Magistrate dealt with the elements of the tort of malicious prosecution (at [79]) set out in A v NSW. The appellants had conceded both that proceedings were commenced by SC Yates (as the effective prosecutor of the charge) and that the proceedings had terminated in Mr Marsh's favour. The two elements in dispute were malice and absence of reasonable and probable cause.

54. The Magistrate made the following finding on malice at [86] of the Reasons:

In this matter I am satisfied that [SC] Yates was primarily motivated by his dislike of Mr Marsh, it was his dominant purpose. I am satisfied that [SC] Yates did not genuinely believe that Mr Marsh had engaged in the conduct set out in his statement and the statement of facts, specifically that Mr Marsh had looked at him and thrown the bicycle at him. I am satisfied that these were embellishments inserted into the account to make out the charge.

55. The Magistrate then dealt with absence of reasonable and probable cause at [87] of the Reasons:

The final element to be made out by the plaintiff is whether the defendant acted without reasonable and probable cause. In light of my finding that [SC] Yates did not believe that Mr Marsh had thrown the bicycle at him it seems to me that he could not have believed Mr Marsh was guilty of the offence. If the look and throw of the bicycle did not occur it seems to me that there are no reasonable grounds for [SC] Yates to believe that Mr Marsh had committed an offence against him.

56. This led the Magistrate to conclude at [88] of the Reasons that the prosecution of Mr Marsh amounted to a malicious prosecution.

57. At [93] of the Reasons, the Magistrate found that Mr Marsh was not lawfully arrested in relation to the charge of assault. However, her Honour then went on deal with whether Mr Marsh had been lawfully arrested in relation to the breach of bail conditions. At [94] of the Reasons, the Magistrate refers to the evidence of SC Yates to the effect that he did not believe he had any discretion in that once a bail condition had been breached he must arrest the person and it is then for the Court to decide if bail should be granted.

58. At [95] of the Reasons, the Magistrate referred to s 56A of the Bail Act 1992 (ACT), which provides the police officer with discretion whether to arrest a person, and stated that the police officer's arrest of Mr Marsh based on his misunderstanding of the statute was an error of law. Her Honour went on to find (at [102] of the Reasons) that there was no evidence that a breach of bail report would not have been an appropriate way of dealing with the breach, and that in the circumstances the arrest was improper and unlawful. There is no challenge to that finding.

59. In relation to the damages to be awarded for malicious prosecution, the material parts of the Magistrate's reasoning are at [114]-[116]:

114. Mr Marsh was, as a result of the serious charge laid against him, made subject to s 9D of the Bail Act 1992 as a consequence, in the absence of special or exceptional circumstances relevant to the issue of bail, he lost the opportunity to argue for continuation of his bail.

115. Mr Marsh's evidence was that he was angry and upset by the charge laid against him and it was clear that he suffered a sense of injustice.

116. In terms of aggravated damages, I am of the view that Mr Marsh should receive the sum of $20,000.

60. The Magistrate then referred at [117] of the Reasons to New South Wales v Landini [2010] NSWCA 157 and a passage (at [115]) where the New South Wales Court of Appeal referred to the purpose of punishment and deterrence as being central to an award of exemplary damages, before noting that the Commonwealth was not liable for exemplary damages. The Magistrate awarded $5,000 for exemplary damages.

61. The Magistrate then dealt with damages for unlawful arrest at [119]:

I award an additional sum of $10,000 for the unlawful arrest of Mr Marsh by [SC] Yates.

62. That is the totality of the discussion as to damages for that claim.

63. Orders were then made entering judgment for the plaintiff in the sum of $35,000. No discrimination as to liability between to the Commonwealth and SC Yates was made in the orders, notwithstanding her Honour's earlier comment that the Commonwealth was not liable for the $5,000 award of exemplary damages.

64. The principles relevant to a 'no evidence' ground are well established. The question is whether there is a body of evidence which might reasonably sustain a relevant finding of fact or permit a particular inference to be drawn. Such an inferential process is not one where speculation, guesswork or mere assumption is accommodated. The trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess: see Tisdall v Webber [2011] FCAFC 76; 193 FCR 260 at [127]- [129] and the case there-cited, per Buchanan J, Tracey J agreeing.

65. Making a factual finding (or drawing an inference) in the absence of evidence involves an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321, 355-6 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; 241 CLR 390, 418 at [9] per Hayne, Heydon, Crennan and Kiefel JJ.

The finding that SC Yates thought the bike was stolen

66. The Magistrate's finding that SC Yates thought the bike was stolen is at [45] of the Reasons (and set out here at [52] above). This was said to be indicative of "the attitude" of SC Yates toward Mr Marsh that the Magistrate later described as contemptuous and dismissive.

67. The evidence of SC Yates relevant to that finding has been extracted at [45] and [46] above. SC Yates referred to the bike being recorded as miscellaneous property when it perhaps should have been seized because it was used in the commission of an offence. Properly understood, SC Yates was talking about the bike being used in the charge that had been laid under s 147.1(1) of the Code. He was not referring to the bike possibly being stolen.

68. SC Yates had earlier been asked that very question, namely whether he thought the bike was stolen. He had answered that he was "unaware" who owned the bike and then that he suspected it was Mr Marsh's bike. Again, that does not constitute evidence that SC Yates thought the bike was stolen.

69. Nor does the use of the word "unaware" permit a reasonable inference that SC Yates had questioned who owned the bike, and further that he then suspected the bike to be stolen. The reasonable inference to be drawn from the evidence given was simply that he did not turn his mind to that issue.

70. However, even if I were to find that the answer of SC Yates did permit an inference to be drawn that he was uncertain who owned the bike that does not then sustain a further inference that he actively thought the bike was stolen. There was no cross-examination on whether SC Yates thought the bike could have been borrowed, for example.

71. There is evidence from Sergeant Bonner that there was some uncertainty over whether the bike was owned by Mr Marsh, also set out above, but his evidence was that he did not discuss this with SC Yates.

72. Apart from the extracts set out above, there was no other evidence on which the finding of the Magistrate could be based.

73. The Magistrate did not enjoy any particular forensic advantage when drawing together such evidence. The evidence has simply been misunderstood, or misattributed to SC Yates. All that SC Yates was saying was that the bike should have been seized rather than listed as miscellaneous property because it was the item that had injured him and thus "used in the commission of an offence".

74. The respondent submits that, overall, the Magistrate did not believe the evidence of SC Yates and that this explains the finding that SC Yates believed the bike had been stolen. However, the Magistrate set out the aspects of SC Yates' evidence that were not accepted and the reasoning on this point does not suggest there was any controversy about it.

75. I accept that the Magistrate did not form a favourable view of the evidence given by the police officer, although a key basis for forming that view is discussed further in relation to Ground 5. The difficulty for the respondent's construction of the Reasons is that if what the Magistrate intended to say was that she did not believe SC Yates on this point, then it was incumbent upon the Magistrate to at least make it clear that the evidence had been rejected. The fact that there is no reference to rejecting SC Yates' evidence on this point confirms that this was not the basis for the finding. Rather, it was just a misunderstanding of who gave what evidence and what was the effect of the words actually said.

76. The result is that none of the evidence on this question directly or through inference sustains a finding that SC Yates thought the bike was stolen. The finding was not open to be made.

77. Consideration then turns to whether the error was material to the Magistrate's finding on whether SC Yates acted with malice. The answer must be yes. Her Honour was expressly considering SC Yates' attitude toward Mr Marsh. That is centrally relevant to the element of malice. Her Honour found that the failure to return the bike because of a belief that it was stolen was 'indicative' of that attitude. It was not the only basis for the finding on malice, but it cannot be said that the other matters relied upon by the court below were so overwhelming that the misunderstanding of that aspect of SC Yates' evidence was immaterial, particularly having regard to my finding below as to the reasoning given for the findings on the genuineness or otherwise of the view SC Yates took of Mr Marsh's conduct.

78. Accordingly, Ground 1 is substantiated. It is unnecessary to deal with the other aspects of the 'no evidence' complaints.

Ground 5 - absence of reasonable and probable cause

79. The element of absence of reasonable and probable cause involves both an objective and a subjective aspect: A v NSW at [38], [58]. The plaintiff must prove that the prosecutor (accepted to be SC Yates) either did not form the view that there was a proper case for prosecution, or formed that view on an objectively insufficient basis: A v NSW at [80].

80. The view which must be formed is as to the sufficiency of the material to prove the underlying elements of the charge, as opposed to the facts as they were alleged. Thus, a finding that a prosecutor embellished his (in this case) account of what occurred is insufficient to make out the element in the absence of a finding that the prosecutor did not genuinely believe that the plaintiff was guilty of the charge: see Thomas v New South Wales [2008] NSWCA 316; 74 NSWLR 34 at [98] (per Gyles JA, Hodgson and Campbell JJA agreeing).

81. Here, the Magistrate found that the prosecutor did not genuinely believe the plaintiff was guilty of the conduct as set out in his statement and the statement of facts. The only paragraph dealing with the genuineness of the police officer's belief is [86] of the Reasons, which focuses on whether Mr Marsh looked at SC Yates and whether the bike was 'thrown'. It does not focus on whether SC Yates subjectively believed in the guilt of Mr Marsh by reference to the elements of the charge.

82. As set out above, the reasoning of the Magistrate on these two matters heavily relied upon matching up what her Honour considered was displayed on the CCTV footage with the account given by SC Yates. Due to the Magistrate finding that Mr Marsh did not 'look' at SC Yates and that the bike was not 'thrown', by reference to the CCTV footage, her Honour concluded that SC Yates did not form the requisite genuine belief that Mr Marsh had engaged in the conduct set out in his statement and the statement of facts.

83. Her Honour was satisfied that these "embellishments" were inserted into the account to make out the charge.

84. I accept the appellants' submission that this was a misapplication of the test. It is appreciated that the matters addressed by the Magistrate were relevant to SC Yates' perception of the intention of the plaintiff, and that intention was an element of the charge. However, the reasoning was based on the accuracy of the precise language used in the facts sheet and statement by SC Yates, not on the element of intention.

85. Moreover, "it is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage)": Asim v Penrose [2010] NSWCA 366 at [57] and the cases there-cited.

86. Here, the position of the cameras was in evidence separately through photos. There was one camera directly above the door and one in the top corner at the entrance, both at ceiling height. Neither of those cameras captured the angle of SC Yates' sight in exiting the building, let alone descending the two stairs and approaching Mr Marsh at the location of the bike. From the CCTV footage itself, there was also a third camera inside the police station facing out towards the external glass doors (as they can be seen opening and closing on the footage).

87. As stated above, none of the footage is able to clearly show Mr Marsh's eyes, and therefore where he was looking before he picked up the bike, while he handled the bike and then when he released the bike. A person is able to face in one direction, yet move their eyes to the right or left and make direct eye contact with someone in close range. SC Yates plainly was in close range and he was approaching Mr Marsh almost from his right hand side. Indeed, he was separated from Mr Marsh by less than a bike length, on the CCTV footage. At the point where it is most likely that Mr Marsh looked at SC Yates, his body obscures Mr Marsh's face on the CCTV footage.

88. In any event, the Magistrate appears to have missed a slight turn of the head by Mr Marsh towards the direction of SC Yates just before the bike was picked up, if that was the basis used to infer where Mr Marsh was looking at any given moment in the interaction.

89. The presence of the CCTV footage was obviously useful in capturing the event. However, here it was used for a close analysis in a courtroom at times in slow motion and assisted by lawyers, pausing at various stages to draw attention to particular features which may or may not have been seen by SC Yates, as the sole means (on the reasoning given) of assessing the genuineness of the belief of SC Yates. The process was somewhat artificial, in my view, impermissibly used hindsight to determine subject intention, and did not take proper account of the reality of a two second situation.

90. To draw a different conclusion based on the CCTV footage and then to infer that, because the police officer's perception at a different angle and in real time did not match the assessment undertaken in the courtroom, he had a lack of genuine belief at the time the charge was laid that the elements of the offence were probably made out (as opposed to certain facts as phrased in a statement) is a misapplication of the test.

91. Here, there was a stationary bike. There was a man running (Mr Marsh) and a police officer pursuing closely behind. Mr Marsh knew not only that the person was a police officer, but how close the police officer was. His own evidence was that he heard the doors open and the footsteps behind him were loud as he tried to turn his bike around, which he then dropped.

92. SC Yates himself knew how close he was to Mr Marsh because he could see him. SC Yates also knew that Mr Marsh was running away because was seeking to avoid being apprehended following the breath analysis test at the police station. What SC Yates saw in the next two seconds, and what I have seen on the CCTV footage, was Mr Marsh pick up the bike, Mr Marsh handle the bike so that the front wheel came up off the pavement, Mr Marsh release the bike, and the bike move into the path of SC Yates where, at speed, he had no means of avoiding it. That collision had the effect of sufficiently delaying SC Yates in his pursuit so as to enable Mr Marsh to keep running.

93. It may well have been that Mr Marsh was simply trying to get away on the bike and needed to turn it around quickly. It may also have been a coincidence that Mr Marsh only intended to drop the bike, but because of its own gravity and momentum it travelled straight into the path of SC Yates. However, these are explanations that the police officer running at full tilt and colliding with a bike that had just been put in his path by the very person he was pursuing did not know, either at the time the conduct occurred or shortly thereafter, when the charge was laid.

94. The consideration is not whether Mr Marsh in fact intended to cause harm to SC Yates. The Court is required to assess whether SC Yates genuinely believed Mr Marsh had such an intention, and whether there were objectively sufficient or reasonable grounds for such a belief. Whether the charge could ultimately be proven beyond reasonable doubt once all the facts are to hand, including the explanations of Mr Marsh and the CCTV footage, and whether there was a reasonable and probable cause for the charge in the first place on the perception of the police officer deemed to be prosecuting, are two different things.

95. The fact is that without Mr Marsh picking the bike up and causing it to come into the path of a running police officer, who Mr Marsh knew was there whether he looked at him or not, SC Yates would not have been harmed by a collision with the bike. Stripped of the nuances of whether there was a throw or the bike was propelled, those basic facts are an objectively sufficient basis to conclude that the elements of the offence under s 147.1 were probably made out.

96. Error having been established, the court on appeal should give effect to the finding that ought to have been made on the above reasoning.

97. Such reasoning does not take anything away from the Magistrate's findings about other unsatisfactory parts of SC Yates' evidence. Suggesting to the Magistrate that he did not know there were cameras recording at the front of the police station is at least one example where one can well understand why the Magistrate formed a dim view of the totality of the evidence being given by SC Yates.

98. I would also accept that SC Yates disliked Mr Marsh and may even have been contemptuous of Mr Marsh, given their previous interactions and that Mr Marsh was otherwise what might be described as well-known to the police.

99. However, a finding that a police officer did not genuinely believe the elements of a charge were probably made out when laying a charge against a person is a very serious finding to make. It means the police officer was effectively not doing his job.

100. Having considered the statements, transcript in the court below, and the exhibits including the CCTV footage, there is insufficient basis to infer a lack of genuine belief on the part of SC Yates in the elements of a charge under s 147.1 of the Code probably being established, notwithstanding that the person against whom the charge was laid was someone he evidently did not like or respect. Having separately found above that there was an objective foundation, that is fatal to the respondent's claim for malicious prosecution and it will be dismissed.

101. The remaining challenge is on the claim for false imprisonment and the $10,000 in damages awarded by the Magistrate.

102. At [102] of the Reasons, the Magistrate found that "there was no evidence that a breach of bail report would not have been an appropriate way of dealing with the breach" (being the consumption of intoxicating liquor). Further, SC Yates made no attempt to deal with the matter in any other way than arrest. He was apparently ignorant of his power to proceed in any other fashion. In the circumstances, the arrest was improper and unlawful.

103. There is no challenge to that finding. It is not affected by any of the reasoning in respect of malicious prosecution. It founds the basis for an award of damages for false imprisonment.

104. As to the quantum, read in isolation, the single sentence at [119] of the Reasons as to the amount to be awarded does not provide any reasons why $10,000 was considered to be an appropriate figure. However, read in context under the heading 'Quantum', there are aspects of the authorities cited by the Magistrate at [106] - [110] of the Reasons from which the principles applied by the court below can be discerned. On a fair reading of that part of the Reasons, although the Magistrate dealt with malicious prosecution first, the principles in the authorities extend to how to quantify damages for false imprisonment.

105. Her Honour referred to the decisions of Gray J in Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 (Morro), presumably to the passage at [141]-[143], and to Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1124-1126 and the fact that damages are recoverable for the curtailment of liberty in false imprisonment, for inconvenience or disturbance, and for injured feelings.

106. I interpolate that injury to feelings also includes humiliation caused: see the recent decision of Lewis v Australian Capital Territory [2018] ACTSC 19 (Lewis) at [232] per Refshauge J.

107. Her Honour then noted (at [107] of the Reasons) that the damages figure should not be grossly disproportionate to the loss or injury sustained: Noye v Robbins; Noye v Crimmins [2007] WASC 98 at [756] per Heenan J.

108. That is broadly consistent with the recent statement of principle in the specific context of unlawful arrest in Lule v State of New South Wales [2018] NSWCA 125 (Lule) at [103] that damages are "to be proportionate to the situation of the claimant party". In the same decision, Macfarlan JA at [106], with whom Beazley P and Barrett AJA agreed, referred to an assessment of the amount of damages as being "necessarily subjective and impressionistic".

109. Further, in Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 (Fernando) at [110] per Besanko and Robertson JJ, Barker J agreeing, it was stated that damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate.

110. The Magistrate had earlier referred, as part of the chronology, to the fact that Mr Marsh was arrested on 26 December 2012, was conveyed to the ACT Watch House and not brought before the Magistrates Court until 28 December 2012.

111. Drawing those parts of the Reasons together, noting that they are consistent with the additional authorities of Fernando, Lule and Lewis, and having regard to the busy nature of the Magistrates Court and the demands on its judicial resources, a fair reading of the Reasons indicates that there was foundation for the $10,000 figure through the principles set out and facts recorded, although it was not set out as clearly as it might have been.

112. In context, it is discernible that her Honour awarded only compensatory damages in respect of that claim, having regard to the two days' curtailment of liberty in the Watch House, including inconvenience and injured feelings, until bail was formally refused on 28 December 2012 and the imprisonment became lawful.

113. There is one further matter on damages. In Fernando, Barker J accepted the statement of principle articulated by Lord Dyson JSC in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (Lumba) at [93], that compensatory damages for false imprisonment will not be recoverable where the person falsely imprisoned would have been detained or remained in detention whether the tort was committed or not. By contrast, a person who would not have been detained, or remained in detention, will suffer real loss if the tort had not been committed. Statements to similar effect were made by Lord Kerr of Tonaghmore JSC in Lumba at [253], and the passage has been cited by Refshauge J in Lewis at [533]-[535], and in Fernando by Buchanan and Robertson JJ at [75].

114. This is the principle by which the appellants contend only nominal damages ought to have been awarded. The Magistrate did not need to consider this issue given her Honour's finding on the malicious prosecution claim. On my findings above, the counterfactual arises for consideration.

115. The only reason the interaction with the bike occurred, which is what gave rise to the charge under s 147.1 of the Code, was because SC Yates was pursuing Mr Marsh to arrest him. The only reason SC Yates started pursuing Mr Marsh to arrest him was because (on his own evidence) he did not consider he had any discretion to do otherwise. The question is necessarily hypothetical, but I consider the plaintiff has established on the balance of probabilities that he would not have been otherwise detained, as a breach of bail report would have sufficed, as found by the Magistrate.

116. I accept the submission of the respondent that in all the circumstances, the award was modest and I have otherwise not discerned any error in the amount awarded by the Magistrate.

117. Grounds 2 and 4 concerned the failure to give reasons. They fall away in light of my findings on Grounds 1 and 5, and have not been made out in relation to the damages aspect dealt with in Ground 6, for the reasons given above.

118. Ground 3 also falls away as it related to a denial of procedural fairness in respect of the Magistrate's findings on the element of malice.

119. The above findings are thus sufficient to dispose of the appeal.

120. The appellants have been substantially successful and accordingly are entitled to their costs of the appeal. However, the respondent has succeeded in maintaining the judgment in the court below insofar as it concerns the false imprisonment claim and it was not a clearly severable part of the proceedings. Accordingly, it is not appropriate to intervene in the costs order made in the court below. Order 2 on 10 April 2017 will not be disturbed in substance, although it will be renumbered for convenience in the orders set out below.

121. For an abundance of caution, the orders should refer to the particular claim on which the plaintiff in the court below has ultimately succeeded. The orders will be as follows:

(a) The appeal is upheld.

(b) The orders made by the Magistrates Court on 10 April 2017 are set aside and in lieu thereof the following orders are made:

(i) Judgment is entered for the plaintiff on the claim for false imprisonment in the sum of $10,000.

(ii) The proceedings are otherwise dismissed.

(iii) The defendants are to pay the costs of the plaintiff as agreed or assessed.

(c) The respondent is to pay the appellants' costs of the appeal.

I certify that the preceding one-hundred and twenty-one [121] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Federal Police Act 1979

Procedures Rules 2006

The Commonwealth of Australia v Marsh [2018] ACTSC 189

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (168 paragraphs)

The Commonwealth of Australia v Marsh [2018] ACTSC 189 (29 June 2018)

Parties

Legislation Cited (4)

Cases Cited (1)