Thomas v State of NSW

CATCHWORDS : Malicious prosecution - fabrication by police of admissions - institution of criminal proceedings - who is the prosecutor - elements of tort of malicious prosecution - material available at time of charge - absence of reasonable and probable cause not established - presence of malice.

Crimes Act 1900 s 27, s 35, s 59, LEGISLATION CITED : Crown Proceedings Act 1988 s 5 Director of Public Prosecutions Act s 9(4) Law Reform (Vicarious Liability) Act 1983 s 5

A v State of New South Wales [2007] HCA 10 Briginshaw v Briginshaw (1938) 60 CLR 336 Commonwealth Life Assurance Society Ltd v Smith (1937 - 1938) 59 CLR 527 Commercial Union Assurance v Lamont [1989] 3 NZLR 187 Davis v Gell (1924) 35 CLR 275 CASES CITED : Herniman v Smith [1938] AC 305 Hicks v Faulkner (1878) 8 QBD 167 Mitchell v John Heine (1939) 38 SR 466 Neat Holdings Pty Ltd v Karajan Holdings (1992) 67 ALJR 170 Nye v State of New South Wales & Ors (2004) Aust Tort Reports 81 - 725 Rejfek v McElroy (1965) 112 CLR 517 Trodbridge v Hardy (1955) 94 CLR 147

PARTIES : Bruce Malcolm Thomas State of New South Wales

COUNSEL : Mr T Molomby SC & Ms K Nomchong - Plaintiff Mr P Saidi & A Williams - Defendant

• 50 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020112/06 Bruce Malcolm THOMAS v State of NSW JUDGMENT 1 His Honour: On 20 May 1988, following a trial in the Supreme Court, the plaintiff was found guilty by a jury of twelve of the following charges:

Charge one: That he on 14 August 1986 at Parramatta did assault Ronald Paul Gollan and then beat and ill treat the said Ronald Paul Gollan, thereby then occasioning him actual bodily harm (s 59 of the Crimes Act 1900);

Charge two: That he and Roy William Nicholson on 14 August 1986 at Parramatta did cause grievous bodily harm to Ronald Paul Gollan with intent to murder the said Ronald Paul Gollan (s 27 of the Crimes Act 1900). 2 The jury had been given the opportunity to find the plaintiff guilty of the less serious alternative charge of maliciously inflicting grievous bodily harm upon Ronald Paul Gollan (Gollan) with intent to do grievous bodily harm but declined to do so. The jury, as Justice Hunt observed in his remarks on sentence, were satisfied beyond reasonable doubt of the plaintiff's intent to kill Gollan . 3 The plaintiff on the first charge which was described by the sentencing judge as one of aiding and abetting the assault occasioning actual bodily harm committed by Mitchell Winefield upon Gollan was sentenced to penal servitude for four years. He was sentenced on the second charge to penal servitude for 15 years with a non-parole period of 11 years. The sentences were to be served concurrently and to date from 8 October 1987. 4 On 7 September 1995 the plaintiff was released on parole. The time served in custody for the sentences imposed was accordingly seven years and 11 months. 5 Thomas Ross Eastwood, then a detective in the New South Wales Police Force, gave evidence on 13 March 1996 to the Police Royal Commission (the Commission) which included the following (see exhibit D): "Q. If document 1711747 might be brought up on the screen. I'm going to direct your attention now, sir, to the investigation of a man by the name of Bruce Malcolm Thomas. Do you recollect being involved in an inquiry concerning an allegation that Mr Thomas had assaulted a person? A. Yes. Q. What, briefly, were the circumstances surrounding that matter? A. It happened at - him and a couple of other fellows bashed a fellow in gaol, a fellow named Gollan. Q. A fellow named Gollan? A. Yeah. Q. Were you and Detective Hannay the officers conducting inquiries into that matter? A. Some of the - two of the officers were conducting inquiries in that matter. There was a number of police involved in that matter. Myself and Detective Hannay interviewed Bruce Thomas at the Parramatta police station. Q. Did you verbal Mr Thomas? A. Yes. Q. Was there any question of you receiving any payment in connection with your inquiries? A. No. Q. What was the reason that you verballed Mr Thomas? A. Well, to assist in convicting him for the assault." 6 The plaintiff had been interviewed by Detective Senior Constable Christopher Hannay (Hannay) and Detective Senior Constable Eastwood (Eastwood) at Parramatta police station in the afternoon of 26 September 1986 in relation to the assault upon Gollan ('the second interview').

7 Following the second interview, the plaintiff was taken to Granville police station and charged by Hannay with one count of 'feloniously' wounding Gollan with intent to murder contrary to s 27 of the Crimes Act 1900 and one count of inflicting grievous bodily harm on Gollan contrary to s 35 of the Crimes Act 1900. On the same afternoon Mitchell Winefield (Winefield) and Roy Nicholson (Nicholson) were each charged with one count contrary to s 27 of the Crimes Act 1900 and one count contrary to s 35 Crimes Act 1900 in similar terms to the plaintiff. 8 On 9 January 1987 the plaintiff, after a committal hearing in the Parramatta Local Court, was committed to stand trial on each count. It appears that the charge contrary to s 27 of the Crimes Act 1900 was amended to read did "inflict grievous bodily harm upon" Gollan rather than "feloniously" did "wound" prior to the plaintiff being committed. Nicholson at the same hearing was also committed for trial on each count whereas Winefield was solely committed on the s 35 count, the Magistrate not being satisfied that the prosecution case in respect of Winefield was capable of satisfying a jury beyond reasonable doubt of the intent to murder. 9 Following the committal for trial the prosecution was taken over by the Director of Public Prosecutions (DPP). It is unclear on what date that occurred, however, it was before the plaintiff's trial. The plaintiff was indicted at the commencement of his trial in the Supreme Court with a fresh count of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900 and an alternative count of maliciously inflicting grievous bodily harm. These charges were laid, it appears, by the DPP.

10 Hannay and Eastwood gave evidence at the plaintiff's trial (and committal hearing) that the plaintiff had made admissions during the second interview which included the following: "We went to my cell. Mitch shit himself about it. Me and Nico went back. The arse was coughing blood so we smashed his head. Fuck him, he's better dead." [Hannay] said "Did you intend to kill him?" He said "Yeah, he should be dead." [Hannay] said "What happened when you were in the cell?" He said, "We picked him up, give it to him and threw him on the bed." 11 By these representations attributed by the police officers to the plaintiff, the plaintiff admitted not only that he had participated in a savage attack upon Gollan but also that he had an intention to kill. 12 On 31 October 1997 the plaintiff appealed to the Court of Criminal Appeal and on 13 April 1999 the plaintiff's appeal was allowed, convictions quashed and verdicts of acquittal entered. 13 On the 25 October 1996 the plaintiff was sentenced in the District Court for an offence of sexual intercourse without consent in circumstances of aggravation to a term of imprisonment of twelve years with a minimum term of nine years. The offence was committed on 12 July 1996 whilst the plaintiff was on parole. The additional term of the sentence expires on 11 July 2008 and the plaintiff is presently in custody. 14 The plaintiff brings proceedings against the State of New South Wales for malicious prosecution. He claims general damages, aggravated and exemplary damages, compensation for deprivation of liberty and past and future economic loss. Hannay and Eastwood were members of the New South Wales Police Service at the time. The State is sued pursuant to s 5 of the Crown Proceedings Act 1988 and s 8 of the Law Reform (Vicarious Liability) Act 1983. The claim is founded on the assertion that the police officers fabricated the admissions which they said were made by the plaintiff on 26 September 1986. The plaintiff claims that Hannay and Eastwood had no reasonable and probable cause to charge him and maliciously invented the admissions. The State has admitted vicarious liability for the actions of Hannay and Eastwood and the former police officers have not been joined by the plaintiff. 15 The elements of the tort of malicious prosecution in the present case are: (1) The institution of criminal proceedings against the plaintiff by the defendant; (2) That the proceedings terminated in favour of the plaintiff. (3) That the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) That the defendant acted without reasonable and probable cause. 16 The plaintiff has identified the real issues between the parties as being: (a) whether there was an absence of reasonable and probable cause to institute the charges (or either of them) as at 26 September 1986; and (b) whether or not Hannay and Eastwood "verballed" the plaintiff on 26 September 1986, thereby reinforcing the absence of reasonable and probable cause and justifying a finding of malice. Element one: The institution of criminal proceedings. 17 The plaintiff was charged by Hannay at Granville Police Station on 26 September 1986. New charges were subsequently laid by the DPP. The State argues that its liability was curtailed as the case was taken over by the DPP two new charges were laid and the only charge laid by Hannay which came to be determined by the jury was charge two. In respect of that charge the State submits that s 9(4) of the Director of Public Prosecutions Act applies and the Director is deemed to be the prosecutor from the time the Director takes the matter over. 18 Section 9(4) of the Director of Public Prosecutions Act 1986 is as follows:

"(4) If the Director takes over a matter under this section: (a) the Director shall, as from the time when the Director complies with section 10(1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and (b) the Director may decline to proceed further in the prosecution or to carry the proceeding further." 19 It appears that the DPP became involved in the proceedings after 20 March 1987 (T576). 20 This submission raises the issue of who was the prosecutor who instituted the proceedings against the plaintiff. In Davis v Gell (1924) 35 CLR 275 Isaacs ACJ, who was the only member of the High Court to refer to this issue, observed (at p 282) that "the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor". Isaacs ACJ went onto the explain (at p 283) that the answer to the question "who was the prosecutor?" is a question of fact and depends on all the circumstances of the case. 21 In Commercial Union Assurance v Lamont [1989] 3 NZLR 187, a decision of the Court of Appeal of New Zealand, Richard J remarked (at p 193) that a defendant to incur liability "must have played a sufficient role in the institution of proceedings as to be regarded as setting them in motion". 22 O'Keefe J in Nye v State of New South Wales & Ors (2004) Aust Tort Reports [¶81 - 725] said (para 14): "To incur liability as a prosecutor a defendant must have played an active role in the proceedings by setting them in motion or by adopting or continuing them………" 23 Hannay, it is clear, was active in the investigation of the assault upon Gollan and the laying of charges. He was a member of the police investigation team which was led by Detective Sergeant Snell (Snell). His participation included the inspection of the prison cell in which the assaults on Gollan took place, the interview of the plaintiff with Detective Hough (Hough) on 28 August 1986 (the first interview) and the second interview. On the night before the second interview Snell, Hannay, Eastwood and Detective Brown (Brown) discussed the appropriate charges that would be preferred against the plaintiff and were of the view that there was sufficient evidence to substantiate the charges which were laid the next day by Hannay. 24 The charging of the plaintiff by Hannay at Granville police station on 26 September 1986 with the counts contrary to ss 27 and 35 of the Crimes Act 1900 falls within the first element of the tort of malicious prosecution. Hannay was the prosecutor. It does not matter, in my view, so far as the issue of liability is concerned that the proceedings were subsequently taken over by the DPP and fresh charges were laid nor does it matter that Hannay was a member of an investigation team of which Snell was in charge. Hannay played a major role in the institution of the criminal proceedings by setting them in motion. Element two: Favourable termination of proceedings 25 There is no dispute that the quashing of the convictions and entry of verdicts of acquittal by the Court of Criminal Appeal was a termination of the proceedings in the plaintiff's favour, that is, that they have been brought to an end without adverse consequences to him: see Davis v Gell (above) and Commonwealth Life Assurance Society Ltd v Smith (1937-1938) 59 CLR 527. 26 The real issue in the present proceedings is whether the plaintiff has established the third and fourth elements of the tort of malicious prosecution. Element three: Malice 27 In "A", it was said in the joint judgment [at 91]: "What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor." 28 And [at 93]: "Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law."

Element four: Absence of reasonable and probable cause 29 A clear statement of what is required for the plaintiff to prove in an action for malicious prosecution in relation to element four is found in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Brennan JJ in A v State of New South Wales [2007] HCA 10 at [76] and [77]: "76. The absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty. In particular, references to belief in guilt, or more properly, the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. A case where the prosecutor acts on the statements of others is one example of such a case. 77. These are three critical points. First, it is the negative proposition that must be established: more probable than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" 30 The absence of reasonable and probable cause is to be determined on the material the prosecutor had available when deciding whether to commence or maintain the prosecution, not whatever material may subsequently come to light: see "A" at [para 56]: "Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge". 31 The fourth element of the tort of malicious prosecution involves both a subjective and objective aspect: See "A" at [38].

The onus of proof 32 The onus of proving each of the elements of the tort lies with the plaintiff. The standard of proof is the civil standard, namely, the balance of probabilities. In applying this standard the nature and the seriousness of the allegation to be proved must be borne in mind. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J said (at 361 - 363): "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences………This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained." 33 An allegation of malicious prosecution is serious. In the present case the allegation is particularly serious being founded on the assertion that Hannay and Eastwood "verballed" the plaintiff and perjured themselves at committal and trial. The consequences flowing from adverse findings to Hannay are likely to be grave as he is a solicitor in practice in Queensland. Adverse findings may affect his ability to continue in his profession. Adverse findings are likely to be of no import to Eastwood who has suffered the consequences of his revelations to the Police Royal Commission. 34 The standard of proof required remains the civil standard. When applying Briginshaw v Briginshaw (above) it is necessary to remember what was said in Neat Holdings Pty Ltd v Karajan Holdings (1992) 67 ALJR 170. The High Court emphasised that: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (Mason CJ, Brennan, Deane and Gaudron JJ at p 170 -171): See also Rejfek v McElroy (1965) 112 CLR 517.

Was the plaintiff "verballed"? 35 The first matter of fact this case raises is whether the admissions said to have been made to the plaintiff on 26 September 1986 were fabricated by Hannay and Eastwood. It is common ground that in the absence of such a finding neither the absence of reasonable and probable cause nor the presence of malice in relation to the institution of the proceedings could be established by the plaintiff. In determining this issue I have sought to avoid the advantages of hindsight and a jurist's discomfort with interviewing procedures employed by police prior to the advent of the video camera. 36 The plaintiff gave evidence in the present proceedings that the first time he found out that he had said something about being involved in bashing Gollan was when he appeared at the committal hearing. He said when he was escorted into the interview room on 26 September 1986, Detective Hannay was there with a female police officer and another male police officer. Detective Hannay said to him they were going to interview him over the assault on Gollan. The plaintiff then said (T 40 L 9 - 31): "I told him how I come back from the gym with 4 inmates and I went to my mate's cell for lunch and I seen Mr Golan (sic) lying in a pool of blood………I went in and seen he was in a bad way, so I asked my mate, who I was with, to assist me. We lifted him onto the bed and he had a bit of a - what do you call it? He chucked a fit and blood flew out of his nose and mouth and splattered over the wall. I rolled him on his side and put him in what I call a recovery position. I put his head back so he could breath. It made no difference. He was tossing and turning. I said: "We better go and notify the - tell the prison officers and say he was in a bad way and he needed a doctor." And that's what I did, I went to the bottom landing of the wing and I told the prison officer that I found him on a pool of blood and he needed medical treatment, Mr Windchip I think was his name. He just continued reading the paper. I told him he was in a bad way and he needed a doctor. He said: "I will check into it." I think he went up to the middle landing and l left the wing and spoke to a couple of people I knew for about 5 minutes and went back to me cell and spent the rest of the day playing cards with an inmate." And (at L 43 - 48): "Yes, that's what I told Mr Hannay in the interview. He said words like, you know: "You're full of bullshit. Tell me a different story." He mentioned $10,000 and I didn't have no $10,000. I told him the truth. I wasn't going to tell him a different story just to get someone else into trouble, that's not my style……"

37 Counsel for the State subjected the plaintiff's account of the interview to close scrutiny in cross-examination. 38 One of the matters identified by counsel for the State as being of significance was the lack of cross-examination at committal or trial of Hannay and Eastwood that the plaintiff had told them that Gollan 'chucked a fit and blood flew out of his nose and mouth and splattered on the wall' and the omission of that material from the unsworn dock statement made at trial. 39 The blood splatter in cell 210 'B' in which Gollan was assaulted was a circumstance relied upon by the Crown to prove that the plaintiff with Nicholson rammed Gollan's head against the cell wall. The staining of the cell wall assumed early significance in the investigation of the crime. Hough, went with Hannay to the cell on the same day as the assault and gave evidence in the present proceedings that he saw just above the pillow area of the bottom bunk blood splatter going up the wall to about 600 millimetres. It was spreading out in almost a 'fan shape' and went almost, to the next bunk, up the wall (T331). He discussed with Hannay that the impact of the head on the wall would need to be "very, very significant to cause that amount of blood to splatter up that far up the wall" (T332). Detective Sergeant Johnson (Johnson) of the scientific investigation section photographed the staining on the cell wall on the next day which in his statement he described as appearing to be similar to a "splash pattern". The photocopies of photographs tendered in the present proceedings (exhibit 2) regrettably are of poor quality and were described by Hough as not representing the full extent of the blood splatter on the wall. 40 Hannay and Hough interviewed the plaintiff on the 28 August 1986 (the first interview). The running sheet (exhibit C volume 1 at 85) records that "Thomas was shown photographs of the blood splatter on the wall next to the pillow on the bottom bunk where he agreed he had placed his head and would not give any explanation as to how this blood got there." The plaintiff agreed in cross-examination that during the interview he explained that he would not give the police any explanation as to how the blood splatter came to be on the wall (T 132). 41 Mr Peluso of counsel represented the plaintiff at trial. A perusal of the transcripts of the trial and committal does not reveal any questions being asked of Hannay or Eastwood of the plaintiff's revelation to them of the expectoration of blood from Gollan's nose and mouth onto the wall nor did the plaintiff make express reference to it in his dock statement. 42 Counsel for the plaintiff points, however, to the inclusion in the dock statement by the plaintiff that he lifted Gollan onto the bed gently, that "Mr Gollin (sic) was still having troubles, he was making gargling (sic) sounds". The plaintiff had earlier referred to "choking sounds" coming from the person lying on the floor (see exhibit C volume 2 at 111). The plaintiff contends that the blood splatter is consistent with these statements. 43 It seems to me to be surprising that if the plaintiff had provided at the interview on 26 September 1986 an explanation of the blood splatter on the cell walls consistent with innocence that this matter was not put by his counsel to Hannay or Eastwood and was not expressly referred to by the plaintiff during his statement from the dock. 44 This is to be contrasted with the plaintiff's description in evidence given on 1 June 1998 in proceedings by Gollan for personal injury damages, of Gollan starting to "fit and blood started spattering all over the walls from his nose and mouth………" (T 93 L 48-50). There were inconsistencies, in the plaintiff's evidence given before this Court and in the Gollan civil proceedings. The plaintiff described himself as a hostile witness in Mr Gollan's action and egregiously said he "could have said I believe in the man in the moon" (T 96 L 2 - 3). 45 The credibility of the plaintiff's evidence of $10,000 being mentioned was subjected to attack by counsel for the State as it had not been referred to in his dock statement or cross-examination at the criminal trial. The plaintiff initially explained he did not tell Mr Peluso until after the criminal trial which was subsequently changed to his thinking he might have told him before the trial. He explained it was not referred to in the dock statement as he did not feel it was important at the time. The plaintiff said that Hannay threatened to bash him (at the first interview) and someone gave him a 'bit of a clip'. He did not report it because it was a waste of time. Hannay, he agreed, was not challenged at the trial about his being bashed. 46 Snell, the plaintiff said, in the first interview said to Hannay "Let's fit him up. We know he's done it" (T 125). He agreed not one word along those lines emerged during the committal, trial or dock statement. In further cross-examination he conceded that Snell was not present at the first interview. A concession had been previously made that his earlier nomination of Eastwood as being present was incorrect. 47 Without dilating further on the cross-examination, it was evident that the plaintiff's recollection of events was in a state of confusion. Inconsistencies and changes in position undermined his credibility. He was not an impressive witness. In making this assessment, I have made due allowance for the substantial lapse of time since the Gollan assault and state of his health. The plaintiff in particular described serious injuries sustained in 1991 and his current bad health. 48 I do not accept the plaintiff's allegations in the present proceedings of police violence and corruption not raised during his criminal trial. The assertion that he, a regular inmate of the prison system, would be asked for a substantial sum of money as a bribe is plainly implausible. These allegations, in my view, were made to enhance the perception of police misconduct. 49 Although the plaintiff was an unimpressive witness he has constantly denied (save for the alleged admissions) involvement in the attack upon Gollan. During the first interview, he told police he saw Gollan lying on the cell floor with a large amount of congealed blood under his head. Gollan was gargling and urinating. With Nicholson's assistance, he lifted Gollan from the floor and placed him on the bed facing out. He then informed a prison officer that Gollan needed assistance. The plaintiff's denial was maintained throughout the committal and trial. He has consistently denied making admissions during the second interview. In the course of the dock statement he said that "he told Mr Hannay the truth from the very start but he wasn't interested in that". (Exhibit C volume 2 at 116). 50 Thomas Ross Eastwood is the fountainhead of the assertion that the oral admissions said to have been made by the plaintiff on 26 September 1986 were fabricated. It was his evidence which triggered the events leading to the appeal to the Court of Criminal Appeal. His affirmative answer before the Commission to the question, "Did you verbal Mr Thomas?" could only be understood to mean that he was representing that he had falsified an oral confession by the plaintiff. The only interview of the plaintiff he had participated in was that conducted by Hannay at Parramatta police station on 26 September 1986. His credit is of significance in this case. Either Eastwood told lies at the plaintiff's trial or to the Commission. 51 Copies of the relevant evidence are exhibits D and 10 in the present proceedings. 52 Eastwood presented as a diminished man. It appears he has been on witness protection for a number of years. He had no recollection of the interview conducted on 26 September 1986, nor of the evidence he gave to the Commission involving the plaintiff. In cross-examination he agreed that pressure had been exerted upon him by Royal Commission investigators to provide information and had formed the view if he did not co-operate he would almost certainly go to gaol. He was suffering from depression at the time and had attempted to commit suicide shortly prior to giving evidence on 8 March 1996. 53 Eastwood, however, was resolute as to the use of his duty book to jog his memory before the Commission. Counsel assisting the Commission would have gone, he said, to a particular page in the duty book because he would have indicated it to the Commission's investigator at an earlier time. 54 He was referring to counsel assisting the Commission's request for document 1711747 to be brought up "on the screen". This document was a copy of Eastwood's duty book for Friday 26 September 1986. The entries in the book for that day include: "…….then with Det Hannay interview Bruce Malcolm Thomas born 19.9.47……" (exhibit C volume 1 at 020). 55 He was asked (T 563): "Q. And if the evidence was there would you agree that on your understanding of the verballing process back in 1986 there would be no need to verbal; was that your understanding? A. Well, if the evidence was there there would be no need to verbal." 56 He agreed he had no recollection of how strong the prosecution case was before he gave evidence to the Commission. He was subsequently asked (T 568 - 569): "Q. And would you agree that in terms of your admitted involvement in verballing suspects up to 1996 when you were a police officer, you may have in fact simply got it wrong as to who was verballed on what day and who was with you? A. No. Q. When you say no, the reality is you're not in a position today to be able to even deny that last question I asked you, are you? A. I don't believe I'm wrong. Q. You're not in a position to deny it, are you? A. I said I don't believe I am wrong." 57 It is clear that Eastwood was not mistaken in his recollection who it was he was saying to the Commission was verballed. He was asked by the Commissioner (see exhibit 10 p 21616): "Q. Was Mr Thomas convicted? A. Yes, he was, your Honour. Q. To your recollection, would he have served that sentence by now? A. Possibly, your Honour. Q. I take it he was already serving a sentence? A. He was serving a sentence at the time and, like, the bashing happened in gaol and he was convicted some time after this incident and I think he was given seven years, I think. Q. On top of the existing sentence or concurrent? A. I'm not certain of that. Q. I take it was a fairly serious assault? A. Yes. He made the fellow a vegetable, yes." 58 Gollan suffered extensive brain damage in the assault. 59 Eastwood had told the Commissioner that there were more cases in which his evidence had been more untruthful than truthful (T 563). How he came to identify in 1996 by the use of his duty book that Thomas had been verballed was not explored before the Commission nor does it appear that his evidence was challenged. He agreed in this Court that he had been involved in numerous matters in which he had verballed suspects or persons of interest and there was nothing exceptional in his mind which stood out as to what occurred on 26 September 1986 (T 586). 60 Notwithstanding Eastwood's revelations to the Commission, Hannay was neither advised by representatives of the Commission of the evidence nor was he provided with the opportunity to challenge what Eastwood had said. 61 Hannay in the present proceedings gave evidence that on the 25 September 1986 after the interview of Mitchell Winefield (Winefield) he, Snell, Brown and Eastwood discussed the appropriate charges that would be preferred against the plaintiff, Winefield and Nicholson the next day. He said: "Regardless of what was going to be done, whether they partook in an interview or not, they would have been charged with those offences as of the 25th" (T 636). 62 Snell supported this evidence. He said on the evening of the 25th, he conferred with Hannay and Brown and they all agreed that they had sufficient information to charge the three offenders with attempt murder regardless of what might be said the following day by the plaintiff and Nicholson (T 520). A charge of malicious wounding was to be a back up charge. 63 Winefield had participated in a record of interview conducted by Snell in the presence of Brown on the evening of the 25 September 1986. The interview was recorded by Brown on a typewriter. During the interview Winefield said that "Thommo" told him they grabbed Gollan and "through (sic) him up against the wall." And "One held the top half of him and another held him by the legs, they threw him head first into the wall." (see exhibit C volume 1, Q 44 at 143 and Q 63 at 147). 64 Hannay said that on the 25th he knew that Winefield was going to plead guilty and was to give evidence against the plaintiff and Nicholson. He had formed the view that it was significant that Winefield had said that when he left the cell there was no skin broken, there was no blood and from the blood in the cell, it was "easy to deduce that a massive assault had taken place after the initial assault by Winefield on Gollan" (T 629). 65 Hannay was aware that Bell had identified the plaintiff as being the person at cell 210 who told him not to be in the cell when his mate got back. 66 Nicholson had been interviewed by Snell and Brown at Parramatta police station at 1.15pm on the 26 September. During the interview Nicholson had told the police officers that the "cunt [Gollan] was still breathing. Thommo and I grabbed him and rammed his head into the wall to finish the cunt". Hannay prior to commencing the second interview was informed that these admissions had been made. 67 The extent of the evidence which had been marshalled against the plaintiff prior to the second interview raises the question as to why Hannay and Eastwood would be motivated to fabricate confessional material by the plaintiff. Hannay acknowledged, however, in cross-examination that he believed at the time of the second interview that the Crown case would be improved if he was able to obtain an admission from the plaintiff (T 683). He was asked: "Q. And you certainly believed at that time, that is on the day when you were going to interview Mr Thomas, that day, 26 September 1986, you believed that the case against him would be improved if you were able to obtain an admission from him, didn't you? A. Most probable. Q. Most definitely, isn't it? A. Yes, it would have been far better and as it turned out is far better to have direct evidence or oral evidence from the perpetrator or from whoever has created the crime to have a confession of course." 68 The working relationship between Hannay and Eastwood does not indicate a likelihood that they would conspire to give false evidence. It was not close. Hannay said he had little knowledge of Eastwood prior to the Gollan investigation and Eastwood recalled that the investigation was the only time he worked with Hannay. Hannay left the police force in 1988 having been offered a job in Queensland and has lived in that State since that time. 69 The interviewing procedure Hannay said he used during the second interview was that he would write down a question in his official note book, ask the question and then write down the answer. Eastwood was present and did not take notes. 70 Hannay's adoption of this procedure was challenged by Mr Peluso during the criminal trial. It is evident that Hannay was aware that the procedure of a formal record of interview could have been adopted with questions and answers, the movements of police and the suspect being recorded by typewriter with the time of the conclusion of the interview being noted at the end. Hannay when asked by Mr Peluso why this procedure was not used replied that he "chose not to use it" (exhibit C, volume 2 at 077). 71 Hannay gave similar evidence before this Court but when asked: "Q. Were there any reasons for that particular choice that come to mind?" Replied: "A. Only if the typewriter or documentation weren't in the room or if it was more convenient to use the notebook that I had that I always carried with me in a simple record of interview, if there was going to be a large amount of questions or we prepared a large amount of questions to put to an offender or somebody else we may have chosen to type them then go through a pre - with a - you might say if we had a lot of information already gathered and we had prepared questions we wanted to ask, we may have typed them but in an off-the-cuff interview it would normally be done just in a notebook and that was a process that was normally adopted, regularly adopt in those days" (T 685). 72 Hannay had earlier agreed that a typewriter and paper was standard equipment in the interviewing rooms. Parramatta police station was one of the largest in the State. The procedure of a formal record of interview had been adopted by Snell and Brown when Winefield had been interviewed the previous night. A large amount of information implicating the plaintiff in the commission of the offences had been gathered prior to the second interview. There were a large number of questions which could have been put to the plaintiff. It seems to me in those circumstances to be extraordinary that "an off-the-cuff" interview would be conducted. After all, exculpatory statements had been made by the plaintiff in the first interview. 73 Mr Peluso closely questioned Hannay about his familiarity with a procedure of a senior police officer independent of the investigation being called in to enquire of the person being interviewed whether he had any complaint to make and as to the truth and voluntariness of the statements said to have been made in the interview. He was further questioned as to his failure to adopt this procedure at the conclusion of the interview. It was, Hannay said, most probable that there would have been a senior officer available at the time. When asked why he did not call in a senior independent officer, Hannay replied that "he chose not to adopt that procedure". (Exhibit C vol 2 at 078). 74 In this Court, Hannay was asked by senior counsel for the plaintiff (T 686): "Q. But an aspect of doing interviews with the assistance of notebooks in those days was that when the interview was over you would go and get a senior officer to come and talk to the person, confirm that that was the interview, wasn't it? A. Yes, but - yes, that could happen but it wasn't generally a process that happened all the time. Q. It didn't happen all the time but it was available, wasn't it? A. Yes. Q. And it was a very good process for one reason certainly, wasn't it, that it made it much harder for the person after the event to have second thoughts and say: That's not what I said? A. I don't understand what you're saying. Q. You had had the experience as an investigator of having people sometimes tell you that something happened or they had done something and then trying to wriggle out of that later and say that's not what they said exactly or they didn't say it at all? A. Yes. Q. People backing out was not an unusual phenomenon? A. It would be very unusual for someone to partake of an interview and then come back and say: That's not right" (emphasis added). 75 The rationale proffered by Hannay for not calling in an independent officer is, in my view, implausible. Hannay's account of the second interview included the plaintiff being asked if he wished "to sign these notes" to which he responded: "You're kidding." (Exhibit C vol 2 at 068)

The demonstrated indisposition to acknowledging the contents of the note book should have provided clear warning to an experienced police officer (which Hannay was) that the oral confession would not be adhered to by the plaintiff. To my mind it is remarkable that Hannay in the circumstances did not seek to confirm the making of the oral admissions by the use of an independent officer. A serious crime was being investigated and Hannay knew that the admissions would improve the Crown case. 76 Eastwood during the criminal trial described the plaintiff as not seeming "to care" and speaking "fairly freely" during the second interview. Hough in this Court referred to the plaintiff's position in the 'prison hierarchy' and in their mind being 'worthy of some respect'. Hough opined if [the police] were polite and respectful "they would respond positively to that and tell you what you wanted to know sometimes" (T 337). Hough's assessment has been advanced by the State as providing a possible explanation for the oral confessions said to have been made. 77 At the time of the second interview the plaintiff was well versed in the criminal justice system. He was unaware that Bell had identified him and Winefield had implicated him in the commission of the offences. I am unable to accept that the plaintiff would either be so naive or arrogant to orally make admissions to the commission of serious crimes which included in response to the question "Did you intend to kill him?" The answer: "Yeah, he should be dead." 78 During his statement from the dock the plaintiff told the jury that at no stage did he see either detective making notes, nor was he asked to read any notes, nor was he shown any (exhibit C vol 2 at 115). 79 The informality of the procedure used by Hannay and Eastwood to conduct the second interview provided fertile ground for the fabrication of oral admissions. In my assessment Hannay was not telling the truth in the criminal trial when he denied that was a reason for the manner in which the interview was conducted. Hannay's evidence in this Court concerning the second interview I did not find to be credible. 80 Eastwood's ability to identify to the Commission that Thomas had been "verballed" arose from his knowledge of the truth of what had occurred. I am satisfied that Eastwood's evidence before the Commission relevant to the present proceedings was truthful. 81 Notwithstanding the deficiencies identified in the plaintiff's testimony in this Court, I conclude that oral admissions were not made. 82 I am, bearing in mind the nature and seriousness of the allegation that the plaintiff was "verballed", satisfied on the balance of probabilities that the oral admissions said to have been made by the plaintiff during the second interview were in fact not made and were fabricated by Hannay and Eastwood. 83 Senior counsel for the plaintiff referred to Hannay's apparent clear recollection of events occurring over twenty years ago and his inability to remember who had informed him of the quashing of the plaintiff's convictions. The plaintiff contends that the Court would have significant concerns about the credibility of Hannay. Save for Hannay's evidence concerning the fabricated admissions, I found his evidence to be generally reliable. It does not surprise me that he was readily able to recall the police investigation into the assaults upon Gollan. After all, he resigned from the police force in 1988, the year in which he had given false evidence in the criminal trial of the admissions.

The material available to Hannay 84 As the question whether the criminal proceedings were commenced without reasonable and probable cause directs attention to the material Hannay had available for consideration when deciding to commence the prosecution it is necessary for that material to be identified. He did not have the oral admissions which have been found to be fabricated. 85 In identifying the available material it is to be recognised that Hannay was a member of the police investigation team led by Snell. Members of the team conferred regularly, meetings were held and information was shared. As Snell said, Hannay was informed "like the other police officers in the investigation of all new leads or information or enquiries which needed to be carried out" (T510). 86 Prior to charging the plaintiff Hannay had available on 26 September 1986 the following material:

Information from Brian Bell 87 On the 14 August 1986, the day on which Gollan was assaulted, Brian Bell (Bell) was his cellmate. Bell was in custody for unpaid fines. 88 On the day of the attack, Bell wrote out a statement in which he related being in the cell with Gollan and Gollan being called away. Mitchell (Winefield) called back into the cell and was talking 'small talk' with him when a prisoner entered and said "when your mate comes back to the cell make yourself scarce" (exhibit C volume 1 at p 21). Winefield and the other prisoner then left. Bell, shortly thereafter, applied for protection to the warden on duty, which was subsequently granted. 89 Bell entered into a typed record of interview on the 27 August 1986 conducted by Snell (exhibit C volume 1 at pp 77-81). He described the prisoner being at the door of the cell and heard him say "this is the cell" or words to that effect. The prisoner then approached the door near where [Winefield] was and said to Bell 'Don't be in the cell when your mate gets back". (Exhibit C volume 1 p 78 Q12). He stated (Q13) when he was waiting outside the wings for the officer to come back, a prisoner came up to him and said "looks like you will be on your own tonight you (sic) mate just got a bashing. That is what he gets for belting woman." 90 On the 29 August 1986 Bell was shown at the Parramatta police station eight photographs. He identified the man in photograph number 3. He believed this to be the man who came to the cell on 14 August 1986 and said to him "Don't be in the cell when your mate gets back." He also recognised him as being the man who came to the cell and had spoken to Gollan's friend Mitchell Winefield. The picture marked 3 was that of the plaintiff. 91 Snell informed Hannay that Bell had positively identified the plaintiff as being the person who attended the cell on the day of the attack (T652).

The first interview 92 The identification of material available to Hannay necessarily requires a determination of whether the plaintiff was "verballed" during the first interview. 93 The running sheet (exhibit C volume 1 at 85) records (inter alia) that the plaintiff "further stated that Gollan was 'king hit' with a fist two or three times and had his head jumped on. [He] "further stated that he thought Gollan was the correct target of the assault for bashing prisoners wives and girlfriends" and Thomas stated that: "the police should not waste their time looking in 'A' or 'B' wing. He indicated that he knew the identity of the offender but was not prepared to say who was responsible". 94 The plaintiff denied in the present proceedings making these representations to police. 95 In his statement from the dock the plaintiff told the jury that at no stage in the [first] interview did he say that he "knew who was responsible for the attack on Mr Gollan and refused to tell the police officers who it was because at that stage he didn't know who attacked Mr Gollan." (Exhibit C volume 2 at 114). 96 Hough who signed the running sheet told this Court in evidence-in-chief that there was no impropriety of any kind during the course of the interview. 97 He went on to say that he had no independent recollection of [the interview] because there were no admissions by the plaintiff and nothing stood out in his recollection. It was, he said, "fairly innocuous" (T336). 98 Senior counsel for the plaintiff in accordance with his assurance at the commencement of cross-examination did not suggest to Hough that there was any verbal or any sort of inappropriate activity in the first interview (T337). Hannay confirmed that the [contents] of the running sheet correctly reflected what occurred during the first interview. This evidence was unchallenged. 99 The accounts of Hough and Hannay of the first interview I found to be credible and I am not satisfied that any part of their account of what was said to them by the plaintiff was fabricated. 100 The material available to Hannay included the plaintiff's account which is accurately recorded in the running sheet. 101 Hannay also knew from prison officer Windship (Windship) that about 2.00pm on the day of the assault he had been approached by the plaintiff and Nicholson. The plaintiff told Windship that he better go on and check the bloke in 210 cell, he's got a bloody nose, we picked him up and threw him on the bed. 102 No mention was made by Windship of seeing any blood on the plaintiff. 103 During the first interview the plaintiff represented that he had been in the gym with Gavin Honnery, Charles Amos and Nicholson working out for two hours from about 11.30am. He and Nicholson were on their way back to Nicholson's cell for a cup of tea.

Mitchell Winefield 104 Winefield on the 27 August 1986 denied any involvement in the attack on Gollan (exhibit C volume 1 pp 82 -84). On the 25 September 1986 he was interviewed by Snell and Brown. Shortly after being cautioned by Snell he was asked: "Are you aware as a result of Gollan being bashed he is in critical condition at Westmead Hospital suffering from head injuries?" To which he replied: "Yeah, I feel pretty bad about what happened and I haven't been able to sleep much." (Exhibit C volume 1 at 157) 105 Winefield then participated in a typed record of interview during which he stated Gollan had told him about his wife Kim being punched at Blacktown. He described 'Thommo' coming into the cell and closing the door after which, he [Winefield] punched Gollan around the head and left him unconscious on the floor. Winefield stated that he and the plaintiff left the cell and went to the plaintiff's cell so that he could wash his face. He said looking down from the top landing into Gollan's cell, he could see Gollan's legs and he [Gollan] was not moving. The plaintiff said 'don't worry about it', he would go and see if he was alright and tell the 'screws about him'. Later on, he had a conversation with the plaintiff and Nicholson during which the plaintiff told him that he gave Gollan 'first aid' by punching him around the face and they grabbed him and threw him against the wall (exhibit C volume 1 QQ 15 - 16 at 142, Q17 at 143). He further related, as I have quoted at paragraph 63 above, the plaintiff telling him how they threw Gollan against the wall. 106 After the interview Snell and Brown met with Hannay. Snell recalled the [record] of interview being shown to Hannay who appeared to read it. Hannay said that he was told by Snell and Brown what Winefield had related to them and had a clear recollection of reading the interview but not "every word of it" (T667). In cross-examination Hannay's attention was drawn to an answer given in the criminal trial that he "was aware the interview was taken but….wasn't aware of the contents". In response, Hannay reasoned that his answers which followed set out what had happened, that there were certain aspects of the interview which he didn't read (T669-670). 107 It seems to me to make little difference whether Hannay had fully read the record of interview or not. Winefield's statement to police was regarded as a major break through in the investigation. Hannay detailed (T629) his recollection of the information provided to him of the interview. I am satisfied that Hannay had been briefed by Snell and Brown of the allegations made by Winefield against the plaintiff and that he comprehended fully these allegations even though he may not have read every word of the record of interview. 108 Winefield told this Court that he made it known to police at the end of the interview that he was prepared to give evidence against Nicholson and the plaintiff although he did not want to (T427). Snell deposed that Winefield said during the interview he was prepared to give evidence against the other two. Brown also gave evidence to this effect. 109 The plaintiff contends that this evidence is contrary to contemporaneous documentation and is "unbelievable". The plaintiff points to Snell's statement of 17 March 1987 which is to be contrasted with the lack of any written record of Winefield's indication that he was prepared to give evidence. 110 Snell's statement records a visit with Winefield at Long Bay on 17 March 1987 by Brown and himself during which Winefield said that he was prepared to give evidence for police if he was sent up on the charge of malicious wounding and not an "attempt murder charge". 111 A further ground for the contention of implausibility, the plaintiff argues, is the maintenance of the plea of not guilty by Winefield until the charge against him was reduced to assault occasioning actual bodily harm just before the criminal trial in 1988. The plaintiff submits that fact supports the view that the first time any agreement for Winefield to give evidence was reached was at the meeting with Snell and Brown on 17 March 1987, when the groundwork for the deal was first postulated by Winefield. 112 In this Court Snell said that it was his normal procedure not to include in the record of interview information that the [interviewee] was prepared to give evidence. He did not do so for Winefield's safety as his life would be in danger within the gaol system (T515). He was not prepared to supply a copy of the interview to Winefield as it would be in his property when he was returned to gaol and the possibility was other persons may get their hands on it (T516). He spoke to Winefield about the dangers of receiving the record of interview and he declined to take a copy (T590). His interpretation of the meeting of the 17 March 1987 was that Winefield was seeking for the charges to be dropped and he [Snell] would see what he could do in that regard but Winefield was still prepared to give evidence even if the charges were not reduced (T596). His attitude to recording important events was that "some [he] did; some [he] didn't" (T597). He recorded the discussion with Winefield on 17 March 1987 as he was requested to (T598). 113 Winefield's disinclination to take a copy of the interview of 25 September 1986 is recorded in Snell's duty book. 114 In his testimony to this Court Winefield referred to the danger of the record of interview being in his property within the prison system as being the reason he did not take a copy of the interview (T427). He explained that he withheld the entry of a plea of guilty at the committal out of "self preservation" and his desire not to go on protection (T428-429). 115 The suggestion made at committal to Snell that his interview was not given freely was made by his solicitor on his instructions as he was having "second thoughts, trying to get out of it……….trying to get out of giving evidence……" (T429). He described having "cold feet". Winefield said the small period of doubt remained for about "a week or so" after the committal. He explained that the delay in entering the plea was basically due to the various changes he had in his legal representation (T431). In cross-examination he refuted the suggestion that he had not made up his mind to give evidence against his co-accused until very shortly before his trial and said that if his [willingness] had become public knowledge he would have been in danger (T495). He related that at the time of the interview in September 1986 he didn't know the giving of evidence against the co-accused would help him on sentence, he was just willing to accept his responsibility (T497). 116 Winefield's then fear of disclosure is manifest. Notwithstanding the plaintiff's denials he and Nicholson were regarded as "heavies" within the prison system. Revelation that Winefield had turned informer would place him in jeopardy. The lack of a record of his willingness on 25 September 1986 to testify against his co-accused, his 'second thoughts' at committal and the delay in his guilty plea are understandable. The annunciation of co-operation was founded on remorse. The evidence of Winefield and Snell on this issue is consistent and credible. There is no real possibility that consistency arose from collaboration between these witnesses nor does senior counsel for the plaintiff make such a suggestion. The contention is that their account of events was the product of distant, reconstructed and 'quite likely' partisan memory. I do not find that to be so. I reject the contention that the evidence is unbelievable and accept on this issue the evidence of Winefield, Snell and Brown. 117 Hannay, I am further satisfied, was informed by Snell that Winefield told him that he would give evidence against the other two. 118 The motive, the plaintiff contends, given by Winefield for the plaintiff's attack on Gollan is attended by significant doubt. The plaintiff points to the inconsistencies in the various accounts by Winefield and submits that they are destructive of the credibility of the evidence given before this Court by Winefield. During the interview on the 25 September 1986, Winefield said he told the plaintiff Gollan had given his wife a "hard time" and owed him "some money". In a statement made to police in May 1988, he stated he told the plaintiff that Gollan had "bashed" and "robbed" his fiancée as a result of which she was put in hospital. At the criminal trial, Winefield testified that his 'wife' was beaten severely enough to have a miscarriage. No evidence was given about money being stolen. Winefield told this Court his best memory of events was that his wife told him that he [Gollan] had hit her and took some money. 119 In cross-examination, Winefield spoke, inter alia, of the various visits by his partner to the goal, his different manner of speaking at the time he was in custody, the uncertainty of his relationship with his former partner and his attempts to suppress and distance himself from that unhappy part of his life. Although this evidence does not conclusively resolve apparent inconsistencies, it does provide some explanation for them. I do not consider that the various accounts generally undermine his credibility. Winefield impressed me as being in this Court a truthful witness.

Observations of cell 210 'B' 120 At paragraph 39 above I have summarised to the observations of Hough and Johnson of the staining of the wall in cell 210 'B'. Hannay inspected the cell with Hough on the day of the assault and attended on the next day with Johnson. Hannay said (T615): "I saw that there was blood on the floor, a large amount or (sic) congealed or pooled blood on the floor. I saw a double bunk on the left - as you walk into the cell on the left-hand side there was blood on the pillows and the mattress. I saw splatterings of blood which appeared to extend from the mattress level of the wall and then continue up the wall towards the second bunk level. I also saw blood, a reasonable amount of blood splatterings and blood on the far wall in the cell itself. I also saw blood on the pillows and the mattress area." 121 Snell said he viewed the original photographs taken by Johnson and recalled that the blood splatters were evenly spread over a varied measurement on the wall "like someone had got a paint brush and just flicked the paint onto the wall". He was of the opinion that it would have had to be more than one person to cause that splattering of blood. It appeared to him consistent with two persons ramming a person's head into that wall (T522). He said he could see that extreme force had been used by placing the victim's head towards the cell wall causing a splattering of blood which was consistent with Winefield's interview on the 25th September. He rang Johnson on the same night and told him what Winefield had said in the record of interview. Johnson told him that [account] would have been consistent with the injuries to Gollan as shown in the photograph from the scientific police of the scene (T522). Gollan's injuries 122 Hannay had been informed that there was a probability that Gollan would die as a result of the injuries, that he had severe brain damage and head trauma, and if he survived, he would have severe brain damage. He recalled talking to doctors about how the injury took place and was informed that the injury would have had to have been done by either a heavy object or his head being smashed against the wall. Gollan, he was informed, would have had to have been unconscious or in a semi-state of unconsciousness for his head to have been smashed against the wall (T 620). 123 Snell said that the medical personnel at the hospital from whom he obtained information agreed that the severe head injuries Gollan sustained were consistent with someone's head being rammed against a wall (T523).

Information from informers 124 Snell had received information from prisoners and Corrective Service Officers that Thomas and Nicholson were known as "enforcers or heavies" within the gaol system and that Nicholson was in gaol on remand for sentence for attempt murder of a police officer. 125 Hannay said information had been received from a person outside the gaol system after Winefield's interview on 27 August that Winefield was concerned about Gollan who had been a long standing friend. He had gone to school with him. Winefield's initial involvement, they were informed, was to give him a hiding for his involvement with his wife. Winefield was remorseful about what subsequently happened to Gollan after he had initially assaulted him (T624). Steps were then taken to re-interview Winefield.

The interview with Nicholson 126 As related at paragraph 66 above, Nicholson was interviewed at 1.15pm on the 26 September 1986. Nicholson was asked by Snell (exhibit C volume 1 at 163): "We have been informed that you and another prisoner named Bruce Thomas went to Gollan's cell after he had been assaulted by Winefield. Do you want to say anything about that?" He said: "Yeah, we went there alright and gave the cunt what he should have got in the first place".

Detective Snell said, "Can you tell us what you did to Gollan when you went back to his cell?"

He said: "The cunt was still breathing. Thommo and I grabbed him and rammed his head into the wall to finish the cunt."

In the present proceedings, it is not contended that these admissions were fabricated by police. 127 Although the information from the informers and Nicholson's admissions would be inadmissible as evidence in criminal proceedings against the plaintiff, Hannay was entitled to consider this material in forming an honest view that there was a proper case for prosecuting the plaintiff: see Hicks v Faulkner (1878) 8 QBD 167 at 173. What should the prosecutor have made of the available material? Information from Brian Bell 128 It is contended for the plaintiff that Bell's identification of the plaintiff was made in such circumstances as to cause a reasonable prosecutor to have doubts about its reliability. The plaintiff argues that it took ten minutes for Bell to identify him and the photograph identified him as a 39 years old and showed him with a moustache. 129 Bell did not know Nicholson, Winefield or the plaintiff prior to 14 August 1986 nor did he know any of the members of the police investigation team. He was an independent witness. Eight photographs were shown to him by police on the 29 August 1986. As Bell said, the police made no effort to induce him and the identification was made without prompting.

130 During the criminal trial and in this Court the plaintiff postulated that Bell had told lies because he wanted protective custody (T160). At the time of the identification Bell was in protection. In any event, Bell impressed me as an honest and reliable witness and the plaintiff's postulation is rejected. 131 The time during which and the distance from which Bell had the opportunity to identify the person who spoke to him was explored by Snell in an interview with Bell on 27 August 1986. The length of time between the initial perception by Bell and the photo identification was not such, in my view, to significantly weaken the reliability of the identification nor was the time taken by Bell in selecting photograph number three. The time taken was not necessarily indicative of an equivocal identification. It was also consistent with an assertion made after careful consideration. 132 Hannay did not know how long Bell had taken to choose photograph number three nor precisely what he had said at the time of identification. Snell had informed him that Bell had positively identified the plaintiff as being the person who attended the cell on the day of the attack. 133 In my opinion, it is of no consequence in the circumstances that Hannay was unaware of these matters. Bell had identified the plaintiff and the identification was part of the material which was available to Hannay. 134 It seems from the plaintiff's written submissions that some reliance is placed on the identified photograph being one of the plaintiff with a moustache. I am unable to recall or find in the transcript of the present proceedings any evidence that the plaintiff did not have a moustache at the time of the Gollan assault. 135 Bell said during close scrutiny by Mr Peluso at the criminal trial that he recognised [the plaintiff] by the moustache (exhibit C volume 2 028). To my mind, if it had been asserted that the plaintiff did not have a moustache at the time of the assault such a question would have been put to him by Mr Peluso. It was not. Bell in re-examination said that a difference in the appearance of the accused then before the Court was the accused did not have a moustache. The accused in his statement from the dock did not assert that he did not have a moustache at the time of the assault. The reference in written submissions to the moustache has no significance. 136 The circumstances of the identification, I consider, were not such as to cause doubt in the mind of a reasonable prosecutor.

Observations of cell 210 'B' 137 It is submitted for the plaintiff that Hannay saw a large pool of congealed blood on the floor of the cell, however, his evidence suggested he had not really turned his mind to that fact prior to laying the charges against the plaintiff. 138 Hannay was asked (T680): "Q. I suggest you got Mr Winefield's account and you galloped with it without any thought at all? A. That's not true. Q. I have just demonstrated to you one thing you didn't think about, haven't I? A. I just told you I would have thought about a number of things. There was blood on the floor, there was blood on the wall, there were blood splatter marks up the wall in between the two beds, it was obvious that someone who was either lying on the bed had been forced on to the bed and it would have been impossible for someone to be put on the bed and lie there and spatter marks up. If they had been punched while lying on the bed and a (sic) there was a large amount of blood, it's possible blood could have sprayed up. I very much doubt whether it would have come off someone else's hand on to the wall. That's not a reasonable assumption." 139 Hannay, I am satisfied, gave consideration to the blood on the floor. He reflected upon a number of possibilities as to how the assault may have occurred. 140 It seems, however, Hannay gave little consideration to a possibility that the blood splatter occurred when someone punched Gollan in the face nor did he direct his mind to a possibility that the blood he had seen in the cell had been occasioned by Winefield's attack on Gollan. 141 Hannay was asked (T681): "Q. Did you direct your mind at all to the possibility that in attacking Gollan in a rage he [Winefield] had gone much further than he had meant to? A. Well, I had no reason to disbelieve what he had said in his record of interview. From memory he said he punched him eight to ten times on the side of the temple and he felt - I think I recall his legs went and he let him go and he fell unconscious to the ground. I also recalled him saying when he left there was no blood or broken skin." 142 There was no evidence or information at that stage, Hannay said, to think that Winefield was telling lies. 143 The material then available to Hannay strongly pointed to the veracity of Winefield's account. Bell had identified the plaintiff which suggested that the plaintiff's account during the first interview may be untruthful and no explanation had been proffered by him as to how the blood came to be on the wall next to the pillow. Bell's identification provided independent support for the reliability of Winefield's account. Nicholson's admissions, moreover, confirmed that Winefield was telling the truth. The blood stains in cell 210 'B' were consistent with the accounts given by Winefield and Nicholson as were Gollan's injuries. It was not unreasonable for Hannay in the circumstances to have given scant consideration to the possibility that the blood in the cell was caused by Winefield. 144 In written submissions the plaintiff argues that from an examination of the photographs (Exhibit 2) it appears there is no blood marking consistent with a smudge stain occurring as a result of Gollan's head being rammed against the wall and the blood splatter above the bunk bed is in light droplet form. As a result the plaintiff contends the blood splatter pattern is consistent with the plaintiff's dock statement where he said that Gollan was choking and making gurgling sounds and inconsistent with a heavy blow from the skull which would be more likely to produce " a smear" or "smudge" 145 It suffices to say in answer to this submission that little can be discerned from the photocopies of the photographs which constitute exhibit 2 due to their poor quality. The descriptions of the blood splatter given by Hough, Johnson and Hannay, all of whom visited the cell are, in my view, reliable and consistent with the accounts of the assaults given by Winefield and Nicholson. No evidence was given in this Court or during the criminal trial that the blood splatter was consistent with the plaintiff's dock statement. As I have observed at paragraph 41 and 43 above, this matter was not put to Hannay nor Eastwood (nor any other witness) during the criminal trial.

Mitchell Winefield 146 The plaintiff asserts that the police did not do enough to establish the veracity of Winefield's account. The police failed, it is submitted, to: (a) undertake any investigation of Winefield's history which would have revealed his propensity for very violent attacks; (b) determine whether Gollan's fall to the ground (after being rendered unconscious by Winefield) could have been sufficient to have contributed to his injuries; (c) determine whether the large pool of blood on the floor of the cell could have come from Gollan's nose and mouth after Winefield left the cell; and (d) most significantly failed to question whether Winefield was attempting to shift blame from himself for an attack which simply got out of hand. 147 Snell, it seems, made some enquiries into Winefield's background. He was asked (T609): "Q. Well let's start with what he was in gaol for at the time? A. I would have made enquiries. I can't recall exactly what he was…in gaol for. Blacktown warrants, he came from Blacktown police station cutting warrants out." 148 It was Bell and not Winefield who was in custody for unpaid fines. Over twenty years have passed since the police investigation. It is not surprising Snell could not accurately recall the reasons for Winefield's incarceration. Snell's misconception does not mean enquiries were not made. Winefield, it appears, was serving concurrent sentences for assault occasioning actual bodily harm and for assault. He told this Court that one sentence was being served for assault with the use of a cricket bat and the other for an assault upon Ronald Hooper in Penrith cells. Both victims were rendered unconscious. Snell, it is more probable than not, would have ascertained why Winefield was an inmate in the gaol. Hannay did not interview Winefield and relied on the information received from Snell and Brown. 149 Snell assessed Winefield as being genuine in his expression of guilt and remorse as to what had happened to Gollan. Winefield had gone to school with Gollan and had grown up with him. Hannay said he had no evidence or information to think that Winefield was telling lies. 150 The plaintiff complains that the police should have determined whether Gollan's fall to the ground could have been sufficient to have contributed to his injuries and failed to question whether Winefield was attempting to shift the blame. I have summarised at paragraph 122 and 123 above the information received concerning Gollan's injuries. 151 Hannay was informed by doctors "that the injury would have had to have been done by either a heavy object or his [Gollan's] head being smashed against the wall". (T620) 152 Hannay was asked (T 620): "Q. And the mechanics of how his head came to be smashed against the wall, did you obtain any information in relation to that or what? A. Someone at that particular time would have had to have done it because he was unconscious or in semi-state of unconscious at one particular time of the assault." 153 In cross-examination, Snell gave the evidence which follows (T610): "Q. What information had you? A. That the victim was in an unconscious condition in the cell and it would have needed two persons at least to pick him up and drive his head into the wall. Q. And you didn't understand any circumstance in which one person could do that? A. It wouldn't be possible, sir, with the amount of force that was used. Q. How did you know that? A. Because it was told to me by the doctors. That was consistent with the injuries he had received. Q. When you say consistent with injuries he received, what do you mean by the word "consistent"? A. How the injuries were sustained by the victim as one of the doctors described it to me, it was consistent in his words by a person being picked up and their head being driven into the cell wall. Q. Now in just the way you understood words, when somebody said that to you did you understand that as meaning that way of doing it could be the only way of doing it or that that could be one possible way of doing it? A. The most likely way it was done, sir. Q. But leaving the possibility that it could have been done in other ways, is that what you mean? A. Possibly it could have been done in other ways but most likely in the manner in which I have described." 154 Snell and Hannay were entitled to consider that Winefield's account was the most likely explanation for the infliction of the head injuries upon Gollan. Nicholson's admissions provided a buttress for the view that the head injuries were sustained when Gollan's head was rammed into the cell wall. Although Winefield was criminally concerned in the attack upon Gollan the identification by Bell independently supported the truth of his account. They were not required in the circumstances of the material available to them to determine whether Gollan's fall could have been sufficient to have contributed to his injuries nor to question whether Winefield was attempting to shift the blame. As was said by Lord Atkin in Herniman v Smith [1938] AC 305 at 319 which was cited with approval in "A" [at 86]: "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for the prosecution." 155 During the criminal trial Dr Buskall was not asked by Mr Peluso whether the head injuries could have been sustained by a person falling after being punched and hitting his head on the cell floor. The absence of cross-examination, in my view, on this point reflects the recognition by the plaintiff's counsel at trial of the unlikelihood of the head injuries being occasioned in that way rather than any inadvertence. Dr Buskall did, however, tell the jury that the injuries to the left side of Gollan's head were not consistent with punches by a fist and were consistent with a man being thrown against a wall. 156 A deficiency in the police investigation was, the plaintiff contends, the failure to interview the prisoners, Amos and Honnery, to establish whether or not the plaintiff's alibi was corroborated before he was charged. Nicholson was one of the prisoners identified by the plaintiff as being with him in the gym. The material available to Hannay at the time the plaintiff was charged strongly confuted the honesty and reliability of the plaintiff's account and, I might add, the innocent purpose of notifying Windship of Gollan's state. In my opinion Hannay was not required to ascertain from Amos and Honnery whether they supported the plaintiff's representations as to his whereabouts.

Has the plaintiff established the absence of reasonable and probable cause? 157 The plaintiff must prove that Hannay did not honestly form the view that there was a proper case for prosecution or must prove that Hannay formed that view an insufficient basis. The standard of proof is on the balance of probabilities. 158 As mentioned in paragraphs 23, 61 and 62 above Snell, Brown, Eastwood and Hannay met on the night of 25 September 1986 after Winefield had been interviewed. They discussed the appropriate charges that would be preferred against the plaintiff and were of the view that there was sufficient evidence to substantiate the charges which were laid the next day by Hannay. Credible material pointed to the plaintiff's guilt. The decision to lay the charges was made irrespective of what might be said by the plaintiff during the second interview. 159 Hannay, I am satisfied, honestly held the view on the material then available that there was a proper case for the plaintiff to be prosecuted for both charges. On the next day the belief was fortified by information of the confession made by Nicholson. 160 The admissions said to have been made by the plaintiff during the second interview were fabricated by Hannay to ensure that the plaintiff would be convicted. The fabrication did not occur because Hannay had not honestly formed the view there was a proper case for prosecution. 161 At the time of charging the plaintiff Hannay having fabricated the admissions was then in possession of material which he knew to be false. Does that mean he no longer honestly held the view that there was a proper case for prosecution? The question, to my mind, must be answered in the negative. Hannay's knowledge of the fabricated admissions was not knowledge or belief in some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine (1939) 38 SR 466). It was knowledge of material which had been falsified to add to the credible material previously obtained upon which Hannay's view that there was a proper case for prosecution had been honestly formed. He was acting upon information obtained in the course of the police investigation. 162 The question remains whether the material then available to Hannay warranted the charges being laid. Material admissible in criminal proceedings to prove the charges consisted of (at the time the charges were laid): (i) the plaintiff's first interview; (ii) the evidence of the prison officers Windship and Jenkins; (iii) the evidence of Brian Bell; (iv) the observations of blood in cell 210 'B'; (v) the head injuries suffered by Gollan; and (vi) the evidence of Mitchell Winefield. 163 Direct evidence was provided by Winefield of the plaintiff's alleged participation in the initial assault upon Gollan. There was no direct evidence to prove the charge contrary to s 27 of the Crimes Act 1900. The case depended upon circumstantial evidence. 164 Viewed in combination the evidence was capable of satisfying a properly instructed jury beyond a reasonable doubt that the plaintiff in concert with Nicholson had rammed Gollan's head with considerable force into the cell wall with the intention to kill him. The available evidence taken as a whole was capable of giving rise to no other rational inference than the inference that the plaintiff had committed the offences contrary to ss 27 and 35 of the Crimes Act 1900. Objectively assessed the material before Hannay warranted the charges being laid. There was a strong and credible case against the plaintiff. 165 The plaintiff has neither established that Hannay did not honestly form the view that there was a proper basis for prosecution nor that Hannay formed that view on an insufficient basis. 166 The plaintiff has not established the absence of reasonable and probable cause.

Did Hannay in initiating the proceedings act maliciously? 167 As is emphasised in "A" [at 89] "malice" in malicious prosecution is a separate element of the tort and is to be contrasted with "malice" in law which is "no more than the unlawful intent which is present whenever an injurious act is done intentionally and without just cause or excuse": Trodbridge v Hardy (1955) 94 CLR 147 per Kitto J at 162. 168 What is required to be proved to establish malice is that the dominant purpose of Hannay in initiating the proceedings was a purpose other than the proper invocation of the criminal law - a purpose other than a proper purpose: see "A" [ at 91-93]. 169 There is no doubt that Hannay [and Eastwood] acted with malice in law when the admissions were fabricated. Hannay held, however, an honest and justifiable belief that there was a proper case for prosecution. Absent the verbal it could not be said that the proceedings were invoked other than for a proper purpose. 170 The purpose of the fabricated admissions was to secure a conviction. 171 The conviction of the plaintiff, at whatever cost, had become Hannay's dominant purpose at the time the charges were laid. That is a purpose other than a proper purpose. The proper invocation of the criminal law demands that an accused be tried upon honest and reliable evidence and not upon false testimony. I am satisfied that Hannay acted maliciously in initiating the proceedings.

Conclusion 172 The plaintiff has established that the defendant in initiating the proceedings acted maliciously. The plaintiff has not, however, established that the defendant acted without reasonable and probable cause.

1. Verdict and Judgment for the defendant against the plaintiff.
2. The plaintiff is to pay the defendant's costs. **********

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.