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Category: Principal judgment

Parties: Terry Tsakirios (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
Mr A Canceri and Mr R Pettit (Plaintiff)
Mr N Newton (Defendant)
Solicitors:
Jackson John Defence Lawyers (Plaintiff)
Crown Solicitor’s Office (NSW) (Defendant)

File Number(s): 2023/00314122

Publication restriction: None

JUDGMENT

Introduction

1. On 7 May 2018, an armed and masked offender robbed a Subway fast food outlet (the “Robbery”). The officer in charge (“OIC”) of the investigation which followed was Detective Senior Constable Allan (“DSC Allan”).

2. On 27 November 2019, DSC Allan charged the plaintiff with the offence of armed robbery. DSC Allan then prosecuted the proceedings until the prosecution was taken over by the Director of Public Prosecutions (“DPP”). Ultimately, following representations made on his behalf by solicitors, the DPP withdrew the charges with which the plaintiff was faced.

3. The plaintiff says that the state of New South Wales is vicariously liable for the acts and omissions of DSC Allan. The Statement of Claim pleads a case comprising the following causes of action:

4. Malicious prosecution;

5. False imprisonment; and

6. Misfeasance in public office.

Factual background

4. The factual background to the proceedings is largely uncontroversial and is proved by the contemporaneous documents (DX-2), the CCTV footage of the Robbery and an earlier Red Rooster Robbery (DX-3), and the oral evidence of the plaintiff and DSC Allan.

The Robbery and DSC Allan’s Initial Involvement

5. On 7 May 2019, at 6:17pm, a masked and armed offender robbed the Subway store, threatening two employees, Pranai Chada (“Chada”) and Sukpreet Kaur (“Kaur”). Multiple cameras filmed the Robbery (DX-3). The CCTV footage showed, among other matters, the following:

6. At approximately 6:17:27pm, the offender was outside the store (DX-3, CAM7) and was a man whose build, eyes, eyebrows and gait resembled the plaintiff. The offender, however, was unidentifiable given the mask and hooded jumper which he was wearing.

7. At approximately 6:17:52pm (DX-3, CAM4), the offender stood next to Chada at the cash register. After taking money from the register, the offender bent down (6:18:30pm; DX-3, CAM4). At this point, and for the first time, a black object appears on the tiled floor in the bottom right of the picture. That black object could only have come from the offender. Upon physical inspection, DSC Allan identified the object as a cable tie, which was subsequently found to have the plaintiff’s DNA on it (T32.9-18).

8. At approximately 6:18:38pm (DX-3, CAM7), the offender left the Subway store jogging in a north-east direction towards the driveway of the shopping area in which the Subway outlet was situated.

9. That evening, DSC Allan attended the Subway store in her capacity as the on-call detective at Riverstone Police Station, where she was based. At the Subway store, DSC Allan met general duties officers who were already at the Subway store, together with the two victims, Chada and Kaur. She also met Vijay Macha, the owner of the store (“Macha”). In addition, she spoke to crime scene officers in attendance. This occurred after the crime scene officers had completed their examination of the store (T25.32-26.10). She made notes (DX-2, pg 16-17), took photographs (DX-2, pg 23-25), and collected exhibits, including a sealed exhibit bag containing the cable tie, and two exhibit bags containing clothing (T27.20-36).

10. DSC Allan then returned to Riverstone Police Station and obtained statements from Kaur, Chada and Macha (DX-2, pg 40). She also watched the CCTV footage of the Robbery. DSC Allan also obtained DNA samples from Chada and Kaur, and prepared a narrative in COPS Event Ref E 72114668 (DX-2, pg 47-49) and a situation report (DX-2, pg 397). At the time of preparing those documents, DSC Allan did not have anyone in mind as a suspect (T34.3). She was also aware that a police dog had tracked a scent “but it was unclear if the dog was tracking the POI [person of interest]” (DX-2, pg 48).

Investigations from 8 May 2019 Onwards

8. During the afternoon of 8 May 2019, DSC Allan circulated images of the Subway offender taken from the CCTV footage within the Police Force by email, and to the public by a media release. This public release included a post on the Riverstone Police Area Command Facebook page (DX-2, pg 376-385). Following the dissemination of the CCTV footage, she received several emails and had conversations concerning persons who might possibly have had an involvement in the Robbery (T35.27). These interactions suggested the plaintiff as a possible person of interest. In addition to the plaintiff, the following other persons had been suggested as justifying further investigation. I shall refer to those other persons by way of acronyms to protect their identities, as follows: TH, AT, JN and ME. DSC Allan noted each of those persons in her case file (DX-2, pg 72).

The Plaintiff, TH and AT as Possible Persons of Interest

9. DSC Allan’s information concerning the Plaintiff, TH and AT came from the following police sources:

10. By email on 9 May 2019, Senior Constable Rhea Williamson (“SC Williamson”) identified the plaintiff as possibly involved, noting his nearby address, and advising that he had been arrested the previous day. She also said that the plaintiff matched the build of and had similar eyes to the offender, and, to use her expression, he had “form for it” (DX-2, pg 405).

11. In an email to DSC Allan, TH was identified, having recently been released from custody and having committed similar offences (T36.23-35).

12. In an email relating to AT, DSC Allan was merely advised to have a look at him (T36.44).

13. Ultimately, DSC Allan ruled out both TH and AT as suspects. She recorded in her Case Report the following, “[a]s one of the DNA results have been returned as ‘unknown’ it is highly unlikely that [TH] or [AT] were involved in this matter as they have previously had DNA taken and are on the DNA database” (DX-2, pg 66).

14. In her later Police statement of 29 June 2021 (DX-2, pg 320) and in her oral evidence, DSC Allan explained that in addition to the lack of DNA matches, unlike the offender, TH had a thin build. She also noted that there was nothing to link either TH or AT to the incident. As a consequence, TH and AT were no longer considered by DSC Allan to be possible persons of interest (T46.12-33).

ME as a Possible Person of Interest

12. On or about 15 May 2019, DSC Allan identified ME as a possible person of interest. This occurred following an anonymous report received via Crime Stoppers (T46.44). This report was linked to DSC Allan’s event by her case coordinator (DX-2, pg 68-69). The anonymous report was no more than a bare accusation. The report also noted that ME was a thin, homeless man, who lived with his dog in a vehicle which was parked in Kings Park.

13. Following that report, DSC Allan believes she spoke to the anonymous caller (T47.33) and sent another officer to canvass for CCTV footage the building adjacent to where ME lived. The officer so tasked observed CCTV footage showing ME leaving where he lived on the night of the Robbery, but wearing different clothing to those worn by the offender in the Robbery (T48.1-2). DSC Allan attempted to obtain that footage but was advised that it had been overwritten (T47.41). DSC Allan did not consider that ME was physically similar to the offender. She also considered that ME’s movements were “not smooth” like the offender’s. She said that ME was “over the place” and “incoherent”. She also noted that ME did not go anywhere without his dog. Finally, she noted that ME’s complexion was lighter than the offender’s (T48.15-17).

14. As a result of these matters and given that there was nothing to connect ME to the Robbery, DSC Allan ruled him out as possible person of interest (T48.6). She made a contemporaneous note of so doing in her Case Report (DX-2, pg 66).

JN as a Possible Person of Interest

15. On about 13 May 2019, JN was identified as possible person of interest by Police in a regional centre, who had obtained the information from a source who was related to him. That person wished to remain anonymous. After receiving this information by email (DX-2, pg 401) DSC Allan spoke to the source (T49.16), who gave her further information, which included the fact that they were not positive that JN was the offender in the CCTV footage (T101.39; 108.32). DSC Allan reviewed JN’s Facebook page (T49.27), as she had been told that page revealed him as wearing similar clothing to those which the offender was wearing. DSC Allan, however, could not see this clothing on the Facebook page. Whilst the Facebook page did depict an image of white shoes, DSC Allan was unable to tell if they were the same or similar to those worn by the offender on the CCTV (T49.31-35; DX-2, pg 319-320).

16. On 18 May 2019, DSC Allan prepared an intelligence report (DX-2, pg 100-101) concerning JN, in which she recorded the matters which she learnt from the source and her observations of JN’s Facebook page. DSC Allan then made other inquiries concerning JN, including:

17. Reviewing Police records which revealed that JN appeared to be living in Stanmore (T51.8).

18. Obtaining JN’s mobile phone records (T50.44). Those records showed that JN’s phone was in the CBD (T51.19) at the junction of Bathurst and Sussex Street at 4:10pm on the day of the Robbery, then in the Petersham area heading east on Parramatta Road at 5:25pm, and then the Newtown area at 6:02pm (DX-2, pg 64-65, 319-320). These phone records led DSC Allan to conclude that, at the time of the Robbery, JN was near his Stanmore address, and thus was nowhere near the Subway outlet.

19. DSC Allan also obtained JN’s Opal card records, which indicated that he had not used his card between 1 April 2019 and 7 May 2019 (T50.47; DX-2, pg 66, 319-320).

20. Finally, DSC Allan inquired of Service NSW, which inquiries revealed that JN held no driver licence, and did not own a vehicle (DX-2, pg 66).

21. As a consequence of all of these matters, as at September 2019, DSC Allan said that she did not consider JN to be a possible person of interest (T52.16). In so doing, she took into account the fact that there was no evidence linking him to the Robbery, that he had no history of committing similar offences, and that his mobile phone was moving around at the time of the offence near the city, strongly suggesting that he was not the offender (DX-2, pg 63; 319-320).

Further Investigation into the Plaintiff

18. As I have earlier indicated, the plaintiff was identified by SC Williamson following her investigations of the plaintiff for fraud offences and a robbery of a Red Rooster outlet which occurred in July 2018 (the “Red Rooster Robbery”). The Red Rooster Robbery, which was also captured as CCTV footage, showed an offender of solid build, wearing similar clothes to those worn by the Subway offender. The Red Rooster Robbery was also conducted with a similar modus operandi as the Robbery. SC Williamson advised that the plaintiff had been charged with carrying out the Red Rooster Robbery, to which charge he pleaded guilty. Following her inquiry from the matters raised by SC Williamson, DSC Allan conducted the following further inquiries:

19. She obtained the plaintiff’s mobile phone number and undertook checks of it (T38.39). These checks revealed that on the day of the Robbery, the plaintiff’s phone was used in the Parklea/Glenwood area where he lived (T40.2; DX-1), and that about 12 minutes after the Robbery it “bounced” off a mobile phone tower in Eastern Creek (near the intersection of the M7/M4/Great Western Highway area). Later, it was recorded as being around the Liverpool/Green Valley area (T39.44-47).

20. The Eastern Creek tower was an approximately 10-minute drive from the Subway along the M7 motorway, having regard to the 100km/h speed limit of the M7 (T41.32; DX-1). DSC Allan drove that course to establish that the drive took approximately 10 minutes.

21. In June 2019, DSC Allan watched the CCTV footage of the plaintiff robbing the Red Rooster outlet (DX-3). Having watched the vision, she concluded that the plaintiff had similar movements, build, height, face concealment, and clothing as the Subway offender (T43.5-10; 45.10). She also thought the plaintiff’s shove of the victim and saying, “Open the till, I shoot you if you don’t”, was similar to the Subway offender’s behaviour (DX-2, pg 321). She noted this in her Case Report (DX-2, pg 65)

22. DSC Allan also viewed the search warrant footage of the plaintiff’s house and saw there was a white pair of shoes with dark-coloured soles which looked similar to the shoes worn by Subway offender. She also watched footage of the plaintiff interacting with police officers in body worn footage (DX-2, pg 321).

Investigation Suspended and then Reopened

19. In September 2019, DSC Allan suspended the investigation into the Robbery (T52.8; DX-2, pg 64). This decision was made due to there being no suspects who had been positively identified.

20. On 15 October 2019, DSC Allan learnt that the plaintiff had undergone DNA testing while in prison, and that his DNA matched the unknown DNA found on the cable tie dropped by the offender (T52.40; DX-2, pg 108). As noted in her Case Report (DX-2, pg 61), the DNA on the cable tie originated from at least three people, but it was 100 billion times more likely that the major contributor to the DNA was the plaintiff, and not some other person. She also noted that the DNA from the minor contributors was not suitable for comparison due to its low level and complexity. The information that the unknown DNA was the plaintiff’s further confirmed to DSC Allan that ME and JN had no involvement with the Robbery (T53.5).

21. In light of the above, DSC Allan reopened the investigation. DSC Allan then obtained:

22. a statement from SC Williamson signed on 18 October 2019, concerning her interactions with the plaintiff in other matters, her identification of the plaintiff as a suspect, and that the plaintiff had been arrested on 8 May 2019 (see DX-2, pg 103-105); and

23. on 22 November 2019, an evidentiary certificate from Joshi Dhara of Optus (DX-2, pg 109-128) relating to the plaintiff’s mobile phone (in the name of Terry Kapsalakis). This certificate confirmed DSC Allan’s previous investigations, including the fact that at 6:30pm (8:30:40 UTC) the plaintiff’s phone made a telephone call which was picked up by the mobile phone towers at Eastern Creek.

The Plaintiff’s Arrest

22. On 27 November 2019, at about 9:50am, the plaintiff was transferred from Bathurst Gaol to Bathurst Police Station. At the station, DSC Allan went to the cell area, produced her police identification, and arrested the plaintiff, explaining to him the reason for his arrest (T57.23-27). He was also cautioned.

23. At the time at which DSC Allan arrested the plaintiff, she suspected that he was the robber of the Subway outlet (T55.49). This suspicion was based upon the evidence I have discussed above, being the DNA evidence, the mobile phone records, the plaintiff’s physical resemblance to the offender, the closeness of his home to the Subway outlet, and the similarity between the plaintiff’s Red Rooster Robbery and the Robbery (T55.50-T56.45). DSC Allan gave evidence that she considered that it was necessary to arrest the plaintiff given the nature and seriousness of the offence, involving as it did a robbery committed with a firearm (T56.49-T57.8).

24. The plaintiff’s time in police custody was uneventful as disclosed in his custody management records (DX-2, pg 145-150). At about 10:09am, the plaintiff was formally entered into custody, and at approximately 11:05am, the plaintiff took part in an electronically recorded interview with DSC Allan, in which he exercised his right to remain silent (T109.15). While in police custody, the plaintiff gave a buccal swab and was photographed.

25. DSC Allan then created a Court Attendance Notice (“CAN”) and a FACTS Sheet (DX-2, pg 136-139), charging the plaintiff with robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 190**0 (NSW). DSC Allan gave evidence that she:

26. honestly believed that it was a proper case to put before the Court (T58.34) and considered the evidence sufficient in order for the plaintiff to be convicted on a proper basis (T58.38); and

27. considered that, following her investigations into the other potential persons of interest, she was convinced that those other persons were not relevant as, in DSC Allan’s words, they “had been ruled out and at no point had they been involved” (T59.7) (the “Other Persons”).

28. After being charged, the plaintiff was refused bail. His CMR records show that at 12:45pm he was “In transit” to “Department of Corrective Services Section 25 Order”.

29. DSC Allan was not involved in choosing the return date of the plaintiff’s CAN of 13 December 2019. This was nominated as the return date by the custody manager (T60.5-11).

30. On 13 December 2019, the plaintiff appeared at Penrith Local Court in relation to the Robbery, and two other matters which were listed in that Court on that day (T60.15). He made no application for bail, which bail was formally refused in relation to the Robbery.

The DPP’s Prosecution

29. DSC Allan, as the OIC of the Robbery investigation, obtained further statements and prepared the brief of evidence. This brief included her own statement signed 21 January 2020 concerning her investigations relevant to the plaintiff (DX-2, pg 154-158). The brief also included statements from the initial responding police (Constable James (DX-2, pg 151-152) and Constable Alexander (DX-2, pg 159)). She also obtained a further statement of the Subway outlet owner, Macha, about the cable ties (DX-2, pg 153), and a statement of Senior Constable Carter, who took a swab from the plaintiff at Bathurst Police Station (DX-2, pg 160-166).

30. By 29 January 2020, DSC Allan had prepared the “Indictable Brief of Evidence” and signed a “Disclosure Certificate” in which she acknowledged her duty of disclosure to the DPP under s 15A of the Director of Public Prosecutions Act 1986 (NSW) (“DPP Act”) (DX-2, pg 166-179). At that time, she said that:

31. she understood the DPP was going to be the prosecutor, and, as a consequence, she saw her ongoing role as being one of gathering evidence, and providing it to the DPP (T63.29);

32. the brief did not contain expert evidence from Forensic & Analytical Science Services (“FASS”) as, at that point, it had not been received by her (T62.30). That said, she understood the DNA evidence was that it matched the plaintiff, and believed that the DNA evidence constituted very probative evidence linking the plaintiff to the Robbery (T62.41); and

33. she honestly believed that she had complied with her disclosure obligations and that it was not necessary for her to disclose her investigations into the Other Persons as “[t]hey didn’t even reach the bar of persons of interest. They’d been ruled out. They weren’t relevant” (T64.45-47).

34. On 14 April 2020, a solicitor advocate from the DPP signed a charge certificate pursuant to s 66(1) of the Criminal Procedure Act 1986 (NSW) certifying on behalf of the DPP that, “…[t]he evidence available is capable of establishing each element of the offences that are to be subject of the proceedings against the accused person” (DX-2, pg 199).

35. The defendant submitted that, in the institutional prosecution setting in which DSC Allan was operating, the DPP’s certificate provided strong independent corroboration of the fact that her decision to charge the plaintiff was objectively reasonable, or to put the matter another way, it strongly cut across the plaintiff’s contention that objectively she acted without reasonable and proper cause.

36. I agree with that contention.

37. On or about 15 May 2020, a Morag Campbell of FASS signed an expert certificate concerning the DNA obtained at the Subway store, including the DNA obtained from the cable ties (DX-2, pg 201-210). The substance of that certificate was that, other than the victim Chada’s DNA, the plaintiff’s DNA was the only identifiable DNA found at the scene. DSC Allan provided that certificate to the DPP. She gave evidence that there was nothing in the certificate which caused her to have any concerns about the prosecution of the plaintiff, and that she continued to think it appropriate for the prosecution to continue (T66.5-11).

38. On or about 24 June 2020, the defendant served an expert report by Ms Helen Roebuck which was dated 24 June 2020 (DX-2, pg 211-281). In that report, Ms Roebuck expressed opinions about the limitations of “trace DNA” evidence. She opined that trace DNA can be deposited directly, or through secondary or indirect transfer by other persons who had been in contact with the person. She gave examples including through such things as handshakes or other social contact. She further opined that, as a consequence, it was not possible to determine whether the DNA belonging to the plaintiff had been deposited through direct contact or via indirect transfer. She said that it was also not possible to determine when the DNA was deposited.

39. It is well to note that Ms Roebuck’s report was not available at the time the plaintiff was charged; indeed, it was not provided to DSC Allan until a few weeks before the hearing of this matter (T66.17-32). In my view, it is also relevant to note that, upon receipt of Ms Roebuck’s report, the prosecution continued.

40. On 17 July 2020, the plaintiff was committed for trial in this Court at Parramatta.

41. On 29 July 2020, the DPP served a tendency notice pursuant to s 97 of the Evidence Act 1995 (NSW) (DX-2, pg 219-220A). This notice was signed by a DPP solicitor and, in summary, stated that it was intended to lead evidence of the facts disclosed in the FACTS sheet prepared for the Red Rooster Robbery to demonstrate that the plaintiff had a tendency “to attend a fast food restaurant with a face covering on, threaten the employee of the restaurant and demand them to open the till and take cash from that till”.

42. On 14 August 2020, the plaintiff confirmed his plea of not guilty and was arraigned for trial, which was listed on 5 July 2021.

43. On 9 March 2021, the DPP served an updated tendency notice (DX-2, pg 269) and notice of “Coincidence Evidence” (DX-2, pg 271-272) which related to the Red Rooster Robbery.

44. On 20 April 2021, DSC Allan swore an affidavit in which she said that, other than a few specified items, she had served all of the material relating to this matter on the ODPP (DX-2, pg 277). DSC Allan gave evidence that, at the time she swore that affidavit, she did not consider the material concerning her investigations into the Other Persons to be relevant (T69.19). She said that, in her view, those investigations were not material that could have helped the plaintiff in the defence of his case (T69.28).

Subpoena Issue Arises

42. On 11 May 2021, the plaintiff served a subpoena on the Commissioner of Police. The subpoena was drawn in wide terms and arguably covered DSC Allan’s Case Report (DX-2, pg 61-90). On 19 May 2021, DSC Allan prepared an objection to various parts of the subpoena (PX-6). The objection, however, was not a blanket one, stating that a copy of the Case Report could be provided with redactions of personal details and “details of the investigation not relevant to TSAKIRIOS”. The subpoena matter was then allocated to the Commissioner’s solicitor, Makinson d’Apice (T71.11).

43. After doing that, DSC Allan reviewed the material to be produced and, using Adobe Acrobat, redacted material that she considered irrelevant to the prosecution of the plaintiff. DSC Allan’s evidence was that the redacted material “didn’t relate to this matter and was not relevant” (T71.45-46). Further, she stated that she did not intentionally redact any information that she thought might help the plaintiff (T72.3); rather her evidence was that she redacted material not relevant to the plaintiff’s case and “to protect the privacy of persons that weren’t involved” (T73.40-50).

44. DSC Allan also said that she did not deliberately seek to deprive the plaintiff of information which might assist him in defending his case (T74.3). She told the Court that she did not think her redactions were inconsistent with her duty under s 15A of the DPP Act (T74.8). DSC Allan then provided the redacted material to Makinson D’Apice. She said that at no stage did anyone say to her that her redactions were inappropriate (T75.4-11).

45. On 16 June 2021, a further subpoena was issued by the plaintiff in similar terms to the previous subpoena and on 21 June 2021, DSC Allan again objected to aspects of the subpoena (PX-7). In relation to producing the Case Report, DSC Allan stated, similarly to her objection to the previous subpoena, that the Case Report had been provided with “redacted personal details and redacted details of the investigation not relevant to TSAKIRIOS”.

46. On 29 June 2021, the objections to the second subpoena for production were heard by her Honour Judge Norton SC, who ordered production of all redacted material other than that which might identify persons other than the plaintiff.

47. On 29 June 2021, the DPP requested that DSC Allan prepare a further statement setting out her investigations relating to the Other Persons (T76.36; DX-2, pg 318-333).

Submissions to DPP Seeking Termination of Proceedings

48. On 28 June 2021, the plaintiff's solicitors wrote to the DPP making representations in support of their application that there be no further proceedings in the matter. These representations, as one might imagine, set out detailed arguments as to why the Crown case was considered by them to be weak (PX-1, pg 677-682). DSC Allan did not recall seeing this letter (T75.49). Indeed, there is no evidence that she did in fact see it.

Judgment on Second Subpoena

49. On 30 June 2021, this Court ordered the Commissioner to produce unredacted copies of the material and on 1 July 2021, the Commissioner produced the unredacted material.

Ending Prosecution

50. On 2 July 2021, the matter was listed for hearing before her Honour Judge O’Rourke SC. On that occasion, the Crown informed the Court that a direction had been received from the DPP that there be no further proceedings. The plaintiff was then discharged. DSC Allan did not have any involvement in the DPP’s decision not to proceed and was surprised by it, believing the matter should have proceeded (T121.18).

DSC Allan – Credit

51. The plaintiff submits that I should not accept DSC Allan as a witness of truth. Put simply, the plaintiff's case was that DSC Allan was determined to convict the plaintiff at all costs, and that she deliberately withheld from the DPP the fact of there being, at one stage, other persons of interest. The plaintiff argued that DSC Allan did so in the knowledge that disclosure of those Other Persons would assist the plaintiff’s defence.

52. I reject the plaintiff’s attack on DSC Allan’s credit. She presented as a steady and professional detective who had appropriate professional detachment from the prosecution. She was not shaken in cross-examination and made concessions where they were appropriate. She answered questions in a direct and straightforward manner.

53. Her evidence, moreover, is corroborated by the objective evidence, being the documents which she created during the course of her investigation, especially her Case Report.

54. More specifically, in relation to the central issues in the proceedings, DSC Allan was steadfast in her evidence that:

55. following investigations, she had ruled out the Other Persons as persons of interest as there was no evidence they were involved in the Robbery;

56. information concerning the Other Persons was, as a consequence, not relevant to the prosecution (for example, T89.20-35; 92.21; 101.29; 102.27-46; 103.25; 113.13; 120.40; 150.8-9);

57. she did not disclose the fact of the existence of the Other Persons to the DPP because she was of the view that it was not relevant to the prosecution of the plaintiff (T125.41; 126.25);

58. her inquiries concerning the Other Persons were not exculpatory of the plaintiff (T89.21; 109.37); and

59. she redacted information pertaining to the Other Persons because she believed they were not involved, and to protect them from disclosure for reasons of privacy (T100.20; 117.34; 118.29-36; 119.14-16; 119.37).

60. I unhesitatingly find DSC Allan to be a witness truth.

61. I shall turn now to the plaintiff’s causes of action.

The Plaintiff’s False Imprisonment Case

57. The defendant accepted that it must show lawful justification for the plaintiff’s arrest and detention (Ruddock v Taylor (2005) 222 CLR 612 at 617). In that regard, it submitted that there seemed to be no real dispute as to the following matters:

58. that when DSC Allan arrested the plaintiff, she suspected, on reasonable grounds, that the plaintiff had committed the offence of armed robbery of the Subway store such that her power to arrest the plaintiff was enlivened pursuant to the provision of s 99(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), (“LEPRA”);

59. that DSC Allan was satisfied that the arrest was reasonably necessary because of the nature and seriousness of the offence, thereby satisfying s 99(1)(b)(ix) of LEPRA;

60. that DSC Allan complied with her obligations pursuant to s 202 of LEPRA by informing the plaintiff of her name and station and the reasons for his arrest.

61. As to the first of those matters, DSC Allan’s evidence was that she did have such a suspicion. This evidence was consistent with the FACTS sheet which she prepared. Indeed, at no stage during DSC Allan’s cross-examination was it ever suggested to her that she did not genuinely have that suspicion.

62. Secondly, it was never suggested to DSC Allan that her suspicion was not based upon reasonable grounds. This approach was well understandable, given that the evidence relied upon by DSC Allan clearly provided reasonable grounds for her suspicion. In that regard, it should be recalled that, as made clear by authorities such as New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 at [55] and Hyder v Commonwealth of Australia (2012) 217 A Crim R 57; [2012] NSWCA 336 at [14], the requirement of reasonable grounds to suspect is “very limited” and nothing like as much as may be required to establish a prima facie case.

63. Given the low threshold required and the plaintiff’s failure to challenge DSC Allan’s evidence, I comfortably find that she clearly had reasonable grounds for the suspicion which she formed.

64. Further, it is relevant to note that DSC Allan’s unchallenged evidence was that she was satisfied it was reasonably necessary to arrest the plaintiff due to the nature and seriousness of the offence. It can readily be accepted that she had the requisite subjective state of satisfaction required by s 99(1)(b)(ix) of LEPRA (State of New South Wales v Randall [2017] NSWCA 88 at [13] (per Basten JA); Reeves v State of New South Wales [2024] NSWCA 125 at [108]-[122]).

65. Given her evidence as to her belief was consistent with the contemporaneous reasons she identified in the plaintiff’s Custody Management Record (DX-2, pg 149), and given the plaintiff was charged with an objectively serious armed robbery, which carries a maximum sentence of 25 years in prison, it is unsurprising that DSC Allan’s evidence in this regard was not challenged.

66. Finally, I should add for completeness that it is clear that DSC Allan complied with s 202(1) of LEPRA in providing evidence she was a police officer, her name and her place of duty, and the reason for the arrest.

67. The plaintiff’s decision to not challenge DSC Allan’s evidence going to her state of mind when determining whether to arrest the plaintiff was confirmed in the plaintiff’s written submissions in reply, in which the plaintiff indicated that he did not wish to be heard on those matters.

68. The plaintiff’s case on false imprisonment was thus limited to his case in relation to the alleged failure of DSC Allan to comply with s 46(1) of the Bail Act 2013 (NSW).

Failure to comply with s 46(1) of the Bail Act 2013 (NSW)

66. Section 46(1) of the Bail Act 2013 (NSW) is in the following terms:

(1) A police officer must ensure any accused person charged with an offence who is refused bail by a police officer with power to grant bail, or is not released on bail granted by a police officer, is brought before a court or authorised justice as soon as practicable to be dealt with according to law.

(2) A police officer must, if it is reasonably practicable to do so, ensure that the facilities prescribed by the regulations are made available to any accused person in police custody who is to be brought, on a first appearance for an offence, before a court or authorised justice more than 4 hours after the person came into custody.

67. It will be recalled that, following his arrest at Bathurst Police Station, the plaintiff was refused bail and served with a CAN which required his appearance in Penrith Local Court on 13 December 2019. As I have earlier indicated, DSC Allan had no part in determining the return date of the CAN. This was determined by the custody manager.

68. On 13 December 2019, when he appeared before the Penrith Local Court, the plaintiff, who was still in custody in relation to further matters, was refused bail. I should add that the plaintiff did not apply for bail.

69. The plaintiff's case, as I understood it, was that the police, on the first return of the CAN, should have disclosed the fact that during the course of the investigation, the Other Persons had at one time been considered as possible persons of interest. The argument continued that if that had occurred, the plaintiff would have made an application for bail on charges relating to the Robbery, which would have been granted. This hypothetical bail, in a practical sense, would have taken effect on 14 August 2020, when the plaintiff’s non-parole period for the sentence which he was currently serving expired. On this scenario, the plaintiff says that he should have been free from 14 August 2020 and not 20 August 2020, being the date upon which he was granted bail by her Honour Judge Beckett.

70. I do not accept the plaintiff’s submissions. I do so for at least two reasons. First, given that the plaintiff was in Corrective Services custody serving a sentence of full-time imprisonment for other offences, there was no evidence that it would have been practical to get him before the Court before 13 December 2019, which was a date that required him to otherwise appear in Penrith Local Court in relation to other matters.

71. Secondly, and more significantly, the plaintiff was not in custody after 13 December 2019 because of any act or omission of the police, rather he was in custody after 15 December due to the judicial act of the magistrate in refusing him bail. Put another way, the judicial determination by the magistrate not to grant bail broke any causal link between the actions of the police and the plaintiff’s continued custody (Diamond v Minter [1941] KB 656 at 663; State of New South Wales v Cuthbertson [2018] NSWCA 320 at [133]-[134]).

The Malicious Prosecution Case

72. The principles relevant to this cause of action were not in dispute. For the plaintiff to succeed in this claim, he must satisfy the test set out by the High Court in A v State of N**ew S**outh W**ales (2007) 230 CLR 500 at [1], namely:

73. that proceedings of the kind to which the tort applies (generally criminal proceedings) were initiated against the plaintiff;

74. that the proceedings terminated in favour of the plaintiff;

75. that the defendant, in or maintaining the proceedings, acted maliciously; and

76. that the defendant acted without reasonable and probable cause.

77. There was no dispute that the first two elements of this claim were satisfied by the plaintiff. The contest between the parties concerned the third and fourth elements. The defendant correctly submitted that, in addressing these elements, it is important to bear in mind that the standard of proof in a claim for malicious prosecution was an onerous one given the serious allegations of impropriety which the cause of action entails (Landini v State of New South Wales [2008] NSWSC 1280 at [45] per Hall J, referring to the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-3. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449).

78. The standard of evidence required to discharge such a burden has been described as “strict” or “cogent” (see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 450 per Mason CJ).

79. Before commencing to consider the constituent elements of the cause of action, it is necessary to first determine who the prosecutor was at any given time.

Who was the Prosecutor?

76. The plaintiff’s case was that DSC Allan was at all times the prosecutor. It was put that this was so because; first, she initiated the proceedings; and, secondly, as the officer in charge, even after the DPP took over the proceedings, she continued to investigate the matter and obtain witness statements, while failing to disclose the existence of the Other Persons who had been ruled out during the investigation.

77. The defendant quite properly accepted that DSC Allan was the prosecutor for the purpose of initiating the proceedings, but submitted that she did not maintain the proceedings after they were taken over by the DPP.

78. As Gleeson JA explained in State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308 at [103], the acts of DSC Allan in further investigating the matter and obtaining witness statements after the DPP took over the prosecution in early 2020 did not make her a prosecutor after that date.

79. In New South Wales v Landini [2010] NSWCA 157, Macfarlan JA (Tobias JA and Sackville AJA agreeing) held that, in order to incur liability as a prosecutor, the person concerned must play an “active role” (at [59]) and that it was “too broad” (at [76]) to suggest that a “failure to disclose” was a sufficient basis to find that the person making the failure to disclose was maintaining the prosecution. That said, in some circumstances a failure to disclose, coupled with intentional suppression of information, can amount to maintenance of proceedings (see State of New South Wales v Spedding [2023] NSWCA 180 at [29]-[30]).

80. The present case is not such a case. Here, there was no intentional withholding of information from the DPP by DSC Allan. Her evidence, which I accept, was that the reason she failed to disclose the Other Persons was that they had been cleared of involvement in the Robbery and, as such, in her view they were no longer relevant to the prosecution.

81. Accordingly, I find that DSC Allan was a prosecutor for the purpose of the tort when she charged the plaintiff, but that she ceased to be a prosecutor after the DPP took over the matter pursuant to s 9(4)(a) of the DPP Act. This occurred, at the latest, in April 2020.

Absence of Reasonable and Probable Cause for Commencement

82. In order for the plaintiff to establish that DSC Allan acted with an absence of reasonable and probable cause, he must prove either (see A v State of N**ew S**outh W**ales at [80]):

83. that DSC Allan did not believe the material upon which she relied was such as to warrant setting the processes of the criminal law in motion; or

84. that her belief that it was appropriate to set the process of the criminal law in motion was based on insufficient grounds.

85. In my view, DSC Allan clearly subjectively believed the material before her justified setting the processes of the criminal law in motion. Throughout her evidence, DSC Allan consistently maintained that she honestly believed her arrest and charging of the plaintiff were warranted, and also that the proceedings she instituted were proper proceedings to bring before a court (for example, T78.9). I accept that evidence, which, as I have stated earlier, was consistent with her behaviour throughout the prosecution and with the contemporaneous material that she created. Certainly, in my view, the plaintiff, who bears the onus of proof, has failed to prove that DSC Allan did not subjectively consider the evidence was sufficient to warrant setting the process of criminal law in motion by charging the plaintiff.

86. The plaintiff submitted that DSC Allan’s investigations into the Other Persons undermined the objective reasonableness of her decision to charge the plaintiff.

87. I do not accept this contention for the following reasons:

88. DSC Allan had discounted the Other Persons in September 2019, for reasons which she recorded contemporaneously. I have no reason to doubt that those reasons were genuine and, in any event, those reasons were compelling, given that as DSC Allan ultimately concluded that there was no evidence linking anyone other than the plaintiff to the offence. As I have indicated, I accept DSC Allan’s evidence as to her state of mind in that regard.

89. The assertion that TH and AT might have been involved was entirely speculative and they were properly excluded by their DNA not matching the DNA at the Subway outlet, their lack of any other connection, and, in TH’s case, for physical reasons.

90. The plaintiff placed great emphasis in this regard on the fact that certain members of JN’s relation thought they could identify him by still images taken from CCTV footage. In reality, in my view, those relatives were in no better position than DSC Allan to make such an identification, given the facial covering of the offender. While one of JN’s relatives said that they recognised the shoes and Mossimo top worn by the offender in the CCTV footage, those were not unique items, and DSC Allan was not able to find them on JN’s Facebook page. More significantly, in my view, DSC Allan’s further investigations revealed JN lived in Stanmore, being nowhere near the Subway store, he had no means of transport, no history of similar offences, and his phone placed him in the Sydney CBD area at the time of the Robbery. To my mind, this represented powerful evidence exculpating JN. As such, he was understandably discounted by DSC Allan as a suspect in September 2019.

91. In the case of ME, beyond a bare unsubstantiated allegation that he was the offender and that he lived as a homeless person with his dog in a car parked approximately 1km away, there was nothing at all to link him to the Robbery. Nevertheless, DSC Allan investigated ME as a possible person of interest, but understandably discounted him given his clear lack of resemblance to the offender, his rambling incoherent appearance, his movements being different to the offender, and his having been observed in different clothes on the night. The fact that a police dog tracked an unknown and uncertain scent, to my mind, did not undermine the reasonableness of DSC Allan’s decision in that regard.

92. In stark contrast to the situation in respect of the Other Persons was the fact that the material justifying DSC Allan’s suspicion that the plaintiff was the offender consisted of a significant body of evidence in support of the reasonableness of DSC Allan’s decision to charge him. This is so, especially when those facts are considered having regard to the observations of Gyles AJA in Thomas v State of NSW (2008) 74 NSWLR 34 at 59 [105], namely that:

93. The material to be considered cannot be limited to that which is admissible in evidence.

94. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate’s decision as to committal for trial or a trial judge’s ruling on whether there is a case to go to the jury.

95. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law.

96. It is not necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them.

97. Given those matters, at the time DSC Allan charged the plaintiff, in my view, she clearly had reasonable and probable cause for doing so; or, put another way, having regard to the available information, the plaintiff has failed to prove that DSC Allan acted without reasonable and probable cause.

98. I should also mention that the plaintiff’s reliance on the alleged weakness of the DNA evidence is not relevant to DSC Allan’s decision to charge the plaintiff. In my view, this is obvious as DSC Allan did not obtain the FASS expert certificate until May 2020, well after the decision to charge was made, and well after the DPP had taken over the prosecution. I should also mention that DSC Allan was never provided with Ms Roebuck’s expert report.

99. For those reasons, I conclude that the plaintiff has not established the proceedings were commenced with an absence of reasonable and probable cause, having regard to DSC Allan’s subjective reasons and the objective basis for her decision.

100. I should also add that there can be no issue as to an absence of reasonable and probable cause in DSC Allan maintaining the proceedings, as, in my view, she was not a prosecutor after the DPP took over the prosecution.

The Allegation of Malicious Commencement and Maintenance of Proceedings

91. In my view, the plaintiff has also failed to prove that DSC Allan commenced the proceedings with malice.

92. As the defendant correctly submitted, where a prosecution is initiated by a police officer and subsequently taken over by the DPP, it is necessary when assessing whether there was malice to keep in mind the following statement in the joint judgment in A v State of New South Wales:

[41]….where the 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.

[42] 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 the case of a prosecution instituted in a bureaucratic setting where the prosecutor’s decision is subject to layers of scrutiny and to potential review.

93. What the plaintiff must prove in the case of a public prosecution is that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law; that is to say, an illegitimate or oblique motive (A v State of New South Wales at [92]; State of New South Wales v Abed [2014] NSWCA 419).

94. It is also relevant to note that in the proof of malice, which in some cases may be inferred, “it is proof that is required, not conjecture or suspicion” (A v State of New South Wales at [93]; State of New South Wales v Abed at [152]).

95. The plaintiff summarised its case of malice in the following fashion:

… being that DSC Allan was motivated to punish the plaintiff for his suspected involvement in the [R]obbery, and was also motivated to obtain a conviction and thereby justify her decision to charge the plaintiff, despite there being evidence of alterative suspects.

(See Plaintiff’s Written Outline of Submissions at [86]).

96. In my view, the first element of that malice case can be readily rejected. It is hardly an improper purpose for a police officer to charge a person who she suspects has committed an offence, and then to seek to obtain a conviction. After all, that is what police officers do. Further, while it is correct that DSC Allan did not disclose her investigations concerning the Other Persons and she did redact material produced in answer to the subpoenas, the evidence concerning her motivation for doing so is evidence which, as I have indicated, I accept. As she repeatedly made clear in her oral evidence and as clearly demonstrated in the contemporaneous documents:

97. The Other Persons who the plaintiff describes as “alternative suspects” were in fact only ever potential persons of interest at the beginning of the investigation based upon unsubstantiated intelligence. Following her investigations, DSC Allan properly discounted each of them as there was nothing linking any of them to the Robbery.

98. At the time she charged the plaintiff, she did not consider the material as to the Other Persons to be relevant, she did not disclose the material, and at no time did she consciously withhold material that she considered she had a duty to disclose.

99. Further, she later redacted material in response to the subpoenas because of her continuing view that the material was irrelevant and to protect the privacy of persons who had no involvement in the matter.

100. Having regard to that consistent and credible evidence which I accept, there is simply no basis to find that DSC Allan acted for an improper purpose. To the contrary, I find that at no point did she consciously withhold information that she considered relevant to the prosecution of the plaintiff (T78.5), and at all times she genuinely believed the proceedings against the plaintiff were proper proceedings to bring before a court (T78.9).

Misfeasance in Public Office

98. The elements of the tort were not in issue.

99. In Northern Territory v Mengel (1995) 185 CLR 307 at 370 (“Mengel”), Deane J described the cause of action of misfeasance in public office as “well- established”, and identified the following five elements of the tort:

100. an invalid or unauthorised act;

101. done maliciously (or recklessly);

102. by a public officer;

103. in purported discharge of public duties; and

104. causing damage to the plaintiff.

105. There was no issue other than that DSC Allan, in charging the plaintiff, was a public officer and her acts were done in the purported discharge of public duties. The defendant submitted, however, that the duty to disclose under s 15A of the DPP Act was not a public duty, but rather was a duty owed to the DPP.

106. I agree with this submission.

107. In Mengel, in the joint judgment of Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ at [57], the tort was described as being “a deliberate tort in the sense that there is no liability unless there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power”.

108. For reasons which I have earlier set forth, I find that DSC Allan did not have such an intention to cause the plaintiff harm.

109. In Mengel, Deane J said at 370-371 of the malice required:

In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff (see Bourgoin SA v Ministry of Agriculture Fisheries and Food [1986] QB 716 at 776-777). Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness (cf Owen v Homan [1853] EngR 883; (1853) 4 HLC 997 at 1035 [10 ER 752 at 767] per Lord Cranworth LC: “wilful ignorance”) to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.

105. The action aims to prevent public officials from maliciously abusing their power. The essence of the tort lies in “bad faith in the exercise of public powers” (Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 per Lord Steyn at [135]).

106. In Obeid v Lockley [2018] NSWCA 71, Bathurst CJ (with whom Beazley P and Leeming JA agreed) stated that to establish malice, what must be proved is:

107. there was an actual intention to cause injury; or

108. that the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury; or

109. that the act was done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury.

110. The defendant submitted that the plaintiff has failed to establish that DSC Allan acted maliciously for the same reasons as those identified in relation to the evidence of malice in the malicious prosecution case. I accept this submission. Given my finding that DSC Allan genuinely considered the case against the plaintiff to be a proper one, and she genuinely considered the information concerning the Other Persons to be irrelevant, in my view, it is simply unarguable that she intentionally sought to harm the plaintiff, that she acted invalidly, let alone intentionally invalidly, nor that she intended to cause harm to the plaintiff.

111. Similarly, in my view, there is no basis for concluding that she was recklessly indifferent to an invalid act or recklessly indifferent to a lack of power. Putting the plaintiff’s case at its highest, if, contrary to her understanding, the information as to the Other Persons ought to have been disclosed to the DPP pursuant to s 15A of the DPP Act, then in circumstances where she genuinely believed the information to be irrelevant such that she had no obligation to disclose it, the highest the case could rise against her is that her lack of disclosure was wrong, but unintentionally so. This is insufficient to establish the tort of misfeasance in public office (Nyoni v Shire of Kellerberrin [2017] 248 FCR 311; [2017] FCAFC 59 at [97] per North and Rares JJ).

Conclusion

109. For the above reasons, the plaintiff’s claims must fail. Costs should follow the event.

Orders

110. Accordingly, I make the following Orders:

111. Judgment and verdict for the defendant against the plaintiff.

112. The plaintiff pay the defendant’s costs.

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