Toth v State of New South Wales

The Plaintiff is Transferred to Day Street.

1. At about 4.50pm Constable O'Reilly approached the plaintiff and again informed him that he was under arrest. He then cautioned and handcuffed the plaintiff. The plaintiff gave evidence that he asked the police whether the handcuffs were necessary, to which they said they were. The plaintiff could not remember if the police officers gave a reason. Constable O'Reilly's statement, which was uncontradicted, indicated that the reason that he handcuffed the plaintiff was to prevent his escape while he was being conveyed to Day Street Police Station.
2. The plaintiff alleges that the placing of handcuffs on him constituted the tort of battery.
3. Constables O'Donnell and O'Reilly walked the plaintiff to their vehicle and drove him to Day Street Police Station which was only a few minutes drive away. Upon arrival, Constable O'Donnell assisted the Custody Manager, Sergeant Adam MacArthur, to book the plaintiff into custody. The contemporaneous police records indicate that all requirements of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") were complied with. The plaintiff does not allege otherwise.
4. Sergeant MacArthur had by that point been working in the Sydney City Area Command (which included both Town Hall and Day Street police stations) for some three years. While he could not recall the plaintiff or his arrest, he gave evidence as to the usual police practice, as to why a person arrested at Town Hall shopfront would be conveyed to Day Street Station: "Town Hall had limited resources; so, it had basic computers. It had no interviewing rooms, no ERISP machines. There was no other officers there apart from the constables working there. So, generally, if a person was arrested at Town Hall for a matter that required investigation, they would be conveyed down to the Day Street Police Station where the custody suite was, which has all the relevant, sort of, information, it has all the relevant investigative tools that can be used, and it lets the person who has been arrested be entered into custody, therefore, having their rights adhered to and making sure that their health and their wellbeing whilst in custody is monitored and maintained."
5. That evidence was uncontradicted. It is clear therefore that the reason that the plaintiff was conveyed to Day Street Police Station and detained there was so that Constable O'Reilly could investigate whether he should be charged with the offence for which he had been arrested.
6. While Constable O'Donnell was booking the plaintiff into custody, Constable O'Reilly made a number of unsuccessful attempts to retrieve the data stored on the micro SD memory card from the plaintiff's pen camera. His statement records the detail of those attempts as follows: "While Constable O'DONNELL was booking TOTH into custody I used a computer on level 1 in the muster room. At this stage we did not have a micro SD card reader available so I placed the micro SD card in the memory card slot of my personal mobile phone being a Samsung Galaxy S5 with IMEI number 35342306942924605. I was unsuccessful in getting any reading on my phone to suggest the micro SD card had registered. I removed the micro SD card and re-inserted it. Again it did not register at all. I spoke to the Sydney City Duty Officer on shift, Inspector Sean HEANEY, about not being able to view the footage. He took the micro SD card and placed it into the memory card slot in his Duty Officer work phone which was also a Samsung. This phone registered there was a memory card in the phone and that there were 2 video's on the card, however they could not be played. Inspector HEANEY advised me to speak with Sydney City Detectives about the issue. I spoke to Sydney City Detectives about the issue however they did not have a micro SD card reader available at the time either. After a short conversation I was advised to release TOTH without interviewing or charging him as it would be advantageous to view the footage first. About 6:35pm I entered the custody area and informed TOTH that I will be conducting further investigations before I speak to him about the incident. I then informed the custody manager that TOTH can be released as further investigation was required."
7. To similar effect is the COPS event created by Constable O'Reilly on the evening of 1 March 2015, which includes the following: "Police conveyed the POI back to Day Street Police Station where he was introduced to the Custody Manager and read his rights in accordance with Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. Police made many attempts to view the footage on the micro SD memory card within the camera pen however were not successful. Police intend to interview the POI in relation to the filming however after speaking to Sydney City Detectives decided it would be more appropriate to interview the POI once the footage has been viewed. There was no memory card reader available at the time. Police were satisfied with the POI's identification and as such he was released from custody and will be contacted at a later date for an interview. Police to locate the micro SD card reader and play the footage for accurate description of offence."
8. The plaintiff was released from police custody at about 6.35pm. The total period of his detention was not more than two and a half hours. The plaintiff alleges that the period between the locking of the Town Hall Police Station front door, and his release from Day Street, constitute a false imprisonment.

Investigation

1. On or about 25 March 2015, Senior Constable Perry took over investigating the plaintiff's alleged offence. The plaintiff was not then known to Senior Constable Perry.
2. At some point shortly thereafter, Senior Constable Perry viewed the footage obtained from the plaintiff's pen camera device. The USB containing this footage was admitted into evidence as Exhibit D6. Exhibit D6 contained two files. The first was a short video clip showing the skirt, upper thighs and underwear of a woman walking up stairs. The second appeared to have been taken very shortly thereafter at Town Hall Station. In it, the plaintiff could be heard speaking with Mr Hedderman.
3. Prior to interviewing the plaintiff, Senior Constable Perry also reviewed the statement of Mr Hedderman and information contained in the police COPS database. That information included a description of events on 1 March 2015 written by Constable O'Reilly, as well as information concerning the plaintiff's earlier investigation and charges arising from him having secretly filmed women while exposing his penis to them. This footage was then published on websites which the plaintiff owned and operated.
4. On 11 April 2015 Senior Constable Perry sent the plaintiff an email in which he introduced himself and stated: "I am now in charge of an investigation pertaining to an incident involving yourself at Town Hall on 1 March 2015… I understand you have not yet been given the opportunity to participate in an interview in relation this this [sic] matter… I would like to offer you that opportunity."
5. In his affidavit, the plaintiff suggested that Senior Constable Perry had pressured him to participate in an interview against his will. The plaintiff said: "Effectively Perry's email asked me "to participate in an interview in relation to the matter." I was on holidays at the time, but when I arrived back in Sydney (29 April) I replied that I did not wish to participate in the interview. Nevertheless on 30 April Perry asked me to come to the Day Street police station so that he could formally offer me the chance (of an interview). I did not understand why I needed to physically attend the station to receive the offer of an interview, and felt that I was under some police pressure. My solicitor at the time, Karen Espiner, told me point blank not to go. Nevertheless I attended the Town Hall police station on 8 May 2015. I thought if I did not attend Perry would get riled and I did not want to get him riled."
6. The plaintiff did not, however, annex to his affidavit any of the subsequent correspondence between himself and Senior Constable Perry. That correspondence was rather tendered by the defendant (Exhibit D2). That exhibit comprises an email chain between Senior Constable Perry and the plaintiff dated from 11 April 2015 to 8 May 2015. It is plain from that email chain that the plaintiff was in no way pressured to attend the police station or participate in an interview. On the contrary, it was the plaintiff who offered to 'come down to the police station' after stating he did not wish to participate in an interview. In response, Senior Constable Perry confirmed that it was 'certainly your right to not participate, so that won't be held against you.'
7. When confronted with the complete email chain in cross-examination, the plaintiff sought to explain his earlier evidence as follows: "Maybe there's an email missing somewhere, and he's now having to reiterate that he won't hold it against me and that I don't have to participate and that he would still like to formally offer the chance in person. So, my recollection is that, most definitely, he put pressure on me, and I think this email is consistent - these set of emails is consistent with that."
8. There is in fact no evidence which supports the plaintiff's suggestion of a 'missing' email.
9. In some ways the whole issue is irrelevant as there is no pleaded case in relation to any alleged pressure placed on the plaintiff to give a statement. In my view, the issue has some importance insofar as it bear on the plaintiff's credit.
10. In my opinion, the plaintiff chose to attend the police station and participate in an interview entirely of his own free will, having been fully and appropriately advised of his right not to do so by both Senior Constable Perry and his own solicitor. Moreover, in failing to annex the full email chain to his affidavit, and in then raising the possibility of a 'missing' email, it seems to me that the plaintiff was seeking to mislead the Court as to the true position. In my opinion, this impacts adversely on the plaintiff's credit.
11. I shall return to the issue of the plaintiff's credit later in these reasons.
12. On 8 May 2015 at about 11am, the plaintiff attended Town Hall Police Station and participated in a police interview with Senior Constable Perry. The plaintiff answered 'no comment' or words to that effect in response to the majority of Senior Constable Perry's questions.

Senior Constable Perry Seeks Advice Before Laying Charges

1. Immediately following completion of the interview, Senior Constable Perry sought advice from Sergeant Mark Drury as to the possible charging the plaintiff with a s 91L offence. Sergeant Drury was at that time the Head of Court of the Downing Centre Prosecutors. He was someone that Senior Constable Perry had known for many years, and with whom he had a professional relationship.
2. Senior Constable Perry sent an email to Sergeant Drury, following which they had a brief conversation. After this conversation, Sergeant Drury sent him a further email.
3. This email came to assume some importance in relation to the plaintiff's malicious prosecution case and accordingly I will set it out in full. It is in the following terms: "Hi Sarge, Seeking your guidance on this matter... To keep it short, a POI was seen filming up an unknown victim's skirt (spy pen camera aimed at her genital region), was stopped by a witness, and dragged to the police station. The footage was seized [sic] and clearly depicts the legs, thighs, and underwear of the female (short video, no others of similar nature). POI made no admissions, and we have been unable to locate the victim. The witness has provided a statement. Offence I'm looking at is S.91L Crimes Act 'Filming a person's private parts'. Only potential issues I see are proving 'sexual gratification', and to a lesser degree 'without consent'. In regards to 'without consent', I'd suggest the covert manner in which the recording took place, the fact that no person made themself known whilst the POI was being dragged off, and that the POI has not nominated any willing participant should be more than enough to satisfy that. In regards to 'sexual gratification', I'd suggest the nature of the recording, being focused on her genitals, would go towards satisfying that proof. The POI has been charged with prior offences of a similar nature (relating to unauthorised surveillance), however he has never been convicted (matters withdrawn), so although we cant use that it's clear to us that was his purpose. Ideally he would have just copped to it, but I'm of the view that just because he didn't he shouldn't get off. I'm struggling to think though of any other way we can satisfy that side of things. I've only just been allocated this case (OIC transferred), so I'm unsure if he had any other recording devices with him when he was picked up. Either way, nothing was done in that respect. I'm of the opinion to run the matter. To me it's clear he's committed the offence. I just wanted to check with you on how high a threshold there is for the sexual gratification aspect. If you can get back to me when you get the chance that would be appreciated. Offence was committed on 1 March 2015, so no rush. Just whenever you can. Cheers." ("The Drury Email")
4. The defendant asserts that the Drury Email is important insofar as it provides contemporaneous evidence that, by no later than 8 May 2015, Senior Constable Perry had formed the view that the plaintiff had committed an offence against s 91L, and that there was a sufficient basis "to run the matter". The submission continued that Senior Constable Perry had done so having first considered in detail the elements of the offence, and the evidence available to prove them.
5. The defendant also contended that the Drury Email was consistent with the evidence given by Senior Constable Perry in these proceedings, where Senior Constable Perry gave evidence that, in sending the above email, he was: "simply seeking to get some guidance on the - well the two issues with the charge, the first being consents and the other one being the sexual gratification. The consent aspect wasn't a major concern of mine, but I was just seeking any advice on how I could strengthen the brief." (TP 22/6/22 p160.14-17)
6. The defendant thus submitted that I should find that by no later than 8 May 2015 Senior Constable Perry had honestly formed the view that there was a proper case for prosecution of the plaintiff for contravention of s 91L of the Crimes Act.
7. Sergeant Drury initially sent a short response to the Drury Email on 11 May 2015 simply stating: "I'll get back to you... the problem we have is 'consent'"
8. The following day (12 May 2015), Sergeant Drury provided a more lengthy response in which he stated: "I believe you should lay a charge of.... 1. Offensive behaviour/conduct as a 'backup' to 2. Filming a person's private parts. (worth a shot to run)"
9. Sergeant Drury also recommended that Senior Constable Perry obtain a detailed statement from Mr Hedderman clarifying what he saw the plaintiff doing, and contact State Rail Authority to ascertain of the State Rail Authority had CCTV footage of the incident. Consistently with the Drury Email, Sergeant Drury's 12 May 2015 email indicates that his concern was with proving the lack of consent element, rather than the sexual gratification element.
10. Senior Constable Perry's evidence is that he considered Sergeant Drury's advice. While he understood that Sergeant Drury had concerns about 'the consent aspect' that was an aspect that Senior Constable Perry 'wasn't overly concerned with' (TP 22/6/22 p164.8-14). He also understood Sergeant Drury to be expressing the view that a prosecution would have reasonable prospects of success (TP 22/6/22 p182.39-41). Having read Sergeant Drury's email, Senior Constable Perry remained of the view that if the matter proceeded, a conviction was likely (TP 22/6/22 p182.29-36).
11. On the basis of Sergeant Drury's advice, Senior Constable Perry also concluded that it was appropriate to charge the plaintiff with an offence against s 4(1) of the Summary Offences Act 1988 (NSW) as a 'back up' to the charge under s 91L of the Crimes Act. This is the offence known as behaving in an offensive manner in a public place.
12. The defendant contended that I should find that by no later than 12 May 2015 Senior Constable Perry had honestly formed the view that there was a proper case for prosecution of the plaintiff for contravention of s 4(1) of the Summary Offences Act as a 'backup' charge.
13. I shall return to the plaintiff's submission in relation to the Drury Email and its consequences later in these reasons.

The Plaintiff Is Charged

1. On 30 May 2015 Senior Constable Perry prepared a Police Facts Sheet. At that time, he remained of the view that the plaintiff should be prosecuted for both the offence under s 91L of the Crimes Act and the 'backup' charge under s 4 of the Summary Offences Act.
2. It is convenient to here deal with the plaintiff's contention with respect to the Facts Sheet.

The Alleged Misrepresentations in the Facts Sheet

1. The plaintiff alleges that the Facts Sheet contained numerous 'representations' that 'were untrue or unavailable on the evidence'. The defendant, on the other hand, submitted that I should conclude that, with one exception which I will deal with below, the representations identified by the plaintiff either were not made, or were true.
2. The so called "mistakes" in the Facts Sheet referred to by the plaintiff in his submissions were: 1. The reference to the previous offences as involving "voyeurism" and suggesting a sexual connotation; and 2. The assertion that the camera was placed between the victims legs; and 3. The suggestion in the Facts Sheet that the breach of privacy constituted by offences such as the s 91L offence involved a breach of privacy "often causing emotional trauma"; and 4. That the plaintiff attempted to destroy the pen camera.
3. As to the alleged deficiencies in the Facts Sheet I agree with the contention of the defendant that alleged "mistakes" 1, 3 and 4 were either not mistakes in fact or were not material.
4. As to alleged mistake 1, the proposition that the earlier offences involved an element of "voyeurism" and have a "sexual connotation" is obviously a statement of opinion. There was no evidence that this opinion was not held by Senior Constable Perry, nor that the opinion was not well based.
5. The bases giving rise to alleged mistake 1 related to the plaintiff's covert filming of a number of women, while he was either interviewing them about exhibitionism, exposing himself to them, or both, for which the plaintiff was later charged.
6. The defendant contended that the plaintiff's earlier charges were concerned with the plaintiff's exhibitionism or 'flashing', and with his secretly filming the responses of the women and girls to whom he exposed himself. The defendant thus contended that Senior Constable Perry was correct in drawing the nexus of sexual connotation between the earlier offences, and the offences which he was currently investigating.
7. As I have earlier indicated the plaintiff contended before me that the previous offences had no sexual connotation. This was his sworn evidence (Plaintiff's affidavit at paragraph 24, bullet point 3). The plaintiff asserted that in his view exhibitionism was not a sex crime (T 20/6/22 P39.38 - 39, P47.1 - 6).
8. The difficulty with this contention, and his evidence in support of it, was that on an advertisement for his book "The Exhibitionist", the plaintiff had asserted not only that exhibitionism was a sex crime, but that it was "the most pervasive sex crime in the west" (Ex D1, Tab 6). He confirmed in cross-examination that he believed this statement to be true (T 20/6/22 p34.39-45).
9. This irreconcilable conflict between these pieces of evidence did not reflect well on his credit.
10. In summary, the defendant contended that Senior Constable Perry was correct in characterising the earlier offences as having a sexual connotation. I agree with this contention.
11. As to alleged mistake 3, the plaintiff impugned Senior Constable Perry's qualifications to express the opinion that offences such as s 91L offences often cause significant emotional stress to victims. I consider this to be a misconceived submission. True it is that Senior Constable Perry had no qualifications in psychology, but he did have experience of such matters as a police officer. There was no question other than that what Senior Constable Perry had recorded in this regard reflected his genuinely held belief, based on his experience.
12. As to alleged mistake 4, the plaintiff pointed to transcript from earlier Local Court proceedings where Senior Constable Perry agrees with the proposition that a photo which he was shown appeared to be consistent with the pen not being destroyed. I find this contention to be a contention which goes nowhere. The Facts Sheet does not state that the pen was in fact destroyed, it merely asserts that the plaintiff attempted to destroy it.
13. The one mistake in the Facts Sheet to which the plaintiff correctly refers is the statement that the plaintiff extended his arm 'directly underneath and between the legs of the victim'. This is alleged mistake 2 above. Senior Constable Perry conceded that he now considers that statement to have been inaccurate (T22/6/22 p165.28-45). However, his evidence was that at the time he wrote it he thought it was true, and it was only at some point long after, when the statement was drawn to his attention, that he realised that it was inaccurate.
14. The defendant submitted that the Court should find that, at the time that Senior Constable Perry prepared the Facts Sheet, and at all relevant times thereafter, he honestly believed it to be an accurate summary of the relevant facts relating to the plaintiff's charges for contravention of s 91L of the Crimes Act and s 4 of the Summary Offences Act. I accept that this is the case.
15. I should add that even if all of the alleged mistakes in the Facts Sheet did exist, I do not see how in the circumstances of this case they could be said to be evidence of malice as was contended by the plaintiff. I shall return briefly to the issue of malice later in these reasons.

Subsequent Events

1. On 2 June 2015 the charges proposed by Senior Constable Perry were accepted by the Accepting Officer, Sergeant McAllister, at which point the charges were laid. Senior Constable Perry subsequently prepared the brief of evidence, which is Exhibit D6. The brief contained (among other things) two statements from Mr Hedderman, statements from the police officers involved in the arrest and investigation of the plaintiff, photographs of the pen camera device and a copy of the footage taken from the pen camera.
2. In about June 2015 Senior Constable Perry attended the plaintiff's residence to serve him with the brief of evidence. There is a dispute as to what occurred at that time, but I do not believe that anything turns on that dispute, and so will not consider it further.

Proceedings in the Local Court

1. The hearing of the plaintiff's 2015 charges took place in the Local Court on 15 March 2016. Senior Constable Perry was in attendance and gave evidence, as did the plaintiff.
2. During the morning Court recess, Senior Constable Perry and the plaintiff had a brief exchange. There is a dispute about the content of this exchange. I do not consider that anything turns on that dispute, and accordingly will not consider it further.
3. On 30 May 2016 Magistrate Viney found the plaintiff guilty of an offence against s 91L of the Crimes Act. The plaintiff was placed on a good behaviour bond for 18 months.

The Domain Incident - Early December 2016

1. In early December 2016 the plaintiff contacted police in relation to an unrelated matter, and requested their attendance at the Domain, Sydney. He asked them to attend to speak to a person that the plaintiff alleged had assaulted him some weeks earlier.
2. Senior Constable Perry responded to the plaintiff's call, together with Constable Hall. Again, there was some degree of dispute as to what occurred between the plaintiff and Senior Constable Perry, which dispute is not necessary for me to resolve.

The Plaintiff's Appeal

1. The plaintiff appealed his conviction to this Court. The appeal was heard and dismissed by Syme DCJ on 22 March 2017.
2. The plaintiff alleges that, after that decision was delivered, Senior Constable Perry 'personally insulted the plaintiff', by saying to the plaintiff in a sarcastic tone 'you gonna write about this, are you?'
3. Senior Constable Perry confirmed that he did say something to the above effect, although he denied that it was in a sarcastic or insulting tone. The defendant says that the context for Senior Constable Perry's comment was that, among the material confiscated from the plaintiff on 1 March 2015 was a hard drive containing a large number of documents including a book apparently written by the plaintiff about the 2010 Proceedings and Detective Senior Constable Sharkey. Again, in my view, nothing turns on this conversation.
4. The plaintiff then applied to the Court of Appeal for orders under s 69 of the Supreme Court Act 1970 (NSW) by way of judicial review of the decision of Syme DCJ. Following the hearing of that appeal, the Court of Appeal quashed the decision of Syme DCJ, and remitted the plaintiff's appeal to this Court.

The Plaintiff's Acquittal

1. In 2019, Flannery SC DCJ upheld the plaintiff's conviction appeal. Her Honour was not satisfied beyond reasonable doubt that the plaintiff had acted for the purposes of sexual gratification.

The Alleged Assault and False Imprisonment by Detective Senior Constable Sharkey

1. On 10 October 2019 the plaintiff was in attendance at this Court for the rehearing of his appeal. Detective Senior Constable Sharkey was also at Court, having been asked by the DPP to attend the hearing to assist with the witnesses who were giving evidence for the respondents to the appeal.
2. During the morning adjournment, the plaintiff approached Detective Senior Constable Sharkey. Detective Senior Constable Sharkey was with two of those witnesses. Detective Senior Constable Sharkey walked with the plaintiff away from the witnesses. The plaintiff's evidence in chief was that the following exchange then occurred: "I said, as we were walking to another part of the room, "You've lost weight" He didn't respond. I said, "That's a compliment." He then responded, in a nasty tone: "I don't want your compliments. And I don't want to make small talk with you." So I left and sat down at one of the seats against the wall, while he returned to the witness. About 3 minutes later he and the witness walked past me on the way to the lifts. Sharkey doubled back and walked up to me. I was still seated. He said, "If you record any of my conversations or any conversations at all, you'll be in massive trouble. Do you get it?""
3. Detective Senior Constable Sharkey's evidence on this point was broadly consistent with that of the plaintiff, other than that he did not agree he said or did anything unpleasant or threatening.
4. Detective Senior Constable Sharkey recalled the plaintiff approaching him outside the Courtroom while he was with two witnesses, Ms Lyn Mavety and Ms Poppy Troulis. These women were involved in the earlier offences, upon which the DPP by then relied as constituting tendency evidence in the s 91L case. Detective Senior Constable Sharkey says that the following conversation then occurred: "A. He said to me, "Detective Sharkey, you look well". And then, "you've lost weight." Q. Do you recall if you said anything in reply? … A. I said, "Hello Mr Toth. Ms Mavety and Ms Troulis have said that they feel uncomfortable with you being near them outside. I'm not here to chat with you, so unless you have a legal question, can you please not talk to me or to the witnesses. If you do have a legal question, because I understand you're representing yourself, go speak to the DPP and they'll work it out so that we can have those conversations in a more appropriate way." Q. Mr Toth then walked away. Do you recall very shortly after that, that is after he walked away a few minutes later having another conversation with you? A. I do. Q. Can you tell his Honour words to the effect or roughly what you recall to your best recollection you said and he said in that conversation? A. Yes, and I noticed when I was speaking to Mr Toth that he had a pen in his hand and I said, "Mr Toth, you're not recording me, are you", and he said, "no, I'm not". I said, "because you've already been charged with that before and been convicted of it before, so you know it's wrong", and he said, "I'm not recording you". I said, "and you're not allowed to record in a Court full stop, hidden camera or otherwise." He said, "no, it's just a normal pen, you can have a look at it", then he took the top of it and showed it to me and handed it to me, and I looked at it and I said, "okay", and gave it back to him. Q. You've just described and given evidence of a number of things you said. Are you able to tell his Honour to your best recollection how you said those things, that is where you were, what you were doing, your tone of voice, the circumstances of that conversation? A. Mr Toth and I were both standing in the hallway outside the courtroom. Would've been approximately an arm's length away, and the tone of voice I used would have - was firm but a calm voice. Q. Would it be fair to say that you were not intending to make Mr Toth fear that you would physically assault him? A. Not at all. Q. You didn't, to your recollection do or say anything that you thought would give that impression? A. Absolutely no. … when I was speaking to Mr Toth I was careful with how I used my words and the tone of voice I was using, and it was certainly not my intention at all to make him think that I was going to hurt him, at all."
5. The plaintiff alleges that two causes of action arose out of this exchange with Detective Senior Constable Sharkey. He says that this short interaction caused him to experience a "surge of fear".
6. The plaintiff also claims to be suffering ongoing harm as a result of Detective Senior Constable Sharkey's actions. He said that he 'still… to this day' feels 'quite shaken', and that he continues to suffer from 'paranoia' partly as a result of Detective Senior Constable Sharkey 'threatening' him. The plaintiff then went on to say that: "I can't turn it off. I'm still in panic mode. I still jump at everything. I still get angry easily with others. It is going to take a long time to adjust to normal -whatever normal is. I don't remember anymore."
7. Thus the plaintiff alleges that the actions of Detective Senior Constable Sharkey constituted the tort of assault. He also alleges that Detective Senior Constable Sharkey stood so close to him while the exchange took place that he was unable to stand up and leave. He alleges that this constituted a period of false imprisonment.

The Plaintiff's Credit

1. It is appropriate to here deal with the issue of the plaintiff's credit.
2. I found the plaintiff to be an unconvincing, and indeed unsatisfactory witness. He presented as evasive, and frequently used the witness box as an opportunity to answer questions for the purposes of advocating his case, rather than truthfully answering the questions posed of him. I gained the distinct impression that he would happily surrender the truth for any opportunity to further his case.
3. I shall give some examples of what I consider to be his unsatisfactory evidence.
4. He was cross examined concerning various books which he had published online. These included books entitled "Female Flashers" and "The Up-Skirting Phenomenon". He was cross-examined as to his assertion that these books had been withdrawn from publication. After initially stating that all of these books have been withdrawn, he agreed that the title "Female Flashers" had not. The defendant claimed his evidence in this regard ought to be characterised as confused rather than lacking in credibility. In my view it should be characterised as both confused and lacking in credibility.
5. In addition, the evidence discloses that the titles "The Exhibitionist" and "The Up Skirting Phenomenon" remain available for sale online.
6. When confronted with this inconvenient fact the plaintiff proffered for the first time the possibility that the books were initially withdrawn by him from publication, but then republished (TP 20/6/22 page 229.15 to 29.31). I do not accept this evidence. I consider that the assertion of re-publication was concocted by the plaintiff in the witness box, in a ham-fisted attempt to repair the damage to his credit inflicted by the line of cross-examination directed towards establishing the continuing existence of certain titles for sale on the Internet.
7. I have previously mentioned in these reasons other instances which in my view reflected badly on the plaintiff's credit. These were: 1. His inconsistency as to whether he considered exhibitionism to be a sex crime; and 2. His failure to include the entirety of an email chain in circumstances where the entirety of the chain was clearly contrary to his assertion that he was pressured into attending a police interview.
8. To my mind, of greater importance for the consideration of the plaintiff's credit was the continued assertion by him that the USB drive containing footage relied upon before me (Ex D6) was not the same video footage taken by him, and relied upon at his trial in the Local Court and on appeal to this Court. This was an important assertion. I consider his evidence in this regard to be false.
9. Senior Constable Perry gave evidence that the video footage that played before me was the same footage relied upon at the plaintiff's trial and on appeal. I accept Senior Constable Perry's evidence. I have little hesitation in doing so as the fact that the plaintiff's assertions are false can be demonstrated by simply looking at the video footage.
10. The video contains two parts. The first part constitutes footage showing the alleged breach of s 91L, the second constitutes what was recorded by the pen camera after the plaintiff was apprehended by Mr Hedderman. The plaintiff admitted that the second part of the video was taken by him. In my view the plaintiff could have hardly denied this, as his voice can be heard on the second part of the footage.
11. More significantly, when the two portions of the footage are compared, it is impossible to conclude other than that the two clips were taken at or about the same time. This is so as they both carry the same date of 2014/01/19. This was not the date of the Town Hall incident, and the fact of the videos bearing a date being different from the date of the offence was unexplained. Be that as it may, whatever the reason for the date discrepancy, both parts of the footage bear the same date.
12. The conclusion that the two portions of footage were taken on the same day is also fortified by the fact that the plaintiff admitted to taking a video up a woman's skirt while at Town Hall Station on 1 March 2015 (T20/6/22 p49.4-50; 50.1-5).
13. I also consider that the plaintiff's evidence as to what occurred in his interaction with Detective Senior Constable Sharkey, said to constitute both an assault and a false imprisonment, to be inherently impossible.
14. Detective Senior Constable Sharkey was in the immediate confines of this Court in the Downing Centre during the Court's morning tea break at the hearing of the plaintiff's appeal. Detective Senior Constable Sharkey was in the presence of two civilian witnesses in the Crown case on that appeal. He knew both of the witnesses, and thus they both knew both who he was, and that he was a police officer.
15. These witnesses were in close proximity to Detective Senior Constable Sharkey when he had his interaction with the plaintiff. To my mind the proposition in these circumstances that Detective Senior Constable Sharkey would physically stand over the plaintiff and threaten him in such a manner as to cause him fear in the presence of these witnesses, is inherently unlikely.
16. Indeed the plaintiff was not content to merely assert that Detective Senior Constable Sharkey put him in fear. In his affidavit, the plaintiff asserts the experienced "surge of fear". He says that he was "shaken by the threat and still do to this day" (see the plaintiff's affidavit at [66] to [67]). I do not accept this evidence, to my mind the evidence is truly incredible.
17. The incredibly nature of the plaintiff's evidence to my mind is reinforced when it is noted that as the plaintiff conceded in cross-examination, he had by this point known Detective Senior Constable Sharkey for a number of years. He said that at no point had Detective Senior Constable Sharkey ever physically assaulted or threatened him. On the contrary, the plaintiff admitted Detective Senior Constable Sharkey had previously been "very friendly" to him and the plaintiff considered him to be "a likeable guy".
18. Against this background I consider that the plaintiff had no reason whatsoever to think Detective Senior Constable Sharkey would physically assault him. I find that the plaintiff's evidence in relation to his dealings with Detective Senior Constable Sharkey in respect of the allegations of assault and false imprisonment to be deliberately untruthful.

Detective Senior Constable Sharkey's Credit

1. As the most crucial credit issues between the plaintiff and the police witnesses involves Detective Senior Constable Sharkey, it is appropriate to deal with the topic of his credit independently of his colleagues.
2. As to the alleged false imprisonment aspect of the interaction between the plaintiff and Detective Senior Constable Sharkey, I have already indicated that I consider it inherently unlikely in the circumstances that Detective Senior Constable Sharkey stood so close to the seated plaintiff, as to put him in fear and imprison him. In this regard Detective Senior Constable Sharkey said he stood at arm's length while talking to the plaintiff. He explained that this was the distance at which he conducted professional dealings, other than when dealing with persons whom he had reason to fear. I accept this evidence.
3. More specifically, I find that Detective Senior Constable Sharkey did not do or say anything to the plaintiff which could be perceived by a reasonable person to constitute either a threat of immediate physical violence, or a threat that the plaintiff would be compelled to remain where he was, should he wish to leave.
4. I further find that Detective Senior Constable Sharkey did not intend to cause the plaintiff to apprehend immediate and unlawful violence, or to conclude that he was not free to leave.
5. I found Detective Senior Constable Sharkey to be an honest and reliable witness, who made concessions where appropriate. He gave his evidence in a measured way, and presented as an experienced and professional police officer. Indeed, he presented in the witness box as having a rather understated manner, and as a person unlikely to resort to threatening behaviour on an occasion such as the one in question.
6. I have no hesitation in preferring the evidence of Detective Senior Constable Sharkey to that of the plaintiff.

The Credit of the Other Police Witnesses

1. Only three of the police officers involved in the proceedings were required for cross-examination. They were Sergeant MacArthur, Detective Senior Constable Sharkey, and Senior Constable Perry. I have already dealt with Detective Senior Constable Sharkey's credit.
2. Each of Sergeant MacArthur and Senior Constable Perry impressed me as giving their evidence in an honest manner. Each presented as considered and professional police officers who were doing their best to assist the Court by giving their evidence truthfully.
3. I have no hesitation in accepting their evidence and do so expressly when it is in conflict with that of the plaintiff.

Conclusion on Credit

1. In conclusion, I do not accept the plaintiff's evidence unless it is independently corroborated or against interest.

The Applicable Legal Principles

1. The legal principles underlying the plaintiff's various causes of action were not in dispute. I shall set out these principles and then set out my conclusion on each cause of action below.

False Imprisonment

1. A false imprisonment is an intentional, total and direct restraint on a person's liberty 'and not a partial obstruction of his will, whatever inconvenience it may bring on him': see Symes v Mahon [1922] SASR 447 at 449.
2. The language of 'false imprisonment' should not be used where what has in fact occurred is a form of voluntary 'temporary detention': State of New South Wales v Le [2017] NSWCA 290 at [8]. As the Court in Le observed at [5], that is because: "A person is not detained in the relevant sense if their departure from a planned course is voluntary or, if at the request or direction of another person, consensual."
3. As Robert Goff LJ and Mann J said in Collins v Wilcock [1984] 3 All ER 374 at 380: ... the word 'detaining' can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be 'stopping and detaining' the latter. There is nothing unlawful in such an act. If a police officer so 'stops and detains' another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful. In the former event, his action will constitute a battery; in the latter event, detention of the other person will amount to false imprisonment. Whether the action of a police officer in any particular case is to be regarded as lawful or unlawful must be a question to be decided on the facts of the case.
4. This dicta was cited with approval in Le at [5].
5. In a case involving police, it is therefore a question of fact as to whether there was, in a particular case (1) a total and direct restraint on the plaintiff's liberty, which was (2) intentionally done by the relevant police officer and (3) not consented to by the plaintiff.
6. As to the first factual issue, the Court must assess what a reasonable person in the particular circumstances of the plaintiff would have inferred from the conduct of the officer concerned. The plaintiff's subjective state of mind is not determinative: (see Le at [7]). Where no physical force has been used, the plaintiff must establish that he had a 'reasonable' or 'justified' apprehension that he would have been compelled to comply, had he not otherwise done so.
7. Where the plaintiff succeeds in establishing a total and direct restraint of his or her liberty, the onus is then on the defendant to point to a lawful justification for the restraint.
8. Relevant to the issue of lawful justification is the fact that, pursuant to the provisions of s 114(2) of LEPRA, police may detain a person who has been arrested for an 'investigation period' during which the police may investigate whether the person committed the offence for which he or she was arrested.
9. If the investigating officer is unable to form the belief sufficient for the laying of a charge the arrest must be discontinued and the person released: LEPRA, s 105. Section 99(4) of LEPRA also confirms that a person who has been lawfully arrested may be detained under Part 9 of LEPRA (which includes ss 114 and 115) 'for the purpose of investigating whether the person committed the offence for which the person has been arrested'.
10. As I have already indicated, there is no issue in the present case as to the lawfulness of the plaintiff's arrest (whether initially by Mr Hedderman or by Constables Hetherington and O'Reilly).

Consideration

1. As I have previously indicated, the plaintiff advances two separate claims of false imprisonment.
2. The first alleged false imprisonment concerns the period from when Constable Hetherington locked the door to the public reception area of the Town Hall Police Station on 1 March 2015 until the plaintiff's release from police custody at Day Street Police Station some two and a half hours later.
3. As to the first part of that period, that is to say the period between locking the door and the plaintiff's arrest, I find that the plaintiff was not falsely imprisoned by Constable Hetherington locking the door. At no time did the plaintiff express any desire to leave the seat upon which he sat. It is clear that for most of that period he was unaware that the door was locked, and in any event I find that the plaintiff had no intention of leaving. There was thus no coercion of the plaintiff's will at the point at which the door was locked or thereafter.
4. In my view there was no intentional, total and direct restraint on the plaintiff's liberty, in the sense explained in the authorities. On the contrary, in my view, the evidence establishes that the plaintiff was content to patiently await the outcome of the police interview with Mr Hedderman.
5. As to the second part of the first alleged false imprisonment, I find that once the plaintiff had been placed under arrest, his detention was lawful pursuant to the provisions of s 99(4) and Part 9 (in particular s 114(2)) of LEPRA.
6. There is evidence that Part 9 was complied with, and that the reason the plaintiff was transferred to Day Street Police Station and booked into custody was so that Constable O'Reilly could investigate the offence for which the plaintiff had been arrested. This included seeking access to and viewing the footage from the plaintiff's pen camera and then interviewing him. When efforts to view the footage proved fruitless, the plaintiff was immediately released without charge, pending further investigation.
7. The second alleged false imprisonment concerns Detective Senior Constable Sharkey's interaction with the plaintiff on 10 October 2019 at the Courthouse. This allegation can readily be dealt with. For reasons which I have previously outlined, I accept the evidence of Detective Senior Constable Sharkey over that of the plaintiff. On that basis there is simply no evidence that the plaintiff was in any way imprisoned at that time (even momentarily) nor is there any evidence that such an imprisonment was Detective Senior Constable Sharkey's intention. I find that no part of Detective Senior Constable Sharkey's interaction with the plaintiff constituted false imprisonment.

Battery

1. A battery is constituted by the direct and intentional application of force to the person of another. However, the application of force will not constitute a battery if it is applied with lawful justification or excuse. As Brereton J explained in State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 at [55]: "A battery is constituted by the direct application of force to the person of another, without lawful justification or excuse. Like other forms of trespass to the person, a battery may be justified (for example, on grounds of self‑defence, exclusion or ejectment of a trespasser, acting in support of the criminal law to secure the peace, statutory authority, and - at least in some circumstances - consent); and it may be excused in the case of inevitable accident."
2. One such lawful justification is to be found in ss 230 and 231 of LEPRA. These sections authorise police to use such force as is reasonably necessary to make an arrest and prevent the escape of a person after arrest, and in the exercise of any other lawful function.
3. As Beazley P said in State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [230]: "The meaning of "lawful" in s 230, in my opinion, is clear. The legislature has expressly made lawful what would or may otherwise be contrary to law, whether criminal or civil. Relevantly for present purposes, s 230 makes lawful action that would otherwise constitute a battery. If [the officer's] conduct satisfied the terms of s 230, there was no battery."
4. The same is true of situations of arrest where the arresting officer's conduct satisfies the terms of s 231.
5. In assessing whether the force used was 'reasonably necessary', the Court applies its own objective standard of reasonableness.
6. With regard to the particular circumstance of a person detained following arrest, as Donaldson LJ said in Lindley v Rutter [1981] QB 128 at 134: "It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime…"

Consideration

1. The plaintiff alleges that, in handcuffing him and leading him to their duty vehicle on 1 March 2015, Constables O'Reilly and O'Donnell committed the tort of battery. I reject this contention. I find that, in so doing, the police used no more force than was reasonably necessary to prevent the plaintiff's escape. That this was the purpose of the handcuffing was the uncontradicted evidence of Constable O'Reilly, which I accept. To my mind, the risk of escape by an unrestrained arrestee in a vehicle in slow CBD traffic is obvious. The actions of Constables O'Reilly and O'Donnell therefore were in my mind both lawful and justified by both ss 230 and 231 of LEPRA.

Assault

1. An assault requires an act by which a person causes another to apprehend immediate and unlawful violence: New South Wales v McMaster at [191].
2. As Barwick CJ explained in The Queen v Phillips (1971) 45 ALJR 467 at 472: "… assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault."
3. The plaintiff's apprehension of immediate and unlawful violence must be reasonable: McMaster at [205]; Croucher v Cachia (2016) 95 NSWLR 117 at [42].
4. Further, the perpetrator of the assault must actually intend the effect of his actions upon the plaintiff. Mere accident or inadvertence is not enough. Thus, 'proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact': Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [58].

Consideration

1. The plaintiff alleges that the actions of Detective Senior Constable Sharkey on 10 October 2019 constituted an assault upon him. I have already explained the reasons why I accept the evidence of Detective Senior Constable Sharkey over that of the plaintiff. There is thus no evidence that Detective Senior Constable Sharkey behaved towards the plaintiff in a manner that would cause a reasonable person to apprehend immediate and unlawful violence. Nor is there any evidence that Detective Senior Constable Sharkey intended to have that effect upon the plaintiff. To the extent that the plaintiff gave evidence that he did in fact have such an apprehension, I do not accept it.
2. I find that Detective Senior Constable Sharkey did not assault the plaintiff.

Malicious Prosecution

1. The tort of malicious prosecution was explained by the High Court in Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4] as follows: "The wrong for which the tort provides redress is the malicious instigation or maintenance of the prosecution of the plaintiff without reasonable and probable cause. The elements of the tort are set out in A v New South Wales. In summary, the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause."
2. As to the first element requiring proof, it is necessary for the plaintiff to show that the person who is alleged to have acted with malice and without reasonable and probable cause played 'an active role in the conduct of the proceedings': A v New South Wales (2007) 230 CLR 500 at [34].
3. The second element in the present circumstances requires no elaboration.
4. The third and fourth elements are not alternatives. As Lords Mansfield and Loughborough said in Johnstone v Sutton (1786) 1 TR 510 at 545 (quoted with approval in A v New South Wales): "A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action."
5. Thus, 'the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort': A v New South Wales at [54].
6. To ask whether a prosecution was commenced or maintained without reasonable and probable cause 'necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution': A v New South Wales at [59].
7. This question has both an objective and subjective aspect. The issue is 'whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid': A v New South Wales at [38].
8. It is important to recognise that in this regard 'the plaintiff must thus establish a negative (the absence of reasonable and probable cause)'. The forensic difficulty of establishing a negative is 'well known': A v New South Wales at [60].
9. Malice in this context means 'acting for purposes other than a proper purpose of instituting criminal proceeding': A v New South Wales at [55]. This 'requires the identification of a purpose other than the proper invocation of the criminal law': A v New South Wales at [93]. That improper purpose 'must be the sole or dominant purpose actuating the prosecutor': A v New South Wales at [91]. While 'its proof will often be a matter of inference', it is nevertheless 'proof that is required, not mere conjecture or suspicion': A v New South Wales at [93].
10. What is required is proof by the plaintiff of a purpose in bringing the prosecution other than for the purposes of the proper invocation of the criminal law.
11. However, even where a person is shown to have initiated or maintained a prosecution maliciously (A v New South Wales at [56]): "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."
12. It is, similarly, 'clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid': A v New South Wales at [86].
13. Particular considerations also apply where (as here) the person who is alleged to have engaged in the tortious conduct is a police officer or other public official acting on the basis of information provided by third parties. As the plurality said in A v New South Wales: "different factual considerations arise "where in the administration of criminal justice the information is laid by a particular police officer who is in charge of the prosecution and responsible if it is held to be malicious, but it is, as a matter of police organisation, obvious that he must act upon the advice and often upon the instruction of his superior officers and the legal department", and, it may be added, where the prosecutor is acting upon information given to him by a member of the public. In that context, the concept of "belief", as a fact relevant to the question whether a defendant had reasonable and probable cause to institute a prosecution, bears a different aspect."
14. As the Court went on to observe (at [41]-[42]), that is equally true with regards to malice: "In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice. In the present case, which is not unusual, the second respondent's conduct was being overseen by other authorities (that, indeed, is said to be part of the problem), and he must have been aware that, soon after the charges were laid, the proceedings could be taken over by an independent prosecuting authority and, presumably, discontinued if the view were taken that there was not a proper case to go forward. In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in a case of a prosecution instituted in a bureaucratic setting, where the prosecutor's decision is subject to layers of scrutiny and to potential review."
15. In such circumstances, it is not correct to ask whether the charging officer had a positive belief in the plaintiff's guilt. That is because (at [73]): "In a case where a police officer prosecutes a person on the basis of statements by third parties, there are evident difficulties in applying a test of reasonable and probable cause which would be satisfied by demonstrating only that the subjective state of mind of the prosecutor fell short of positive persuasion of guilt. A test of that kind would presuppose the need for a police officer to have some degree of personal commitment to a case. That would, or at least would often, not be consistent with what should desirably be the objective assessment and analysis of material provided by others." As such, (at [118]): "Where a prosecutor has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. … it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis."

Consideration

1. I agree with the defendant's submission that the Drury Email provides a valuable contemporaneous record of Senior Constable Perry's thought processes immediately prior to the institution of the prosecution. The document bespeaks to me a thorough and balanced analysis of the elements of the offence to be proved, and how they would be established.
2. The Drury Email indicates Senior Constable Perry's desire for advice on the possible bolstering of the evidence to satisfy the sexual gratification element of s 91L. The plaintiff cross-examined Senior Constable Perry in an attempt to establish that he knew that he could not prove that element. This attempt was unsuccessful as it merely confirmed what was contained in the email, namely that Senior Constable Perry intended that the element would be established beyond reasonable doubt by inference drawn from: 1. The nature and circumstances of the recording; and 2. The fact that the plaintiff had been charged with similar offences, which gave him comfort that sexual gratification was the plaintiff's purpose.
3. In his submissions, the plaintiff suggested that the prior offences were not of a sexual nature. He made this submission notwithstanding that in one of the publications, he referred to exhibitionism as a "sex crime". I have dealt with this issue earlier in these reasons.
4. I consider that Senior Constable Perry was quite correct to consider that the earlier offences involved a sexual connotation.
5. The plaintiff also attacked the conclusion that the nature of the recording bespoke an intent to obtain sexual gratification. In that regard the plaintiff suggested that the recording should be considered to be an accidental image obtained when a woman's skirt slightly blew up on the stairs. This he described as "a wardrobe malfunction".
6. This characterisation of "wardrobe malfunction" by the plaintiff led him to assert that on that characterization of the footage, Senior Constable Perry had failed to consider alternative explanations of the vision, consistent with the plaintiff's innocence. Senior Constable Perry denied that proposition, and I accept his evidence.
7. The video footage while taken on a step or perhaps steps below the woman in question, was taken not far behind her. On my analysis of the footage, in order for the image to be obtained the camera would need to be placed below the skirt hem. This was presumably Senior Constable Perry's construction of the events, as demonstrated in the Drury Email. It seems to me that on this view of the footage the plaintiff's assertion of it having been taken by accident is unlikely.
8. To my mind, the fact that the plaintiff in this proceeding proffered an explanation of accident to explain the footage cannot be in any way determinative of the decision which confronted Senior Constable Perry in deciding to prosecute. Senior Constable Perry formed his view about what could be inferred from all the circumstances of the footage. He believed that from those circumstances the sexual gratification element could be inferentially established beyond reasonable doubt.
9. In this regard it is well to note that it appears Sergeant Drury also came to that conclusion, as did the Accepting Officer, Sergeant McAllister (See Ex D6 CB page 293). It is also relevant to note that this must have also been the conclusion of both Magistrate Viney, and Syme DCJ.
10. The plaintiff also asserted that Senior Constable Perry also failed to consider the fact that when his premises were searched, no images of a similar nature to Exhibit D6 were found. I must say that I found this submission difficult to understand. True it is that if the search had discovered a trove of similar material this would assist in establishing the sexual gratification element of the offence; but to my mind the absence of such material does not establish the opposite.
11. For all these reasons, I conclude that Senior Constable Perry had reasonable and probable cause to bring the prosecution, or more correctly that the plaintiff has not established the contrary.
12. Having so concluded it is strictly unnecessary to consider the issue of malice, accordingly I shall only touch on the issue briefly.
13. Malice in the context of the tort involves instituting the proceedings for an improper purpose in this context. A proper purpose to bring the alleged offender before the Court and thus to justice, or put another way, the proper invocation of the criminal law.
14. In my opinion, the plaintiff has not even approached proving this element.
15. The plaintiff submitted that the evidence inferentially disclosed that Senior Constable Perry wished to punish the plaintiff. Senior Constable Perry denied this in cross examination and I accept his evidence.
16. The plaintiff's case on malice seems to have its origin in the Drury Email and in particular where Senior Constable Perry says "Ideally he would have just copped to it, but I'm of the view that just because he didn't he shouldn't get off"
17. I found this line of reasoning underlying the plaintiff's case on malice to be curious. It seems to me that the Drury Email discloses that Senior Constable Perry was of the view that it could be established beyond reasonable doubt that the plaintiff had committed the offence under s 91L and in the absence of a plea of guilty it was appropriate to prosecute the charges. Far from suggesting malice to my mind this represents an exercise of the power to prosecute for precisely the correct reason.
18. As I have earlier indicated the plaintiff also alleges that the so-called Facts Sheet errors constituted evidence of malice. For reasons which I have earlier explained I reject that contention.
19. I find that the plaintiff has not established malice.

Conclusion

1. For these reasons I conclude that the plaintiff has failed to establish any of his pleaded causes of action.
2. There should therefore be judgment and verdict for the defendant.
3. The defendant has indicated that it wishes to be heard on costs.

Orders

1. The Court orders: 1. That there be judgment and verdict for the defendant. 2. That any party wishing to be heard on the issue of costs notify my associate of that fact on or before noon on 18 July 2022 ("Notification"). 3. That in the event of Notification, the notifying party shall file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 22 July 2022. 4. That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 29 July 2022. 5. That the notifying party file and serve any submissions in reply on or before 4:00pm on 2 August 2022. 6. That the filing of the documents referred to in orders (2), (3) and (4) be effected by way of email transmission to my associate. 7. That any issue as to costs be decided on the papers. 8. That in the absence of Notification, the Court will order that the plaintiff 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. Decision last updated: 14 July 2022