Supreme Court New South Wales Medium Neutral Citation: Hamilton v State of New South Wales [2020] NSWSC 700 Hearing dates: 15, 18, 19, 22, 23, 25, 29, 30 October 2018; 2 November 2018; 4 December 2018; and 7 March 2019 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following orders: (1) The fourth further amended statement of claim is dismissed. (2) Judgment for the defendant. (3) Costs for the defendant as agreed or, in default of agreement, as assessed. Catchwords: MISFEASANCE IN PUBLIC OFFICE – intentional tort – act or acts of a police officer – investigation of alleged criminal activity – public power – scope of public power – intention to harm – targeted malice – mental element – anterior element of invalidity – first limb of malice – reach of tort to plaintiff – Farah Constructions deference – police power – investigative functions of police – inferences – standard of proof – act of sending a letter – final malicious step – perception of organisation Kenja – cult – claim for damages – psychological injury – other harm – credibility of police witness – trial as to two complainants – further complaints by separate complainant – historical allegations – Bundeena allegation – procure or cause to procure false allegations – knowledge or belief allegations false – indifference to truth – glaring improbability – whether a malicious investigation – disclosure of current investigation material to ODPP – Director of Police Prosecutors Act – whether disclosure obligations met and whether malicious intention – limitation defence – damages – whether harm – causation – general damages – aggravated damages – fourth further amended statement of claim dismissed – costs for the defendant Legislation Cited: Bail Act 1978 (NSW) Bail Act 2013 (NSW) Civil Liability Act 2002 (NSW) Crimes Act 1900 (NSW) Criminal Injuries Compensation Act 1969-1974 (SA) Crown Proceedings Act 1988 (NSW) Director of Public Prosecutions Act 1986 (NSW) Employees Liability Act 1991 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Limitation Act 1969 (NSW) Police Act 1990 (NSW) Cases Cited: Adams v Bracknell Forest Borough Council [2005] 1 AC 76 Akenzua v Secretary of State for the Home Department [2002] EWCA Civ 1470; [2003] 1 WLR 741 Allianz Australia Insurance Ltd v Mercer (2016) ALR 157; [2016] TASFC 2 Amin v Imran Khan & Partners [2011] EWHC 2958 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012 Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Battista v Cooper [1976] 14 SASR 225 Bergman v Haertsch [2000] NSWSC 528 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 All ER 585 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1892) 6 R 67 Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 Carr v Baker [1936] SR (NSW) 301 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Commonwealth of Australia v Dinnison (1995) 56 FCR 389; [1995] FCA 192 Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 Commonwealth v Nelson [2001] NSWCA 443 Commonwealth v Smith [2005] NSWCA 478 Cornwall v Rowan [2004] 90 SASR 269; [2004] SASC 384 CRA Ltd v Martignago; Costain Australia Ltd v Martignago (1996) 39 NSWLR 13 Cran v New South Wales [2004] NSWCA 92 De Reus v Gray (2003) 9 VR 432; [2003] VSCA 84 Desai v Keelty (2009) 180 FCR 559; [2009] FCA 1280 Director of Public Prosecutions (Vic) (On behalf of Neil Joseph Smyth) v Zierk (2008) 184 A Crim R 582; [2008] VSC 184 Donmez v Neissa [2012] VSC 73 Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 Emanuele v Hedley (1998) 179 FCR 290 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Farrington v Thomson and Bridgland [1959] VR 286 Frizelle v Bauer [2009] NSWCA 239 Garrett v Attorney-General [1997] 2 NZLR 332 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Grimwade v Victoria (1997) 90 A Crim R 526 Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268; [2000] NSWCA 294 Hussien v Chong Fook Kam [1970] AC 942 Johnson v The Commonwealth (1927) 27 SR (NSW) 133 Jones v Great Western Railway Co (1930) 144 LT 194 Jones v Swansea City Council [1990] 1 WLR 54 Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 March v Stramare (1991) 171 CLR 506; [1991] HCA 12 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311; [2017] FCAFC 59 O'Malley v Keelty (2005) 148 FCR 170 O'Reilly v Hausler (1987) 6 MVR 344 Obeid v Lockley (2018) 355 ALR; [2018] NSWCA 71 Odhavji Estate v Woodhouse [2003] 3 SCR 263 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458 R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118; [1968] 1 All ER 763 R v Dyers [2000] NSWCCA 335 R v Dytham [1979] QB 722 R v Lipton [2011] NSWCCA 247 R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 Rajski v Bainton [1991] NSWCA 231 Roncarelli v Duplessis (1959) 16 DLR (2nd) 689; [1959] SCR 121 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Seltsam Pty Ltd v McGuiness; James Hardie & Co Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Shoesmith v Cessnock Truck Tyre Centre Pty Ltd [2008] NSWCA 342 State of New South Wales v Corby (2010) 76 NSWLR 439; [2010] NSWCA 27 State of New South Wales v Gillett [2012] NSWCA 83 State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235 State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 State of New South Wales v Williamson [2011] NSWCA 183 State of NSW v Tyszyk [2008] NSWCA 107 State Secretary for the Home Department [2006] 2 AC 395 Stevenson v Basham [1922] NZLR 225 Strinic v Singh (2009) 74 NSWLR 419 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 Wilkinson v Downton [1897] 2 QB 547 X (Minors) v Bedfordshire County Council (1995) 2 AC 633; [1995] UKHL 9 XL Petroleum (NSW) Pty ltd v Caltex Oil Pty Ltd (1985) 155 CLR 448 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed 2017, Lawbook Co) Harvey McGregor QC, McGregor on Damages (19th ed, 2014, Thomas Reuters) Sappideen and Vines, Fleming's The Law of Torts, (10th ed, 2011, Thomas Reuters) Category: Principal judgment Parties: Janice Rita Hamilton (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P J Brereton SC, with A E Maroya and L Fernandez (Plaintiff) P Neil SC with D F Villa SC (Defendant) Solicitors: Hoffmann & Koops Lawyers (Plaintiff) NSW Crown Solicitor's Office (Defendant) File Number(s): 2013/55881 Publication restriction: Suppression and non-publication order made on 25 October 2018 by Walton J. Judgment TABLE OF CONTENTS CHAPTER I: OVERVIEW OF THE RELEVANT FACTS AND CIRCUMSTANCES CHAPTER II: ISSUES OF LAW AND PRINCIPLE CHAPTER III: THE FACTUAL BACKGROUND RELATING TO THE CHARGES AND PROCEEDINGS BROUGHT AGAINST MR DYERS CONCERNING THE HLA/OLR ALLEGATIONS CHAPTER IV: ACTING INSPECTOR SOUTHGATE'S KNOWLEDGE AS TO MR DYERS' HEALTH CHAPTER V: THE STRIKE FORCE CAROOLA INVESTIGATION INTO THE ALLEGATIONS OF PLA IN 2007 CHAPTER VI: THE PROCUREMENT ARGUMENT CHAPTER VII: THE KNOWLEDGE OR BELIEF ARGUMENT CHAPTER VIII: THE DECISION TO SEND THE LETTER CHAPTER IX: THE DECISION TO NOT RELEASE "CURRENT INVESTIGATION MATERIAL" TO THE ODPP CHAPTER X: LIMITATION DEFENCE CHAPTER XI: THE CLAIM FOR DAMAGES CHAPTER XII: CONCLUSION AND ORDERS INTRODUCTION 1. HIS HONOUR: By a fourth further amended statement of claim ("4FASOC") filed 5 November 2018, Janice Rita Hamilton ("the plaintiff") brought proceedings against the State of New South Wales ("the defendant"), pursuant to the Crown Proceedings Act 1988 (NSW), the Law Reform (Vicarious Liability) Act 1983 (NSW), and the Employees Liability Act 1991 (NSW). The plaintiff claimed damages (general, aggravated and exemplary) by reason of various loss and damages pleaded in the 4FASOC, including psychological injury and harm (consisting of post-traumatic stress disorder and major depressive disorder) in association with generalised anxiety. The Alleged Act of Misfeasance 1. The plaintiff's claim was for misfeasance in public office. The alleged act of misfeasance ("the act") that was relied upon by the plaintiff to ground that claim was the positive act of the sending of a letter dated 24 July 2007, signed by Detective Senior Constable John Southgate of the Child Protection and Sex Crimes Squad of the New South Wales Police Force, to Mr Kenneth Emmanuel Dyers' solicitor, Mr Harland Koops of Henry Davis York Lawyers (that letter shall hereinafter be referred to as "the letter"). 2. The letter is extracted, in full, below: Mr KOOPS, 24th July, 2007 As you are aware an investigation into allegations of a serious nature made by PLA against your client Mr Ken DYERS is being undertaken. As part of this investigation investigators wish to offer your client, Mr Ken DYERS the opportunity to be interviewed in relation to these allegations. The allegations relate to numerous Aggravated Sexual Assaults, Sexual Assaults, Aggravated Indecent Assaults, and Indecent Assault offences between 1999 and 2006. It would be appreciated if a written reply to this request could be forwarded to this office. Yours sincerely, John SOUTHGATE Detective Senior Constable Child Protection & Sex Crimes Squad State Crime Command. 1. The contentions of the plaintiff placed particular focus upon an allegation by PLA, namely, that in June 2006, Mr Dyers had sexually assaulted her at his home in Bundeena. That allegation came to be known in the proceedings as "the Bundeena allegation". I will adopt that nomenclature for the remainder of this judgment. The Bundeena allegation, as such, was made during the taking of a statement of evidence by police from PLA in April 2007 ("PLA's First Statement") and, thereby, involved an allegation of a relatively recent assault. By that statement, PLA also made allegations relating to historical sexual abuse by Mr Dyers that occurred between 1999 and 2004 ("the historical allegations"). 2. Many of the submissions, and parts of the evidence, use various expressions to describe those criminal allegations against Mr Dyers. The letter, extracted above, makes reference to some particular offences which are found in Pt 3 Div 10 of the Crimes Act 1900 (NSW). For convenience, the various allegations or complaints, and references to the same, shall be described generally as "sexual offences", as this will more closely align to the contentions of the parties. The remainder of this judgment will only deviate that generalised approach where there is a need to refer to a particular offence under the Crimes Act or form of offending. 3. On 25 July 2007, after being told of the contents of the letter by the plaintiff, Mr Dyers shot himself and died. He was 85 years old. The plaintiff was the de facto spouse of Mr Dyers. The plaintiff witnessed Mr Dyers' suicide. 4. The plaintiff's case was of targeted malice. The plaintiff sought to prove that Detective Senior Constable Southgate (who by the time of the hearing held the rank of Acting Inspector Southgate: hereinafter, "Acting Inspector Southgate"), a public official acted in the performance or purported performance of his functions as a police officer of the NSW Police Force (see ss 4 and 5 of the Police Act 1990 (NSW)) in sending the letter with an actual intention of causing harm to Mr Dyers and the plaintiff. 5. As to all earlier events, prior to the act, the plaintiff submitted that they are "evidentiary matters that support the submission that at the time that letter was sent the requisite mental element of malice was present". Further, it was contended, that what the police were seeking to do was to have Mr Dyers incarcerated "because they wanted him to be in gaol and they were prepared to take steps along the way that were otherwise than taken in a bona fide investigation ultimately supporting the submission that the letter was sent with the requisite degree of malice". 6. The plaintiff's case was that the sending of the letter was the "final, malicious step" taken in an investigation that was carried out in "a highly improper manner"; although, the plaintiff contended the tort may be sustained by reference to the act alone. 7. The plaintiff contended that investigating officers, most significantly, Acting Inspector Southgate, had determined for themselves that Mr Dyers was the "paedophile leader of a cult" who had to be punished, and that the officers were determined to see that he was punished. However, as will be described below, and as correctly identified by the defendant, no conspiracy by police officers was pleaded or particularised in the 4FASOC. Further, the defendant correctly identified that as pleaded (and advanced in oral submissions) the misfeasance tort is directed only against Acting Inspector Southgate. 8. Nonetheless, proceedings were maintained against Detective Sergeant Fiona Frame until the filing of closing submissions by the plaintiff dated 1 November 2018 ("Plaintiff's Closing Submissions"). Contentions of fact were pleaded against her, the proof of which had a bearing upon the case brought against Acting Inspector Southgate. Ultimately, some arguments of the plaintiff's case against Acting Inspector Southgate, insofar as reliance is placed upon the Bundeena allegation, in particular, will depend on the plaintiff proving the substantive facts pleaded and submitted against Detective Sergeant Frame. Course of the Proceedings 1. In the Statement of Claim filed 22 February 2013, which marked the commencement of these proceedings, the plaintiff's case, then as now, was founded upon the tort of misfeasance in public office, was pleaded against Acting Inspector Southgate as well as the following police officers: 1. Detective Chief Inspector Paul Jacob; 2. Detective Sergeant Stuart Owen; 3. Detective Senior Sergeant Graham Norris; and 4. Detective Senior Constable Leanne O'Meara. 1. Four and a half years after the commencement of the proceedings, in the Further Amended Statement of Claim filed 7 August 2017, allegations were also pleaded against Detective Sergeant Frame. 2. Notice that the claims against Detective Chief Inspector Jacob, Detective Sergeant Owen, Detective Senior Sergeant Norris had been abandoned was provided by the plaintiff's opening submissions filed 12 October 2018. By the Plaintiff's Closing Submissions, no claim was being pursued against Detective Senior Constable O'Meara. 3. As mentioned above, notice that the claim against Detective Sergeant Frame was abandoned was provided by the Plaintiff's Closing Submissions. That position arose after the cross-examination of Detective Sergeant Frame and, in particular, her (lack of) knowledge of the letter. Relevant Parties 1. Prior to setting out the plaintiff's claim as pleaded in the 4FASOC and the factual background, for ease of reference (and with slight repetition), the following section sets out the relevant parties. The Plaintiff and Mr Dyers 1. The plaintiff was the de facto spouse of Mr Dyers and one of the principals, together with Mr Dyers, of an organisation called "Kenja". 2. In 1978, the plaintiff commenced a personal relationship with Mr Dyers. From about that time, they began to offer workshops, classes and sessions in activities described as "Energy Conversion" and "Clowning". 3. "Energy Conversion" was a meditative technique devised by Mr Dyers, designed to enable an individual to locate within their unconscious mind the thoughts and emotions that proved an obstacle to the realisation of their personal goals, happiness and success. It involved the interaction between two persons; one, called the "professional", who leads the session, and another, called a "client". They are also referred to as the "processor" and the "processee", respectively. The aim of the technique is to enable the "client" to become aware of unwanted thoughts and emotions that surface during the exercise, and to allow them to dissipate. 4. "Clowning" is a workshop technique practised by the plaintiff, which was designed to enable actors in the United Kingdom (but later, wider cross-sections of society globally) to get in touch with their "inner child", with the aim of achieving more effective and genuine communication. 5. By about 1982, the plaintiff and Mr Dyers believed that the "Energy Conversion" and "Clowning" workshops had grown in popularity, and so they formed an organisation named "Kenja" (from an amalgamation of their names, "Ken" and "Jan") to promote those activities. Kenja 1. Kenja was concerned with personal development and was open to any member of the public who wished to participate in its activities, whose stated objects were the individual's personal growth to achieve a successful and fulfilling life. 2. The purpose of Kenja was to offer "Energy Conversion" and "Klowning" (as it was termed after Kenja's formation) workshops, classes and sessions to a wide cross-section of society. Later, a broader range of social and cultural activities were offered, with an emphasis on leadership training and a creative, alcohol and drug-free environment. 3. Initially, Kenja's activities did not involve children or minors. With time, the adults involved in Kenja began to introduce their children to the activities, with the result that many families (including their children) began to participate in Kenja's activities. Kenja employees 1. The following former employees of Kenja are mentioned in this judgment: 1. Linda Paisley, former personal assistant to Mr Dyers; 2. Karli Stevenson, former processor at Kenja; and 3. Timothy Walker, former personal assistant to Mr Dyers. Kenja members 1. The factual background to these proceedings includes reference to three families that were at one stage members of Kenja: 1. PLA's family; 2. OLR's family; and 3. HLA's family. 1. One member of each family made an allegation(s) against Mr Dyers, at one stage or another, with respect to sexual offences during their time at Kenja. The relevant subject of each of those allegations were as follows: 1. PLA, born in 1987; 2. OLR, born in 1989; and 3. HLA, born in 1989. 1. At this juncture, it is important to note that this judgment does not concern the truth of those allegations as such. 2. Other family members responded to those allegation(s) against Mr Dyers during the course of a police investigation. A list of the relevant family members follows: 1. PLA's family: 1. PLA's father ("PLF"); 2. PLA's mother ("PLM"); 3. PLA's younger brother; and 4. PLA's older brother. 1. HLA's family: 1. HLA's father ("Mr H"); and 2. Ms Patrique, mother of HLA. Police Officers 1. The following police officers are relevant to the factual background to these proceedings: 1. Detective Superintendent Helen Begg; 2. Detective Superintendent Kim McKay; 3. Detective Chief Inspector Paul Jacob; 4. Acting Inspector John Southgate; 5. Detective Sergeant Stuart Owen; 6. Detective Sergeant Fiona Frame; 7. Detective Senior Sergeant Graham Norris; 8. Detective Senior Constable Leanne O'Meara; 9. Sergeant Scott Willis; 10. Senior Constable Steven Pfundstein; and 11. Constable Angela Cranny. 1. The plaintiff pleaded that the officers identified in the 4FASOC were "employed" by the defendant. The nature of the employment of such officers has been the subject of some controversy but no such issue was raised in these proceedings and there are alternative pleadings as to the legal relationship between Acting Inspector Southgate and the defendant. 2. It should also be noted, with respect to the rank of each officer, throughout the course of proceedings the above officers were at times referred to by different titles and/or ranks, in particular, Acting Inspector Southgate (who, as mentioned earlier, held the rank of Detective Senior Contactable at the time of the letter) and Detective Sergeant Frame. However, for ease of reference, each officer will be referred to with respect to their relevant rank at the time of the hearing. Kogarah Joint Investigation Response Team 1. By way of background, a Joint Investigation Response Team ("JIRT") consists of staff from the Department of Community Services ("DOCS"), NSW Police Child Abuse Squad and from NSW Ministry of Health. 2. JIRT was a victim support service, which aimed to provide a seamless service response to children and young people at risk of significant harm, as a result of sexual assault, serious physical abuse and extreme neglect: see: https://www.health.nsw.gov.au/parvan/jirt/Pages/default.aspx. 3. Kogarah JIRT was involved in the investigation into allegations against Mr Dyers between 2002 and 2005. This investigation commenced prior to the establishment of a police strike force with respect to the same allegations. Strike Force Caroola 1. Strike Force "Caroola" was a police taskforce created for the purposes of conducting investigations into Mr Dyers in accordance with "Terms of Reference". The Terms of Reference would also identify the Investigation Coordinator, the Officer in Charge and the Investigator(s). 2. The police officers that formed that police taskforce included some of the officers listed above. However, the officers involved changed over time. Lawyers 1. The following legal representatives will also be mentioned: 1. Mr Koops – the solicitor for Mr Dyers and the plaintiff. As earlier mentioned, at the relevant times, Mr Koops worked for Henry Davis York. He was also identified as solicitor for various employees and/or members of Kenja. 2. Mr Michael Walton – the solicitor for the Office of the Director of Public Prosecutions for NSW ("ODPP"). In addition to instructing counsel, with respect to the criminal trial of Mr Dyers, Mr Walton responded to communications from Henry Davis York to the NSW Police, with respect to the same matter. 3. Mr Lionel Rattenbury – the solicitor for PLF and PLA. Pleadings 1. The pleadings in the 4FASOC are lengthy. It will suffice for present purposes to extract the specific pleadings of the tort of misfeasance in public office; some particular pleadings as to the basis upon which the action is brought against the defndant; and damages. Misfeasance in Public Office 1. The plaintiff's pleadings (as amended), in this respect, are extracted below: Misfeasance in Public Office Southgate 97. Southgate, from about the time he was assigned to Strike Force Caroola to the time of Dyers' death in July 2007. viii. procured, or caused to be procured, allegations from PLA that she had been assaulted by Dyers; xii. deliberately ignored documents that PLA provided to Frame (including PLA's Handwritten Statement) that were inconsistent with, or failed to corroborate PLA's Police Statements; xiv. procured, or caused to be procured, PLA's June 2006 alleged Bundeena assault allegation, which he knew; alternatively, believed, to be false; xv. failed to consider impartially the material given to the Police by Dyers' lawyers on 26, 27 and 30 April 2007, in respect of the allegations made by PLA; xvi. withheld from the NSW Director of Public Prosecutions (and thereby Dyers and the Court): PLA's First Statement; the 2006 RMIT Diary; the Pink Notebook; the Blue 2007 Diary (including PLA's Handwritten Statement); and the statements of PLF, PLA's younger brother, Slater, Conway, Stone and Heslop; xvii. did not interview PLM, or Hamilton, and did not properly conduct and [sic] investigation into the alleged Bundeena assault; xvii. withheld from Dyers PLA's Second Statement; xix. acted upon PLA's allegations that Dyers had assaulted her between 1999 and 2006: a. knowing; alternatively, believing, that PLA was an unreliable witness and in the belief that she was most likely lying; and b. knowing; alternatively, believing, that the alleged Bundeena assault of June 2006 was a false allegation; i. in order to be in a position to continue his malicious investigation of the Caroola police against Dyers and Kenja, to arrest and charge Dyers, and to refuse him bail; ii. to prepare and send the 24 July 2007 Letter; and iii. thereby inflict harm upon Dyers and Hamilton; and, xx. made the decision to send the 24 July 2007 Letter to Dyers' lawyers, requesting that Dyers be interviewed by Police in relation to PLA's allegations, with the intention of harming Dyers and Hamilton. 98. By reasons of the matters pleaded above, and in addition to the matters pleaded in paragraphs 23; 39; 48; 76-79; 81; 83; 84-85 and 97, above, Southgate: i. acted maliciously; ii. acted in bad faith in the exercise of the functions of his office as a police officer; and/or iii. did not carry out his investigation impartially; iv. acted unlawfully; v. acted with wilful misuse of State power; vi. acted with malice towards Dyers and Hamilton. 99. The sending by Southgate of the 24 July 2007 letter, for which the State is vicariously liable, constituted a misfeasance by Southgate in his public office. … 106. Southgate was a person in the service of the Crown. Particulars Law Reform (Vicarious Liability) Act 1983 (NSW), section 6. 107. Further or alternatively, the State is vicariously liable for the commission, by its employee Southgate of the torts alleged above. Particulars i. Crown Proceedings Act 1988 (NSW), s 5; ii. Employees Liability Act 1991 (NSW), s 2A. iii. Law Reform (Vicarious Liability) Act 1988 (NSW), Part 4. 108. Southgate was a police officer at the time of the commission of torts alleged. 109. In the circumstances, these proceedings constitute a "police tort claim" for the purposes of section 9B(1) of the Law Reform (Vicarious Liability) Act 1983. Dyers' Suicide 110. Dyers' suicide was caused or actuated by the malicious and unlawful actions of Southgate as pleaded in paragraphs 97-109 above. Particulars i. The temporal connection between Dyers' suicide and the matters pleaded above including the matters in paragraphs, 37, 39 and 70-73, above, and the notification of the allegation by PLA that he had assaulted her in 2006, following the determination of the Mental Health Review Tribunal referred to in paragraph 80, above. ii. Dyers committed suicide because he felt that he was being maliciously pursued by Southgate and Frame and was anxious at the serious prospect of having his bail revoked, being incarcerate, and dying due to ill-health, or being harmed, or killed while in detention. 111. Hamilton witnessed Dyers' suicide. Particulars Police Report by Senior Constable Sara Burgess, dated 25 July 2007. 112. By reasons of the misfeasance of Southgate, as pleaded above, and for which the Defendant is vicariously liable, Hamilton has suffered loss and damaged, including psychological injury and harm by reason of: i. her necessary proximity to Dyers, including during the period from about 2005 to 25 July 2007; ii. by her witnessing of and necessary exposure to (as the case may be), as Dyers' de factor spouse, and as one of the two principals of Kenja, the matters pleaded in paragraphs 11-111, above. iii. witnessing Dyers' suicide; and iv. the fact of Dyers' suicide and its circumstances, including its antecedent circumstances. Particulars a. Psychological injury and harm; b. Chronic Post-traumatic Stress disorder; c. Chronic Major Depressive Disorder, in association with generalised anxiety. Damages 1. As earlier mentioned, the plaintiff claimed damages and costs. The particulars of that relief sought, with respect to aggravated and exemplary damages, are extracted below: Particulars of Aggravated and Exemplary Damages Hamilton claims that: a. her damages are aggravated by the wrongful conduct of the Defendant, as pleaded in paragraphs 97-110 above; b. that the totality of such conduct, together with the facts and matters pleaded in paragraphs 11-112, above, shows a contumelious disregard for Hamilton and her rights; c. exemplary damages are sought to reflect the disapprobation of such contumacy by Southgate and as a deterrent to like-minded persons. Material Before the Court Submissions 1. The following is a summary of the written submissions filed by the plaintiff in these proceedings: 1. Plaintiff's Opening Submissions (36 pages); 2. Plaintiff's Closing Submissions (91 pages), together with annexure, entitled: "Steps taken by Caroola Police leading up to 23 July 2007" (4 pages); and 3. Plaintiff's Reply Submissions filed 30 November 2018, which included an annexure, entitled: "Plaintiff's Reply to Defendant's Response to Fact Finding" (33 pages) ("Plaintiff's Reply Submission"). 1. The Plaintiff's Closing Submissions, together with the Plaintiff's Reply Submission, superseded the Plaintiff's Opening Submissions. 2. The following is a summary of the written submissions filed by the defendant in these proceedings: 1. Defendant's Outline of Opening Submissions filed 17 October 2018 (11 pages); 2. Defendant's Closing Submissions filed 1 November 2018 (48 pages); and 3. Defendant's Closing Submissions filed 23 November 2018, which included an annexure, entitled: "Defendant's Response to Fact Finding by Plaintiff" (50 pages) (which shall hereinafter be referred to as "the Defendant's Closing Submissions"). 1. The Defendant's Closing Submissions superseded the submissions earlier filed on 17 October and 1 November 2018, respectively. 2. In addition to the written submissions before the Court, the following material was also produced by the parties, either with leave or at the direction of the Court, at various stages throughout the proceedings: 1. The Plaintiff's "Bundeena Case" (a note produced by the plaintiff on 21 October 2018) (2 pages) ("Plaintiff's Bundeena Submission") (It may be noted, this submission was provided prior to the plaintiff's filing of the 4FASOC and the abandonment of the claim against Detective Sergeant Frame); 2. Defendant's Note (dated 14 February 2019) (4 pages) ("Defendant's 14 February Note"); and 3. Plaintiff's Note in reply to the Defendant's Note Dated 14 February 2019 (dated 4 March 2019) (4 pages) ("Plaintiff's Note in reply"). Plaintiff's Evidence 1. The plaintiff relied upon the following affidavits: 1. The plaintiff, affirmed 17 September 2014 and 12 October 2018; 2. PLM, affirmed 17 September 2014 and 12 October 2018; and 3. Mr Koops, affirmed 12 December 2014. 1. The plaintiff, PLM and Mr Koops were required for cross-examination. 2. In addition to that evidence, the plaintiff also tendered a three volume tender bundle (marked Ex 2 in the proceedings) that included, inter alia, the following categories of documents: 1. Police records, which included: 1. Police Statements; 2. Duty Book entries; 3. e@gle.i entries; 4. Computerised Operational Policing System ("COPS") Case Report notes; 5. Strike Force Caroola Investigation Progress reports; 6. ERISP transcripts; and 7. correspondence. 1. Assessment records and reports. 2. Medical records and reports. 1. The plaintiff produced a document referred to as "the consolidated index" which listed the documentary evidence and basis upon which the evidence was tendered; generally as to the truth or not as to the truth of the document, including statements or evidence. Defendant's Evidence 1. The defendant relied upon the following evidence: 1. Statement of Acting Inspector Southgate dated 17 October 2018. The following material was annexed to that statement: 1. Facts Sheet (concerning Mr Dyers' charges and arrest on 27 October 2005); 2. Police Statement of Acting Inspector Southgate dated 23 November 2005; 3. Duty Book entries dated between 2005 and 2007; 4. e@gle.i entries dated between 2005 and 2007; and 5. Strike Force Caroola Investigation Progress Report Number 4. 1. Statement of Detective Sergeant Frame dated 18 October 2018. The following material was annexed to that statement: 1. Duty Book entries dated between 2005 and 2007; and 2. e@gle.i entries dated between 2005 and 2007. 1. Supplementary Statement of Acting Inspector Southgate dated 23 October 2018, which statement was directed at the Plaintiff's Bundeena Submission and the affidavit of Mr Koops. 2. Supplementary Statement of Detective Sergeant Frame dated 23 October 2018, which statement was directed at the Plaintiff's Bundeena Submission. 1. Acting Inspector Southgate and Detective Sergeant Frame were both required for cross-examination. 2. In addition to the above evidence, the defendant also tendered: 1. ERISP of Mr Dyers, recorded on 27 October 2005 (consisting of three discs) (marked Ex 3); 2. DVD of the interview between the plaintiff and Mr Dyers, recorded on 28 October 2005 (consisting of one disc) (marked Ex 4); 3. a single volume tender bundle (marked Ex 9), which included material removed from the plaintiff's tender bundle (in order to be properly tendered by the defendant), namely, various e@gle.i entries and correspondence concerning the mental health of the plaintiff. The defendant's tender bundle also included the following documents: 1. statement of Suzanne Germain, dated 27 February 2006; 2. indictment of Mr Dyers, dated 8 June 2006; 3. orders entered by Phegan DCJ on 3 May 2007; and 4. correspondence concerning the mental health of Mr Dyers. Expert Evidence 1. The plaintiff relied upon three expert reports: 1. Report of Dr Glenys Dore, Consultant Psychiatrist, dated 14 January 2012; and 2. Reports of Dr Selwyn Smith, Consultant Psychiatrist, dated 6 November 2012 and 6 June 2013, respectively. 1. The defendant relied upon the report of Dr Anthony Samuels, Consultant Psychiatrist, dated 30 April 2015. 2. A joint expert conference was conducted between Drs Samuels and Smith. A joint expert report dated 20 April 2018 was produced and before the Court. 3. The experts were not required for cross-examination. CHAPTER I: OVERVIEW OF THE RELEVANT FACTS AND CIRCUMSTANCES 1. It is convenient to provide a brief and broad chronological overview of the facts and circumstances of the claim at the outset. However, in order to ultimately dispose the issues raised in the pleadings it will be necessary to delve into the history in considerable greater depth. 2. For the purposes of this overview it should be mentioned that there are three broad chronological categories of particular note: 1. The first category concerns charges laid against Mr Dyers in 1993 in relation to alleged sexual offending against four children of ex-Kenja members, not being the complainants referred to in the second or third periods. 2. The second category concerns allegations of sexual offending by Mr Dyers made by HLA and OLR (collectively, "the HLA/OLR allegations"). This resulted in 22 charges being laid against Mr Dyers, which ultimately, due to his death, did not go to trial. 3. The third category concerns allegations of sexual offending by Mr Dyers made by PLA. Those allegations involved historical allegations that overlapped with the HLA/OLR allegations but also involved later offending. PLA had earlier denied sexual offending against her and challenged the veracity of HLA's complaint. 1. It is important to note that some of the events in respective categories overlapped in time with each other. The First Category 1. In September 1993, Mr Dyers (then aged 71 years) was arrested and charged with 18 counts involving sexual offences against four children of ex-Kenja members. 2. Mr Dyers defended the charges. His trials were conducted in February 1996, April 1996, July 1999, August 1999 and October 1999. He was acquitted by a District Court jury on 3 counts, and by another District Court jury on 6 counts. The ODPP dropped 8 counts. In July 2000, Mr Dyers was convicted on the sole remaining count and sentenced to 12 months' imprisonment. 3. The New South Wales Court of Criminal Appeal reduced Mr Dyers' sentence to a suspended sentence of 12 months' duration: R v Dyers [2000] NSWCCA 335. 4. In October 2002, the High Court quashed the decisions below, with the result that Mr Dyers' sole conviction was set aside and a new trial ordered: Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45. The Second Category 1. In September 2002 (which was about one month before the High Court delivered its judgment), HLA complained to NSW police that she had been sexually abused by Mr Dyers. As earlier mentioned, HLA was the daughter of two ex-members of Kenja. She was herself an ex-member of Kenja. 2. Between September and November 2002, HLA gave four police interviews. She alleged that Mr Dyers sexually abused her between December 2001 and July 2002, during her participation in Kenja, and on Kenja premises. During that time, she was aged between 12 and 13 years. HLA identified other children as potential victims of Mr Dyers, which included PLA and OLR. 3. The Kogarah JIRT investigated HLA's complaints. That investigation included interviewing PLA and OLR. 4. PLA was interviewed on 27 August 2003. She was 16 years old at the time. During that interview, PLA denied that she had ever been abused by Mr Dyers, refuted the allegations made against Mr Dyers by HLA, and labelled HLA a "liar". 5. OLR was interviewed on 3 September 2003. She was 14 years old at the time. The interview was conducted by Ms Wendy Daniel, Senior Child Protection Caseworker for DOCS. 6. The NSW Police reviewed the case against Mr Dyers and, in around late January/early February 2005, suspended the investigation. No charges were laid against Mr Dyers. 7. In about early March 2005, Detective Superintendent Kim McKay, Commander of the Child Protection and Sex Crimes Squad, requested a review of the investigation conducted by Kogarah JIRT into "allegations made against KENJA religious organisation". 8. The task of carrying-out the review was initially assigned to Detective Senior Sergeant Holton and later assigned to Detective Senior Sergeant Norris to complete. 9. Detective Senior Sergeant Norris produced a report dated 8 April 2005 ("the Norris Report"). 10. The recommendation of the Norris Report was that "this matter is forwarded to the Commander of the Child Protection and Sex Crimes Squad for review and that consideration be given to activating an appropriately resourced strike force to reinvestigate this matter". 11. On 13 May 2005, following the recommendation of the Norris Report, a NSW Police strike force called "Strike Force Caroola" was established. 12. The case title for Strike Force Caroola was: "Sex Assaults – Ken Dyers, Spiritual Leader". The "Terms of Reference" for that strike force were as follows: To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation "Kenja" regarding these offences. 1. As at 6 October 2005, the Terms of Reference document (originally issued on 13 May 2005 and amended on 1 August 2005), was re-issued to reflect, inter alia, personnel changes within the investigation and the above recommendation of Detective Senior Sergeant Norris. The final form of the Terms of Reference document was signed by Detective Chief Superintendent R D Del Monte on 6 October 2005 and Detective Senior Sergeant Norris and Detective Sergeant Owen, respectively, on 10 October 2005. 2. At 9.40am on 27 October 2005, Acting Inspector Southgate arrested Mr Dyers at his home address in Bundeena (which residence he shared with the plaintiff). The plaintiff was present during the arrest. 3. After being formally charged, Mr Dyers made an application for bail. The circumstances surrounding the decisions made at Sutherland Police Station, with respect to Mr Dyers' bail, attracted controversy. 4. Magistrate John Bailey granted bail to Mr Dyers, with conditions. Following that decision, Magistrate Bailey directed that the police brief was to be served on or before 9 December 2005. Mr Dyers remained on bail until his death in July 2007. 5. On 24-25 May 2006, Mr Dyers' committal hearing took place at the Downing Centre Local Court before Magistrate Trad. A transcript of those proceedings was before the Court. At the committal hearing, the following prosecution witnesses were cross-examined: 1. Ms Patrique; 2. HLA's father; 3. OLR; 4. Acting Inspector Southgate; and 5. Detective Senior Constable Norris. 1. At the conclusion of the committal hearing, Mr Dyers was committed for trial in the District Court of New South Wales. Magistrate Trad ordered that bail was to continue. 2. On 9 June 2006, Mr Dyers' matter was listed for arraignment in the District Court on 21 counts of aggravated indecent assault and 1 count of aggravated sexual intercourse without consent relating to HLA and OLR. The trial was scheduled to commence on 21 May 2007 ("the HLA/OLR trial"). 3. Between 11 and 18 June 2006, the alleged sexual offending by Mr Dyers against PLA, namely, the offending which was the subject of the Bundeena allegation, was said to have occurred by PLA. PLA did not make a formal complaint against Mr Dyers to the NSW Police until 10 April 2007 (although contact was made with the police on 4 April 2007). 4. In early September 2006, Mr Dyers applied for a permanent stay of the criminal proceedings, on medical grounds, with respect to the HLA/OLR trial. 5. On 30 April 2007, that application was heard before Phegan DCJ. On 3 May 2007, Phegan DCJ dismissed the application but, in light of the medical material before the Court, referred Mr Dyers to the Mental Health Review Tribunal ("the Tribunal") so that a determination as to his fitness to be tried may be made. The HLA/OLR trial date was vacated. 6. On 27 June 2007, the Tribunal determined that Mr Dyers was not fit to be tried within the next 12 months. Following that decision, the ODPP were considering whether to proceed to special hearing. In light of Mr Dyers' death on 25 July 2007, no decision was made. 7. Before turning to the third category, it is appropriate to mention the overlap between this second category and the following category. Between the date of Mr Dyers' arraignment on 9 June 2006 and the date fixed for trial, namely, 21 May 2007, a solicitor acting for PLF and PLA advised Detective Sergeant Frame that PLA intended to lodge complaints of sexual offending against Mr Dyers. I will ultimately find that the Detective Sergeant was advised that allegations would be made of historical sexual offending as well as recent sexual offending. 8. Statements were taken from PLA and PLF, again, prior to the date listed for HLA/OLR trial. The Third Category 1. In or around 2005, whilst studying in Melbourne, PLA commenced a relationship with Mr Slater. She also attended Kenja in Melbourne. Ms Stevenson was the director of the Melbourne Kenja Centre. 2. In early February 2007, Mr Slater had ended the relationship with PLA. During 2006 and 2007, Ms Stevenson had numerous conversations with PLA. Ms Stevenson observed PLA to be "distraught and upset" because of issues in her relationship with Mr Slater in 2006 and "emotionally distressed" following her abortion in 2007. 3. On 8 March 2007, Ms Campbell told Ms Stevenson about conversations she had with Mr Slater about PLA. It was said that PLA would "cry and scream to get Huw to stay with her and also that Ken Dyers had raped her when she was younger". Ms Stevenson told PLA about those conversations and deposed that PLA said "no, that didn't happen. Ken did not rape me…". (In her statement of evidence, not admitted as to its truth, PLA stated she had told Mr Slater that Mr Dyers had raped her, and that she had been pressured to change her account). 4. On 8 and 13 March 2007, following conversations with Ms Stevenson, PLA wrote and signed two statutory declarations, denying that she had been raped or molested by Mr Dyers. In PLA's first statement to the police she stated: "I signed the statutory declaration because I felt intimidated and I also just wanted to get out of Kenja and I would have done anything to be allowed to be let out of Kenja". On 26 April 2007, Ms Stevenson signed a statutory declaration that stated: "I did not suggest or invited PLA [sic] to make those statements. PLA raised the request indicating she wished to record her thoughts in writing of her own accord". 5. On or around 27 March 2007, PLA told her father of the sexual offending of Mr Dyers "from the beginning". 6. On 30 March 2007, Mr H contacted Detective Senior Sergeant Norris and advised that PLA had told him that Mr Dyers has sexually molested her "during her time [at Kenja]". At or about the same time, various serious events, relating to the breakdown of the marriage of PLF and PLM were occurring. A charge of common assault, as well as three apprehended violence orders ("AVO"), was laid against PLF, who engaged a solicitor, Mr Lionel Rattenbury, to represent him. 7. Mr Rattenbury's instructions included, inter alia, that the complaint in the common assault charge was fabricated in order to prevent his daughter, PLA, from making an allegation that she had been "sexually abused" by Mr Dyers from 1999 to 2002, namely, from the age of 12-15. He was also instructed that PLA and PLF sought advice as to PLA making a complaint to the police in relation to "sexual molestation" by Mr Dyers. 8. On 4 April 2007, Mr Rattenbury spoke with Detective Sergeant Frame. He advised that PLA wished to make a complaint of "sexual offences" against Mr Dyers. There was no dispute those complaints involved historical allegations. There was a dispute as to whether the record reliably represented reference to then more recent offending and, in that respect by reference to the time period in question, the Bundeena allegation. An appointment was confirmed for Mr Rattenbury to meet with Detective Sergeant Frame and Detective Sergeant Owen on 10 April 2007. There are two records of that phone call, both produced by Detective Sergeant Frame, one in a duty book and the other in an e@gle.i record (although the latter was recorded on 10 April 2007). An appointment was also made to meet with PLA in-person, following the meeting with Mr Rattenbury, on 10 April 2007. 9. On 10 April 2007, following a short meeting with Mr Rattenbury, Detective Sergeant Frame and Detective Sergeant Owen, the investigators conducted a meeting with PLA and PLF. It was not in dispute that PLA met with the investigators to make formal complaint of sexual offences against Mr Dyers. During that meeting, the issue of particularising offences was raised and PLA mentioned she had some diaries that may assist her to recall when the offences occurred. The Bundeena allegation was not mentioned during the 10 April 2007 meeting. Following the meeting, arrangements were made to contact PLA to confirm whether she has located her diaries and to arrange a suitable time to commence taking her statement. 10. Two diaries were eventually located and provided to Detective Sergeant Frame, namely, a Blue 2007 diary and an RMIT 2006 student diary (collectively, "the two diaries"). The former included a lengthy handwritten narrative ("the handwritten narrative"), which formed the basis of PLA's first statement to police (referred to below). The latter was primarily used by PLA to confirm the date range proximate to the time of the Bundeena allegation. The plaintiff contended that neither document corroborated the Bundeena allegation. 11. On 18 April 2007, the investigation commenced with a meeting conducted by Detective Sergeant Frame and Acting Inspector Southgate, together with PLA, PLF and PLA's younger brother. The meeting was directed at the process of obtaining a statement from each of them and the arrangements put in place by Strike Force Caroola to facilitate that process. 12. PLA's statement was taken over several days by Detective Sergeant Frame, commencing 19 April 2007, and dated 23 April 2007. Whilst the investigation was commenced by investigators within Strike Force Caroola, which was tasked with investigating "allegations of child sexual assault upon HLA and OLR by Ken Dyers whilst attending Kenja" (as at 6 October 2005), Detective Sergeant Frame was principally involved in the investigation into the allegations of sexual abuse upon PLA by Ms Dyers. It may be distinguished as a separate investigation, concerning a separate complainant and a separate set of potential charges (which, it may be noted, were being considered in the context of an ongoing investigation and were never laid against Mr Dyers). 13. At the same time as Detective Sergeant Frame was taking the statement of PLA, Acting Inspector Southgate took the statements of PLF and PLA's younger brother. 14. During the course of the first statement, PLA addressed the "lies" she told Kogarah JIRT in 2002, made the historical allegations and the Bundeena allegation. The Bundeena allegation, on PLA's account, concerned events that occurred when she was 18 years of age at the time and attended the residence of Mr Dyers with her mother (on that account, the plaintiff was also present at the residence). As noted above, following a review of her RMIT 2006 student diary, she later confirmed the incident occurred between 11 and 18 June 2006. 15. On 24 April 2007, Detective Chief Inspector Jacob, a superior officer within State Crime Command, wrote to Mr Koops advising that "members of my squad" are currently investigating "further allegations" made by PLA. He confirmed that investigators would be in Melbourne until 26 April 2007. 16. On 25 April 2007, Detective Sergeant Frame met with PLA in Melbourne. On that occasion PLA provided the investigator with the two diaries and one notebook. There was a controversy as to whether, prior to the taking of the first statement, the handwritten narrative (or part thereof) was made available via facsimile to Detective Sergeant Frame. However, irrespective of whether the content (or partial content) of that material was faxed through prior to that interview, both Detective Sergeant Frame and Acting Inspector Southgate attended upon Melbourne as the next step within the investigation into the allegations brought by PLA. 17. On 26 April 2007, Mr Koops sent a letter to Detective Chief Inspector Jacob together with a statutory declaration of Ms Stevenson, sworn 26 April 2007. Annexed that that statutory declaration were two statutory declarations of PLA, sworn 8 March 2007 and 13 March 2007, and the transcript of two voicemail messages left by PLA on the telephones of PLM and Ms Tinkler on 30 March 2007. By that letter, Mr Koops also asked police to let him know if there were any persons who police would like to interview. 18. On 27 April 2007, Mr Koops sent a further letter to Detective Chief Inspector Jacob. The letter attached a statutory declaration by PLM, sworn on 27 April 2007, and a statement by PLM made to NSW Police on 30 March 2007. 19. On 30 April 2007, Detective Chief Inspector Jacob sent a letter to Mr Koops acknowledging receipt of material sent on 26 and 27 April 2007. Within that same communication, Detective Chief Inspector Jacob referred to the likely nature of subsequent communication including "requests to interview a number of other persons". 20. On 30 April 2007, Mr Koops sent a further letter to Detective Chief Inspector Jacob attaching a statutory declaration of Ms Sadira Campbell, sworn on 30 April 2007. 21. Returning to proceedings directly related to the HLA/OLR trial, as earlier mentioned, Mr Dyers' application for a permanent stay of the HLA/OLR trial was heard on 30 April 2007. On 3 May 2007, Phegan DCJ found Mr Dyers not fit to be tried and referred the matter to the Tribunal for a fitness to be tried hearing. The application for a stay, however, was dismissed on that day. 22. On 3 May 2007, with respect to the historical allegations and the Bundeena allegation of PLA, Acting Inspector Southgate recorded in his Duty Book "decision made not to release current investigation material to DPP". 23. On 4 May 2007, PLA provided a second statement, which essentially clarified the date range in which the Bundeena allegation allegedly occurred within a formal police statement. 24. On 27 June 2007, the Tribunal published its unanimous determination that Mr Dyers would not become fit to be tried within the period of twelve months. Following that determination, the ODPP considered whether or not to proceed to a special hearing. 25. On 24 July 2007, Acting Inspector Southgate wrote and sent the letter to Mr Koops. The letter is earlier extracted, but for convenience it may be noted that it stipulated, as part of the investigation, the investigators would wish to interview Mr Dyers in relation to the allegations. A broad summary of the nature of the allegations as well as the relevant timeframe, namely, between 1999 and 2006, was provided. Whilst the age range of PLA at the relevant times was omitted, it may be noted that during that timeframe she was aged 12-19 years over that period. 26. On 25 July 2007, Mr Koops telephoned the plaintiff and read out the contents of the letter to the plaintiff. The plaintiff conveyed the contents of the letter to Mr Dyers. Shortly after that fact, Mr Dyers ended his life by shooting himself in head with a shotgun. The plaintiff witnessed the suicide and its aftermath. 27. I extract below a part of the plaintiff's affidavit dealing with those final developments (which was unchallenged): Events of 25 July 2007 153. On 24 July 2007, Detective Southgate wrote to Mr Koops at Henry Davis York informing him that police wished to give Ken the opportunity to be interviewed in relation to PLA's allegations and that the allegations related to sexual assaults between 1999 and 2006. 154. I received a telephone call from Mr Koops on the morning of 25 July 2007 at about 9:30am. He said to me he had received a letter from Detective Southgate the previous day. Mr Koops read the letter to me over the phone. I had a discussion with him about the matter. I told him I would speak to Ken about it and have Ken call him. I was stunned by the police letter and felt helpless. 155. I had a conversation with Ken about the letter and attending an interview with the police about PLA's allegations. We had a conversation in words to the following effect: Me: Harland has received a letter from the police concerning allegations by PLA that you sexually assaulted her. They are investigating her claims and they want to interview you. Ken: They have gone too far now. This is ridiculous. How can they pursue this? Harland sent them all that material about PLA and her problems. Surely they can see that this is nonsense. Me: I don't know what is going on. I know allegations like this are absurd. You are too sick to participate in an interview at the moment. We need to discuss this with Harland. 156. I then telephoned Mr Koops. A series of conversations then took place among Ken, Mr Koops and me on the speaker phone in words to the following effect: Mr Koops: I can't believe the police are acting on these claims. I thought that it had been dealt with in the material we supplied to Inspector Jacob. Ken: What more can we put in to show them that this is ridiculous? They have gone too far, they are going to trip over themselves. They can't get away with this. Is there more evidence we can put in? I am willing to go to the police. Mr Koops: That may not be appropriate right now. We don't know what they'll come up with next or even what they are capable of. We have to approach this very carefully. We shouldn't just rush in to anything until we have a better understanding of the background. Me: Harland, you know that Ken has been very sick. He is in no condition to go to the police station for an interview. We have been through this before and Ken is not up to it. Ken: They have overstepped the mark so far this time that it is beyond comprehension. Doesn't that work in our favour? Let's just do it and get this over with so we can put it behind us. Mr Koops: We will talk later in the day once I have considered the issues. 157. When that telephone conversation finished Ken and I had a conversation in words to the following effect: Ken: Why can't I just go and deaf with this now. This is so frustrating. Me: The police say there are allegations in 2006. That is just Iast year. You were on bail. PLA was living in Melbourne. Ken: I didn't realise that. Now I do, and what it means. They want to revoke bail. They want to kill me. If I go to gaol I'll be murdered. I need some space, can you get me a cup of tea? 158. I went to the kitchen to make a cup of tea. I returned to the bedroom and I saw Ken seated on the side of the bed with a shotgun across his lap. There was a doona on the bed. I said words to the effect of: "Oh come on Ken you can't do this. ! love you. You don't need to handle it this way." 159. Ken pulled the doona partly over his face and head and positioned the barrel of the shotgun at his upper neck. He said: "Just let me go through this." 160. I was shocked at what Ken was doing. I did not think that he would kill himself. Almost immediately I heard a muffled thud. Ken's body was still upright. I said: "Come on Ken. Cut it out." 161. Ken's body then slowly slumped backwards on to the bed. I started to remove the doona and saw that Ken's face had been blown off. I saw half a head remaining on Ken's shoulders. 162. I started screaming. I started to feel furious and kicked a hole in the wall. I kept screaming for quite a long time. I kept walking into and out of the bedroom in a highly agitated state. 163. A few moments later Karli Stevenson came into the room. She started screaming also and shouted "Ken has shot himself'. 1. Following the death of Mr Dyers, Strike Force Caroola ceased its investigations. The allegations of PLA were not fully investigated. 2. On 19 February 2008, the NSW Police Post-Operational Assessment ("POA"), with respect to Strike Force Caroola was prepared by Acting Inspector Southgate, with a preamble written by Detective Chief Inspector Jacob. CHAPTER II: ISSUES OF LAW AND PRINCIPLE The Tort of Misfeasance in Public Office Submissions of the Plaintiff Introduction 1. It was submitted that, it may not have been Acting Inspector Southgate's intention to drive Mr Dyers to suicide (although that is what he did), but he did wish to visit harm upon him, and was prepared to act wrongfully to achieve that end. 2. Having regard to Detective Sergeant Frame's evidence concerning her lack of knowledge of the letter, dated 24 July 2007, that was sent to Mr Koops, the plaintiff accepted that she cannot make out a case of misfeasance in public office against Detective Sergeant Frame. 3. The plaintiff's claim is framed, inter alia, upon the premise accepted by Deane J in Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 ("Mengel") at 370, namely, that "[i]n 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". 4. It is sufficient to establish the tort that, even if Acting Inspector Southgate purported to exercise his duties as a police officer by investigating alleged crimes by Mr Dyer, and subject to issues of causation, he nonetheless acted with the intention to cause harm to Mr Dyers, and, having acted upon this intention, the conduct was necessarily an abuse of power. It was not a bona fide investigation; if it were, the plaintiff would not succeed in making out the tort of misfeasance in public office, even if Acting Inspector Southgate understood some harm may have been caused to Mr Dyers through such an investigation. 5. Thus, it was submitted the letter was sent by Acting Inspector Southgate with the intention to inflict harm rather than the purpose of carrying out a bona fide investigation. 6. It was accepted that nature of the cause of action means that misfeasance in public office is not a tort easily satisfied. However, the plaintiff had established that the sending by Acting Inspector Southgate of the 24 July 2007 letter was the final, malicious step taken in an investigation that was carried out in a highly improper manner, which targeted Mr Dyers. 7. Malicious injury was occasioned to Mr Dyers through an act, namely, the act of sending 'the letter' and that act injuriously affected the plaintiff. 8. The tort of misfeasance in public office is not a tort that is commonly litigated, and the tort is still subject to some debate and uncertainty. In Mengel, (at 345), Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said: It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. 1. The plaintiff contended, however, that for present purposes, the elements of the tort are straightforward. 2. The plaintiff will make out a case for the tort of misfeasance in public office if she can establish: 1. a police officer undertook some act or omission in the course of the exercise of his or her duties or functions in a public office; 2. in undertaking the impugned conduct, the police officer intended to cause harm to a person or persons; 3. the intention to cause harm was the dominant purpose of the impugned conduct or the conduct was not undertaken in good faith; and 4. that the impugned conduct caused harm to the plaintiff. 1. These principles emerge from a number of decisions from Australia and elsewhere; see particularly: Mengel; Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 ("Three Rivers"); Odhavji Estate v Woodhouse [2003] 3 SCR 263 ("Odhavji Estate"); Sanders v Snell (2003) 130 FCR 149 ("Sanders No. 2"); Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18; Emanuele v Hedley (1998) 179 FCR 290; Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311; [2017] FCAFC 59 ("Nyoni"). This form of the tort is commonly referred to as "targeted malice". 2. In Nyoni at [81], North and Rares JJ identified the essence of misfeasance in public office as the following: [81] [T]he officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power. That can occur because the officer either had no actual power to exercise or acted on the basis of an existing power but beyond its scope. One way of acting beyond the scope of a public power is for the official to use the power maliciously because he or she intends to cause harm: Mengel 185 CLR at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ; see too at 356-357 per Brennan J. As the joint judgment explained in Mengel 185 CLR at 335, the officials in that case had no power at all to do the acts complained of but, because they lacked any knowledge of that want of power, and had no malicious intention, they did not commit the tort (see too Farrington v Thomson and Bridgland [1959] VR 286 at 293-294 per Smith J). 1. North and Rares JJ also referred (at [87]) to what was described as a "helpful" article by Professor Mark Aronson: [87] In his article, Misfeasance in Public Office: Some Unfinished Business (2016) 132 LQR 427, Emeritus Professor Mark Aronson helpfully discussed aspects of the tort. He contended that spite or an intention to harm are not sufficient if the officer's action complained of is in fact lawful, relying on the following statement by Harper J in Grimwade v Victoria (1997) 90 A Crim R 526 at 566 (see 132 LQR at 441): Malice of itself is insufficient unless the exercise of the power is only valid if done without malice: a parking officer may be as malicious as he likes in giving a parking ticket to his worst enemy whose vehicle is illegally parked. And the fact that the officer intends to cause harm (by fixing the enemy with an obligation to pay the fine) is wholly beside the point. (emphasis added) 1. However, the Full Court in Nyoni held that Harper J's parking ticket analysis was flawed because Harper J overlooked the fact that the causative role of the officer's intention, in his act of giving the parking ticket (or "dominant purpose"), would be to injure his enemy, as opposed to carrying-out his lawful duties, were the officer not acting maliciously. In Nyoni, North and Rares JJ concluded that the intention of injuring someone through the exercise of a public power, done for an ulterior or improper purpose, constitutes a misuse of power and is targeted malice. By reference to Nyoni (at [91]), senior counsel for the plaintiff, Mr Peter Brereton SC, who appeared with Mr Adrian Maroya and Mr Lester Fernandez, submitted: But, if the intention to cause harm is the dominant purpose of the exercise of the power, then the power is being improperly used and it's an invalid exercise of power. That's the proposition that emerges from Nyoni. Not the proposition that my learned friends say, we say emerges from Nyoni. 1. It was submitted that the decision in Nyoni is binding on this Court. 2. Senior counsel for the plaintiff relied upon the following passage from Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 ("Farah Constructions") at [135]: [135] Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong . Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. [Footnotes omitted.] 1. In a case of "targeted malice", where "intentional infliction of harm" is the "actuating motive" and, where harm has been suffered, foreseeability of harm is not a relevant factor. 2. It was submitted that Nyoni did not stand for the proposition that a mere intention to cause harm necessarily results in the satisfaction of the "illegality" and "state of mind" elements of the tort. It was submitted that: Firstly, there needs to be a misuse of an office or power, and that's acknowledged. Secondly, the intentional element that the officer did so, either with the intention of harming a person or a class of persons, or knowing that he or she was acting in excess of his, her or its power. It's the second element which is directly addressed by the High Court in Mengel. And thirdly, that the plaintiff or applicant suffered special damage or to use Lord Bingham's want in characterisation from Watkins, material damage. 1. It is not necessary that the "intentional infliction of harm" should result in any particular manifestation of harm. The law prescribes that no particular type of loss or damage must be suffered; only that some material loss or "material damage" must be proved as an ingredient of the cause of action. 2. That is, everything turns ultimately, on that question in this case. It was submitted that nothing, from Nyoni is inconsistent with that, and further, that Nyoni should be taken as an orthodox statement of principle. 3. The evidence established that the letter was not sent in good faith. It was not sent in the diligent performance by police of an investigation. It was sent with the object of harming, in particular, Mr Dyers, but also the plaintiff. The letter did cause harm, both to Mr Dyers and to the plaintiff. 4. The sending of the letter was, therefore, consistent with the circumstances of the letter sent in Nyoni, and is on all fours with the principles of targeted malice described by the Full Court in Nyoni. Invalid or Unauthorised Act 1. The submission by the defendant that the decision in Nyoni was not consistent with Mengel, and was not binding on this Court, as it was "plainly wrong" and should be rejected. 2. In the Defendant's Closing Submissions, (at paras 101-102), it was contended that North and Rares JJ's statement in Nyoni (at 81) that, "one way of acting beyond the scope of a public power is for the official to use the power maliciously because he or she intends to cause harm", did not find any support in the judgment of the plurality judgment in Mengel and should be rejected. 3. The Full Court's decision in Nyoni was the subject of an application for special leave to appeal to the High Court. The application was dismissed by Nettle and Gordon JJ. It is clear that the very point underlying the defendant's criticism of the statement from [81], referred to above, was squarely put to the High Court until overruled by the High Court. Nyoni is, and remains, good law. 4. In any event, the passage from [81] of the majority's reasons in Nyoni, sought to be impugned by the defendant, finds direct support in Mengel: 1. At 345, where the plurality (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) observed that (omitting citations): "the weight of authority here and in the United Kingdom is clearly to the effect that [misfeasance in public office] is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power"; 2. At 357, where Brennan J observed that "the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office." 1. The plaintiff's case has always been that Acting Inspector Southgate did not send the letter bona fide as part of a proper police investigation. It is alleged that he sent it maliciously, with the intention of inflicting psychological harm upon Mr Dyers and the plaintiff. In any event, the defendant's analyses of Nyoni by reference to Sanders No 2 at [108]; Grimwade v Victoria (1997) 90 A Crim R 526 ("Grimwade") and the Canadian decision in Odhavji Estate does not assist the defendant. Malice 1. The defendant's submission that no action lies unless it is the plaintiff who is the object of the malicious exercise of the power is incorrect. 2. The defendant submitted that, if the plaintiff's contention (on the 'standing' point) were correct, "there would be no principled reason to distinguish between cases of targeted malice and untargeted malice" (Defendant's Closing Submissions at para 117). 3. The gist of the defendant's submission was that, if the target of the malice is not the plaintiff, but a third party (i.e., Mr Dyers), then the distinction between targeted malice and untargeted malice would be eroded. 4. This distinction is an artificial one, and is misconceived, for at least three reasons. 5. First, the submission ignored what Deane J said in Mengel (at 370) about malice: 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. 1. Deane J's statement makes it clear that targeted malice is not concerned solely with consequences to the 'target', but recognises that other persons in a relationship of proximity to the 'target' may be affected by the malice. 2. Criticism was made of Deane J's statement, substantially upon the basis that it is contrary to "…fundamental principles of tort law, which almost universally does not allow derivative claims for damages to be pursued by a secondary victim." That statement is inaccurate. It pays no proper regard (by analogy) to the line of authority established in Wilkinson v Downton [1897] 2 QB 547 ("Wilkinson"), and the fact that the principle in Wilkinson is amenable to application where harm is suffered by people other than the primary victim of the defendant's wrongful act. 3. Further, in Battista v Cooper [1976] 14 SASR 225 at [230], Bray CJ (with whom Jacobs and King JJ agreed) observed: [230] But, as I have said, there is no reason for restricting the category of plaintiffs who can recover for physical injury from an intentional tort to those who could recover in the same circumstances if the tort were a negligent one, and every reason, in my opinion, for widening it. […] Certainly the intended consequences of a tort can never be too remote. And if intended consequences to A produce unintended consequences to B, I think that B can still recover if his connection with A is not too remote. 1. At [231], Bray CJ continued: [231] In my opinion, an intentional tortfeasor is liable, not only for the injury caused directly to his victim, but to the injury indirectly caused to those connected with his victim or those witnessing the injury to the victim. 1. That statement, it was submitted, was binding upon this Court It was consistent with Deane J's formulation in Mengel and is fatal to the defendant's contention. 2. The second reason that the defendant's submission should not be accepted is that, as was made clear in Mengel and Garrett v Attorney-General [1997] 2 NZLR 332 ("Garrett"), misfeasance in public office is concerned with a deliberate and dishonest abuse of the powers given to a public officer. 3. Malice, in the sense of an intention to injure a plaintiff or a person in a class of which the plaintiff is a member, and knowledge by the officer both that he has no power to do the act complained-of and that the act will probably injure the plaintiff or a person in a class of which the plaintiff is a member are alternative, not cumulative, ingredients of the tort. To act with such knowledge is to act in a sufficient sense, maliciously: see Garrett (at 349), citing Deane J in Mengel. 4. The third reason for rejecting the defendant's submission was that the statements of principle (in the preceding paragraphs), and by North and Rares JJ in Nyoni (at [93]), make it clear that malice may either be 'targeted', or, will operate as a presumption arising from the consequences of an act committed by an officer with knowledge, both that he has no power to do the act complained of, and that the act will probably injure the plaintiff. Intention to Cause Injury to the Plaintiff 1. The defendant contended that it is a critical element in the tort that the intention is to cause injury to the plaintiff. That is, if there is intention to injure person A and the act injures person B, person B has no cause of action (and nor does person A if he or she suffers no damage). 2. The defendant contended that the remarks of Deane J in Mengel (at 370) were obiter, not supported by the other judgments in Mengel and not supported by the decision of Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 All ER 585 ("Bourgoin") at 776-777. It was also contended that the submission was inconsistent with judgments in Obeid v Lockley (2018) 355 ALR 615; [2018] NSWCA 71 ("Obeid"); Three Rivers and Garrett. 3. The plaintiff made a number of responses to these contentions. 4. First, the statement of principle in the judgment of Deane J is consistent with, and is not contradicted by, any of the other judgments in Mengel. The majority refers to "an intention to cause harm" (at 345 and see also 347). The principle is not expressed in terms of an intention to cause harm to the plaintiff. Moreover, the following statement of principle by Brennan J (at 358) is consistent with what was said by Deane J: [T]he tort of misfeasance in public office is not concerned with the imposition of duties of care. It is concerned with conduct which is properly to be characterized as an abuse of office and with the results of that conduct. 1. It was submitted that Brennan J's language "whereby loss is caused to a plaintiff" (at 357) is couched in deliberately open terms. "A plaintiff", obviously enough, is clearly capable of connoting a plaintiff who has been injuriously affected by harm inflicted upon or targeted at another person, in the sense intended by Deane J in Mengel (at 370). 2. Secondly, the decision of the Court of Appeal of the United Kingdom Queens Bench Division, in Bourgoin, cited by Deane J, does support the proposition stated by Deane J; contrary to the defendant's submission. 3. Obeid was dealing, by way of obiter dictum, with the question of principle as to whether it was sufficient for the appellants to establish that it was reasonably foreseeable that they were likely to suffer reputational harm. In Obeid, Bathurst CJ rejected that proposition and held that the appellants would have to show that the respondents were aware that the conduct would be likely to cause harm to the appellants, or that they were recklessly indifferent to such risk of harm. The Court was concerned with the question of whether reasonable foreseeability was sufficient, or whether actual awareness or reckless indifference was required. The Court was not concerned with the question of whether it was necessary to establish actual awareness or reckless indifference of likely damage to the plaintiff, or whether it was sufficient to establish actual awareness or reckless indifference of likely damage to a person, which injuriously affects the plaintiff. That is, the question addressed by the Court of Appeal is not the question raised in these proceedings. The decision does not justify departure from the considered dictum of Deane J in Mengel. 4. Nor was the point expressly adverted to and addressed by the House of Lords in Three Rivers, except to note that Lord Hutton set out the very passage from the decision of Deane J to which the Plaintiff draws attention in these proceedings, and specifically said that this judgment was "important". 5. In Garrett, the New Zealand Court of Appeal was not concerned with the particular question raised in these proceedings, but with the basal question of foreseeability of damage. Blanchard J, who gave the reasons of the Court, concluded (at 349-350) that: The tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed. The tort is not restricted to a case of deliberately wanting to cause harm to anyone; it also covers a situation in which the official's act or failure to act is not directed at the injured party but the official sees the consequences as naturally flowing for that person when exercising power. In effect this is no more than saying the tort is an intentional tort. In this context, a person intends to bring about the known consequences of his or her actions or omissions, even if other consequences 292 ALR [172] 293 AC 224 81 form the primary motive. Bourgoin is an example. The concept of attributing intention by necessary inference in this way is well established. 1. This New Zealand decision did not, it was submitted, expressly deal with the issue now under consideration, and provided no basis for this Court to depart from the considered dictum of Deane J in Mengel. 2. The Defendant's Closing Submissions at paras 41-42 about coherence in the law are illusory. The doctrine of coherence is directed at the compatibility and cohesion of common law-based and statutory remedies; and the compatibility and cohesion of various common law-based remedies inter se: State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235 at [95], per Spigelman CJ. It has no application to the issues raised in this case. Submissions for the Defendant 1. The plaintiff's statement of the elements of the tort of misfeasance in public office (Plaintiff's Closing Submissions at para 246) does not accord with the authorities. The elements of the tort are authoritatively stated by Deane J in Mengel at 370 as: 1. an invalid or unauthorised act; 2. done maliciously; 3. by a public officer; 4. in the purported discharge of his or her public duties; 5. which causes loss or harm to the plaintiff. 1. Deane J observed that this summary of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The relevant passage in Nyoni appears at [81] and is in the following terms: 1. It is of the essence of misfeasance in public office that the officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power. 2. That can occur because the officer either had no actual power to exercise or acted on the basis of an existing power but beyond its scope. 3. One way of acting beyond the scope of a public power is for the official to use the power maliciously because he or she intends to cause harm: Mengel at 345 (per the plurality, see also 356-357 per Brennan J). 4. The officials in that case had no power at all to do the acts complained of but. 5. Because they lacked any knowledge of that want of power, and had no malicious intention, they did not commit the tort (see too Farrington v Thomson and Bridgland [1959] VR 286 ("Farrington") at 293-294 per Smith J). 1. Proposition 1 is supported by the passage from the plurality judgment in Mengel at 345 as referred to by the Full Federal Court. 2. Proposition 2 does not find any support in that passage of the plurality judgment, and it cannot be accepted as an accurate statement of law without some more detailed analysis of what is meant by "beyond its scope". 3. Proposition 3, is the critical passage for the plaintiff's argument. It does not find any support in that passage of the plurality judgment, which is concerned only with describing the two different ways in which the malice element may be satisfied (i.e. intention to cause harm, or knowing excess of power). Nor does it find any support in the passage from the judgment of Brennan J in Mengel at 356-357. Brennan J is careful to distinguish between the separate elements of the invalid exercise of power and the "further requirement" relating to the state of mind of the public officer. In the course of that latter discussion Brennan J notes that the injury that must be intended is something that the plaintiff would not have suffered if the power available to the public official had been validly exercised. It was submitted that the Full Federal Court elided the disparate elements of the tort in a manner quite inconsistent with what is now regarded as their authoritative description emerging from the judgment of Deane J (at 370). It was submitted that proposition 3 does not attract Farah Constructions deference. I shall describe this as the primary tort issue. 4. Proposition 4 is the subject of the discussion in the plurality judgment in Mengel at 335, but there is no discussion in that passage of Proposition 5. Importantly, and quite inconsistently with Proposition 3, this last sentence correctly distinguishes between the invalidity element (Proposition 4) and the element of malice (Proposition 5). 5. The Full Court noted the discussion of Emeritus Professor Aronson and the dictum of Harper J in Grimwade at [87], but dismissed them at [88] by saying that analysis was flawed. However, their Honours' own reasoning is flawed because it assumed the falsity of the proposition it sought to disprove. 6. The Full Court in Nyoni at [94] also purported to rely upon the decision of a differently constituted Full Court in Sanders (No 2) at [108]. However, immediately after the passage quoted by the Full Court in Nyoni, the Full Court in Sanders (No 2) observed "it cannot be sufficient merely to show that harm was intended when harm of that nature would necessarily result from the proper exercise of the power." Emeritus Professor Aronson distinguished between the exercise of powers that of their nature are intended to, or will inevitably, harm the subject (such as the powers of police and other investigative agencies) and those that are not: see Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed 2017, Lawbook Co) at 1151 ("Aronson et al"). 7. Even the Full Court's reliance upon the Canadian decision in Odhavji Estate does not assist the plaintiff. Odhavji Estate decided a very narrow issue, namely whether or not as matter of pleading it was open to a plaintiff to allege that the public official "ought to have known" that their conduct would cause harm. In any event, while the Supreme Court of Canada argued that in the so-called Category A cases the intention to cause harm satisfied both elements of the tort, this is because of a process of factual inference (see also Aronson et al at 1151) and not as a matter of law. It was not sufficient to put to Acting Inspector Southgate that he sent the letter with the object of harming Mr Dyers to satisfy the rule in Browne v Dunn (1892) 6 R 67. 8. It was necessary to put to him that he did not send the letter in good faith in the course of carrying out his investigative functions as a police officer, and that he did so knowing therefore that in doing so he was acting unlawfully. 9. To the extent that Nyoni is relied upon as authority for a proposition that mere intention to cause harm necessarily results in satisfaction of both the illegality element and the state of mind element of the tort, it is not consistent with Mengel and is therefore not binding on this Court. 10. The critical element out of Mengel, as in this case, is malice. The requirement of malice will be satisfied if the invalid or unauthorised act was done with an actual intention to cause injury to the plaintiff or 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 if the act was done with reckless indifference or deliberate blindness to the invalidity or lack of power and the likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice is not satisfied. 11. The plurality in Mengel did not deal with the lawfulness element because it is agreed in the case that the inspectors were acting outside the scope of their authority. 12. The error in Nyoni was to treat conduct done with an intention to cause harm necessarily making that same act invalid, although it was accepted that there may be cases where an intention to cause harm may render the act invalid. The very purpose of a power of arrest or prosecute is to interfere with liberty of a person – that is the intention of the arrest or prosecution. 13. Thus, even if it could be proven the letter was sent with an intention to cause harm (and putting aside whether the harm was intended for the plaintiff or Mr Dyers), the conduct is not sufficient, of itself, to render the conduct invalid and, hence, the tort is not established. Further, the only pleading is one of intention to harm. 14. The tort is not made out because the first element of the tort, as described by Deane J, cannot be satisfied merely by that intention. 15. Thus, the plaintiff must demonstrate that, independently of malice, the conduct engaged in was unlawful. That is, there must be the elements of unlawfulness as well as the intention to cause harm, the mental element of the tort, namely, malice. 16. The plaintiff appeared to accept that Acting Inspector Southgate did not intentionally cause harm to the plaintiff. Rather, the proposition seems to be that Acting Inspector Southgate intended to cause harm to Mr Dyers, which then consequentially affected the plaintiff. The plaintiff relied upon the following statement by Deane J in Mengel at 370: [T]he 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. 1. Such a proposition obtains no support from the passage from Bourgoin at [776]-[777] cited by Deane J. The passage at [777H] says nothing more than that a person will be taken to intend the consequences of their conduct if the conduct is done deliberately and with knowledge of its consequences. 2. That says nothing about who the object of the intention must be for the purposes of establishing the malice element of the tort, and does not support the proposition that a person will be liable to B if they happen to be injuriously affected by conduct intended to harm A. 3. The statement by Deane J relied upon by the plaintiff was, on any view, obiter. The issue does not appear to have been the subject of argument. It is baldly stated without reference to authority or principle, and unaccompanied by any underlying reasoning. It is not supported by any of the other judgments. 4. The authorities called in aid by the plaintiff are of no assistance to her case. In Johnson v The Commonwealth (1927) 27 SR (NSW) 133 at 137, the plaintiff owed a duty directly to the plaintiff. Stevenson v Basham [1922] NZLR 225 does not assist the plaintiff as the wife in the matter was plainly a direct victim of the threat by the defendant to burn down the house. The defendant has calculated to frighten her (see at 228). Secondly, this case was decided on the basis of negligence and a breach of duty owed by the defendant to the wife. 5. Battista v Cooper (1976) 14 SASAR 225 can be distinguished because of the cause of action being for statutory compensation under the Criminal Injuries Compensation Act 1969-1974 (SA). The passage from Fleming's Law of Torts (see Sappideen and Vines, Fleming's The Law of Torts, (10 ed 2011, Thomas Reuters) at [32]) does not support that breadth of the proposition relied upon by the plaintiffs. Professor Fleming was discussing the issue in an evidentiary sense, that is, establishing the necessary requisite intention by imputing the intention to a defendant from recklessness as to the presence of other persons in a close relationship to the victim. 6. More fundamentally, the plaintiff's unconfined reading of the statement by Deane J is contrary to fundamental principles of tort law, which almost universally does not allow derivative claims for damages to be pursued by a secondary victim (the major exceptions being the anomalous and historical actions for servitium amisit and consortium amisit). The fault elements of the tort must be established vis-à-vis the particular plaintiff. Thus, in order to recover damages for mental harm as a so-called "bystander" to an accident the plaintiff must nonetheless establish a direct duty owed to the plaintiff, and cannot simply rely upon the fact that they are injuriously affected by the breach of duty to the accident victim. 7. Consistently with that position, it was submitted, all of the authorities in relation to the tort of misfeasance speak in terms of an actual intention to cause harm to the plaintiff, or knowingly acting in excess of power and knowing the probability of harm to the plaintiff (either as an individual or as a member of a class). 8. If the plaintiff's contention is correct, there would be no principled reason to distinguish between cases of targeted malice and untargeted malice. Each of actual intention, and knowledge of excess of power and probability of damage, are alternate means of establishing the same element of the tort, namely bad faith. If a plaintiff who is injuriously affected by conduct intended to cause harm to a third party has a viable cause of action, there is no principled reason why it would not also follow that a plaintiff who is injuriously affected by conduct done knowingly in excess of power and with the probability of causing harm to a third party would not also have a viable cause of action. To so hold, would obliviate the carefully-enunciated requirements of the tort of misfeasance in cases of untargeted malice, demonstrating that the starting proposition is unsound. 9. The plaintiff was not also the object of the exercise of the power (either because the exercise of the power itself is directed towards the plaintiff, or the plaintiff was one of a class of persons for whose benefit the power was conferred). On the current state of the authorities no action lies unless the plaintiff was the object of the exercise of the power. 10. The judgment in Nyoni is not binding upon this Court by reason of what was said by the High Court of Australia in Farah Constructions. As Leeming JA observed in Obeid at [224], this Court remains bound by the decisions of the High Court, and if "another intermediate appellate court has misconstrued a decision of the High Court, it does not attract Farah Constructions deference." 11. The judgment in Nyoni comes from a different court hierarchy and, in the result, the Court may decide not to follow it if it is plainly wrong. Conclusion of Legal Issues Raised re Tort of Malfeasance in Public Office The Primary Tort Issue 1. The plaintiff framed its case in reliance on the decision in Nyoni and submitted that it was binding on this Court pursuant to Farah Constructions. The critical passage in Nyoni, which is at the centre of this dispute, is [81]. 2. Without limiting the earlier expansive summary of the plaintiff's submissions as to the applicable principles, the following essential elements may be identified. 3. The plaintiff submitted that, according to the authorities (and Nyoni, in particular), if the intention to cause harm was the dominant purpose of the exercise of power, then the power was being improperly used and was, therefore, an invalid or unauthorised exercise of power. 4. If correct, it would follow that had Acting Inspector Southgate sent the letter with the intention of inflicting harm upon Mr Dyers (or both Mr Dyers and the plaintiff) then the requisite elements of the tort were made out. 5. The plaintiff contended that the critical question is whether the letter was sent maliciously with intent to cause harm as its actuating purpose, or was it sent as part of an orthodox, bona fide investigation? 6. The defendant submitted that the statement in Nyoni (at [81]) finds no support in Mengel. Further, the defendant submitted that the Full Court elided the disparate elements of the tort in a manner quite inconsistent with what is now regarded as their "authoritative description" emerging from the judgment of Deane J in Mengel at 370. 7. The corollary of this submission, according to the defendant, is that that aspect of Nyoni did not attract the Farah Constructions deference. It was contended that, to the extent that Nyoni is authority for a proposition that mere intention to cause harm necessarily results in satisfaction of both the illegality element and the state of mind element of the tort, it is not consistent with Mengel and is, therefore, not binding on this Court. It is, in any event, plainly wrong and ought not be followed. 8. Thus, the joinder of issues of principle by the parties was whether the plaintiff was required to establish, in order to make out the tort of misfeasance in public office, an additional element to the mental element of malice, namely that the conduct engaged in was unlawful in the sense that the conduct involved an invalid or unlawful act in and of itself. Is the decision in Nyoni binding? 1. The High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 at [492] states that: [492] [U]niformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court -- and all the more so a single judge -- should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. [Emphasis added.] 1. This position was famously reiterated in Farah Constructions at [135]: [135] The result of the statements by the Court of Appeal about restitution-based liability has been confusion among trial judges of a type likely to continue unless now corrected. As Hamilton J remarked and Barrett J agreed, a trial judge of the Supreme Court of New South Wales now "faces the difficult situation of obiter dicta in the High Court some 30 years ago conflicting with recent dicta in the Court of Appeal, which have met with substantial criticism". The confusion is not likely to be limited to New South Wales judges. Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel's submission that he was obliged not to do so. [Footnotes omitted.] 1. The High Court in Farah Constructions at [134] also emphasised the need for regard to be had to "long-established authority and seriously considered dicta of a majority of this Court" (see also Obeid at [224]). 2. Therefore, as the Full Court of the Federal Court of Australia is an intermediate appellate court, the decision in Nyoni should not be departed from by the Court of Appeal or a trial judge of this Court unless it is considered to be plainly wrong. What can be considered "plainly wrong"? 1. In Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 the NSW Court of Appeal considered (at [274]-[293]) the meaning of the phrase "plainly wrong". This was in the context of the question as to when an intermediate appellate court ought to depart from its own decisions in relation to a matter of common law. 2. Their Honours (Allsop P (as his Honour then was), Beazley and Basten JJA) concluded at [294]-[295] that: [294] The phrases "plainly wrong" or "clearly wrong" can be understood to focus on at least one or more of the following attributes of a ruling: (a) the fact or error is immediately (in the sense mentioned in [283] above) apparent from reading the relevant judgment; (b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha), and (c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis. [295] In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority. 1. In Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29, McCallum J (as her Honour then was) (at [41]-[44]), considered the meaning of the phrase "plainly wrong", in the context of when a trial judge is entitled to depart from the decision of an intermediate appellate court on a question of construction of national uniform legislation. Her Honour (at [43]) considered the High Court's statement in Farah Constructions (at [135]) and said: [43] Those words, in terms, suggest that it is open to a trial judge to depart from the decision of an intermediate appellate court in another jurisdiction if convinced that the interpretation is plainly wrong. Accepting (since the High Court says so) that that is right as a matter of strict precedent, it is a course which I would think would rarely be taken by a puisne judge. The conclusion that the intermediate appellate court of another jurisdiction is "plainly wrong" is one more appropriately reserved for an appellate court in a later case. I am fortified in that view by the remarks of Basten JA in [Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369] at [80] referred to above. Should Nyoni be applied in the determination of the Primary Tort Issue? 1. Neither party sought to distinguish the majority judgment in Nyoni as to the primary tort issue. However, I acknowledge that it is arguable that the judgment of the majority in Nyoni may be wrong, with respect to the primary tort issue, at least so far as the plaintiff sought to apply the judgment in this matter. 2. The plurality in Mengel did not expressly support the conclusion reached by the Full Court because it was concerned to discuss the mental element of the tort by reference to an intention to cause harm or a knowing excess of power. In Mengel, the Inspectors the subject of the action, had acted outside the scope of their authority (at 335) but did not know they were doing so. Nor is the reasoning of the plurality as to this issue expressly supported by the judgment of Brennan J who, as submitted by the defendant, distinguished between the elements of invalid exercise of power (at 357) and the further requirement concerning the state of mind of the parking officer in that case (at 356-357). Deane J plainly incorporated an invalid or unauthorised act as an element of the tort (at 370). 3. The conclusion reached by the Full Court in Nyoni was, in substance, that the anterior element of invalidity is, or may be subsumed into the element of intention to injure. Thus, by reference to Grimwade, the Full Court considered that Harper J had "overlooked" the causative role of the officer's intention, in his act of giving the parking ticket, would be to injure the other person, as opposed to carry out his lawful duties were the officer not acting maliciously (at [88]). If the officer used his power for the dominant purpose of injuring the enemy then that would be an improper use of power (at [91]) or by acting maliciously, the parking officer did not exercise the power for the purpose for which it exists (at [89]). 4. However, that approach raises the question arising out of Sanders (No 2) (at [108]) (acknowledged in Nyoni at [95]) about whether the tort may be established by a mere intention to harm by a public officer when harm of that nature would necessarily result from the proper exercise of the power. Thus, Aronson et al (at 1151) observed that, even with "targeted" malice the plaintiff must also prove, inter alia, that the defendant knew that he or she was acting unlawfully. The learned authors stated: "The reason why many judicially formulated summaries fail to articulate that second step is that in most cases, deliberate harm cannot be anything other than unlawful, and any official would have known this. Nevertheless, there will be some cases where the whole point of lawful official action is to harm the subject and there will be others where the officer's malice toward the subject is irrelevant to the legality of their conduct". An illustration of police is given in the first instance and the parking officer example in Grimwade in the second. 5. Thus, in this matter, if it be assumed, Acting Inspector Southgate sent the letter in order to injure Mr Dyers, he may nevertheless have been discharging his duty to investigate allegations of serious criminal conduct. 6. However, having considered the submissions of the parties and the case authorities, I am not convinced that Nyoni is plainly wrong. 7. The majority in Nyoni not only had regard to what the High Court said in Mengel but also considered overseas authorities in determining a legal issue which bears close resemblance to the central dispute in Hamilton. 8. I also consider it relevant that the High Court dismissed the application for special leave to appeal the decision in Nyoni. I acknowledge the aversion expressed by Kirby P (as his Honour then was) in Rajski v Bainton [1991] NSWCA 231 (at 3), to attempting to "divine" the intention of the High Court from the transcript of a special leave application, his Honour noting that "judges frequently put propositions in order to test them, without necessarily expressing any concluded opinion." However, the second of the four points of principle raised in that special leave application was that the intention to harm alone is not sufficient to establish a misfeasance in public office. 9. Ultimately, I conclude that the majority judgment in Nyoni should be followed by this Court as presently constituted. Taxonomy of Malice 1. This matter is pleaded upon the basis of "first limb malice", often referred to as "targeted malice". 2. Targeted malice cases are less common. Example of such cases include: Jones v Swansea City Council [1990] 1 WLR 54; Roncarelli v Duplessis (1959) 16 DLR (2nd) 689; [1959] SCR 121 and Calveley v Chief Constable of the Merseyside Police [1989] AC 1228. 3. A case of targeted malice is proved if a public officer acted with an actual intention to cause harm. It involves, on the prevailing authorities, the exercise of public power for the improper or ulterior purpose of injuring a person or persons. 4. Targeted malice is to be contrasted with "untargeted malice". Untargeted malice ("second limb malice") is satisfied if it can be proved that a public officer acted whilst having knowledge of the invalidity or lack of power and that it would likely cause injury, or alternatively, if it can be proved that there was reckless indifference or deliberate blindness to the invalidity or lack of power and the likely injury. 5. Untargeted malice cases as deal with ultra vires acts. Target malice cases do not. The following extract from Cornwall v Rowan [2004] 90 SASR 269; [2004] SASC 384 (per Bleby, Besanko and Sulan JJ) (a targeted malice case) illustrates the distinction. The Full Court of the Supreme Court of South Australia (at [209]-[216]) stated: [209] In Northern Territory v Mengel (1995) 185 CLR 307, Deane J adopted a well-known definition stated by the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172. Deane J said, at 370: As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council, the tort of misfeasance in public office is "well-established". Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. [Footnotes omitted.] [210] Deane J went on to point out that one of the qualifications relates to the element of malice. He continued: 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. 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 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. [211] In their joint judgment in Northern Territory v Mengel, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ affirmed (at 345) that there is "no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power". They went on to hold that mere knowledge that an act is beyond power and results in damage is not enough. They continued (at 347): Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [1897] 2 QB 57, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach. It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin SA v Ministry of Agriculture, Fisheries & Food [1986] QB 716 at 741, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. [212] Thus it may be seen that the element of malice is satisfied either by proof ofan actual intention to cause injury, sometimes referred to in the cases as targeted malice (the first limb), or alternatively by proof of knowledge of invalidity or lack of power and knowledge that it would be likely to cause injury (the second limb). The second limb may also be satisfied if it can be proved that there was reckless indifference or deliberate blindness to the invalidity or lack of power and the likely injury. As will be seen, in this case we are not concerned with the application of the second limb, but only of the first. However, a question may arise as to whether, if targeted malice is proved but no other invalidity or lack of authorisation is established, this is also sufficient proof of the first element of the tort, namely, an invalid or unauthorised act. [213] In Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 Lord Steyn referred to the two limbs as two different forms of liability for misfeasance in public office. He summarised them as follows, at 191: First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful. [214] The description of targeted malice as the exercise of bad faith "in the sense of the exercise of public power for an improper or ulterior motive" must necessarily mean that the power is exercised unlawfully: see, for example, Thompson v Randwick Corporation (1950) 81 CLR 87; Aronson and Dyer: "Judicial Review of Administrative Action" (2nd ed) at 246-251 and cases referred to therein. [215] It was not suggested in the joint judgment in Northern Territory v Mengel that there needs to be some additional invalidity in order to satisfy the first limb of malice. In his judgment at 356, Brennan J makes the point that there can be no liability for misfeasance in a public office for an act which is done or made in valid exercise of a power, even though the loss may be unintended but foreseeable, or even intended, but when referring to the necessary mental element of malice or knowledge he said, at 357: That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. [216] Engaging in conduct with the intention of inflicting injury would almost invariably amount to use of power for an improper purpose, thereby satisfying the first element of the tort at the same time. 1. Further to the above case extract, in Mengel, Brennan J (at 357) said: Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise that in an honest attempt to perform the functions of his or her office whereby loss is caused to the plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, then the cause of action is complete. 1. Also in Mengel, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ (at 345) said: It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. 1. I have earlier extracted the judgment of North and Rares JJ in Nyoni (at [81]). 2. Reference might be made to the observations of Fullerton J in Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012 (at [529]-[540]). 3. The sending of a letter by a police officer in the course of an investigation of alleged criminal activity can satisfy a (targeted malice) misfeasance in public office claim if it can be proved that the letter was sent with an actual intention to cause injury. The Reach of the Tort to the Plaintiff 1. Without repeating the earlier summary of the defendant's submissions, in substance, the defendant challenged the plaintiff's standing to sue for the tort in this matter. 2. The defendant pleaded that the object of the exercise of the power was Mr Dyers. Whilst true, that does not exclude the possibility that the plaintiff was a subsidiary target, as submitted by the plaintiff. 3. The starting point for this conclusion is the judgment of Deane J in Mengel (at 370, extracted above). The relevant portion is: 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. 1. I also repeat the statement of Lord Steyn in Three Rivers (at 191): First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful. 1. The remainder of the question as to whether the Ms Hamilton has standing to sue for the tort of misfeasance in public office can be largely determined with reference to the Plaintiff's Closing Submissions on the issue (at paras 260-264), which I accept. Those submissions are extracted below: 260. The Defendant has contended that it is a critical element in the tort that the intention is to cause injury to the plaintiff. That is, it contends that if there is intention to injure person A and the act injures person B, person B has no cause of action (and nor does person A if he or she suffers no damage). The Defendant contends that the remarks of Deane J (at 370) are obiter, not supported by the other judgments and not supported by the decision of Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 776-777. They also submit it is inconsistent with judgments in Obeid v Lockley [2018] NSWCA 71; (2018) 355 ALR 615, Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, and Garrett v Attorney-General [1997] 2 NZLR 332. 261. There are a number of responses to these contentions. 262. First, the statement of principle in the judgment of Deane J is consistent with – and is not contradicted by – any of the other judgments in Mengel. The majority refers to "an intention to cause harm" (at 345 and see also 347). The principle is not expressed in terms of an intention to cause harm to the plaintiff. Moreover, the following statement of principle by Brennan J (at 358) is consistent with what was said by Deane J: "[T]he tort of misfeasance in public office is not concerned with the imposition of duties of care. It is concerned with conduct which is properly to be characterized as an abuse of office and with the results of that conduct. [emphasis added]" 263. It should be noted that Brennan J's language "whereby loss is caused to a plaintiff" (at 357) is couched in deliberately open terms. "A plaintiff", obviously enough, is clearly capable of connoting a plaintiff who has been injuriously affected by harm inflicted upon or targeted at another person, in the sense intended by Deane J in Mengel at 370. 264. Secondly, the decision of the Court of Appeal in Bourgoin SA v Ministry of Agriculture, Fisheries and Food at 776-777, cited by Deane J, does support the proposition stated by Deane J; contrary to the Defendant's submission. Those pages speak for themselves. [Footnotes omitted.] 1. Relevantly, in Bourgoin (at 776-777) Oliver LJ stated: The court has been referred to a large number of cases both in this country and in Canada and Australia from which, it is said, the inference can be drawn that in order to constitute the tort it is necessary to show an improper motive specifically aimed at the plaintiff. The authorities were extensively reviewed by the judge and it would, I think, be a work of supererogation to repeat the exercise here. There are in certain of the older cases phrases in the judgments or pleadings which might be taken to suggest that "targeted malice" was regarded as essential. I say "might," because in my judgment they are entirely inconclusive. There are also strong indications in the other direction, particularly in the older election cases. For instance in Cullen v. Morris (1819) 2 Stark. 577, 587, Abbott C.J. observed: 'On the part of the defendant it has been contended, that an action is not maintainable for merely refusing the vote of a person who appears afterwards to have really had a right to vote, unless it also appears that the refusal resulted from a malicious and improper motive, and that if the party act honestly and uprightly according to the best of his judgment, he is not amenable in an action for damages. I am of opinion, that the law, as it has been stated by the counsel for the defendant, is correct.' Again, he said, (2 Stark 557 at 589, 171 ER 741 at 745): 'If a vote be refused with a view to prejudice either the party entitled to vote, or the candidate for whom he tenders his vote, the motive is an improper one, and an action is maintainable.' Coming to more modern times there is the Privy Council case of Dunlop v. Woollahra Municipal Council [1982] A.C. 158, where the allegation was one of damage caused to the plaintiff by passing planning resolutions, which were in fact invalid, restricting the height of his proposed building. Paragraph 15A of the pleading was (so far as material) in these terms ([1981] 1 All ER 1202 at 1208, [1982] AC 158 at 169 –170 ): '… [the council] was a public corporate body which occupied office and was incorporated by a public statute … and the [council] abused its said office and public duty under the said statute by purporting to pass each of the said resolutions with the consequence that damage was occasioned to [Dr Dunlop].' In delivering the judgment of the Board Lord Diplock said( [1981] 1 All ER 1202 at 1210, [1982] AC 158 at 172 ): : 'In pleading in paragraph 15A of the statement of claim that the council abused their public office and public duty the plaintiff was relying upon the well-established tort of misfeasance by a public officer in the discharge of his public duties … their Lordships agree with [the trial judge's] conclusion that, in the absence of malice, passing without knowledge of its invalidity a resolution which is devoid of any legal effect is not conduct that of itself is capable of amounting to such 'misfeasance' as is a necessary element in this tort.' Of this case Wade in his book on Administrative Law, 5th ed. (1982), pp 672–673, comments that the Privy Council held that the tort "required as a necessary element either malice or knowledge … of the invalidity" a view which is in line with that expressed by Smith J. in Farrington v. Thomson and Bridgland [1959] V.R. 286, which was carefully considered by Mann J. in the course of his judgment in the instant case. Having concluded his review of the authorities, Mann J. concluded, ante, p. 740D–G: I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v. Woollahra Municipal Council [1982] A.C. 158 in the sense that malice and knowledge are alternatives. There is no sensible reason why the common law should not afford a remedy to the injured party in circumstances such as are before me. There is no sensible distinction between the case where an officer performs an act which he has no power to perform with the object of injuring A (which the defendant accepts is actionable at the instance of A) and the case where an officer performs an act which he knows he has no power to perform with the object of conferring a benefit on B but which has the foreseeable and actual consequence of injury to A (which the defendant denies is actionable at the instance of A). In my judgment each case is actionable at the instance of A and, accordingly, I determine that paragraphs 23 and 36 of the amended statement of claim do disclose a cause of action. 1. I also accept the Plaintiff's Closing Submissions at paras 265-266: 265. The Court of Appeal in Obeid v Lockley (2018) 355 ALR 615 was dealing, by way of obiter dictum, with the question of principle as to whether it was sufficient for the appellants to establish that it was reasonably foreseeable that they were likely to suffer reputational harm. Bathurst CJ rejected that proposition and held that the appellants would have to show that the respondents were aware that the conduct would be likely to cause harm to the appellants, or that they were recklessly indifferent to such risk of harm. The Court was concerned with the question of whether reasonable foreseeability was sufficient, or whether actual awareness or reckless indifference was required. The Court was not concerned with the question of whether it was necessary to establish actual awareness or reckless indifference of likely damage to the plaintiff, or whether it was sufficient to establish actual awareness or reckless indifference of likely damage to a person, which injuriously affects the plaintiff. That is, the question addressed by the Court of Appeal is not the question raised in these proceedings. The decision does not justify departure from the considered dictum of Deane J. 266. Nor was the point expressly adverted to and addressed by the House of Lords in Three Rivers, save to note that Lord Hutton set out the very passage from the decision of Deane J to which the Plaintiff draws attention in these proceedings, and specifically said that this judgment was "important". [Footnotes omitted.] 1. In Three Rivers, Lord Hutton (at 1263) stated: The judgment of Deane J is important because, as in the judgment of Oliver LJ in the Bourgoin case, it emphasises that the second limb of the tort is a species of malice and that the requirement for malice is satisfied where the public officer knows that the abuse of power will cause injury, or is recklessly indifferent or deliberately blind to the likely injury. [Emphasis added.] 1. The Plaintiff's Closing Submissions continue, with my acceptance, at paras 267-271: 267. In Garrett v Attorney-General [1997] 2 NZLR 332, the Court of Appeal was not concerned with the particular question raised in these proceedings, but with the basal question of foreseeability of damage. Blanchard J, who gave the reasons of the Court, concluded (at 349-50) that: "[t]he tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed. The tort is not restricted to a case of deliberately wanting to cause harm to anyone; it also covers a situation in which the official's act or failure to act is not directed at the injured party but the official sees the consequences as naturally flowing for that person when exercising power. In effect this is no more than saying the tort is an intentional tort. In this context, a person intends to bring about the known consequences of his or her actions or omissions, even if other consequences form the primary motive. Bourgoin is an example. The concept of attributing intention by necessary inference in this way is well established." 268. This New Zealand decision does not expressly deal with the issue now under consideration, and provides no basis for this Court to depart from the considered dictum of Deane J in Northern Territory v Mengel. 269. The Defendant's submissions at [41]-[42] about coherence in the law are illusory. The doctrine of coherence is directed at the compatibility and cohesion of common law-based and statutory remedies; and the compatibility and cohesion of various common law-based remedies inter se: State of New South Wales v Paige (2002) 60 NSWLR 371 at [95], per Spigelman CJ. It has no application to the issues raised in this case. 270. The nature of the cause of action means that misfeasance in public office is not a tort easily satisfied. The Plaintiff submits, however, that she has established that the sending by Mr Southgate of the 24 July 2007 letter was the final, malicious step taken in an investigation that was carried out in a highly improper manner, and which targeted Mr Dyers. 271. It follows that if the Court finds that the Plaintiff has established her case, she is properly entitled to a remedy, and that this cannot involve overstepping any other doctrine, nor intruding into the province of other forms of tort-based remedies. Was the sending of the letter an Exercise of the Police Power? 1. The defendant submitted that the conduct complained of involved investigative functions of Acting Inspector Southgate undertaken independently of the exercise of any public power. Many investigative functions of the police do not involve the exercise of a public power or the exercise of a public duty in the context of the elements of the misfeasance tort. A failure to investigate non-feasance will rarely, if ever, amount to actionable misfeasance. 2. A consciously dishonest failure to investigate a matter, for fear it may establish innocence, may be an exception, but this will be a rare case and one requiring unambiguous proof of the dishonest motive, to the exclusion of anything less than reckless indifference, such as carelessness, negligence, mistake or misplaced judgment. 3. The plaintiff submitted that the sending of the letter was directly connected with the discharge, or purported discharge, of Acting Inspector Southgate's official responsibilities as a police officer, and. in particular, as the Officer in Charge of Strike Force Caroola. There is no authority or principle that supports the proposition that positive acts by a police officer, purportedly carried out during the course of an investigation, are immune from attack, notwithstanding that it can be demonstrated that the act would otherwise satisfy the elements of the tort of misfeasance in public office. 4. Further, the plaintiff submitted that there is no doubt that police officers can commit the tort of misfeasance in public office: Farrington. That is consistent with what was said in Nyoni at [92]: [92] … with Lord Steyn's identification of the rationale for the tort as "that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior or improper purposes"... 1. I will return below to the standard of proof to be applied in determining the present application. It might be remembered that the burden of proving malice (subjective intention) is a high one. 2. There is no authoritative statement of a test for determining what constitutes a public officer for the purpose of the tort. Chief Justice Spigelman observed in Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 at [3] said: "[i]n almost all cases the answer will be obvious". 3. It is clear that a police officer is a public officer for the purposes of misfeasance in public office. This is so when a police officer acts to: 1. Carry out coercive duties (see Farrington; De Reus v Gray (2003) 9 VR 432; [2003] VSCA 84). 2. Investigate criminal activity (see Garrett; Odhavji Estate; Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122). (See also Akenzua v Secretary of State for the Home Department [2002] EWCA Civ 1470; [2003] 1 WLR 741; R v Dytham [1979] QB 722; and Amin v Imran Khan & Partners [2011] EWHC 2958). 1. The defendant submitted: 13. … [N]one of the allegations of misfeasance against Southgate addressed in the PCS constitutes, relevantly, an invalid or unauthorised act or omission of a police officer in the conduct of the criminal investigation that was being undertaken. Neither do any of them constitute an act or omission in the course of Southgate's duties or functions of public office as a police officer. The conduct complained of involved investigative functions of Southgate undertaken independently of the exercise of any public power. Many police investigative functions do not involve the exercise of a public power or the exercise of a public duty in the context of the elements of the misfeasance tort. … 1. I do not accept that submission for a number of reasons. First, the contention conflates targeted malice with untargeted malice by focusing on a purported lack of an "invalid or unauthorised act" and does not recognise that that element of the tort, as per Deane J's phraseology, is satisfied if targeted malice is made out. There was little disagreement that, in the course of a criminal investigation, it would normally be a valid and authorised act for a detective to send a letter regarding the wish of NSW Police to interview an individual whom allegedly committed offences relating to sexual assaults (although I will return to that question). However, if that power is exercised maliciously, i.e. with an actual intention to cause injury (see above), then, if damage is also proved, the malice element (targeted malice) is satisfied and the tort is made out (this assessment corresponds to my earlier discussion regarding the elements of the tort). 2. Secondly, the submission of the defendant, that the sending of the letter is incapable of being reached by the tort, is baseless. This was addressed by the Plaintiff's Reply Submission at para 11, which states: 11. The act of sending the letter was not "undertaken independently of the exercise of any public power" (cf DCS [13]). The sending of the letter was directly connected with the discharge, or purported discharge, of Mr Southgate's official responsibilities as a police officer, and in particular as the Officer in Charge of Strikeforce Caroola. There is no authority or principle that supports the proposition that positive acts by a police officer purportedly carried out during the course of an investigation are immune from attack notwithstanding that it can be demonstrated that the act would otherwise satisfy the elements of the tort of misfeasance in public office. 1. Thirdly, as earlier mentioned, the entirety of the plaintiff's case has been built around the targeted malice form of the tort. This can be readily seen in the Plaintiff's Closing Submissions (at paras 246-247) which state: 246. The plaintiff will make out a case for the tort of misfeasance in public office if she can establish; (a) a police officer undertook some act or omission in the course of the exercise of his or her duties or functions public office; (b) in undertaking the impugned conduct, the police officer intended to cause harm to a person or persons; (c) the intention to cause harm was the dominant purpose of the impugned conduct or the conduct was not undertaken in good faith; and that, (d) the impugned conduct caused harm to the Plaintiff. 247. This form of the tort is commonly referred to as 'targeted malice'. Investigative Functions Submissions for the Defendant 1. Mr Peter Neil SC and Mr Dominic Villa SC, who appeared for the defendant, made extensive submissions which substantially informed the discussion below. 2. Policing powers carry with them a wide measure of discretion, such that it usually cannot be asserted, as a matter of law, that a police officer is under any unqualified duty to exercise particular powers (Desai v Keelty (2009) 180 FCR 559; [2009] FCA 1280 at [18] per Tracey J). An illustration is provided by R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118; [1968] 1 All ER 763 ("Blackburn"), in which Lord Denning MR observed, at 136, that although police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. These include decisions in any particular case whether enquiries should be pursued or a prosecution brought. 3. The width of the discretionary powers vested in police officers was emphasised by Madgwick J in O'Malley v Keelty (2005) 148 FCR 170, in which his Honour observed, at [179]-[180], that organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters. Courts should exercise very considerable restraint before intervening in such an area. In particular, a court cannot and should not compel a police force to investigate every breach of the law. In Director of Public Prosecutions (Vic) (On behalf of Neil Joseph Smyth) v Zierk (2008) 184 A Crim R 582; [2008] VSC 184, Warren CJ pointed out at [18]-[19] that the meaning of "duty" is dependent on the context in which it is used. It may refer to a legal duty, namely an obligation to act imposed by law and generally mandatory, or it may refer to the functions of an office. Whether the office-bearer performs the functions, and in what manner, is generally discretionary, especially with police officers. Her Honour stated: [18] The courts have been reticent to state exhaustively the legal duties imposed on police officers. With competing policy objectives and limited resources, legal duties are imposed cautiously. Many 'duties' of a police officer are more aptly described as functions of office and the discretion in performing these functions is high. The 'duties' of a police officer are ancient and include the duty to preserve the peace, the duty to protect life and property, the duty to prevent crime, the duty to detect crimes when they occur, the duty to apprehend offenders, the duty to prevent obstructions of highways and the duty to uphold the law. [19] However, these must be sensibly read as functions of the office of police member rather than legal, mandatory obligations. 1. Police duties such as those to detect crimes, apprehend offenders and uphold the law are police investigative functions the manner and performance of which (including non-performance) are discretionary. I accept the submission of the defendant that police investigations cannot be subject to mandatory strictures giving rise to tortious liability for non-adherence. I also accept the plaintiff's case provides a good example of why this must be so. Throughout the Strike Force Caroola investigation Mr Koops, on behalf of Mr Dyers, sought to discredit the complainants against Mr Dyers. He accused police of acting maliciously and illegally and threatened police that they would be held to account unless, in effect, they took it upon themselves to reject the complainants' allegations. This led to Detective Chief Inspector, as I will later discuss, writing to Mr Koops to inform him that all further communications with investigators should be through him pending the early appointment of a solicitor from the DPP. 2. In State of NSW v Tyszyk [2008] NSWCA 107 ("NSW v Tyszyk"), Campbell JA, with whom Mason P and Giles JA agreed, in a negligence action (where police failed to warn the plaintiff of the presence of a dangerous dangling downpipe at the scene of a building collapse), traced the history of the office of constable at common law and police statutory and common law powers and duties at [55]-[133]. His Honour identified, at [84], as a most important aspect that the duties of a constable were those of preventing and detecting crime and enforcing criminal law. At [116]-[133] his Honour discussed the public policy reasons for not imposing a duty of care in many circumstances of police investigations. Citing Lord Keith of Kinkel in Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238, his Honour identified the following as public policy factors against imposing tortious liability (in negligence): 1. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of tort liability 'so far as concerns their function in the investigation and suppression of crime'. 2. The imposition of a duty of care would be unlikely to improve the efficiency of police operations. It could impede them by leading to the exercise of some police functions "being carried on in detrimentally defensive frame of mind". 3. Litigation of questions involving the formation of police policies and exercise of police discretions within the framework of available resources involves examination of matters that 'would not be regarded by the courts as appropriate to be called in question'. 4. Investigation of such matters would be time consuming and costly and would involve diversion of significant police resources from the primary task of the police. 1. This is especially so where the complaint is that the investigating police did not take some action or step in the investigation which the claimant alleges would have prevented injury to him or her had it been taken. 2. Campbell JA also drew attention, in NSW v Tyszyk, to a long line of authority rendering the exercise (or non-exercise) of police discretionary functions, including investigative functions, as being immune from tortious liability including: 1. Blackburn at 136 (per Lord Denning MR): ..there are many fields in which [police] have a discretion with which the law will not interfere. For instance it is for [the police)] … to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or prosecution brought. 1. Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 at 277 (per Viscount Cave LC), where his Lordship accepted that "there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury…". 2. R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458 at 472, where the Master of the Rolls held it to be of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation (Lawton LJ agreeing at 474-477, Templeman LJ agreeing at 480-481). 1. Reference may also be made, in this respect, to New South Wales v Paige; (2002) 60 NSWLR 371; [2002] NSWCA 235 at [114]-[115]; X (Minors) v Bedfordshire County Council (1995) 2 AC 633; [1995] UKHL 9 at 739 and Cran v New South Wales [2004] NSWCA 92 at [71]. 2. In respect of alleged failures on the part of Acting Inspector Southgate to investigate matters relevant to allegations made by PLA, it is important to draw attention to the observations of Lord Millett in Three Rivers at 1269 where it was concluded that, although a failure to act can amount to misfeasance in public office, it will only do so in those circumstances in which the officer is under a legal obligation to act. Lord Hobhouse agreed, stating the principle that, if there is a legal duty to act and the decision not to act amounts to an unlawful breach of that legal duty, the omission can amount to misfeasance. Hence, a failure to act will not constitute misfeasance unless it amounts to a deliberate breach of official duty. 3. In Odhavji Estate, Iacobucci J, at [24], cited the remarks of Lords Millett and Hobhouse with approval and observed, at [26], that in respect of a failure to act the misfeasance tort is directed at a public officer who could have discharged his or her obligations, yet wilfully chose to do otherwise. 4. The discharge of the duties of police officers is, of course, affected by the Police Act 1990 (NSW). 5. Section 6 of the Police Act, as in force as at July 2005, set out the "Mission and functions of NSW Police" which included the provision of "services by way of prevention and detection of crime". Section 7 described the "Statement of values of members of NSW Police" which were stated at a very high level. By the oath of office prescribed under regulation 8 for the purposes of s 13 of the Act, a police officer swears to: [W]ell and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until I am legally discharged, that I will cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. 1. Otherwise the provisions of the Act and the regulations do not inform the questions framed in this matter. 2. Importantly, they clearly recognise the wide discretion available to police in the manner in which their investigatory functions are carried out. 3. The power of arrest is enlivened where the relevant police officer "suspects on reasonable grounds" that an offence had been committed (s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)). It is also clear that the relevant suspicion may arise at the beginning of a process during which an arrest occurs followed by further investigation that may reveal the proceedings should not continue, or during which further evidence may be obtained which provides admissible evidence of a prima facie case that was lacking at the time of arrest: Hussien v Chong Fook Kam [1970] AC 942, approved in George v Rockett (1990) 170 CLR 104; [1990] HCA 26. Importantly, this occurs in an institutional setting in which an independent prosecutor reviews the material and if appropriate issues requisitions, and the process of investigation continues after the initial arrest. 4. This was not a matter in which Acting Inspector Southgate closed his mind to the significance of Ms Paisley. Instead, he made a forensic decision to defer attempts to speak with Ms Paisley (and Ms Broadbent) until after the arrest of Mr Dyers, the lawfulness of which is not, and could not possibly be, in issue. 5. The decision to arrest Mr Dyers without speaking to Ms Paisley was clearly an option that was properly available to Acting Inspector Southgate. He was entitled to form the view that Ms Paisley's status as either a mere witness or a potential co-offender could not be determined at that point in time, and it was an appropriate investigative technique to lock Mr Dyers into a version of events prior to speaking with further (potential) witnesses. 6. In short, there was no obligation upon Acting Inspector Southgate to speak to Ms Paisley before arresting Mr Dyers in October 2005. Inferences 1. As will be later discussed under the heading "Tort of Misfeasance in Public Office", the plaintiff's case is one of "targeted malice". The plaintiff pleaded that there were two "targets", Mr Dyers and herself. The plaintiff submitted that malicious injury was occasioned by Acting Inspector Southgate to Mr Dyers through an act that injuriously affected her. The issue of whether that case is open to the plaintiff is also separately considered below. 2. The principles governing the drawing of inferences are well settled. In Seltsam Pty Ltd v McGuiness; James Hardie & Co Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 ("Seltsam Pty Ltd v McGuiness"). Spigelman CJ adopted from Jones v Great Western Railway Co (1930) 144 LT 194, a definition of inference as "a deduction from the evidence" which, if reasonable, may have the validity of legal proof. His Honour also referred with approval to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, which held that inference must be carefully distinguished from conjecture or speculation and there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. 3. This principle is consistent with Sir Frederick Jordan CJ's well-known exposition on the drawing of inferences in Carr v Baker [1936] SR (NSW) 301 at 306-7. The Chief Justice stated that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture. If there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established. If there are two countervailing probabilities in perfect equipoise, the fact cannot be established (see the judgment of Rothman J in R v Spiteri-Ahern (No 11) [2017] NSWSC 1820). 4. In Seltsam Pty Ltd v McGuiness, Spigelman CJ held (at [153]) that whether or not the inference is open or should be drawn depends on the quality of the underlying facts, particularly in terms of the degree of "possibility" which is involved. The defendant submitted that in a case such as this, where proof of the misfeasance tort against Acting Inspector Southgate depends substantially on inferences to be drawn from documents, the documentary evidence admissible against him must be separately assessed and adverse inferences of fact should only be drawn if they are compelling. If the propounded inference may reasonably be explained by inadvertence, carelessness, negligence or even gross negligence, none of which were conceded by the defendant, an inference should not be drawn in support of proof of the misfeasance tort (adverse inferences are not open if there is ambiguity, imprecision or lack of clarity). 5. In Commonwealth v Fernando (2012) 200 FCR 1; [2012] FCAFC 18, the Court (comprising of Gray, Rares and Tracey JJ) held, at [130], that a finding a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister's reputation. Where conflicting inferences are open and one of those inferences is favourable to the Minister, the Court will not be satisfied that the case has been proved to the necessary standard. The same may be said about the conduct of Acting Inspector Southgate. Standard of Proof 1. The defendant submitted that because s 140(2) of the Evidence Act 1995 (NSW) gives effect to the settled principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw"), it is necessary in determining whether the allegations made against Acting Inspector Southgate are proved to the court's reasonable satisfaction on the highest level of the balance of probabilities having regard to the seriousness of the allegations, the inherent unlikelihood of the officers having acted as alleged, and the gravity of the consequences flowing from adverse findings. I accept that submission. These are all relevant considerations which impact on whether the elements of the misfeasance tort have been proved (Briginshaw at 361-2 (per Dixon J)). While it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the court, "reasonable satisfaction" is not produced by inexact proofs, indefinite testimony, or indirect inferences. Dixon J stressed the need for the exercise of sound and prudent judgment if the question is whether some act has been done involving grave moral delinquency. 2. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66, Mason CJ, Brennan, Deane and Gaudron JJ, elaborating on Dixon J's remarks in Briginshaw, stated, at [2], that where the civil onus of proof on the balance of probabilities applies, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". This reflects a conventional perception that people of good character do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. 3. The defendant submitted that the allegations pressed against Acting Inspector Southgate are of a grievously serious kind. They involve nothing less than allegations of an attempt to pervert the course of justice and attempt to frame Mr Dyers with false charges of the sexual assault of PLA, at least in respect of the 2006 Bundeena allegation. They are compounded, it was contended, by the allegation that Acting Inspector Southgate intended to cause serious personal injury to both the plaintiff and Dyers. These allegations are amenable of proof on the probabilities only on clear, cogent or strict proof. The evidence relied on by the plaintiff falls very far short of this. 4. The case for the plaintiff relies, in many respects, upon a series of steps, progressively and consistently, perhaps systematically intended to do Mr Dyers harm as exemplified by the submission that the letter was the final malicious act. The connection to the plaintiff has briefly been touched upon to this point and will be the subject of expansion below. Both the allegations of sequential steps (even if the plaintiff on occasions modified the severity of the allegation) up to the final act of sending the letter each involving very serious allegations against Acting Inspector Southgate. It follows, in my view, that the defendant correct to contend that the allegations are amenable to proof on the balance of probabilities sonly on the basis of clear and cogent proof. CHAPTER III: THE FACTUAL BACKGROUND RELATING TO THE CHARGES AND PROCEEDINGS BROUGHT AGAINST MR DYERS CONCERNING THE HLA/OLR ALLEGATIONS Preliminary Issues 1. At the outset of this factual background, it should be noted that the defendant submitted that certain aspects of the factual background relied upon by the plaintiff were not relevant in determining this matter and that a large number of issues attracted controversy. I shall deal with the first issue below and the second within the relevant context of the factual background (although, I will deal with broader issues regarding Acting Inspector Southgate and Detective Sergeant Frame's credit during the course of the factual background). 2. The defendant referred to four issues concerning relevance: 1. The first of those was evidence concerning Kenja and broad descriptions of the police as to the same (see paras 12-17 of the Plaintiff's Closing Submissions). 2. Secondly, the defendant referred to paras 30-37 of the Plaintiff's Closing Submissions. 1. The defendant submitted that this material, concerning newspaper reports as to Kenja and Mr Dyers, was not put to Acting Inspector Southgate and, therefore, was irrelevant. The defendant contended that there was no evidence that Acting Inspector Southgate had knowledge of that context, save for some police documents which referred to Kenja as a "cult" and as a "religious organisation". The defendant further submitted that, having regard to the extensive media publicity in the years prior to Acting Inspector Southgate being assigned to the case, of which he had no knowledge, those labels were reasonable from a general police perspective, although Acting Inspector Southgate was not influenced by them. 2. The plaintiff submitted that, as her case was ultimately one based on inferences that should be drawn, principally from documents, it would be necessary to consider the factual context leading up to Mr Dyers' death in July 2007. As to the first grouping concerning police documents, I accept that submission. 3. As to the media history, I accept that this material was not put to Acting Inspector Southgate as such. There was no evidence that Acting Inspector Southgate had read the media articles relied upon by the plaintiff. I accept the defendant's submission that there was no evidence that Acting Inspector Southgate was influenced by those particular articles. It follows that the media articles are irrelevant to the issue of malice as the media material did not provide a proper basis for inferring any particular state of mind by Acting Inspector Southgate. (In fact, he had no knowledge of the prior extensive media coverage, prior to being assigned the case). They are, however, relevant in another context. 4. The plaintiff relied upon the connection between the media attention and the decision of the police to re-open the investigation. The plaintiff, in that respect, relied upon the "Operation Summary" included in Strike Force Caroola Investigation Progress Report Number 4, which recorded: Strike Force CAROOLA was established in May 2005 to investigate alleged sex offences committed by Ken Dyers upon children while attending his KENJA organisation. These allegations date to 2002. This matter was originally investigated and suspended by Kogarah JIRT, and revived following a review conducted within the Child Protection and Sex Crimes Squad in April 2005 after media attention was generated by Cornelia Rau and her involvement with KENJA. During cross-examination, that extract was put to Acting Inspector Southgate. He accepted that media attention contributed to the decision of senior officers to conduct a review. 1. Thirdly, the defendant submitted that paras 171-172 of the Plaintiff's Closing Submissions concerning, inter alia, Acting Inspector Southgate's knowledge of a judgment of Phegan DCJ, regarding an application for a permanent stay, were irrelevant. I will return to those submissions. The submissions in paras 170-171 are relevant, however, insofar as they direct attention to the knowledge of Acting Inspector Southgate as to Strike Force Caroola, although whether the inferences sought to be drawn by the plaintiff are available is another matter. I note that the references to Acting Inspector Southgate's evidence at para 173 of those submissions are also relevant. However, I accept the submission of the defendant, that evidence established the contrary of what was submitted by the plaintiff at para 174.The knowledge of other officers on the task force was otherwise irrelevant. 2. Fourthly, it was submitted that the submissions of the plaintiff at paras 195-197 were irrelevant without further explanation. I reject that submission. 1. The following represents a chronology of the facts and circumstances through to the committal proceedings and arraignment in the District Court (and later vacation). The chronology consists of findings of fact (whether agreed or otherwise) and the resolution of particular issues as to malicious intention. The 1993 Criminal Charges against Mr Dyers The 1993 charges and conviction 1. In September 1993, Mr Dyers (then aged 71 years) was arrested and charged with 18 counts involving sexual offences against four children of ex-Kenja members. 2. Mr Dyers defended the charges. His trials were conducted in February 1996, April 1996, July 1999, August 1999 and October 1999. He was acquitted by a District Court jury on 3 counts, and by another District Court jury on 6 counts. The ODPP dropped 8 counts. In July 2000, Mr Dyers was convicted on the sole remaining count and sentenced to 12 months' imprisonment. The conviction and sentencing appeal 1. After spending about one week in prison, Mr Dyers was released on bail, pending appeal. His health had deteriorated as a consequence of incarceration. 2. The New South Wales Court of Criminal Appeal reduced Mr Dyers' sentence to a suspended sentence of 12 months' duration: R v Dyers [2000] NSWCCA 335. 3. Ireland AJ described the background circumstances of the appeal against conviction and sentence (at [3]-[5]) as follows: [3] IRELAND AJ: The appellant, Kenneth Emmanuel Dyers, was indicted before his Honour Judge Kinchington QC at the Sydney District Court on 5 July 1999 on a charge that he between 22 July 1988 and 6 August 1988 at Sydney did assault AP, a person then under the age of 16 years, namely 13 years, and at the time of such assault, did commit an act of indecency upon her, she then being under his authority. This offence is in contravention of s 61E(1A) of the Crimes Act, 1900 and carries a maximum penalty of imprisonment for 6 years. [4] The appellant pleaded not guilty and was tried before Judge Kinchington QC and a jury of twelve. [5] On 16 July 1999, the jury returned a verdict of guilty. 1. The conviction appeal was refused (at [71]). As to the sentencing appeal, Ireland AJ found (at [82]-[83]): [82] For my part, I am not persuaded that the sentencing process was vitiated by error on the trial Judge's part. Nevertheless, on a consideration of the more recent medical material, I am of the view that the appellant should not be returned into custody. [83] I would propose the following orders:- 1. That the appeal against conviction be dismissed. 2. That leave to appeal against severity of sentence be granted. 3. That the appeal against severity of sentence be upheld and the sentence quashed. 4. That the appellant be sentenced to 12 months imprisonment deemed to have commenced on 4 July 2000 expiring on 3 July 2001. 5. That pursuant to s 12 of the Crimes (Sentencing Procedure) Act, 1999, the sentence be suspended subject to the offender entering into a bond to be of good behaviour during the remainder of the term of the sentence. The appeal to the High Court of Australia 1. In October 2002, the High Court quashed the decisions below, with the result that Mr Dyers' sole conviction was set aside and a new trial ordered: Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45. 2. The background circumstances before the High Court were set out in the in the joint judgment of Gaudron and Hayne JJ (at [1]-[3]) as follows: [1] In 1999, the appellant was indicted, in the District Court of New South Wales, on a charge of indecently assaulting a 13 year old girl in 1988 – 11 years earlier. Although the indictment alleged that the offence had occurred between specified dates, by the end of the prosecution case it was clear that it was alleged that the assault had occurred on the morning of 29 July 1988. In an unsworn statement at his trial, the appellant acknowledged that he had seen the complainant that morning, but he said that it was only in the company of her mother, and while he was otherwise engaged in meetings with others. The appellant's appointment diary was tendered in evidence. It recorded a number of appointments for the appellant during the day. No appointment with the complainant was recorded. There were, however, references to a meeting at 9.30 am with two other persons, a meeting between 1.00 pm and 3.00 pm with several other persons, including the complainant's mother, and what was described as a "processing session" with a Ms Tinkler between 9.30 am and 11.30 am in a room called the "energy conversion room". The complainant swore that the appellant had indecently assaulted her in that room at the end of a "processing session" with her in the morning of 29 July 1988. [2] Neither Ms Tinkler nor others who were recorded in the diary as having appointments at 9.30 am and 1.00 pm gave evidence at the trial. The principal issue in the appeal is this. Did the trial judge misdirect the jury by telling them that, if they concluded: first, that any of these persons was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and secondly, that there was no satisfactory explanation for the failure of that party to call the person to give evidence, then "you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness"? [3] Yet immediately before giving this direction, evidently modelled on what was said in Jones v Dunkel, the trial judge had told the jury that where it appeared that there was a witness who could be expected to have been able to give some relevant evidence on some aspect of the case, but the witness had not been called, "you are not entitled to speculate upon what that witness might have said if the witness had been called". [Footnotes omitted.] The Kogarah JIRT Investigation into the Allegations of HLA The allegation of HLA – September 2002 1. In September 2002 (which was about one month before the High Court delivered its judgment), HLA complained to NSW police that she had been sexually abused by Mr Dyers. As earlier mentioned, HLA was the daughter of two ex-members of Kenja. She was herself an ex-member of Kenja. 2. Between September and November 2002, HLA gave four police interviews. She alleged that Mr Dyers sexually abused her between December 2001 and July 2002, during her participation in Kenja, and on Kenja premises. During that time, she was aged between 12 and 13 years. HLA identified other children as potential victims of Mr Dyers, which included PLA and OLR. 3. The Kogarah JIRT investigated HLA's complaints. That investigation included interviewing PLA and OLR. The interview of PLA – 27 August 2003 1. PLA was interviewed on 27 August 2003. She was 16 years old at the time. The interview was conducted by Ms Daniel, Senior Child Protection Caseworker for DOCS, together with Constable Angela Cranny of the NSW Police, at St Catherine's College, Waverley. 2. During that interview, it was put to PLA that the NSW Police had received a report that "something" might have happened to her at Kenja. PLA denied that she had ever been abused by Mr Dyers, refuted the allegations made against Mr Dyers by HLA, and labelled HLA a "liar". (PLA's interview was electronically recorded and a transcript was produced ("the PLA 2003 interview"). Constable Cranny certified the ERISP transcript as an accurate record of the interview on 11 September 2003). The Kogarah JIRT Investigation into the Allegations of OLR The Kogarah JIRT Job Overview: OLR – 27 August 2003 1. The Kogarah JIRT produced a "Job Overview" document, in relation to OLR, dated 27 August 2003 (prior to the interview of OLR). It identified OLR as "a member of Kenja and possibly a victim of sexual abuse by the leader, Ken DYERS". An undated Kogarah JIRT "Briefing Form", that also appears to have been completed prior the interview, recorded the following: Perceived risk factors: Nil at this stage – appears to be no contact The interview of OLR – 3 September 2003 1. OLR was interviewed on 3 September 2003. She was 14 years old at the time. The interview was conducted by Ms Daniel, Senior Child Protection Caseworker for DOCS. 2. In that interview, OLR alleged that Mr Dyers touched her during a "processing" session. OLR also alleged that other persons were present in the room during the incident. (OLR's interview was electronically recorded and a transcript was produced. Acting Inspector Southgate was recorded as certifying the ERISP transcript as an accurate record of the interview on 2 December 2005). 3. A Kogarah JIRT "Debriefing Form" dated 20 January 2005, produced in relation to interview of OLR, recorded the following: Outcomes of investigative interview: No disclosure to substantiate criminal charges. Risk factors: Nil – no contact/no disclosure 1. The proposed action selected by the police officer completing the debriefing form was "NO FURTHER ACTION". The form also recorded: "Discontinuance sent". The Kogarah JIRT Investigation is Suspended – February 2005 1. The NSW Police reviewed the case against Mr Dyers and, in around late January/early February 2005, suspended the investigation. No charges were laid against Mr Dyers. 2. There was some contention between the parties as to why no charges were laid. The defendant submitted that it was the result of the absence of co-operation by the complainants. The plaintiff submitted that PLA co-operated with investigators by participating in an interview, OLR's complaint was dealt with as above and HLA signed a notice of discontinuance. I accept the plaintiff's submission in this respect. Media Coverage of Mr Dyers and Kenja – February 2005 1. From 8 to 18 February 2005, the Sydney Daily Telegraph ("the Daily Telegraph") led critical media coverage as to Mr Dyers and Kenja, concerning matters incidental to Ms Cornelia Rau's unlawful detention. A summary of that coverage appears below: 1. On 8 February 2005, the Daily Telegraph's front page declared: "Cornelia Caught by Cult". In an "exclusive" article, the journalist Ms Lisa Davies wrote that the "mentally ill woman wrongly locked in Baxter Detention Centre slid into schizophrenia while a member of a cult in Sydney". According to Ms Davies, there was a "story" behind Ms Rau's schizophrenia and her "cult membership" of Kenja, run by its "guru, Ken Dyers". Ms Davies reported that in 1998, Ms Rau spent "a few months" with the group behind secretive "steel doors" at the Kenja headquarters in Surry Hills. 2. On 10 February 2005, the Daily Telegraph ran a full page article with a picture of Mr Dyers under the headline: "Face behind a cult". The article sought to present Mr Dyers as an "elusive millionaire" with a "$4 million cliff-top mansion", who was running a "cult". The article implied that Kenja was responsible for Ms Rau's decline into mental illness and the disappearance of another mentally disturbed ex-member of Kenja. 3. On 11 February 2005, the Daily Telegraph published a further article entitled: "The cruel abuse of Cornelia". Ms Davies reported that Ms Rau had been expelled from Kenja after being "humiliated" in a "cruel shaming ceremony". Ms Davies went on to record claims made by anonymous witnesses as to how Ms Rau was "humiliated, demonised and expelled", and that Mr Dyers had accused her of having "very strong evil entities – ghosts". 4. On 11 February 2005, the Daily Telegraph's editorial called for a parliamentary inquiry into Kenja. It noted that while the Palmer Inquiry would investigate Ms Rau's disappearance and incarceration at Baxter Detention Centre, "perhaps the issue of most immediate concern is her association with the mysterious Kenja cult". 5. On 18 February 2005, under the heading "Inside the sordid sect", the Daily Telegraph reported that the Cult Information & Family Support Group had demanded a NSW Parliamentary inquiry into Kenja. The article referred to a call for an inquiry came as "seven women claim they were sexually abused during practices while members of Kenja". It was claimed, Mr Dyers had touched a naked female body during a "session", and "Suzanne" said that Kenja was "so reckless with how they treat people. Ken Dyers is a law unto himself". The Review of the Kogarah JIRT Investigation of Mr Dyers The Norris Review 1. In about early March 2005, Detective Superintendent Kim McKay, Commander of the Child Protection and Sex Crimes Squad, requested a review of the investigation conducted by Kogarah JIRT into "allegations made against KENJA religious organisation". 2. The task of carrying-out the review was initially assigned to Detective Senior Sergeant Holton and later assigned to Detective Senior Sergeant Norris to complete. 3. In a memorandum from Detective Superintendent McKay to Ms Pam Young, JIRT Manager, dated 8 March 2005, Detective Superintendent McKay identified that the "Graham Norris review of Ken[j]a" (hereinafter "the Norris Review") was to concentrate on the following: • the quality of the interviews with the children, • the identification of the lines of inquiry that were to be carried out and how many were then conducted, • the quality of the COPS case management, • the quality of the Team Leader's reviews and directions on COPS, • the reviews by Coordinator; and the reasons for delays and the reason why the family made the discontinuance. 1. Detective Superintendent McKay specified the due date for the report was 30 March 2005. The Norris Report 1. Detective Senior Sergeant Norris produced a report dated 8 April 2005 ("the Norris Report"). (It may be noted that in some correspondence before the Court, the Norris Report was also referred to as "the Kenja Case Review" or "Case Review Document"). 2. At this juncture, in light of the contentions with respect to the Norris Report (to which I will return), it is appropriate to provide a summary of its contents follows. 3. The Norris Report was divided into four sections, namely: 1. Issue; 2. Background; 3. Comment; and 4. Recommendation. 1. Under the heading "Issue" the following was recorded: Request by Detective Superintendent McKay to review the investigation conducted by Kogarah JIRT into allegations made against KENJA religious organisation. 1. Turning to the background to the investigation, the following details, inter alia, were recorded in the Norris Report: 1. On 9 September 2002, notification was received by Kogarah JIRT in relation to HLA alleging that Mr Dyers, "the spiritual leader of KENJA", had inappropriately touched her. At that time, it was thought that "KENJA was possibly a 'cult' associated with the Church of Scientology". 2. As a result of inquiries commenced with HLA, two further possible victims were identified: OLR and PLA. 3. Mr Dyers was identified as a person of interest. It was noted that COPS recorded that he was "Convicted in 1993 for indecent assault". 4. The investigation of Mr Dyers in relation to HLA and OLR were both discontinued "at the request of family". 5. The investigation of Mr Dyers in relation to PLA was suspended following "[n]o disclosure of offence by child". 6. In a report dated 18 September 2002, Detective Senior Constable McLachlan made a recommendation that the Child Protection Crime Team take carriage of the investigation. That request was rejected on or around 19 March 2003. The following reason was cited: "due to substantial staffing shortages and current caseload, commencement of further investigation had not occurred due to its historical nature and no current risk to the victim, this matter has been allocated a low priority at this time". 7. Detective Senior Sergeant Norris opined that "there appears to be a deficiency in the control and review of cases managed within Kogarah JIRT". He recorded: What is abundantly clear is that Ken Dyers has used his position as leader of Kenja to access children, groom and condition them to his spiritual beliefs and ultimately use this power and authority to commit criminal offences against them. While no formal action has been taken against him, he remains a person of high risk within his realm of contact of authority. 1. Under the heading "Comment", Detective Senior Sergeant Norris made further observations, which included the following: 1. "As a result of reviewing the interviews of HLA and identifying a number of issues, the interview with OLR was not reviewed, as it was felt that the same issues would have been discovered already." 2. "After reviewing the interview of HLA I feel very strongly that it is most inappropriate for this matter to be suspended at this time without a robust investigation into the allegations raised by HLA and OLR and advocate that an appropriately resourced strike force be established with the Sex Crimes Squad to investigate the actions of Ken DYERS and the activities of the KENJA organisation." 3. "It is my view that the Kogarah JIRT does not have the necessary resources to conduct an inquiry that is tasked to review the profile and make up of the KENJA organisation, canvass the possibility of locating multiple victims, and investigating whether Ken DYERS has acted alone in committing offences against children, or whether other persons actively assisted in the process." 4. "The father of HLA has actively been seeking the support of the media, in particular, The Daily Telegraph, to expose the actions of Ken DYERS and KENJA. I firmly believe that if the appropriate resources and commitment is given to reinvestigate this matter, contact with the HLA and OLR famil[ies] could be recommenced with a view to regaining their support to proceed with criminal proceedings in respect to the actions of DYERS against their children." 1. The recommendation of the Norris Report was that "this matter is forwarded to the Commander of the Child Protection and Sex Crimes Squad for review and that consideration be given to activating an appropriately resourced strike force to reinvestigate this matter". 2. The plaintiff contended that the Norris Report, produced as part of the Norris Review, was "seriously flawed", as it contained a series of errors and was incomplete, as parts of the investigation had not been reviewed. 3. As to deficiencies within the Norris Report, the plaintiff contended: 1. Detective Senior Sergeant Norris failed to review the interview with PLA, namely, the interview in which PLA denied any wrongdoing by Mr Dyers and branded HLA a "liar"; and 2. Detective Senior Sergeant Norris only referred to "three" of HLA's interviews, when "four" interviews had been conducted. Thus, he failed to review all of the interviews of the only complainant for which a charge could be substantiated. 1. As to further errors within the Norris Report, the plaintiff advanced the following submissions: 1. The report incorrectly asserted that Mr Dyers was "convicted in 1993 for indecent assault". That statement is plainly wrong as there were no convictions for indecent assault (or for anything else) when Detective Senior Sergeant Norris wrote his report. Reference, in that respect, was also made to the following e@gle.i entry of Detective Senior Sergeant Norris (dated 4 August 2005): "The suspect was eventually convicted of one count of indecent assault, however, received a suspended sentence. The trials and appeals went for seven years". However, that e@gle.i entry failed to refer to the fact that the High Court had quashed the sole conviction of Mr Dyers. 2. The report misstated that the investigation arose from allegations from OLR, when it actually arose from the interview of HLA. 1. The plaintiff contended that those errors and deficiencies within the Norris Report were "significant shortcomings" and that Acting Inspector Southgate was likely to have been conscious of them as he read the Norris Report, notwithstanding his evidence, during cross-examination, that he could not recall being conscious that there were errors in the report. In support of that contention, the plaintiff submitted that there was good reason for Acting Inspector Southgate to have discussed the Norris Report with Detective Senior Sergeant Norris, for example, when Acting Inspector Southgate took over carriage of the investigation from Detective Senior Sergeant Norris on 30 September 2005, or after Acting Inspector Southgate's review of the police holdings. 2. It is true that Detective Senior Sergeant Norris failed to review the interview with PLA and only referred to three of HLA's interviews. Detective Senior Sergeant Norris' opinion as to Mr Dyers' conduct was expressed extravagantly given the scope of the review, although, he was entitled, based upon his rank and experience, to express views as to risk. However, I accept the defendant's submission that the Norris Report was produced with a limited purpose and, therefore, the assertion that the Norris Report was "seriously flawed" by reason of the errors was "unrealistic". The limited purpose of the Norris Report was evidenced by the memorandum from Detective Superintendent McKay dated 8 March 2005 (extracted above), which indicated that the purpose of the review was to identify systemic issues. 3. The defendant further correctly submitted that the Norris Review was not intended to be a reinvestigation and expressly did not require a review of all of the evidence. In addition to the memorandum of Detective Superintendent McKay, reliance was also placed upon a "Kenja case review note" dated 7 March 2005 that the review would address, inter alia, "Sample dip interviews". 4. Furthermore, as to the statement in the Norris Report that Mr Dyers was convicted in 1993 for indecent assault, the fact that the conviction was subsequently quashed does not negate the fact that Mr Dyers was, at an earlier stage, convicted. Nor is it apparent from the evidence when Detective Senior Sergeant Norris became aware of the fact that the conviction for indecent assault had been quashed. I accept the contention by the defendant that Mr Dyers' criminal record on the COPS database would not have informed him that the conviction was quashed, as the COPS database did not record that fact. 5. As to the plaintiff's contention that the Norris Report misstated that the investigation arose from allegations from OLR, that submission is not entirely correct. Whilst, Detective Senior Sergeant Norris observed that "[i]n terms of the report of PLA, this matter arose from the report from OLR", at the outset of the report, the Detective Senior Sergeant Norris stated: As a result of inquiries commenced with HLA, two further possible victims were identified. OLR … and PLA … 1. I do not accept the plaintiff's submission that an inference should be drawn that Acting Inspector Southgate was likely to have been aware of the errors in the Norris Report when he read it. As noted, Acting Inspector Southgate could not recall noting whether there were errors in the report. I will later deal with issues raised as to his credit but in this respect (and others) I consider his evidence to have been candid and a true reflection of his memory of events many years earlier. The defendant correctly contended that it would have been natural for the Norris Report to have been one of the first reports that Acting Inspector Southgate had read. If that were the case, Acting Inspector Southgate would have had no basis for being aware of the errors. Acting Inspector Southgate did not recall in cross-examination whether he reviewed the Norris Report before or after he had reviewed the other police holdings, but he would not have had reason to re-read the Norris Report at a later stage in the investigation. There is no evidence to indicate he did so. 2. There is a further controversy as to what was said to be an inconsistency between the position adopted in the Norris Report and the views expressed by Detective Senior Sergeant Norris in May 2005. I will return to that issue below. The Strike Force Caroola Investigation into Mr Dyers 2005-2006 1. On 13 May 2005, following the recommendation of the Norris Report, a NSW Police strike force called "Strike Force Caroola" was established. Terms of Reference dated 13 May 2005 1. The case title for Strike Force Caroola was: "Sex Assaults – Ken Dyers, Spiritual Leader". The "Terms of Reference" for that strike force were as follows: To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation "Kenja" regarding these offences. 1. At the time of its commencement, the following police officers had been assigned to the investigation: Detective A/Sergeant Charlie Poniris Investigation Coordinator Detective Senior Constable Graham Norris Officer In Charge Detective Senior Constable Steve Norton Investigator Detective Senior Constable Kirsten Gulbis Investigator Detective Senior Constable Glen Shepherd Investigator 1. The Terms of Reference document also stipulated that the investigation commenced on 13 May 2005. However, subsequent e@gle.i entries of Detective Senior Sergeant Norris, to which I now turn, reveal that commencement of the investigation was delayed. Delay of the Commencement of the Strike Force Caroola Investigation 1. An e@gle.i entry of Detective Senior Sergeant Norris dated 13 May 2005, confirmed receipt of the notification of the commencement of Strike Force Caroola and his allocation as the officer in charge of that investigation. That entry also included the following information: As of Friday 13th May 2005, DSC NORRIS, Det A/Sgt PONIRIS and DSC are out of Sydney in Narrandera on Strike Force [redacted]. At this point in time, it is expected that the investigators mentioned will be in Narrandera till at least Thursday 19th May 2005. There are no victim safety or welfare issues that will be adversely affected by this delay in commencing the investigation. 1. Another e@gle.i entry of Detective Senior Sergeant Norris dated 26 May 2005, recorded that he remained unable to commence the investigation. Two reasons for delay were provided: 1. he was performing police duties in Wagga Wagga on 24-25 May 2005; and 2. he was taking annual leave from 27 May to 19 June 2005. 1. Detective Senior Sergeant Norris recorded that there were "no known victim safety or welfare issues present that will be compromised by this delay". He also flagged that "[e]fforts to commence" the investigation would take place once his return from annual leave. 2. An e@gle.i entry of Detective Senior Sergeant Norris dated 27 June 2005, recorded that upon returning from annual leave, the officer was on sick leave from 19-26 June 2005. In the same entry, Detective Senior Sergeant Norris recorded: Due to team changes DSC NORRIS moving to Team 2, a review of the current position and anticipated investigative strategy will be conducted with Team Leader Det Sgt Owen. Investigation log to be updated following this review. 1. Notwithstanding that last entry, the plaintiff contended that, upon the officer's return from annual leave, there was no record that Detective Senior Sergeant Norris took any immediate substantive action. 2. I now return to the controversy attached to the position adopted by Detective Senior Sergeant Norris between 8 April 2005, the date of the Norris Report, and 13 May 2005, the establishment of Strike Force Caroola, in relation to the risk that Mr Dyers posed. 3. The plaintiff submitted that, despite Detective Senior Sergeant Norris having stated in the Norris Report that Mr Dyers was a "high risk" to children, Detective Senior Sergeant Norris observed on 13 May 2005, in an e@gle.i entry following his appointment to Strike Force Caroola, there were "no victim safety or welfare issues that will be adversely affected by this delay in commencing the investigation". The plaintiff contended that there was no explanation as to why Detective Senior Sergeant Norris' opinion changed over the period of around a month. The plaintiff also contended that this raised doubt as to whether Detective Senior Sergeant Norris really believed that Mr Dyers presented an ongoing risk when he completed the Norris Report. The plaintiff emphasised that, at the time Strike Force Caroola was established on 13 May 2005, Mr Dyers was still running Kenja and children were still attending Kenja. In that context, Detective Senior Sergeant Norris' lack of action was inconsistent with a genuine belief that children in Kenja were at risk from Mr Dyers. 4. The defendant submitted that there was no inconsistency between Detective Senior Sergeant Norris' observations at 8 April and 13 May 2005. I agree with the defendant's submission that the "victims" were properly regarded as no longer being at risk as at 13 May 2005, as they had left Kenja and had disclosed the allegations to their parents by that time. The defendant also correctly contended that the same could not be said of the "other" children remaining, especially those remaining part of Kenja who, it was again correctly submitted, were properly regarded, at that juncture, as being at "risk" (it is unnecessary, in the context of the issues here under consideration, to evaluate whether the defendant was correct to submit that the children were at high risk). A further issue concerned whether Detective Senior Sergeant Norris' opinion, may, in any event, be attributed to Acting Inspector Southgate. I will return to that issue. 5. On or around 2 August 2005, Detective Sergeant Stuart Owen became the investigator coordinator. 6. In the Norris Report, Detective Senior Sergeant Norris recommended investigation by a strike force into, inter alia, "whether Ken DYERS had acted alone in committing offences against children, or whether other persons actively assisted in the process". Amended Terms of Reference dated 1 August 2005 1. As at 1 August 2005, the Terms of Reference document (originally issued on 13 May 2005), was amended to reflect, inter alia, personnel changes within the investigation. The amended Terms of Reference document was signed by Detective Senior Sergeant Norris on 2 August 2005 and Detective Sergeant Owen on 5 August 2005. The following police officers had been re-assigned to the investigation: Detective Sergeant Stuart Owen Investigation Coordinator Detective L/Sen/Constable Graham Norris Officer In Charge Detective Senior Constable Leanne O'Meara Investigator Detective Senior Constable [John] Southgate Investigator Detective Senior Constable Glen Mitchell Investigator Detective Senior Constable Fiona Frame Investigator 1. The specific "Terms of Reference", namely, "To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation 'Kenja' regarding these offences", remained unchanged. The Investigation Plan dated 5 August 2005 1. An Investigation Plan was uploaded to e@gle.i on 5 August 2005 ("the Investigation Plan"). The Investigation Plan was created by Detective Senior Sergeant Norris and included three primary categories of content, namely, Situation, Mission, and Strategies/Execution. 2. Under the heading "Situation" the following appeared: Strike Force CAROOLA, [Case reference omitted] was initiated on the 13th May 2005, being a State Crime Command led investigation into the activities of Ken DYERS who is the spiritual leader of the religious organisation known as KENJA. On the 9th September 2002, a report was received through Kogarah JIRT in relation to the child HLA aged 13 years that she had been sexually assaulted by Ken DYERS while attending Kenja Church meetings. [Case reference omitted.] As a result of inquires initiated from HLA's allegations, further potential victims OLR aged 14 years and PLA aged 16 years were identified on the 27th August 2003. [Case reference omitted.] Kogarah JIRT continued inquiries into these matters, with all matters being suspended at the request of individual families. Consultation with these families indicates that a contributing factor in their decision not to continue with their cases related to the length of time taken by Police to investigate these matters. Independent case reviews identified the requirement for these matters to be re investigated and fresh inquiries to be made into the activities of Ken DYERS, his partner Jan HAMILTON and whether there are ongoing child at risk issues involving these individuals and the Kenja religious organisation. 1. The "Mission" of the investigation was recorded as follows: "To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation 'Kenja' regarding these offence". It may be noted that the terms of the "Mission" reflected the Terms of Reference. 2. The content of the terms of reference that appeared under the heading "Strategies/Execution", is extracted below: At the time of the commencement of this Strike Force, there are no current victims with active investigations underway. In order of priority, the HLA, OLR and PLA families are to be contacted to canvass their position on assisting investigators with this matter. In February 2005 there was [sic] been media interest in Kenja after it became known that Cornelia RAU, the Australian citizen mistakenly detained at the Baxter Detention Centre had been involved with this organisation. Use of the media as an investigative tool will be considered by Strike Force investigators and if undertaken, will comply with all relevant State Crime Command media guidelines. Strategic In the event that no persons are identified as being prepared to assist investigators with this matter, a direction will be sought from the Commander of the Child Protection and Sex Crimes Squad as to the appropriateness of this Strike Force continuing. Time Frames It is anticipated that this investigation will be concluded by December 2005. This timeframe will be reviewed on a monthly basis and will very much be dependent upon identifying persons prepared to assist investigators with these inquiries. Checklist (key areas): • Information Management will be conducted on E@gle.i. This investigation will be based within the Child Protection and Sex Crimes Squad located within Police Headquarters at Parramatta. • Strike Force investigators will maintain all victim care and witness management. … • All Persons of Interest to be identified, managed by Strike Force investigators. … 1. The plaintiff contended that, in light of the content under the heading "Situation" within the Investigation Plan, the scope of the Strike Force Caroola investigation was not limited to Mr Dyers, but was also directed at the plaintiff and whether there were any "ongoing child at risk issues" involving Mr Dyers, the plaintiff and Kenja. That contention was supported with reference to the NSW Police Post-Operational Assessment ("POA"), with respect to Strike Force Caroola, dated 19 February 2008. 2. The plaintiff contended that the POA provided further evidence of the fact that the investigation extended beyond the confines of the Terms of Reference and was also directed at Kenja and the plaintiff. In the Plaintiff's Reply Submission, reference was made to the Investigation Plan as well as the following extract of the POA (at para 5.3): 5.3 Assessment of Future Threat Although S/F CAROOLA was involved primarily in the investigation of Kenneth DYERS the organisation of KENJA, formed by DYERS and his wife Jan HAMILTON, was used by DYERS to procure, groom and ultimately sexually assault young females. Although strongly rebuked by the KENJA Group it is the position of Sex Crimes Investigators that KENJA fits the profile of a CULT. Although DYERS was the driving force behind KENJA there is no reason why another person will void left. Although KENJA does not present an immediate threat to the community it is recommended that its activities are monitored and any future allegations against KENJA or any other CULT style organisation are rigorously investigated. As has occurred during the course of all police investigations identified above and following the death of Kenneth DYERS, a concerted and wide ranging continuing campaign has been mounted by members of the Kenja Organisation to sanitise the allegations made against Kenneth DYERS by alleging a continuing conspiracy between various groups, the victims (identified above) and subsequently the NSWPF – Strike Force Caroola to persecute him. … 1. The defendant submitted that, whilst the Terms of Reference referred to the "activities of his religious organisation 'Kenja'", it was clear from the Investigation Plan that the focus was on the allegations made by HLA and OLR (as well as PLA). It was contended that the material before the Court does not support a finding that there was a general investigation into Kenja. 2. I accept the defendant's submission. The comments as to the plaintiff and Kenja in both the Investigation Plan and the POA concern matters ancillary to the Terms of Reference and/or "Mission" (as described in the Investigation Plan). Further, the passage of the POA relied upon concerns "Assessment of Future Threat" and responses to "future allegations" and the conduct of subsequent investigations. The entries appearing under the heading "Situation" in the Investigation Plan refer to a plan to commence an investigation into the subject matter described in the final paragraph under that heading, namely, an investigation into the activities of Mr Dyers, the plaintiff and "whether there [were] ongoing child at risk issues involving these individuals and the Kenja religious organisation". 3. Whilst it is true that aspects of the documents (extracted above) in isolation may support a finding that the investigation expanded its scope, in my view, when references to either the plaintiff or Kenja are read within the context of each document, it is clear that such remarks concern matters ancillary or otherwise relevant to the investigation. Further, it was accepted that the plaintiff was a co-founder of "Kenja", thus, the plaintiff fell within the scope of the clearly stated Terms of Reference: "…Ken Dyers and the activities of his religious organisation 'Kenja' regarding these offences". Access to the Norris Report via the e@gle.i system 1. The plaintiff referred to an e@gle.i entry dated 4 August 2005, in which Detective Senior Sergeant Norris wrote: In March 2005, I was acting as Zone 2 JIRT Coordinator, Detective Superintendent MCKAY requested that I conduct a case review into the initial investigations conducted into this matter. Attached is the review. 1. The attached document identified as "the review" was the Norris Report. The plaintiff submitted that Detective Senior Sergeant Norris uploaded the report to e@gle.i so that members of Strike Force Caroola could read it. The plaintiff further contended that an inference should be drawn from that e@gle.i entry that, in addition to Acting Inspector Southgate, the other members of Strike Force Caroola had access to the Norris Report and read the Norris Report. As earlier mentioned, Acting Inspector Southgate gave evidence that he read the Norris Report, but he could not recall when he read it. 2. At this juncture, it may be noted that the relevant e@gle.i entry in evidence also included a caveat, as follows: Brief Description In March 2005, I was acting as Zone 2 JIRT Coordinator, Detective Superintendent MCKAY requested that I conduct a case review into the initial investigations conducted into this matter. Attached is the review. Caveat Review Date: 5 Aug 2006 Reason This product contains opinions and comments relating to the original investigations are not meant for general distribution. 1. The plaintiff also relied upon the evidence given by Acting Inspector Southgate and Detective Sergeant Frame in relation to the use of the e@gle.i system and discussions with the strike force investigators more generally, namely: 1. Acting Inspector Southgate accepted that throughout the Strike Force Caroola investigation, he spoke constantly with other investigators in the team about the investigation. 2. Acting Inspector Southgate's evidence was that the purpose of the e@gle.i system was to enable police officers associated with the Strike Force Caroola investigation to put information onto a computer system so that other officers within the investigation team could be apprised of what was happening in the investigation. 3. Detective Sergeant Frame's evidence was that through the e@gle.i system she was kept aware of developments in the case, went to progress meetings, team meetings, and was aware of the monthly, weekly and operational reports being required. 1. In relation to whether other members of Strike Force Caroola read the Norris Report, the defendant contended: Nothing in the evidence entitles an inference to be drawn that "other members of Strikeforce Caroola" in fact read the Norris Report. It is irrelevant whether any did or not. 1. I do not accept that submission. Whilst there is a caveat introduced into the e@gle.i entry, no submissions were made as to its significance. Otherwise the material relied upon by the plaintiff provided an ample basis to draw an inference that other members of Strike Force Caroola read the Norris Report. However, the review of that material by officers other than Acting Inspector Southgate can only be relevant insofar as it has any bearing upon whether that report influenced Acting Inspector Southgate's state of mind in the investigation. 2. In another e@gle.i entry dated 4 August 2005, Detective Senior Sergeant Norris attached an Intelligence Report (Reference Number: I 18272579) dated 11 March 2005 (it was noted that the report was an external source and "initiated by Kogarah JIRT"). The short title of the report was "Kenja Leader-Dyers-Child Sexual Assault Offence". The report included the following: The suspect was eventually convicted of 1 count of indecent assault, however received a suspended sentence. The trials and appeals went for 7 years. 1. The plaintiff submitted that: "Th[at] e@gle.i entry failed to refer to the fact that the High Court quashed Mr Dyers' conviction". If by that submission, it is contended that Detective Senior Sergeant Norris had failed to record that fact, such a conclusion is not available on the face of the record because, as noted in the e@gle.i entry itself, the Intelligence Report was an external source without attribution to Detective Senior Sergeant Norris. Kenja website 1. In an e@gle.i entry dated 16 August 2005, Detective Senior Sergeant Norris created an entry entitled: "KENJA Website Information". The following information was recorded: On Friday 12th August 2005 DSC O'MEARA conducted inquiries via the internet and located a KENJA webpage. The address of this site is http://www.kenja.com.au This website provides background information about KENJA, its activities, profiles on Ken DYERS and Jan HAMILTON and testimonials from those involved in the group. The attached documents are printouts of each individual screen for this website as at 12th August 2005. Final Terms of Reference dated 6 October 2005 1. On 30 September 2005, Detective Senior Sergeant Norris made an application that the Terms of Reference document be amended. That application is extracted in full below: ISSUE: Application by Detective Leading Senior Constable Graham Norris to have the Terms of Reference of Strike Force Caroola SCC Reference 2005 – 0341 amended. BACKGROUND: This strike force was established on the 13th May 2005 and the Terms of Reference were stated as, "To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation "Kenja" regarding these offences." During the course of investigations into this matter, it has become apparent that other reports to Police that would not otherwise meet the requisite standard for acceptance for SCC led investigations would be captured under the existing Terms of Reference. COMMENT: To ensure the focus of this investigation is not diluted, it is required that a fresh Terms of Reference be drafted. The suggested draft is, "To investigate allegations of child sexual assault upon HLA and OLR by Ken Dyers whilst attending Kenja." RECOMMENDATION: That consideration be given to amending the Terms of Reference as suggested. 1. As at 6 October 2005, the Terms of Reference document (originally issued on 13 May 2005 and amended on 1 August 2005), was re-issued to reflect, inter alia, personnel changes within the investigation and the above recommendation of Detective Senior Sergeant Norris. This final form of the Terms of Reference document was signed by Detective Chief Superintendent R D Del Monte on 6 October 2005 and Detective Senior Sergeant Norris and Detective Sergeant Owen, respectively, on 10 October 2005. Only three police officers remained expressly assigned to the investigation by the final document, namely: Detective Sergeant Stuart Owen Investigation Coordinator Detective Senior Constable Graham Norris Officer In Charge Detective Senior Constable John Southgate Investigator 1. Detective Sergeant Frame and Detective Senior Constable O'Meara continued to act in Strike Force Caroola. During cross-examination, Detective Sergeant Frame gave evidence that following the arrest of Mr Dyers (set out below), she had "very little to do with Strike Force Caroola", save for the investigation into the allegations of PLA. 2. The specific "Terms of Reference" of the strike force were now as follows: "To investigate allegations of child sexual assault upon HLA and OLR by Ken Dyers whilst attending Kenja". (The scope of the investigation had been significantly confined by this final iteration of the Terms of Reference, noting the earlier versions stated: "To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation 'Kenja' regarding these offences"). Acting Inspector Southgate – Officer in Charge, the Norris Report and the POA 1. As earlier mentioned, Acting Inspector Southgate was assigned as an investigator within Strike Force Caroola in August 2005. He was listed as an"investigator" on the amended Terms of Reference document (dated 1 August 2005) and the final Terms of Reference document (dated 6 October 2005). He was not assigned to Strike Force Caroola at its inception and was not involved in formulating the Terms of Reference. 2. On 30 September 2005, Acting Inspector Southgate took carriage of the Strike Force Caroola investigation when he took over from Detective Senior Sergeant Norris as Officer in Charge. (The Strike Force Caroola Investigation Progress Report Number 4 (dated 29 September 2005) noted that, owing to Detective Senior Sergeant Norris' competing investigative duties (with respect to another strike force) "tasks have been reallocated to DSC O'Meara and DSC Southgate to ensure this matter [namely, Strike Force Caroola] does not lose momentum"). 3. Upon taking over the investigation, Acting Inspector Southgate and Detective Senior Constable O'Meara reviewed the documents and statements contained within the police holdings in relation to Mr Dyers. At the hearing, he gave evidence that between the two of them, they read every document, but did not accept that he "personally" read every document. I accept that evidence. 4. During cross-examination, Acting Inspector Southgate accepted that over the course of reviewing the police holdings he learned that Mr Dyers had faced a number of trials throughout the 1990s in relation to allegations of sexual assault against children, and that he was acquitted in respect of all of those allegations, save for one allegation of indecent assault against a person under 16 years. Acting Inspector Southgate also accepted that at some point he learned that the indecent assault conviction had also been quashed. Whilst he could not recall when he learned that the conviction had been quashed, he accepted that information would have become known to him prior to the arrest of Mr Dyers on 27 October 2005. 5. Acting Inspector Southgate gave the following evidence in cross-examination as to conversations that occurred between himself and Detective Senior Sergeant Norris as part of the handover: Q. When you took over from Mr Norris, no doubt you had conversations with him about the investigation and what was happening? A. I would have had conversations with Detective Norris, yes. Q. Yes. As a part of the takeover you'd have briefed with what was happening, what his thoughts were and the like. Correct? A. That's correct. Q. Do you recall Mr Norris reiterating some of the things that he included in his April report? A. No, I don't. Q. Do you recall Mr Norris describing Mr Dyers as the leader of a cult? A. No, I don't. Q. You're not denying that he did that, you just can't recall. Is that the position? A. I can't recall. Q. Can you recall Mr Norris referring to Mr Dyers as a paedophile? A. No. Q. You can't recall or you're denying it? A. I can't recall. 1. The plaintiff made the following contention in relation to that evidence of Acting Inspector Southgate: 53. Mr Southgate gave evidence that when he took over from Mr Norris, he would have had conversations with Mr Norris, and that as part of the takeover, he would have been briefed by Mr Norris with what was happening, what his thoughts were and the like. Mr Southgate's evidence was that he could not recall whether Mr Norris described Mr Dyers as the leader of a cult, or as a paedophile, although it is highly likely that he did so (given the strong terms of the Norris Report). [Footnotes omitted.] 1. The plaintiff further submitted that Acting Inspector Southgate's evidence permitted an inference as to the content of the conversations, especially as the discussions took place in the context of the takeover of an investigation. That submission attracted controversy. 2. The defendant correctly submitted that no inference should be drawn about the content of the discussions between Detective Senior Sergeant Norris and Acting Inspector Southgate based on the mere fact that discussions had occurred. I do not consider that such an inference may be drawn from Acting Inspector Southgate's evidence as set out above. The defendant further submitted that Detective Senior Sergeant Norris' state of mind as to Kenja being a cult, or as to Mr Dyers being a paedophile, was not, as such, relevant to Acting Inspector Southgate's state of mind. There is real force in that submission. 3. On 1 December 2005, Detective Senior Constable O'Meara created a series of e@gle.i entries entitled: 1. "REVIEW OF HLA INTERVIEW NO. 1"; 2. "REVIEW OF HLA INTERVIEW NO. 2"; 3. "REVIEW OF HLA INTERVIEW NO. 3"; and 4. "REVIEW OF HLA INTERVIEW NO. 4". 1. Those entries were each reviewed by Detective Senior Sergeant Norris. The entries recorded that between 6 and 7 October 2005, Detective Senior Constable O'Meara reviewed the four electronically recorded interviews of HLA and handwritten notes were made by the officer. Those notes were subsequently typed in a word document titled: "Offence summary". Each entry recorded that the offence summary document "was later used to assist in the preparation of the facts sheet by D/S/C SOUTHGATE". 2. The "offence summary" was attached to the first entry. It consisted of 8 pages and contained seven summaries distinguished by date, which are listed below: 1. 10 December 2001 (4 offences); 2. 29 January 2002 (2 offences); 3. February / March 2002 (1 offence); 4. 23 April 2002 (2 offences); 5. 14 May 2002 (4 offences); 6. 25 June 2002 (2 offences); and 7. 2 July 2002 (1 offence). 1. The first three summaries referred to "Ms Linda Paisley" being present at the time of at least some of the alleged offences. 2. Acting Inspector Southgate's evidence, as to whether he agreed or adopted the terms of the Norris Report in his investigation and as to his communication to other members of Strike Force Caroola regarding Mr Dyers' using Kenja to commit criminal offences against children, was the subject of attack by the plaintiff, to which I now turn. 3. During cross-examination, with respect to his reading of the Norris Report, Acting Inspector Southgate gave the following evidence: Q. One of the documents you looked at closely, can I suggest, was a report prepared by Mr Norris in about April 2005. A. Sorry, could you ask that question again, sorry? Q. Yes. One document that you studied very closely early in your days with Strike Force Caroola was a report prepared by Mr Norris in about April 2005. A. I read that report, yes. Q. And you say in your statement at paragraph 7 in the final sentence that you agreed with the terms of that report and the recommendations that had been made by Mr Norris. A. That's correct. 1. That evidence referred to para 7 of his statement, namely, where Acting Inspector Southgate stated that he "agreed with the terms of the [Norris] report… and the recommendations that had been made". 2. As to the time at which he read the Norris Report, Acting Inspector Southgate stated that he could not recall. That evidence appears below: Q. I want to suggest, Mr Southgate, that by the time you read this report, you were aware that Mr Dyers had no convictions recorded against his name. A. I can't say, I can't answer that. Q. You may have known, you may not have known, you just can't say. Is that the position? A. No, I can't recall that. Q. All right. Can you recall whether you reviewed this report at the same time you reviewed the statements and information contained within the police holdings before - let me start again. Can you recall whether you reviewed this report before or after, or with your review of the statements and information contained within the police holdings that you refer to at paragraph 7? A. I can't recall. Q. You can't recall being conscious that there were errors in the report? A. No, I can't recall. Q. But you are able to say, because you day say in your statement, that you agreed with the terms of the report? A. That's - that's correct. 1. During the course of cross-examination, Acting Inspector Southgate was taken to the following section of the Norris Report: What is abundantly clear is that Ken Dyers has used his position as leader of Kenja to access children, groom and condition them to his spiritual beliefs and ultimately use this power and authority to commit criminal offences against them. While no formal action has been taken against him, he remains a person of high risk within his realm of contact of authority. 1. That evidence is extracted below: Q. In the paragraph immediately above that, Mr Norris says, is that, "What is abundantly clear is that Ken Dyers has used his position as leader of Kenja to access children, groom and condition them to his spiritual beliefs and ultimately use this power and authority to commit criminal offences against them. While no formal action has been taken against him, he remains a person of high risk within his realm of contact of authority." You agreed with that conclusion I take it? A. I can't recall. Q. But Mr Southgate, on 17 October this year, you were prepared to say that you agreed with the terms of the report prepared by Mr Norris. Was that a truthful statement? A. Yes. Q. And you were meaning to convey that you agreed with this paragraph, correct? A. No. Q. So when you said in your statement that you agreed with the terms of the report prepared by Mr Norris, you weren't intended to convey that you agreed with this part of the report. Is that correct? A. Are we talking now or back then? Q. Can you go to your statement, please. A. What page? Q. Paragraph 7. Do you have that? A. Yes. Q. Take as much as time to read that paragraph as you like, but I want to draw your attention in particular to the final sentence. A. Yes. Q. You're speaking there of your state of mind at the time - you read the report sometime in 2005. Correct? A. That's my state of mind when I just - when I wrote that statement. Q. So when you wrote this statement on 18 October, your state of mind was that in 2005, you agreed with the terms of this report. Correct? A. Yes. Q. So what you were seeking to convey was that at the time you read Mr Norris's report, you agreed with what he said in this paragraph. That's correct, isn't it? A. No. Perhaps to clarify, I can't say what portion of that report that I'm referring to. Q. Are you now speaking of the last sentence in paragraph 7? A. No, I'm talking about back in the day. Q. Let me just understand what your position is. You say in your statement that you agreed with the terms of the report prepared by Norris in April 2005, and the recommendations that have been made by him, and are you now saying that there were some terms of the report that you agreed with and some terms of the report that you did not agree with? A. No. What I'm saying is, I can't tell you that - what I thought back then. Q. Do you wish to withdraw the last sentence of paragraph 7 of your statement? A. No. Q. But it is true, though, isn't it, Mr Southgate, that throughout the whole time that you were associated with Strike Force Caroola, that you thought that it was abundantly clear that Mr Dyers had used his position as leader of Kenja to access children, groom and condition them to his spiritual beliefs, and ultimately use this power and authority to commit criminal offences against them? That was a view you held, wasn't it? A. No. 1. As to that above extract, the plaintiff contended that Acting Inspector Southgate's evidence on this matter was quite unsatisfactory and indicated that "he was intent to advance what he perceived to be in his interests while giving evidence". Reference, in that respect, was made to the following: 1. He gave evidence that he could not recall whether he agreed with that conclusion. 2. He gave evidence that, when he said in his statement of 17 October 2018 that he agreed with the terms of the Norris Report, that was a truthful statement. Yet, he denied that he was meaning to convey that he agreed with the above paragraph from the Norris Report. 3. Acting Inspector Southgate swore that he agreed with the terms of the report and maintained that position, and yet at the same time sought to give evidence that he did not recall if he agreed with the terms of the Norris Report, as extracted above, and did not intend to convey that he agreed with it. 1. In light of that evidence, the plaintiff contended that Acting Inspector Southgate was "evasive and inconsistent". I will return to that submission after considering the POA. 2. The plaintiff also made reference to the following evidence of Acting Inspector Southgate as to the Norris Report: Q. Do you recall being aware back in 2005 and 2006 that PLA had, at an earlier point in time, denied that she had been assaulted by Mr Dyers? A. Yes, I am aware of that. Q. Are you aware that she had accused Ms HLA of being a liar? A. Yes, I'm aware of that. Q. You just can't recall now how you became aware of those things. Is that the position? A. That's correct. Q. I want to suggest to you, Mr Southgate, that back in 2005, when you reviewed this report from Mr Norris and the other materials that you refer to at paragraph 7, that you had come to the firm conclusion in your mind that Mr Dyers had used Kenja to access and molest children. That's right, isn't it? A. No. Q. Did it cross your mind as you were reviewing this material that Mr Dyers may be completely innocent of all of the accusations that have been levelled against him? A. Yes. Q. Did it cross your mind that he may previously have been the subject of false accusations? A. Yes, Q. And that the same thing might be happening again in 2005, 2006? A. Yes. 1. The plaintiff contended: 60. … This evidence should not be accepted. None of Mr Southgate's contemporaneous notes and none of his actions are consistent with any contemplation that Mr Dyers might have been innocent. Tellingly, the Post Operation Assessment (considered later) can only be read as conveying a determination by Mr Southgate that Mr Dyers was guilty. 1. By that submission, once again, the plaintiff contended the observations of Acting Inspector Southgate made after the completion of the investigation were relevant to the assessment of his state of mind at the time of the investigation (and indeed, from the commencement of his role in Strike Force Caroola or from when he reviewed the police holdings and/or the Norris Report). The POA 1. The POA was completed and signed by Acting Inspector Southgate on 19 February 2008. Acting Inspector Southgate prepared the POA. He also provided an advanced draft to Detective Chief Inspector Jacob. 2. Detective Chief Inspector Jacob certified the POA and added a page of comment under the heading "Superintendent / Manger's Certification & Comment" that appears on page 2 of the POA ("the preamble"). That comment is extracted below: Detective Senior Constable John Southgate as OIC of Strike Force Caroola led and conducted an outstanding protracted re-initiated and inherited investigation under difficult operational conditions into the sexual offences committed by the 'spiritual head' of an organisation known as Kenja against underage girls who were children of members of that group. Although the offender Kenneth DYERS was never convicted (found not fit to stand trial & later committed suicide prior to further charges), I consider his investigation a success as measured against SCC business rules. … despite the groups claims Police allege that the organisation meets all the criteria of a 'Cult' and that it's leader Kenneth DYERS was also a sex offender. DYERS behaviour was investigated interrupted and the potential of further offending eliminated. There are no recommendations arising from this investigation. No further investigative opportunities identified the single offender is DYERS is deceased. It is noted that during the course of all police investigations and following the death of Kenneth DYERS, a concerted and wide ranging continuing campaign has been mounted by members of the Kenja Organisation to sanitise the allegations made against Kenneth DYERS by alleging a continuing conspiracy between various (anti cult) groups, the victims (identified in this POA) and subsequently the NSWPF in the form of Strike Force Caroola, to 'persecute' him. Further details of the various claims made by the Kenja Group can be found in the content of their web site … (The reference to "SCC" is an anagram for the State Crime Command). 1. The balance of the POA was authored by Acting Inspector Southgate. 2. The POA was a 12 page document, with the following headings: 1. Executive Summary; 2. Terms of Reference; 3. Background; 4. Operational Summary; 5. Key Findings; 6. Results; 7. Investigative Opportunities; 8. Recommendations; 9. Staff List; and 10. Supporting Documentation. 1. An extract from the "Executive Summary" appears below: On 26/05/2006, Kenneth DYERS was committed to stand trial on all counts he was charged with. Of note in the lead up to the committal hearing DYERS was checked into a private hospital on several occasions suffering a stated heart condition and breathing difficulties. … On 10/04/2007, investigators met with PLA who disclosed that Kenneth DYERS had committed numerous offences against her of a similar nature to that of the complainants HLA and OLR. These matters were investigated and on 24/07/2007 a request to interview Kenneth DYERS in relation to this complaint was faxed through to his legal representative, Harland KOOPS. On 03/05/2007, a fitness to stand trial application by Kenneth DYERS was herd [sic] and based on the grounds of Kenneth DYERS poor physical health and the onset of Alzheimer's that he would not be fit to stand trial on all charges laid against him. The ODPP commenced the process of electing to have the matters herd [sic] by special trial. 1. Under the heading "Background", the following details, inter alia, were recorded: On 27/08/2003 PLA was interviewed by Kogarah JIRT and denied all allegations made that Kenneth DYERS acted criminally. … There was a considerable amount of media attention given to the arrest, charging and later committal of Kenneth DYERS. … On 04/04/2007 arising from the media attention, investigators were contacted by PLA who disclosed that Kenneth DYERS had committed numerous sexual offences against her between 1999 and 2006. Of significance were the striking similarities of the complainants [sic] of PLA to those made previously by HLA and OLR. An investigation into the fresh allegations made by PLA was conducted, attempts were made to interview witnesses, but they claimed they were being represented by Mr Harland KOOPS and would not provide statements or be interviewed. Mr KOOPS subsequently simply provided statutory declarations of witnesses identified to him. Of course the statutory declarations could not be tested by police and had clearly failed to address the facts in issue. On 19/04/2007, a detailed statement of complaint was obtained from PLA. On 30/04/2007, The Sydney District Court considered the 'fitness' of Kenneth DYERS to stand trail [sic] on the matters involving HLA and OLR. Following evidence presented to it the court later found that he was not fit to stand trial and his matters remanded indefinitely. It should be noted that following this decision the ODPP were in the process of preparing an application for a 'Special Hearing' in relation to these matters. It is my understanding that the material collected following the completion of the PLA Investigation by Strike Force Caroola would form part of the evidence presented to this 'Special Hearing'. 1. Under the heading "Key Findings" appeared the following extracts: 5.2 Impact The investigation was successful in that major criminal investigations were conducted into the influential leader of a Cult resulting in the laying of serious charges of sexual/indecent assault. These charges exposed these illegal activities to others within his organisation, generated further investigations arising from those disclosures, disrupted the offenders [sic] activities and minimised the potential for further similar crimes to be committed against other female children. 5.3 Assessment of Future Threat Although S/F CAROOLA was involved primarily in the investigation of Kenneth DYERS, the organisation of KENJA, formed by DYERS and his wife, Jan HAMILTON, was used by DYERS to procure, groom, and ultimately sexually assault young females. Although strongly rebuked by the KENJA Group it is the position of Sex Crimes investigators that KENJA fits the profile of CULT. Although DYER [sic] was the driving force behind KENJA there is no reasons why another person will void left. Although KENJA does not present an immediate threat to the community it is recommended that its activities are monitored and any future allegations against KENJA or any other CULT style organisation are rigorously investigated. As has occurred during the course of all police investigations identified above and following the death of Kenneth DYERS, a concerted and wide ranging continuing campaign has been mounted by members of the Kenja Organisation to sanitise the allegations made against Kenneth DYERS by alleging a continuing conspiracy between various groups, the victims (identified above) and subsequently the NSWPF – Strike Force Caroola to persecute him. … 1. Under the heading "Results", the following was recorded: Charges on POI (Kenneth DYERS) 21 x Counts of Aggravated Indecent Assault-Under age of 16. Section 61M Crimes Act 1900 1 x Count of Aggravated Sexual Assault-Under age of 16. Section 61J Crimes Act 1900 There was a current Investigation and intention to prefer additional charges against DYERS in relation to the victim PLA. However the day following a further request to interview him in relation to these matters he committed suicide at his home. 1. Under the heading "Investigative Opportunities" appeared the following: "No future investigative opportunities, single offender identified who is now deceased". 2. In written submissions, the plaintiff sought to contrast that evidence with the POA. That submission is extracted in full below: 59. Mr Southgate denied that throughout the whole time he was associated with Strikeforce Caroola [sic], he thought that it was abundantly clear that Mr Dyers had used his position as leader of Kenja to access children, groom and condition them to his spiritual beliefs, and ultimately use this power and authority to commit criminal offences against them. However, in his Post Operation Assessment, Mr Southgate wrote that "the organisation of KENJA, formed by DYERS and his wife Jan HAMILTON, was used by DYERS to procure, groom and ultimately sexually assault young females". Mr Southgate's words are similar to those of Mr Norris. The Court should find that Mr Southgate, throughout the investigation, believed that Kenja was used by Mr Dyers to procure, groom and ultimately sexually assault young females. The Court should find that Mr Southgate's unwillingness to commit to agreeing with the passage from Mr Norris' Report set out above was driven by an intent to appear more impartial than he was, and less hostile towards Mr Dyers than he was during 2005 to 2007. [Footnotes omitted.] 1. It was contended that the language of the POA was "similar" to that of the Norris Report and, therefore, the Court should find: 1. that Acting Inspector Southgate, throughout the investigation, believed that Kenja was used by Mr Dyers to procure, groom and ultimately sexually assault young females; and 2. that Acting Inspector Southgate's unwillingness to commit to agreeing with the passage from the Norris Report (extracted above) was driven by an intent to appear more impartial than he was and less hostile towards Mr Dyers than he was during 2005 to 2007. 1. In reply submissions, the plaintiff conceded that it was not Acting Inspector Southgate's role to form a concluded view of Mr Dyers or Kenja. However, it was contended that "the evidence show[ed] that he did that". The plaintiff, in that respect, emphasised the significance of the POA: "The POA is in unqualified, concluded terms. It was a formal document provided to superiors, which recorded Mr Southgate's thoughts on the matter". 2. Finally, the plaintiff contended, in light of the Norris Report, the following evidence of Acting Inspector Southgate could not be accepted: Q. It's the case, is it not, that throughout the Strike Force Caroola investigation you spoke constantly with other investigators in the team about the investigation? A. That's true. Q. Do you recall, as part of those discussions, conversations to the affect that Mr Dyers was using Kenja to commit criminal offences against children? A. No, I can't recall those conversations. 1. Notwithstanding the fact that Acting Inspector Southgate did not author the preamble to the POA, the plaintiff relied upon its contents in an effort to undermine his credit. In particular reference was made with to the conclusions of Detective Chief Inspector Jacob in the preamble and the corresponding conclusions of Acting Inspector Southgate within the balance of the POA. 2. The topics and/or views, expressed by the respective officers within the POA, that attracted the most attention were as follows: 1. Mr Dyers as the "spiritual head" and Kenja as a "cult", and Acting Inspector Southgate's observation that Mr Dyers used Kenja to "procure, groom and ultimately sexually assault young females" (that latter component, it may be noted, was not expressed by Detective Chief Inspector Jacob in the preamble) ("the first POA topic"); 2. the potential for further offending was eliminated and/or minimised ("the second POA topic") ; 3. the intention for further charges to be laid ("the third POA topic"); and 4. the success of the investigation ("the fourth POA topic"). 1. I will now deal with those matters seriatim. Mr Dyers as the "spiritual head", Kenja as a "cult" and Mr Dyers use of Kenja to "procure, groom and ultimately sexually assault young females" 1. The relevant component of the preamble is extracted again below: Detective Senior Constable John Southgate as OIC of Strike Force Caroola led and conducted an outstanding protracted re-initiated and inherited investigation under difficult operational conditions into the sexual offences committed by the 'spiritual head' of an organisation known as Kenja against underage girls who were children of members of that group. … despite the groups claims Police allege that the organisation meets all the criteria of a 'Cult' and that it's leader Kenneth DYERS was also a sex offender. DYERS behaviour was investigated interrupted and the potential of further offending eliminated. 1. During cross-examination, those extracts were put to Acting Inspector Southgate: Q. Now, I just want to ask you a couple of questions, firstly, about Mr Jacob's note. The first paragraph, he says that you, "As OIC of Strike Force Caroola, led and conducted an outstanding protracted re-initiated inherited investigation under difficult operational circumstances into the sexual offences committed by the spiritual head of an organisation known as the Kenja against underage girls, who were children of members of that group." Now, firstly, was it your view that Mr Dyers was the spiritual head of an organisation known as Kenja? A. Yeah, it's my view he's the head of Kenja, yes. Q. Spiritual head of it. A. I don't - no, that's not my view. … Q. And dropping down a paragraph, it says, "However, despite the group's claims, police allege the organisation meets all the criteria of a cult, and that its leader, Kenneth Dyers was also a sex offender." Is that your view? A. No, it's not. Q. You disagreed with Mr Jacob, did you? A. That's not my view. Q. Did you disagree with Mr Jacob? A. Yes, I disagree. The wording of that statement, yes, I do. 1. He also gave the following evidence: Q. And Mr Jacob speaks of an investigation into sexual offences committed by Mr Dyers. He doesn't use the word alleged - there were sexual offences. That was your view to, wasn't it? A. No, I - I - that's not my - not my document and I still maintain alleged. 1. Turning to the component of the POA authored by Acting Inspector Southgate, the corresponding part is extracted below: 5.2 Impact The investigation was successful in that major criminal investigations were conducted into the influential leader of a Cult resulting in the laying of serious charges of sexual/indecent assault. These charges exposed these illegal activities to others within his organisation, generated further investigations arising from those disclosures, disrupted the offenders [sic] activities and minimised the potential for further similar crimes to be committed against other female children. 5.3 Assessment of Future Threat Although S/F CAROOLA was involved primarily in the investigation of Kenneth DYERS, the organisation of KENJA, formed by DYERS and his wife, Jan HAMILTON, was used by DYERS to procure, groom, and ultimately sexually assault young females. Although strongly rebuked by the KENJA Group it is the position of Sex Crimes investigators that KENJA fits the profile of CULT. Although DYER [sic] was the driving force behind KENJA there is no reasons why another person will void left. Although KENJA does not present an immediate threat to the community it is recommended that its activities are monitored and any future allegations against KENJA or any other CULT style organisation are rigorously investigated. [Emphasis added.] 1. Acting Inspector Southgate was cross-examined at length as to his conclusion contained within that part of the POA. 2. First, as to his view that Kenja was a cult. That exchange is set out below: Q. Now, didn't you say a moment ago that you didn't weigh into this question of whether it was a cult? A. Yeah, that's my personal view, yes. … Q. And you were content to refer to Mr Dyer as the influential leader of a cult, weren't you? A. No. Q. And then you say, "These charges exposed these illegal activities to others within his organisation, generated further investigations arising from those disclosures, disrupted the offender's activities and minimised the potential for further similar crimes to be committed against other female children." That's what you wrote. A. Yep. Q. That's what you thought at the time. A. I can't tell you what my thoughts were at the time but that's what I wrote. Q. That's what you wrote, it's likely to be your thoughts at the time, isn't it? A. Yeah, potentially, yes, yep. Q. Would you have made a false statement in this PI? A. No. 1. Turning his statement that Kenja was used by Mr Dyers "to procure and groom, and ultimately sexually assault young females". He stated: Q. Then under 5.3, Assessment of Future Threat, "Although Strike Force Caroola was involved primarily in the investigation of Kenneth Dyers, the organisation of Kenja formed by Dyers and his wife, Jan, was used by Dyers to procure and groom, and ultimately sexually assault young females." Do you see that? A. Yep. Yes, sorry. Q. Is that what you believed at the time you wrote this? A. Of the - the possibility, yes. Q. Just the possibility. You don't use the word "Possibility" in 5.3, do you? A. No. Q. It's expressed in absolute terms, isn't it? A. Yes. Q. And you recognise that the language bears a fairly strong resemblance to the observations Mr Norris made in his report that you took issue with earlier today? A. Yes. Yep. Q. It was your view, wasn't it, that Kenja was used by Mr Dyers to procure, groom and ultimately sexually assault young females, wasn't it? A. No. Q. You didn't believe that was true? A. Look, I don't look it as Kenja was used to do it. Q. Well, let's explore that. What you say here, "The organisation of Kenja formed by Dyers and his wife, Jan Hamilton, was used by Dyers to procure, groom and ultimately sexually assault young females? A. Yep. Q. What did you mean when you wrote that? A. I can't - I don't know. I don't recall that time. Q. Did you mean that Mr Dyers used Kenja to procure, groom and ultimately sexually assault young females? A. Yeah, I don't recall (not transcribable) Q. And you would have said that because that's the view you held at the time. Correct? A. No. I don't recall. The potential for further offending was eliminated and/or minimised 1. The next aspect of the preamble relied upon by the plaintiff was Detective Chief Inspector Jacob's view that "… DYERS behaviour was investigated interrupted and the potential of further offending eliminated". 2. The corresponding part of the POA, as authored by Acting Inspector Southgate, appears below: 5.2 Impact The investigation was successful in that major criminal investigations were conducted into the influential leader of a Cult resulting in the laying of serious charges of sexual/indecent assault. These charges exposed these illegal activities to others within his organisation, generated further investigations arising from those disclosures, disrupted the offenders [sic] activities and minimised the potential for further similar crimes to be committed against other female children. 1. During cross-examination, with respect to the Detective Chief Inspector Jacob's view that "potential of further offending eliminated", Acting Inspector Southgate gave the following evidence: Q. It says, "Dyers' behaviour was investigated, interrupted and the potential of further offending eliminated." Did you agree or disagree with that statement? A. No, I don't agree with the statement. Q. You thought that it was wrong? A. Yeah, I think it's got some incorrectness in it, yes. Q. In what way is it incorrect? A. "The potential for further offending eliminated." ..(not transcribable)..yeah. Q. Why is that incorrect? A. Well, sorry, in - so I'll withdraw that. Can you restart that question? Sorry. Q. Yes. I read the sentence, "Dyers' behaviour was investigated, interrupted and the potential of further offending eliminated." And I asked you whether you agree or disagreed with that, and you said that you disagreed with it. And I think I was seeking to elicit from you in what respect you disagreed with it. A. I personally never got caught up with the whole cult thing, so I disagree with that. Yeah, I just really don't like the wording of the potential for further offending eliminated. No, it's just - yeah. Q. Well, if the Bundeena incident had occurred, then the potential of further offending wasn't eliminated, was it? A. But this document's after - post his suicide. 1. As to his description of "illegal activities" and the subsequent exposure of the same, he gave the following evidence: Q. Now, when it says the charges exposes illegal activities, you in your mind had no doubt whatsoever that Mr Dyers had been engaging in illegal activities, hadn't you? A. No, I disagree with that. Q. You don't use the word "alleged" illegal activities. Why is that? A. I don't know why I didn't use that word. Q. You say, "Exposed the activities of others within the organisation, generated further investigations and disrupted the offender's activities." Now, you could only say there was a disruption of the offender's activities if you believed that he was engaging in activities of a nature he was accused of. Correct? A. I believed in the possibility, yes. Q. Why didn't you make any reference here to Bundeena? A. I don't know. Q. Wouldn't it have been highly pertinent to make a statement that the disruption to the offender's activities was an exception because there was an illegal activity that occurred while he was on bail? A. I can't comment on it. I don't know what - what the thought at that time. So. Q. The reason for not including Bundeena is because you just didn't believe it ever occurred? That's right. A. That's incorrect. Q. Otherwise, you would have included a reference to the Bundeena incident? A. That's not correct to say that. The intention for further charges to be laid 1. Returning to the preamble, Detective Chief Inspector Jacob noted that Mr Dyers was "found not fit to stand trial and later committed suicide prior to further charges". In context, that passage appeared in parentheses within the final sentence of the opening paragraph, as follows: … Although the offender Kenneth DYERS was never convicted (found not fit to stand trial & later committed suicide prior to further charges), I consider his investigation a success as measured against SCC business rules. 1. In the POA, under the heading "Results", Acting Inspector Southgate also observed there was an "intention to prefer additional charges". Once again, within the context of the document, that observation is extracted below Results Charges on POI (Kenneth DYERS) 21 x Counts of Aggravated Indecent Assault-Under age of 16. Section 61M Crimes Act 1900 1 x Count of Aggravated Sexual Assault-Under age of 16. Section 61J Crimes Act 1900 There was a current investigation and intention to prefer additional charges against DYERS in relation to the victim PLA. However the day following a further request to interview him in relation to these matters he committed suicide at his home. [Emphasis added.] 1. Acting Inspector Southgate was cross-examined with respect to the "intention" to prefer charges. First, by reference to the comments of Detective Chief Inspector Jacob: Q. He says, "Although the offender Kenneth Dyers was never convicted (not fit to stand trial and later committed suicide prior to further charges) I consider his investigation a success, as measured against SCC business rules." Firstly, is Mr Jacob's reference to "prior to further charges" refresh your recollection that there was an intention to lay further charges? A. No, it doesn't. 1. Turning then to his view, with respect to any intention to prefer charge, during cross-examination, Acting Inspector Southgate gave the following evidence: Q. Incidentally, at the time you sent the letter, it was your intention to [p]refer charges against Mr Dyers, wasn't it? A. I can't tell you what my intention was at that - that period of time, back - back then. I can't say that there was ever a decision made to lay charges. It was still an ongoing investigation, and it's my memory no decision had been made in relation to charges or how those charges would be formulated or - yeah, so Q. Is it your evidence that you just can't recall one way or the other whether a decision had been made to charge Mr Dyers in relation to the allegations made by PLA? A. I don't recall a decision to charge ever being made - to actually lay charges ever being made. Q. Could I ask you to take up page 3912. Now, Mr Southgate, you recognise this document as the post-operational assessment in relation to Strike Force Caroola. A. Yes. Q. You prepared this report? A. Yes. 1. Following that exchange, he was directed to his comment in the POA, namely, his express reference to an "intention to prefer additional charges". That evidence is extracted below: Q. Then page 3923, last paragraph you say that there was a current investigation and intention to prefer charges against Dyers in relation to the victim, PLA. Was that a true statement? A. I can't tell you what the thoughts were right at that - at the time of typing that document. Q. Is it likely that your thoughts, at the time of typing this document, was that there was an intention to prefer additional charges against Dyers? A. That's - there was definitely a potential, yeah. Q. But you don't use the word "potential" in this paragraph, do you? A. No, I don't. Q. That's because there was an intention to prefer additional charges against Mr Dyers in relation to PLA isn't it? A. I can't say that that was the case at the time, no. Q. And if it were the case that, there was only a possibility or a potential that that would occur you would have been astute to ensure that that was made clear in this POA. Correct? A. No, I don't agree. The success of the investigation 1. In the preamble to the POA, Detective Chief Inspector Jacob characterised the investigation as a "success". That opinion is extracted below: Although the offender Kenneth DYERS was never convicted (found not fit to stand trial & later committed suicide prior to further charges), I consider his investigation a success as measured against SCC business rules. 1. Turning to the balance of the POA, under the heading "Key Findings", Acting Inspector Southgate described the "impact" of the investigation as follows: The investigation was successful in that major criminal investigations were conducted into the influential leader of a Cult resulting in the laying of serious charges of sexual/indecent assault. 1. First, as to view expressed by Detective Chief Inspector Jacob vis-à-vis the success of the investigation, Acting Inspector Southgate gave the following evidence: Q. He says, "Although the offender Kenneth Dyers was never convicted (not fit to stand trial and later committed suicide prior to further charges) I consider his investigation a success, as measured against SCC business rules." Firstly, is Mr Jacob's reference to "prior to further charges" refresh your recollection that there was an intention to lay further charges? A. No, it doesn't. Q. He says he considers your investigation was a success as measured against SCC business rules. Are you able to enlighten us as to what the SCC business rules were? A. No, no, not at all. Q. Did you consider your investigation a success? A. I didn't look at it that way at all. I didn't look at it at all. Q. You didn't turn your mind to whether it was a success or a failure? A. No, not at all. Q. Just not at all? A. Not at all. 1. Turning to the opinion of Acting Inspector Southgate as to the "success" of the investigation, he gave the following evidence Q. If you go over to page 3922 and you there deal with key findings. Is this a section of the report that you prepared? A. Yeah, I believe so, yes. Q. The 5.1 operational management and practice and 5.2 is impact. You write, "The investigation was successful in that major criminal investigations were conducted into the influential leader of a cult resulting in the laying of serious charges of sexual/indecent assault." Can you see that? A. Yes. Q. Now, didn't you say a moment ago that you didn't weigh into this question of whether it was a cult? A. Yeah, that's my personal view, yes. Q. And you also said a little while ago, I think, that you didn't turn your mind to the question of whether or not the investigation was a success or a failure. A. That's correct. Q. Can I suggest that in regards to that first sentence, that evidence you gave a little earlier this afternoon was incorrect? A. No. Q. And that you did turn your mind to the question of whether or not the investigation was successful, didn't you? A. No, no. Q. And you were content to refer to Mr Dyer as the influential leader of a cult, weren't you? A. No … Q. Can I suggest that your conclusion that the investigation was successful was a conclusion that could only be drawn on the hypothesis that Mr Dyers was guilty of the offences alleged against him? A. No, I don't agree with that statement. Q. Because how could the investigation be characterised as a success if Mr Dyers was innocent of all of the accusations? A. I can't comment on that. Q. You're unable to give any explanation as to how the investigation could be characterised as a success if in fact Mr Dyers was innocent of all of the accusations? A. No, I don't. No, I've got no comment on that. No. Plaintiff's Submissions: Credibility of Acting Inspector Southgate's Evidence 1. I shall first consider the challenge to Acting Inspector Southgate's credibility based on his cross-examination about the preamble to POA and his observations in that report. In particular, reference should be made to the elements of that report below. Mr Dyers as the "spiritual head" and Kenja as a "cult", and Mr Dyers use of Kenja to "procure, groom and ultimately sexually assault young females" 1. As to the above the plaintiff submitted: 1. By that evidence, Acting Inspector Southgate stated that he "never considered Mr Dyers to be the spiritual head of Kenja". He sought to distinguish his words from the phraseology as Detective Chief Inspector Jacob. 2. During cross-examination, Acting Inspector Southgate attempted to distance himself from the following: the use of the description "spiritual head" and of the label of "cult" for Kenja, saying that "I never got caught up in the whole cult thing". 3. As earlier mentioned, the plaintiff submitted that the language employed in the POA "bore a fairly strong resemblance to the observations made by Mr Norris in his report". That proposition was put to Acting Inspector Southgate in the above extract. The potential for further offending was eliminated and/or minimised 1. As to the above, the plaintiff submitted: 1. During cross-examination, it was contended that Acting Inspector Southgate attempted to distance himself from the following the phrase "…the potential of further offending eliminated". 2. Rather, he laid emphasis on the fact that he "still maintain[ed]" that the offences said to have been perpetrated by Mr Dyers were only "alleged" offences. That plaintiff contended that evidence was disingenuous, and should not be accepted. 3. Emphasis was also placed upon the detective's failure to describe the offences as "alleged" ones and reference to the "disruption of the offender's activities" 4. The plaintiff submitted that such a statement "is wrong if the Bundeena allegations are to be accepted, as the incident allegedly occurred whilst Mr Dyers was on bail after he had been committed to stand trial in relation to OLR". The intention for further charges to be laid 1. The plaintiff submitted: 1. It was contended that such a statement "clearly reveals that there was an intention to lay further charges against Mr Dyers. As outlined earlier, that would mean that there was no necessity for the letter of 24 July 2007 to have been sent". 2. The plaintiff submitted that the Court should find that, as at 24 July 2007, it was intended to proffer further charges against Mr Dyers in relation to the allegations made by PLA. Acting Inspector Southgate's evidence on this topic should not be accepted. Like most of his other responses, it was contended, "his answers were, evasive, deflective and non-committal. He was not prepared to make any concessions, not even when faced by the fact of his authorship of a document whose terms were expressed in unambiguous language". The success of the investigation 1. Submissions of the plaintiff: 1. The plaintiff was also critical of Detective Chief Inspector Jacob's characterisation of the investigation as a "success"; particularly in circumstance "when there was no conviction and Dyers committed suicide". (The plaintiff conceded that submission was advanced in the absence of access to the SCC business rules). Such an observation, it may be noted, bears no relevance to the determination before the Court. 2. It was contended that Acting Inspector Southgate "disingenuously stated that he did note turn his mind at all to whether the investigation was a success or failure". 3. Reference was made to his description "as matters of fact in the POA that Mr Dyers was a sex offender, despite the fact that Mr Dyers had never faced trial for the offences investigated by Caroola". 4. The evidence set out above, it was contended by the plaintiff, "is one example among many during Mr Southgate's oral evidence of his dissembling and evasiveness". 1. The plaintiff submitted, by reference to the POA, "we rely on that quite strongly as a demonstration of Mr Southgate being a witness who your Honour should not accept. He was not a witness truth. Cross-examination in particular revealed him to be a witness who was not being frank and forthright". 2. Acting Inspector Southgate's evidence, with respect to the POA, "was characterised by evasiveness, non-responsiveness, contradiction, implausibility, lack of recollection when it suited and recollection when it suited, and a general unwillingness to concede to the obvious or an unwillingness to give explanations when clearly they were called for". 3. It was conceded that, it does not follow that, "all of his evidence must automatically be rejected… if your Honour were to find he is an unreliable witness in relation to the POA". However, it was submitted, that such a finding would colour all of the evidence he gave. The plaintiff contended that there were "many other passages that were equally unsatisfactory". 4. During closing submissions, the plaintiff also submitted: A number of open questions were asked to give an explanation and he just didn't. So we submit that evidence on the POA provides a really good example of the character of his evidence. It shouldn't be accepted in relation to that. And once your Honour is satisfied that his evidence is unsatisfactory in relation to the POA then that assessment informs how the rest of his evidence should be accepted. It's undoubtedly true that it's a serious case that we bring. We make serious allegations. We don't shy away from that. We accept that the Briginshaw standard and principles apply but still the civil standard. 1. The plaintiff submitted that Acting Inspector "Southgate was a witness of little credibility, and his evidence should not be accepted. His denials of his motives and his state of mind when he sent the letter of 24 July 2007 should not be accepted. He had a purpose in mind when he sent that letter, and that was to cause harm to Mr Dyers". That submission had a connection to the entirety of the plaintiff's case. Broader Implications of the POA 1. The plaintiff also tied her attack to the overall case sought to be established by the plaintiff. It was submitted: But it is our case that, from an early time, Mr Southgate came to the conclusion that Mr Dyers was a paedophile cult leader and should be in prison and thereafter, that motivation infected everything that he did, every step thereafter. If one imagines that that is what Mr Southgate had in his mind, it provides a really good explanation of all the steps that follow, including another aspect of the evidence which we say was unsatisfactory and indicative of malice is the failure to disclose material to the DPP. … Your Honour should not accept Mr Southgate as a witness of truth. Your Honour should conclude that, in fact, he did have the malicious intent that we allege and that, throughout his evidence, he sought to essentially deny that fundamental proposition by denying the malicious intent that we say existed throughout the period of the time that Mr Southgate was the officer in charge. 1. The plaintiff submitted that the POA "illuminates" Acting Inspector Southgate's view on the investigation into Kenja. It was also contended that it "highlights the lack of credibility throughout his evidence, oral and written". 2. Finally, the plaintiff's ultimate case against Acting Inspector Southgate, in this respect, was as follows: 1. Acting Inspector Southgate believed that Mr Dyers was a paedophile. He believed that Mr Dyers, with the plaintiff, were the leaders of a cult, and that the cult facilitated his unlawful activities against young women. He believed that Mr Dyers should be sent to prison. All those things give rise to malice. 2. Mere malice on the part of a police officer does not give rise to a cause of action. But where the police officer takes a concrete step that is motivated by that malice and is intended to harm an accused (or other) person, rather than to conduct a proper investigation, then the police officer commits a civil wrong if that step does cause injury. 3. Acting Inspector Southgate's malice towards Mr Dyers and the plaintiff was behind the letter of 24 July 2007. The dominant purpose in sending the letter was not to conduct an investigation. 4. On the evidence before the Court, the conclusion is plain that the letter did cause horrific harm to both Mr Dyers and the plaintiff. 1. As to the plaintiff's contentions with respect to the credit of Acting Inspector Southgate in light of the POA, the defendant submitted that the submissions should not be accepted for the following reasons: 1. Nothing in the POA or in Acting Inspector Southgate's evidence about it supports the submissions advanced in para 243 of the Plaintiff's Closing Submissions, which are extreme. 2. In particular, it was contended, the submission that Acting Inspector Southgate's dominant purpose in sending the letter was not to conduct an investigation "flies in the face of the fact that, although not completed, a substantial investigation had been commenced and was well underway". Further, the letter was a normal part of that investigation. 3. The plaintiff's submissions as to Acting Inspector Southgate's motive in sending the letter are, it was contended, "irrational". The risk of injury the letter posed to Mr Dyers, which the plaintiff submits was "obvious" to him, was one she did not recognise. 4. The submissions at para 243 should be rejected. The evidence does not allow them to be drawn. They are based on inexact proofs, indefinite testimony and indirect references, not on sound and prudent judgment of whether some act has been done involving grave moral delinquency. 5. During closing oral submissions, as to Acting Inspector Southgate's cross-examination with respect to the POA, senior counsel for the defendant submitted: Detective Southgate understandably was affected by a poor memory of events of 11 to 13 years ago. And his position assessed fairly, was that look, if he'd signed part of something in the POA, which he did, which said or endorsed the view of Detective Inspector Jacob in his first preliminary page to that report of 19 February 2008, he has said it. As with other documents, his answers were often to the effect, he accepted he'd said it, he can't recall now what was in his mind at the time about it. It was put well, what was in your mind was what you said. And he basically said okay. But, your Honour recalls he said, well he never knew what happened to those documents. They went up the line and he never saw that one again. Consideration Credibility of Acting Inspector Southgate re Norris Report and POA evidence 1. The defendant contended that, even with the generality and ambiguity of the questions advanced by the plaintiff, there was no inconsistency between the answers of Acting Inspector Southgate. As to the contention that the Acting Inspector Southgate was evasive in his evidence, the defendant submitted: "The series of questions extracted, like much of the cross-examination of Acting Inspector Southgate, was so general that his responses, affected by impaired memory, are understandable and do not impair his credibility". 2. The defendant also submitted that there was no reason not to accept Acting Inspector Southgate's evidence that he had no recollection of whether or not other investigators in Strike Force Caroola had said to him, 13 years ago, that Mr Dyers was using Kenja to commit criminal offences against children. The defendant, in that respect, contended: That he does not now recall conversations of no significance or consequence is hardly surprising. It is not clear why it matters what other investigators said to Det Southgate, or why it would have been inappropriate of them to do so: the evidence of the complainants suggested that Mr Dyers was using Kenja to commit criminal offences against children. 1. There is some substance to the defendant's submissions in this respect, so far as the consistency of Acting Inspector Southgate's evidence before this Court but there remains some concerns as to parts of his evidence I will discuss below. I have also taken into account the defendant's above submissions regarding the taking of his evidence in this respect. 2. I accept Acting Inspector Southgate's evidence, when he agreed with the terms of the Norris Report in his statement he was referring to his state of mind at the time of writing the statement. I do not consider his evidence to be inconsistent, in that respect, even though one question expressed in confusing terms may have appeared to be so. That conclusion does not merely take into account that Acting Inspect Southgate's impaired memory of his appreciation of a document read early in taking over an investigation is not implausible, but that his reflections on the document may have understandably shifted over the course of and after the conclusion of an investigation. 3. In reply, the plaintiff submitted that the questions were directed at "the substance" of the Norris Report. It was contended that "[i]t is not possible for Mr Southgate to say that he 'agreed with the terms of the [Norris] Report' if he did not agree with the words extracted at [55] of the Plaintiff's submissions. That was the fundamental position of the Norris Report". That may be so but Acting Inspector Southgate's evidence varied as to his acceptance as between the time of his statement and the time of considering the Norris Report. 4. It is true that Acting Inspector Southgate's evidence, as extracted above, was as follows: Q. But it is true, though, isn't it, Mr Southgate, that throughout the whole time that you were associated with Strike Force Caroola, that you thought that it was abundantly clear that Mr Dyers had used his position as leader of Kenja to access children, groom and condition them to his spiritual beliefs, and ultimately use this power and authority to commit criminal offences against them? That was a view you held, wasn't it? A. No. 1. However, that question concerns the whole time Acting inspector Southgate was associated with Strike Force Caroola, namely, during his investigation. That question drew a negative response in contrast to answers given regarding the view he had formed at the time of making his statement. 2. I turn then to the particular submissions made by the plaintiff as to Acting Inspector Southgate's evidence as to the POA. 3. The first POA topic requires an examination of the issues. First, the plaintiff was correct to submit that the language in the POA bore a "fairly strong" resemblance to observations made in the Norris Report. It is also true to say, however, that the language employed such as "spiritual head" and "cult" also bore a close resemblance to the original Terms of Reference and the Amended Terms of Reference. 4. Secondly, whilst it is true that Acting Inspector Southgate did not refer to Mr Dyers as the spiritual head of Kenja and his denial of the use of that label may be accepted, his statement that he "never got caught up with the whole cult thing" does appear to be an attempt to distance himself from not only the statement made by Detective Chief Inspector Jacob, as to a spiritual head of a cult, but also his own description in para 5.2 of the POA of Mr Dyers as "the influential leader of a cult". It does appear, however, that Acting Inspector Southgate was at pains to explain that his response, in that respect, was a personal view, presumably one to be distinguished from his role as a police officer in writing the report. Acting Inspector Southgate does not provide a satisfactory explanation to the distinction he drew in that respect although he was not asked to clarify. 5. It may also be noted that. in the cross-examination, as to the preamble, Acting Inspector Southgate disagreed with the statement by Detective Chief Inspector Jacob that "the organisation meets all the criteria of a 'Cult' and that its leader Kenneth DYERS was also a sex offender". Because of the double-barrel nature of the question, it is difficult to know what Acting Inspector Southgate is disagreeing with in that context. 6. Thirdly, Acting Inspector Southgate stated in the POA that "[a]lthough S/F Caroola was involved primarily in the investigation of Kenneth DYERS the organisation of Kenja, formed by Dyers and his wife Jan Hamilton, was used by DYERS to procure, groom and ultimately sexually assault young females". Acting Inspector Southgate's answers in cross-examination with respect to the same, appear, to some extent, to be directed to distancing himself from the opinion there expressed. Furthermore, his references to an inability to recall to his answers, in this part, are less convincing. 7. However, it is important to recognise that he affirmed that he believed at the time that he wrote the statement, that the above statement from para 5.3 represented a state of affairs that had "possibly occurred". He soon thereafter denied flatly proposition that Kenja was used by Mr Dyers to procure, groom and ultimately sexually assault young females. That apparent inconsistency may well be explained by the second and third sentence of para 5.3. Paragraph 5.3 was concerned the assessment of a future threat. Where Acting Inspector Southgate stated that "look, I don't look at it as Kenja was used to do it", seems to relate to his reflection upon the second and third sentences and possibly the fact that the topic under discussion fell outside the Final Terms of Reference. 8. As to the second POA topic, Acting Inspector Southgate's denial of Detective Chief Inspector Jacob's preamble is not inconsistent with para 5.2 because his answers make tolerably clear that his disagreement with Detective Chief Inspector Jacob is with the word "eliminated" appearing in that statement. 9. Acting Inspector Southgate was also criticised for his evidence that the "offences" in para 5.2 were referred to only in the context of "alleged" offences. His evidence was said to be disingenuous. In fact, Acting Inspector Southgate did not use the word "alleged" in the context of the "illegal activities" (the actual expression he referred to in para 5.2 of the POA) either in the paragraph or in an answer he gave in cross-examination (the notion of "alleged" was introduced by the cross-examiner). 10. Acting Inspector Southgate disagreed that he had in his mind "no doubt whatsoever" that Mr Dyers had been engaging in illegal activities and, when asked why he did not use the word "alleged" he indicated that he did not know why he did not use that word. He also accepted that the notion of disruption of the offender's activities would only be used if it was believed that the offender was engaging in activities of a nature that he was accused, of the caveat, "believed in the possibility, yes". These are not implausible or disingenuous responses given the terms of para 5.2. 11. Whilst para 5.2 speaks in relatively unqualified terms in these various respects, it nonetheless is entirely couched in terms of charges. This conforms with Acting Inspector Southgate's evidence that he disputed the proposition put to him that there was "no doubt whatsoever that Mr Dyers had been engaging in illegal activities". It also conforms with the above caveat he introduced in his affirmative answer to the proposition that a reference to the disruption of an offender's activities would imply that the offender was likely to be engaged in those activities. 12. It follows that I do not consider his evidence to be disingenuous in relation to the second POA argument, particularly when the POA is seen as a document written as part of a relatively unstructured internal communication made within the police reporting system. 13. As to the plaintiff's submission regarding the Bundeena allegation, it only had force if the statement by Detective Chief Inspector Jacob applied to the proposition, namely, that the investigation interrupted the behaviour and the potential for future offending was "eliminated". However, that was the point of disagreement from Acting Inspector Southgate who was, of course, the Officer in Charge of the investigation. 14. As to the third POA topic, I do not consider that the reference in brackets in the preamble by Detective Chief Inspector Jacob should be taken as a definitive statement that a decision had been made by Strike Force Caroola to charge Mr Dyers with respect to the Bundeena allegation. The use of the words "prior to further charges" are insufficient in and of themselves to give that indication and need to be considered in the light of the entirety of the evidence bearing on that question. As to the credit of Acting Inspector Southgate, in this respect, I shall later find in the section of the judgment dealing with "the decision to send the letter" that his evidence is reliable. 15. As to the fourth POA topic, my view of Acting Inspector Southgate's evidence may be broken into three parts. 16. As to his answers given in the context of Detective Chief Inspector Jacob's preamble, I do not consider the answers to be disingenuous as submitted by the plaintiff, as Detective Chief Inspector Jacob's approach to this question, based as it was on the SCC Business Rules, was quite different to the opinion expressed by Acting Inspector Southgate. Acting Inspector Southgate's answers should be seen, fairly, in the context of being asked his opinion referrable to the preamble, even though expressed in broad terms. Hence, his negative responses should be seen as directed to the opinions expressed in the preamble. 17. The second component of his evidence as to the "Key Findings" made by him in the POA, are demonstrative of a contradiction between his stated findings in the POA and the evidence he gave. In my view, Acting Inspector Southgate's evidence, in this respect, represented a refusal to make a concession that was obvious given the way the questions were framed. Further, the evidence gives the appearance, in some respects, of dissembling or evasiveness, although it needs to be understood in its context, which concerns the third component of this topic. 18. Each of the questions giving rise to the answers by Acting Inspector Southgate, which are said to reflect adversely on his credit, are expressed in very broad terms as to whether Acting Inspector Southgate accepted that the investigation was a "success" or a "failure", whereas his finding was expressed in more measured terms, namely, that the investigation was a success because "major criminal investigations" were conducted into the "influential leader of a cult" resulting in the laying of "serious charges of sexual/indecent assault". His disagreement with the proposition that the only conclusion that could be drawn from his report as to success was the hypothesis of Mr Dyers' guilt, may be misunderstood in the context of the function of the investigating officer and his perception of that role. In other words, he assessed his role in terms of the conduct of an investigation and the laying of charges as opposed to the assessment of the guilt or innocence of Mr Dyers. 19. Even though the reference to Mr Dyers being an "influential leader of a cult" no doubt expresses a view formed about Mr Dyers' role after the investigation it does not follow that the only measure of success of the investigation was that of the guilt or innocence of Mr Dyers as was put in cross-examination to Acting Inspector Southgate. He had, in fact, stated the other elements, consistent with an investigative role, which drew his rejection of the proposition put to him. When seen in this light his answer in cross-examination did not, therefore, contradict his report. The subsequent answers where he expressed an inability to comment represent, in my view, an inability to respond to a question where there is a disjuncture between the question put and the propositions that he was attending to in his report as an investigating officer, albeit that the answers given were clumsy, and may to some extent be seen as evasive. 20. The attack upon Acting Inspector Southgate's evidence extended to the entirety of his evidence extending as to the facts and circumstances relating to the investigation HLA/OLR allegations and the PLA allegations (including, specifically, the Bundeena allegation) and extended to the sending of the letter. It was submitted that Acting Inspector Southgate was not a witness of truth in all relevant respects and his evidence in the present context was instrument in the Court coming to that view. 21. The particular focus of the plaintiff in the cross-examination of Acting Inspector Southgate discussed in this section of the judgment was the prosecution a central part of the plaintiff's case theory as to malice, namely, that the Strike Force Caroola and, in particular, Acting Inspector Southgate, acted upon a perceived belief or perception of that, throughout the investigations into the HLA/OLR allegations (and later charging, bail determinations and the trial in relation to the same) and subsequently the investigations into the allegations by PLA, Mr Dyers was a "paedophile cult leader who should be in prison" because of his unlawful activities against young women. The organisation Kenja was used to facilitate this conduct. The motivation for and steps taken in the investigation were driven by that perception or goal. 22. Thus, the cross-examination during this juncture was directed to demonstrating that Acting Inspector Southgate (and Strike Force Caroola) had adopted, virtually from the outset of the Taskforce, and certainly from when Acting Inspector Southgate took over as Officer in Charge, aspects of the Norris Report said to reflect that perception and goal and adapted his investigation to that end. The POA was employed in cross-examination to demonstrate that proposition as well as the overall hypothesis. 23. That was the basis upon which it was suggested that Acting Inspector Southgate's lack of credit, as to his evidence regarding the Norris Report and POA, permeated those aspects of his evidence and ultimately, the reliability of his evidence. 24. Thus, senior counsel for the plaintiff contended that, whilst the general principles that a rejection of Acting Inspector Southgate's evidence in relation to the Norris Report (or the POA) did not automatically mean that the whole of his evidence must be rejected, a finding as to his credit, in this respect, would "colour" how the remainder of his evidence may be received. 25. I will address those questions firstly, as to the question of credit and secondly, the broader issues of substance raised by this approach, including the significance of the Norris Report and the POA. 26. The general principle to which senior counsel referred is well established. 27. Nield AJ in R v Mulcahy [2010] ACTSC 98, as cited in Nguyen v R (2012) 267 FLR 344; [2012] ACTCA 24 at [11], stated as follows at [22]: [22] I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance. 1. In Nguyen v R, Higgins CJ, Refshauge and Lander JJ also observed (at [42]-[44]): [42] A second matter that may also be disposed of quite quickly is the argument that Mr Tran's evidence was indivisible, and that if the trial judge was not prepared to accept all of it he could accept none of it. [43] That is not a proposition known to law. Indeed, it is contrary to well-established principles that a trier of fact has to consider all of the evidence collectively and separately to determine the evidence which impacts upon the issues which are to be determined. [44] In doing so, the trier of fact may reject some evidence of a witness but accept other evidence from that same witness. There is no such proposition of indivisibility as was put by counsel for the appellant. 1. This principle is further discussed by Ipp JA (in which Handley AJA and Nicholas J agreed) in Shoesmith v Cessnock Truck Tyre Centre Pty Ltd [2008] NSWCA 342 at [74]: [40] Mr Russell submitted that this evidence, on which her Honour relied for corroboration of the appellant's evidence that the brake system failed, was not independent evidence of the kind that the judge had said she required. It was in fact evidence given by the appellant himself. [41] I accept that there is justification in this criticism but her Honour's reference to independent evidence may be understood as including evidence of statements made outside the courtroom. Whatever her reasoning may have been in this regard, it is apparent, from her judgment as a whole, that, while rejecting the appellant's evidence generally on the ground of credibility, she was prepared to accept that part of his evidence which related to the cause of the accident. This she was entitled to do. 1. In Strinic v Singh (2009) 74 NSWLR 419 at [22] Beazley JA (with whom Ipp JA and Basten JA agreed), stated the following: [22] … a trial judge is entitled to make findings on evidence and in doing so is entitled to accept some evidence and reject other evidence. 1. Further, the Federal Court in AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 at [60] stated that there is no requirement to explain why certain evidence was accepted or rejected: [60] In any event, subsequent authorities, both in this court (Buadromo) and the High Court (SZJSS), establish that, subject to the principles of legal unreasonableness, the weighing of evidence is a matter for the Tribunal and that it is under no obligation to state why it was minded to accept or reject discrete aspects of the evidence advanced before it. 1. Later in this judgment, I will find that, for the reasons then stated, that I accept the truth and reliability of Acting Inspector Southgate's evidence on various topics where his credibility was further challenged. Some illustrations are: 1. his knowledge of the errors in the Norris Report when he read it; 2. his intention to arrest, charge and detain Mr Dyers (i.e. refuse him bail and keep him in custody); 3. his recollection of the conversation between Mr Koops and Detective Sergeant Owen where he allegedly stated "he's never leaving custody"; 4. the omission of Ms Paisley from the Facts Sheet and the decision not to interview Ms Paisley prior to the arrest of Mr Dyers; 5. the inclusion of a quashed conviction on Mr Dyers criminal history; 6. his knowledge of Mr Dyers' poor health; and 7. his evidence as to his knowledge and belief of the Bundeena allegation. 1. Those conclusions have been made, both in the context of the arguments here discussed and in the context of my assessment of this part of his evidence. My overall assessment is that Acting Inspector Southgate's evidence was not untruthful. Certain parts of his evidence as to the POA, as I have found, may not be accepted as reliable. My observation of his evidence, as to his entries in the POA, was that he did attempt to distance himself in some respects from Detective Chief Inspector Jacob's opinion and, to a lesser extent, his own opinions expressed in the POA in his evidence. Further, his expressions of lack of recollection (here and in later part of his evidence) was sometimes laboured and unconvincing, and in avoidance of questions, even after making due allowance for the fact that the records and events upon which he was questioned concerned an investigation conducted 13 years earlier after, no doubt, countless investigations conducted by Acting Inspector Southgate in the intervening period. However, for the most part, I agree with the defendant that the lack of recollection of conversations (as opposed to his knowledge and understanding at the time of giving his evidence) was understandable and of no significance, but that was not entirely the case. 2. Overall, I do not consider then that the limited findings as to the unreliability of part of his evidence with respect to his cross-examination on the POA does substantially adversely "colour" his evidence as to the topics I will later discuss (as mentioned above), although I have had regard to the findings made here in considering that alter evidence. Moreover, the assessment of that later evidence needs to be made in the light of the evidence actually given in its context including any relevant documents or other related evidence. 3. I turn then to the substance of the plaintiff's submissions as to the implications of the Norris Report in the context of the POA (and my examination of Acting Inspector Southgate's evidence in that respect) and the suggestion that Acting Inspector Southgate formed various views consistent with malice in that context. 4. I find that the views expressed in the Norris Report, by Detective Senior Sergeant Norris, and the POA, by Acting Inspector Southgate, do not sustain a conclusion that Acting Inspector Southgate adopted the views expressed in the Norris Report and, as a result, acted upon them during the course of his investigations and, in particular, reached a concluded or firm view, as a result of the adoption of relevant parts of the Norris Report, that throughout the course of the investigation Mr Dyers had used his power and authority to commit criminal offences against children or had used access to children to groom and condition them leading to the exercise of that power, for the following reasons: 1. The Norris Report was not authored by Acting Inspector Southgate, it was not promulgated to others, and it was not the premise of Acting Inspector Southgate's investigation. The Norris Report was produced in response to a directive of Detective Superintendent McKay to conduct a review of a Kogarah JIRT investigation – prior to the establishment of Strike Force Caroola. It was an assessment of the procedures and steps taken by Kogarah JIRT. 2. The Norris Report may be distinguished from the following documents that relate to the Strike Force Caroola investigation: 1. the Terms of Reference, which sets out the scope of an investigation and is updated periodically over the course of the investigation; 2. the Investigation Plan, which is produced at the beginning of the investigation and includes, inter alia, the mission and strategies to be adopted in the execution of the investigation; and 3. the POA, which document is produced at the completion of an investigation. (It might also be noted that the Terms of Reference and Investigation Plan were not authored by Acting Inspector Southgate). 1. Acting Inspector Southgate read the Norris Report but could not remember when he did so. As to the issue of when he first read the report, there is an inference available that Acting Inspector Southgate did so during the course of his review of the police holdings or, at least, early on in the investigation (following that review). This is supported by the following evidence, which I accept: 1. that between Acting Inspector Southgate and Senior Constable O'Meara, they read all of the material within the police holdings; and 2. at the time of reading the Norris Report, Acting Inspector Southgate was not aware of any errors in the report, which suggests he read the Norris Report either at the outset or early on within the investigation (as opposed to later at the time of writing the POA). 1. I do not accept that the conversations had between Detective Senior Sergeant Norris and Acting Inspector Southgate, with respect to any handover that occurred at the time of his appointment as Officer in Charge jaundiced the approach of Acting Inspector Southgate to the investigation. That conclusion is made on three bases: 1. There is no evidence at or about the time prior to the arrest of Mr Dyers that lends itself to that inference. 2. The investigation was conducted in accordance with the Terms of Reference document and the Investigation Plan. Further, Strike Force Caroola Investigation Progress Reports consistently address, inter alia, the progress of the Strike Force Caroola investigation. It is also evident, from the Terms of Reference, that the scope of the investigation was refined over time. Thus, what took place over the course of the investigation is consistent with Acting Inspector Southgate conducting a bona fide investigation and not slavishly adopting the views expressed in the Norris Report. 3. As to the plaintiff's reliance upon the POA, in conjunction with Norris Report, the POA cannot be used to retrospectively cast doubt upon the intention of Acting Inspector Southgate at various stages throughout the investigation. 1. I turn then to some additional considerations regarding the POA. 2. The preamble to the POA was written by a superior officer to Acting Inspector Southgate, namely, Detective Chief Inspector Jacob. Any view expressed by Detective Chief Inspector Jacob cannot be imputed to the state of mind of Acting Inspector Southgate. To the extent to which the plaintiff relies upon the preamble, in that respect, it is not relevant. 3. Whilst the POA was written by Acting Inspector Southgate on 19 February 2008, it is not relevant to the determination of his state of mind when he was appointed as Officer in Charge on 30 September 2005 and progressively undertook an investigation. The various attacks made upon Acting Inspector Southgate's handling of the investigation of the complaints made by HLA and OLR are not substantiated by my later review of his conduct, and in particular, do not sustain a conclusion that the investigation was infected by malice. 4. I accept the following submissions of the defendant with respect to the POA and Acting Inspector Southgate's conduct of the investigation: 1. It was not Acting Inspector Southgate's role to form a concluded view of Mr Dyers or of Kenja. His role was to investigate allegations of serious criminal conduct. 2. The statement in the POA, relied upon by the plaintiff, namely, "the organisation of KENJA, formed by DYERS… was used by DYERS to procure, groom and ultimately sexually assault young females", is plainly a description by Acting Inspector Southgate based upon the evidence gathered during the course of the investigation with respect to the complainants HLA, OLR and PLA. Such a conclusion at the end of an investigation does not sustain an inference that Acting Inspector Southgate held such a belief throughout the course of the investigation. 3. The POA is an internal management document. The fact that its propositions are stated in unqualified terms does not, itself, give rise to any inference adverse to Acting Inspector Southgate. In particular, it does not provide a basis for finding that Acting Inspector Southgate's evidence was tailored to seem more impartial and less hostile to Mr Dyers than he in fact was at the relevant time. 1. I then turn to further particular submissions of the plaintiff made as to the POA. 2. The defendant advanced the following submissions, with which I agree: 1. A statement in the POA, relied upon by the plaintiff, cannot fairly be understood as anything other than a description of what the evidence gathered during the course of the investigation suggested. That evidence certainly supported that statement. 2. Having regard to the purpose of the, the fact that its propositions are stated in unqualified terms does not give rise to any inference adverse to Acting Inspector Southgate. In particular, it does not provide a basis for finding that his evidence was tailored to seem more impartial, and less hostile to Mr Dyers than he in fact was at the relevant time. Further, such a proposition was not put to Acting Inspector Southgate. Strike Force Caroola Arrest and Charge Mr Dyers on 27 October 2005 The Investigation Log 1. At 6.00am on 27 October 2005, Detective Sergeant Owen, Acting Inspector Southgate, Detective Senior Constable O'Meara, Detective Sergeant Frame and Detective Senior Sergeant Norris attended a briefing meeting at Sutherland Police Station, with respect to the arrest of Mr Dyers at his Bundeena residence ("the briefing"). The briefing was referred to in an Investigation Log dated 26 October 2005, authored by Detective Chief Inspector Jacob (uploaded to e@gle.i on 28 October 2005) ("the Investigation Log"). An extract from that log appears below: Det Sgt Owen, Dets Southgate, O'Meara, Frame and Norris were attending Sutherland 6am on 27/10/2005 for a briefing after which efforts would be made to arrest Ken Dyers of the Kenja Cult at his home at Bundeena and interview him in relation to 18 offences (17 Aggravated Indecent Assaults and 1 Aggravated Sexual Assault upon two young females in the period 2002 and 2003). It was expected that charges would be laid and Dyers would appear at the Sutherland Local Court in custody. Investigating police would be seeking bail is refused or that stringent bail conditions are applied. 1. It may be noted that police had arranged for there to be media coverage of the arrest, however, Acting Inspector Southgate did not request or sanction their attendance. The media presence at the time of arrest was also addressed in the Investigation Log. The relevant extract from that log appears below: Det Sgt Owen then indicated that Ms Kyle Keogh, SCC Media Advisor had sought his position in relation to having the NSW Police TV present at the arrest at Bundeena. I strongly supported the position of Det Sgt Owen that this not occur for the following reasons: •That this was an operational arrest and these was no value or need for it to be filmed. • There was a potential for this to turn into a circus (and further potential of a leak to mainstream media). • It could place police under added pressure that their activities were being filmed. • It was prejudicial and prior to any charges being laid. • That investigating police could not be subject to cross examination on the issue. • If the Command thought there was a real need for positive media attention in this matter then very adequate media exposure could be obtained by advising media after the charging and before his appearance at Sutherland Local Court (if that in fact happened). As was the case in the arrest of KAMM 'The Little Pebble' the previous Friday. I instructed Det Sgt Owen to inform Kylie Keogh of my decision and that she could contact me at any time to discuss it further. … About 6.05pm 26/10/2005 following the conclusion of the NIMG meeting Det Supt Begg received a message from Det Ch Supt Dein about the proposed Ken Dyers arrest. I then quickly briefed her on this issue including the proposed for Police TV to film the arrest and outlined my position of objection. About 6.10pm Det Supt Begg and Jacob spoke to Det Ch Supt Dein about the Ken Dyer arrest. He indicated that he had authorised the NSW Police TV to film the arrest of Dyer for the following reasons: • It was a good news story for the police. • It would not be a circus only police TV would be there under the control of Det Sgt Owen • It had the very real potential to produce more victims (coming forward) • It sent an important message • It would not be released in any way prior to any court appearance • No other media would be there • That we (Det Sgt Owen, Det Sup Begg and Jacob) had complete veto on the product Det Supt Begg and I then outline our objections as indicated about. Det Ch Supt Dein did not change his position and indicated that he would have Kylie Keogh contact Det Sgt Owen. … I informed Det Sgt Owen that I would outline the process which led to this decision in an Investigation Log Entry for Strike Force Caroola, that this would alleviate any adverse criticism being successfully directed toward the investigation team subsequent to this arrest. The arrest of Mr Dyers at the Bundeena Residence 1. At 9.40am on 27 October 2005, Acting Inspector Southgate arrested Mr Dyers at his home address in Bundeena (which residence he shared with the plaintiff). The plaintiff was present during the arrest. 2. At the time of the arrest, and prior to being taken to the police station, the plaintiff made telephone contact to Mr Dyers' lawyer, Mr Koops. Mr Koops spoke briefly with the plaintiff, provided legal advice to Mr Dyers and informed Acting Inspector Southgate that he was Mr Dyers' lawyer. 3. In his affidavit of 12 December 2014, Mr Koops deposed that, in his brief conversation with Acting Inspector Southgate, he was told that "Mr Dyers is under arrest and he is being taken to Sutherland Police Station". In reply, Mr Koops said: I have advised Mr Dyers not to discuss any matter with you until I have had an opportunity to see him. I will get to the Sutherland Police Station as quickly as possible. 1. Mr Dyers was allowed to have a shower and change his clothes before he was taken in an unmarked police car to Sutherland Police Station. The arrival of Mr Koops at Sutherland Police Station 1. At around 11am, Mr Koops arrived at Sutherland Police Station where, in the presence of Mr Dyers and the plaintiff, he had a conversation with Acting Inspector Southgate and Detective Senior Constable O'Meara. It may be noted, that conversation occurred prior to the commencement of the police interview with Mr Dyers. 2. During that conversation, Mr Koops put several matters to Acting Inspector Southgate and Detective Senior Constable O'Meara as to why the allegations of sexual assault by HLA and OLR were highly dubious. Mr Koops accused Strike Force Caroola of not carrying out a proper investigation. Mr Koops also explained that Mr Dyers was "unwell at the moment", that he was prepared to take part in an interview, but suggested that it be reconvened for the next day. Whilst Acting Inspector Southgate could not recall the entirety of that conversation at Sutherland Police Station, or the detail of his earlier telephone conversation, in his supplementary statement he accepted that both conversations took place. The relevant paragraph of that supplementary statement is extracted below: 17. … b. As to paragraph 14, I agree that I spoke with Mr Koops at Sutherland Police Station. I can only recall the gist of the conversation but it was along the line of what is set out in this paragraph. I cannot recall whether I said "I agree it seem unlikely if that is the case." I do not recall Mr Koops asking if Mr Dyers was under arrest but I recall him asking if Police were charging Mr Dyers. I recall Mr Koops saying that Mr Dyers was unwell, need food and that he wanted to reconvene the next day. I do not recall whether I said that I would speak to my superior. I have no recollection of the asserted conversation between Mr Koops and Detective Owen ("Owen") where Owen allegedly stated "he's never leaving custody." 1. Notwithstanding the matters raised by Mr Koops, an interview was conducted with Mr Dyers. The interview of Mr Dyers 1. The interview was conducted at Sutherland Police Station by Acting Inspector Southgate with Mr Dyers. At the time of the interview, the following persons were also present: Detective Senior Constable O'Meara, the plaintiff and Mr Koops. The interview commenced at 2.40pm and concluded at 4.58pm. 2. Mr Dyers' interview was electronically recorded and a transcript was produced. Detective Sergeant Frame certified the ERISP transcript as an accurate record of the interview on 5 December 2005. 3. Mr Dyers denied all of the allegations put to him in the record of interview. It was submitted by the plaintiff that the record of interview showed that at times Mr Dyers "appeared dazed and confused" but that "he was steadfast in his denial of wrongdoing". The Court has had the benefit of viewing the ERISP of Mr Dyers and does not accept that Mr Dyers appeared "dazed and confused". Mr Dyers was generally responsive to the questions asked and sought clarification if required. Further, Mr Koops never raised such an issue or intervened to assist Mr Dyers with any problem during that interview. It follows that there was nothing "obvious", in that respect, for Acting Inspector Southgate to react to at the time of interview. 4. For the most part, Acting Inspector Southgate said that he could not recall what was discussed at the briefing. Detective Sergeant Frame accepted that it was a certainty at the time of the briefing that Mr Dyers was going to be charged. However, during cross-examination, as to whether or not Mr Dyers was going to be charged, Detective Sergeant Frame also stated that "[w]asn't my decision to make". The intention of Acting Inspector Southgate 1. At this juncture, it is convenient to address the factual controversy vis-à-vis the intention of Acting Inspector Southgate to arrest, charge and detain Mr Dyers (i.e. refuse him bail and keep him in custody). 2. The plaintiff submitted that the Court should find that Strike Force Caroola, including Acting Inspector Southgate as Officer in Charge at the relevant time, made a decision in the early hours of 27 October 2005 to arrest and charge Mr Dyers and refuse him bail (including opposing bail in Court) and that the Investigation Log (extracted above) reflects what was discussed at the briefing. 3. It was further submitted that based upon the drawing of a Jones v Dunkel inference, none of the officers that attended the briefing and remained police officers, namely, Acting Inspector Southgate, Detective Sergeant Owen or Detective Senior Constable O'Meara, would have contradicted that contemporaneous record (being a reference to the Investigation Log). The plaintiff submitted: 68. … Each of those persons is in the Defendant's camp. Consistently with the rule in Jones v Dunkel, the Court can and should infer that their evidence would not have assisted the Defendant. Thus, for example, it should be inferred that none of them would have given evidence to contradict the contemporaneous record of Mr Jacob. 1. Thus, the intention, it was contended, was for Mr Dyers to remain in custody and that Acting Inspector Southgate's statement to Mr Koops, prior to the record of interview, that a decision would be made after the record of interview was untrue. The plaintiff submitted that statement was "untrue" as the decision had been made no later than at the briefing to charge Mr Dyers. 2. The difficulty with those submissions is that the Investigation Log, in my view, does not contradict the statement made by Acting Inspector Southgate to Mr Koops upon his arrival at Sutherland Police Station. 3. The Investigation Log merely recorded that it was expected that charges would be laid. It was hardly surprising, given the allegations investigated, that an arrest might be made and an expectation that charges may be laid could arise. However, as Acting Inspector Southgate and Detective Sergeant Frame made clear, the course of an interview may have resulted in a different outcome. The defendant was correct to submit there is a distinction between expression of an intention to charge and Acting Inspector Southgate having made a firm decision to do so. 4. As to Acting Inspector Southgate's intention, it is true that the Investigation Log indicated an intention to deny bail as it stated that, if charged, Mr Dyers would appear in Sutherland Local Court. However, the defendant was correct to submit that the Investigation Log should not be considered evidence of that being Acting Inspector Southgate's intention. The defendant emphasised, again correctly, that the document had no probative value, in that respect, for the following reasons: 1. it was not Acting Inspector Southgate's document; 2. there was no evidence that Acting Inspector Southgate had any part in its creation; 3. there was no evidence that Acting Inspector Southgate had read it; 4. the Investigation Log itself does not purport to record what was discussed during the briefing; 5. Acting Inspector Southgate's evidence was that Detective Chief Inspector Jacob was not in attendance at the briefing; and 6. the Investigation Log is nothing more than a record of Detective Chief Inspector Jacob's state of mind that morning and there is no evidentiary or legal basis for imputing that state of mind to Acting Inspector Southgate. 1. I also accept the submission of the defendant that no Jones v Dunkel inference, in that respect, is available. The Investigation Log does not purport to recall a conversation and Acting Inspector Southgate did not recall whether there was a conversation as he could not recall the contents of the meeting. Post-interview conversation: Mr Koops and Detective Sergeant Owen 1. After the recorded interview, Acting Inspector Southgate and Detective Senior Constable O'Meara left the room and returned sometime later with Detective Sergeant Owen. 2. Relying on the affidavit of Mr Koops of 12 December 2014, it was submitted by the plaintiff that the following exchange then occurred: Mr Koops: Will you agree to us coming back tomorrow? [Detective Sergeant Owen]: He's never leaving custody. 1. It was put to Mr Koops by the defendant in cross-examination that no such statement was made by Detective Sergeant Owen while Acting Inspector Southgate and Detective Senior Constable O'Meara were present. Mr Koops disagreed with that proposition. 2. As to Acting Inspector Southgate's evidence of the exchange, he gave the following evidence in cross-examination: Q. Now, just go back to paragraph 17B of your second statement for a moment. In the last sentence you say, "I have no recollection of the asserted conversation between Mr Koops and Detective Owen where Owen allegedly stated he's never leaving custody." Now, you don't deny that Mr Owen said those words, do you? A. I did not hear those words. Q. But in your statement you say, "I have no recollection of him saying those words," and you weren't intending to convey that you denied that he said those words in paragraph 17B, were you? A. I have no recollection of those words. Q. Do you have a recollection of a conversation at all? A. No. 1. As mentioned, I will discuss Acting Inspector Southgate's credit more generally later in this judgment, but I do not consider that clarification reflects poorly as to credit. 2. The plaintiff advanced the following submissions as to why Mr Koop's evidence, as to that statement, should be accepted: 1. Acting Inspector Southgate conceded that he had no recollection of the conversation. 2. An inference should be made by the Court that Detective Sergeant Owen's evidence (as the Detective Sergeant was not called by the defendant) would not have assisted the defendant. 1. I accept that submission. 2. The plaintiff further contended that the statement of Detective Sergeant Owen to Mr Koops demonstrated a "clear hostility towards [Mr Dyers] and a desire that Mr Dyers be incarcerated for the rest of his life". 3. In response, the defendant submitted that the statement by Detective Sergeant Owen could not be read literally in the manner in which the plaintiff contended. It was submitted that Detective Sergeant Owen, as well as Mr Koops, knew that whether Mr Dyers would remain in custody was entirely in the hands of the Magistrate, upon an application for bail, and not Detective Sergeant Owen. The defendant further submitted that, in any event, the statement may only provide evidence of Detective Sergeant Owen's state of mind, not Acting Inspector Southgate's state of mind. The defendant also submitted that not even the plaintiff took the statement literally. 4. In reply, the plaintiff submitted that the evidence is that Acting Inspector Southgate was present when Detective Sergeant Owen said the words. The plaintiff submitted that the words spoken by Detective Sergeant Owen reflected the collective view of Strike Force Caroola, including Acting Inspector Southgate, that Mr Dyers should be incarcerated, and that they would seek to obtain that desired outcome, with such influence over the process that they had. 5. Whether or not the plaintiff took the statement literally, and accepted, as advanced by the defendant that Mr Dyers continued incarceration would depend upon the Local Court, the statement was imprudent and represented some hostility by Detective Sergeant Owen. The submission that it represented an intention for Mr Dyers to be incarcerated for the rest of his life is akin to hyperbole. However, accepting that Acting Inspector Southgate and Detective Senior Constable O'Meara were present, I do not consider Detective Sergeant Owen's statement to Mr Koops to be evidence of Acting Inspector Southgate's state of mind. The charging of Mr Dyers 1. Following the completion of the interview, the charging process of Mr Dyers commenced. 2. Mr Dyers was charged with the following offences: 1. aggravated indecent assault, victim under the age of 16 years (21 counts), contrary to s 61M(1) of the Crimes Act; and 2. aggravated sexual assault, victim under the age of 16 years (1 count), contrary to s 61J(1) of the Crimes Act. 1. Details of the process were recorded in the Custody Management Record and Duty Log entries dated 27 October 2005 of Acting Inspector Southgate, Detective Senior Constable O'Meara, Detective Sergeant Owen and Detective Senior Sergeant Norris. 2. Under the heading "Charging Process", the Custody Management Record, record the following: 1. Responsible Officer: Senior Constable Pfundstein; 2. Start Time: 5.20pm; and 3. End Time: 6.15pm. 1. None of the Duty Log entries dated 27 October 2005 include details of the time at which Mr Dyers was charged. However, they broadly address the process that occurred following the interview, namely: Mr Dyers was at some stage taken to the "charging room", informed of his charges and charged. Each entry also records that charge number "H 27426788" was created. 2. It may be noted, the Police Statements of Acting Inspector Southgate dated 23 November 2005, Detective Senior Constable O'Meara dated 3 November 2005, and Detective Sergeant Owen dated 8 December 2005, each recorded a similar account of the charging process. 3. Detective Sergeant Owen recorded that at about 5.30pm on 27 October 2005, together with Acting Inspector Southgate and Detective Senior Constable O'Meara, he entered the Sutherland Police Station charge room. Mr Dyers and Mr Koops were present in the charge area. 4. All three officers record that the following conversation then occurred: SOUTHGATE: "Mr DYERS you are going to be charged with the sexual and indecent assaults of both HLA and OLR. Do you understand? DYERS: "Yes." KOOPS: "You have made a big mistake." OWENS: "You are entitled to you opinion but that does not change the fact that Mr DYERS is going to be charged. 1. There was no controversy that Mr Dyers was charged on 27 October 2005. Bail decisions made at Sutherland Police Station on 27 October 2005 1. After being formally charged, Mr Dyers made an application for bail. The circumstances surrounding the decisions made at Sutherland Police Station, with respect to Mr Dyers' bail, attracted controversy, to which I now turn. 2. As to police bail, the plaintiff advanced the following submissions: 74. Caroola police refused to grant bail to Mr Dyers. Mr Koops was notified of this decision at approximately 6:30 p.m. Due to the time, it was not possible to apply to Court for bail. Mr Koops was notified that Caroola police had "left for the day". Given Dyers' extremely poor health, and his fears that Mr Dyers may die overnight if kept in custody, Mr Koops made further representations to the Regional Commander of Police. 75. Mr Southgate denied that it was his expectation on the evening of 27 October 2005 that Mr Dyers would never leave custody. He gave evidence that he did not expect that police bail would be denied. It was put to Mr Southgate that that was not a truthful answer, which he denied. The Court should conclude that Mr Southgate's answer was not truthful. … [Footnotes omitted.] 1. The first point of controversy was the plaintiff's assertion that Strike Force Caroola had refused to grant bail to Mr Dyers. The defendant contended that there was no evidence of that fact. The defendant submitted that the original decision in relation to police bail was made by Sergeant Scott Willis who was not a member of Strike Force Caroola. Reference, in that respect, was made to the NSW Police Force Custody Management Record of Mr Dyers for charge number H 27426788 ("the Custody Management Record"). 2. That Custody Management Record was created on 27 October 2005 and included various entries between 11.21am and 8:41pm, concerning, inter alia, custody manager details, arrest details and release details. 3. Under the heading "Release Details", the following entry was recorded: Time of Release Responsible Officer Reason 20:41 27/10/2005 SGT SCOTT WILLIS ADMITTED TO BAIL Bail review conducted by A/Insp Daley of Hurstville Police, Bail had been granted, accused to attend Sutherland Local Court 28/10/05. S. Willis Custody Manager. 1. Under the heading, "Custody Manager Details", two custody managers were listed: Senior Constable Steven Pfundstein and Sergeant Willis. The record noted that there was a "change of shift", between the two managers, at 6pm (i.e. Sergeant Willis took over the shift from Senior Constable Pfundstein at or around that time). It may be noted that neither officer was connected to Strike Force Caroola. 2. In reply to the defendant's contention vis-à-vis police bail, the plaintiff submitted that the position of the defendant was incorrect as whilst Sergeant Willis was the Custody Manager at the time Mr Dyers was ultimately released on bail, the plaintiff contended that a decision to refuse bail had been made earlier, namely, at 6.30pm by officers of Strike Force Caroola. 3. Mr Koops gave evidence as to that earlier decision at para 21 of his affidavit, extracted below: 21. At about 6.30pm, a police officer whose identity I did not know said to me words to the following effect: "Mr Dyers has been refused bail." Due to the time, it was not possible to apply to the Court for bail. Over the next several hours, I spoke with police attached to Sutherland Police Station regarding bail. On a number of occasions, I said to the police words to the effect of: "Mr Dyers is in very poor health. He is 83 years old. He has a number of serious medical conditions. I am afraid that he may die in custody overnight if he is not granted bail. It is totally unreasonable in these circumstances to refuse bail. He is not a flight risk." One of the police officers said to me words to the effect of: "Police attached to the investigation have left for the day. We can't grant bail". I continued my effort to obtain bail. Some time after 9.00pm, I spoke by phone with the Regional Commander of Police. We had a conversation in words to the following effect: Me: Mr Dyers is 83 years old. He was arrested this morning and has been at the station all day. He is suffering from fatigue. He took part in a 2 hour interview. He suffers from serious medical problems. He has a very bad back condition and is prone to collapse. He needs to take certain medications. Mr Dyers was previously involved in criminal proceedings, of which he was acquitted. He never failed to appear. He is not a flight risk. He does not have a criminal record. I do not understand why bail was refused by the investigating officers. I am very concerned that Mr Dyers may even die in custody if he is kept overnight. I would strongly request that he be granted bail to appear tomorrow at Sutherland Court. Reg. Commander: I will consider your request Mr Koops. At about 10:00pm, Mr Dyers was granted bail and released to appear at the Sutherland Local Court the following morning. 1. In addition to the evidence of Mr Koops, there were also two COPS entries dated 28 October 2005. Whilst neither entry included any reference to the time at which each entry was made, both entries concerned the police bail decisions made with respect to Mr Dyers and charge number H 27426788 (which reference was included on each entry). 2. An extract from the first COPS entry appears below: Request for Bail: UNCONDITIONAL Bail Determination: Bail refused. Reason: Presumption against bail. 1. Under the entry for "presumption against bail", the following reasons were listed: 1. committed a serious offence punishable by life imprisonment; 2. committed an offence involving sexual intercourse with a person under the age of 16 years; and 3. through his employment, the accused has access to young children, and the protection of young persons is a further consideration against bail. 1. By that first COPS entry, it may be accepted that an application for unconditional bail was, at one stage on 27 October 2005, made by Mr Dyers and subsequently refused by the police, upon the basis of a presumption against bail in light of the charges made and a perceived risk to young persons. 2. An extract from the second COPS entry appears below: Request for Bail: BAIL REVIEW Bail Determination: BAIL CONDITIONAL. Reason: Bail review requested by Mr Koops. 1. Under the entry, "Bail review requested by Mr Koops", the second COPS entry recorded the "reasons for the granting of conditional bail" as provided by Mr Koops: • The accused is an 83 years old and suffers from spinal, breathing and circulative problems. • The accused required a stick to walk and takes several types of medication. The accused in the past months has suffered from pneumonia and had shoulder surgery. • The accused has lived at Bundeena with his defacto wife for an extensive period of time and has ties to the community. • Between 1993 and 2000 the accused was required to attend Court over a hundred times and at no time failed to appear. •The accused has one conviction for Indecent assault from an offence prior to 1993. • Mr Koops have undertaken the accused will go to his home address upon release this evening and attend Sutherland Court AM 28.10.05. 1. Immediately following that extract of reasons, appeared the following decision: GIVEN THE ACCUSED'S REPORTED MEDICAL CONDITIONS IT IS THE VIEW OF THE REVIEWING OFFICER AND AFTER CONSULTATION WITH CUSTODY MANAGER THE POLICE STATION IS NOT A SUITABLE PREMISE TO KEEP HIM OVERNIGHT. HENCE THE BAIL DATE IS TOMORROW GIVING [sic] THE SERIOUSNESS OF THE OFFENCES. 1. By the second COPS entry, the above evidence of Mr Koops is corroborated, namely, there was a subsequent application for a "review" of the initial decision to refuse bail, which was ultimately granted on a conditional basis. This is also consistent with the recording on the Custody Management Record (extracted above), which referred to a "[b]ail review conducted by A/Insp Daley of Hurstville Police". Whilst the Custody Management Record omitted any reference to an earlier bail decision, it follows, that in order for a "review" of a bail decision to be conducted, an earlier decision had to have been made. 2. A further undated COPS entry was created with respect to charge number H 27426788 and entitled "List Bail Determinations". It recorded the next court date as 28 October 2005 at Sutherland Local Court and included a summary of the two police bail decisions in tabular form as follows: Bail Request Bail Determination / Reason Cond. No. of Offences Exist BAIL REFUSED A UNCONDITIONAL Presumption against bail: N 22 - committed a serious offence punishable by life imprisonment (S25A Stay of Proceedings apply) B BAIL REVIEW BAIL CONDITIONAL Y 22 Bail review requested by Mr Koops, of Henry Davis York Solicitors who was present at Sutherland Police Station. Mr Koops has [sic] [end of record] 1. Thus, on the evidence before the Court, it may be accepted that on 27 October 2005, two bail decisions were, in fact, made, with respect to Mr Dyers, by the police at Sutherland Police Station. However, I do not accept on the face of the COPS entries and Mr Koops' affidavit that there is a proper basis for finding that an officer of Strike Force Caroola, including Acting Inspector Southgate, made the initial decision to refuse bail. The reasons for that finding are twofold: 1. First, none of the COPS entries set out above included reference to the authorising officer or decision maker. Only the Custody Management Record recorded that a bail review was conducted by Acting Inspector Daley. (For completeness, it may be noted, the Court was not pointed to any evidence, with respect to Acting Inspector Daley, as to that officer's connection to Strike Force Caroola). 2. Secondly, Mr Koops expressly stated that he did not know the identity of the police officer that informed him of the initial bail refusal decision, nor did he state that that decision was made by Strike Force Caroola (see para 21, extracted above). 1. There was also some debate as whether Acting Inspector Southgate was present at the time of the police bail decisions and whether he was, in fact, aware that Mr Dyers was still in custody at the end of his shift. The following police records are relevant to that consideration: 1. The Custody Management Record recorded: 1. Mr Dyers was charged between 5.20pm and 6.15pm. 2. Mr Dyers was released at 8.41pm. 1. Acting Inspector Southgate's Duty Log entry dated 27 October 2005 recorded that he was present for the commencement of the charging process and that his shift ended at 8pm (which included 4 hours of overtime). It may be noted, as to the same entry, the final line is not readable. During cross-examination, Acting Inspector Southgate confirmed the contents to read: "O'Meara, Frame commence charge process, charge number, on completion of charge process convey Detective Senior Constable Frame to home address". There was no reference to any bail application or determination in that entry. 2. Detective Sergeant Frame's Duty Log entry dated 27 October 2005 recorded that following the charging process she "then travel[led] to home address". Her shift ended at 8pm. 3. Detective Senior Sergeant Norris' Duty Log entry dated 27 October 2005 recorded that following the charging process he "Liaise[d] with Custody Manager re Bail". His shift ended at 8.30pm. 4. Detective Senior Constable O'Meara's Duty Log entry dated 27 October 2005 recorded that following the charging process she "[c]onfer[ed] with custody sgt Re: Bail". Her shift ended at 8.30pm. 5. Detective Sergeant Owen's Duty Log entry dated 27 October 2005 included reference to the charging process but made no mention of any knowledge vis-à-vis bail. His shift ended at 7pm. 1. It is also relevant to note, that relying upon the affidavit of Mr Koops, the plaintiff submitted that the first application for bail was refused at or around 6.30pm. 2. During cross-examination, Acting Inspector Southgate was questioned at length as to his knowledge vis-à-vis the decisions made with respect to bail. That is extracted below: Q. When you left to go home on the evening of 27 October 2007, after Mr Dyers had been charged, Mr Dyers was in custody in the police station, correct? A. No. I don't recall whether he was. Q. Well, you can recall, can't you, that police bail was initially denied? A. Yes, I do. Q. And do you have a recollection of when you went home that evening? A. No. Q. I might just have a look at page 1596. This is in volume 1. Do you have that? A. One - 1596, yeah, I have it. Q. This is your duty book entry for 27 October 2005. A. Mm-hmm. Q. And you'll see there's a record of overtime performed - 4pm to 8pm. A. Yes. Q. And that suggests that you knocked off at 8pm. Correct? A. That's correct. Q. I want to suggest to you, Mr Southgate, that when you knocked off at 8pm, Mr Dyers was incarcerated at the Sutherland Police Station with police bail having, at that time, been denied. A. Sorry - could you repeat the question, sorry? Q. When you left at 8 o'clock, Mr Dyers was still locked up, wasn't he? A. I don't recall whether he was or not. Q. I might just clarify one thing. If you take up your statement, your first statement, and go to page 34, this is another copy of the same duty book entry, is it not? A. Sorry, paragraph 34, did you say? Q. Page 34, I'm sorry. A. Page - I'm sorry. Of - sorry, are mine numbered? Q. Yes. A. Yeah. Q. And is that another copy of the same duty book entry? A. That's correct, yes. Q. In page 1596, it appears that the last line - at least, in my copy - has been obliterated, and in your annexure L, the last line appears somewhat faint. Are you able to tell the Court what the last two lines say? What is it? "O'Meara, Frame commence charging process." Is that what it says? A. It says, yeah, "O'Meara, Frame commence charge process, charge number, on completion of charge process convey Detective Senior Constable Frame to home address." Q. No doubt on the way home you had a discussion with Ms Frame about these events. A. I can't recall what was discussed on the - the way home. Q. Do you recall learning, at some point, that Mr Dyers had been released on bail late in the evening of 27 October 2005? A. I recall hearing that, yes. Q. When did you hear that? A. I don't recall when. Q. It was after you had left the station at the end of the day on 27 October 2005, wasn't it? A. I can't recall when I received that information. Q. If you go to page 1744 of volume 1. Do you recall reviewing at some point in time, this COPS entry. A. I don't recall reviewing it, no. Q. I want to suggest to you, Mr Southgate, is that some time after you left Sutherland Police Station on 27 October, either late that evening or the following morning, you learned that the senior regional commander had been approached by Mr Koops and that Mr Dyers had been released on bail overnight? A. I can't recall when I learnt the information. Q. Do you recall learning that the reason he was released is because the regional commander was satisfied that the reported medical conditions at the police station were not suitable for Mr Dyers to be kept overnight? A. No. Q. Do you deny that you learned that or you just can't recall? A. I can't recall. Q. Now, you attended the Sutherland Local Court on 28 October to hear Mr Dyers' bail application. Correct? A. Yes, correct. Q. What were you just looking at to remind yourself of that? A. I was just looking the diary entry, sorry. Not allowed to do that? Sorry, my apologises. Q. You recall attending the bail hearing on 28 October 2005. A. I don't recall attending. 1. Further, in his statement, Acting Inspector Southgate stated: 23. My opinion at the time was that it was necessary to arrest Mr Dyers in relation to the allegations based on the nature of the allegations, as well as the need to ensure the integrity of the investigation. In addition, it was necessary to ensure that bail conditions be sought (if Mr Dyers was released on bail) for the purpose of protecting the complainants, and to prevent any interference with witnesses. In my view, it would not have been sufficient for Mr Dyers to have been charged by way of future Court Attendance Notice. 1. Overall, I do not accept that it can be concluded that Acting Inspector Southgate was aware of the circumstances surrounding the bail applications made by Mr Dyers and/or Mr Koops on his client's behalf. That conclusion is sustained on the following bases: 1. notwithstanding Acting Inspector Southgate's evidence as to a recollection that bail was "initially" denied (albeit without reference to the timing of that information was learnt), issues with respect to bail are dealt with in conjunction with the "custody manger" or "custody sergeant" (see the Duty Log entries of Detective Senior Sergeant Norris and Detective Senior Constable O'Meara, respectively, as well as the Custody Management Record); 2. following the charging process, which ended at or around 6.15pm, that Acting Inspector Southgate conveyed Detective Sergeant Frame to her home address and completed his shift at 8pm (there is no evidence that Acting Inspector Southgate returned to Sutherland Police Station or finished his duty in the field (i.e. without returning to the police station)); and 3. Mr Dyers was released from custody at or around 8.41pm and that Acting Inspector Southgate was not present at that time. 1. The plaintiff contended that the Court should find that Mr Dyers was still in custody when Acting Inspector Southgate left for the day. However, the material before the Court does not sustain such a conclusion. 2. As to the aforementioned extract of the plaintiff's submissions, namely paras 74 and 75 of the Plaintiff's Closing Submissions, some further brief observations may be made: 1. As to para 74, and as earlier discussed, there is no evidence that "Caroola police" refused to grant bail to Mr Dyers. Also, as is evident from the above conclusions, Acting Inspector Southgate had left the police station before any decision on bail was reached and, in any event, the evidence does not disclose that he was involved in the bail decision. Further, by the time Acting Inspector Southgate's departure, there is no evidence Mr Koops had communicated to him the health welfare sentiments that are expressed in this paragraph of the plaintiff's submissions in contrast to the general reference to Mr Dyers bring "unwell" as outlined by Acting Inspector Southgate at para 17(b) of his supplementary statement (extracted above). These were communicated to the Regional Commander (see above). 2. As to para 75, the evidence that the plaintiff referred to is extracted above. Whilst I observe that Acting Inspector Southgate's answers were short, they were also entirely responsive to a series of sporadic questioning, focused upon seeking responses as to recollections and expectations at the time, connected to a sequence of events on 27 October 2005, the majority of which happened in his absence. Further, as earlier found, the decision to refuse and subsequently grant bail, by the police, was not made by Acting Inspector Southgate. Appearance at Sutherland Local Court and Contentions as to the Bail Hearing 1. On 28 October 2005, Mr Dyers attended Sutherland Local Court before Magistrate Bailey. Mr Koops appeared on behalf of Mr Dyers and made a fresh application for bail. Acting Inspector Southgate instructed the NSW Police prosecutor, Sergeant P Upsall ("the prosecutor"), who opposed bail. 2. At the hearing, the prosecutor contended that Mr Dyers' case fell "squarely within the precepts of s 9D" of the Bail Act 1978 (NSW) (which Act was later repealed by s 100 of the Bail Act 2013 (NSW)). 3. Section 9D of the Bail Act 1978 appeared in Div 3A of that Act, which concerned, "Cases in which bail is to be granted in exceptional circumstances only". Under that provision, an authorised officer or court was not to grant bail to a person in respect of a serious personal violence offence if the person was a repeat offender unless the authorised officer or court was satisfied that exceptional circumstances justify the grant of bail. 4. At the outset of the proceedings, the prosecutor tendered a NSW Police Facts Sheet, with respect to charge number H 27426788 ("the Facts Sheet"), and a copy of Mr Dyers' criminal record, which included a reference to the former 1993 conviction (which, as earlier mentioned, had been subsequently quashed by the High Court). Upon taking further instructions, the prosecutor ultimately conceded that, in the light of that quashed conviction, the applicant did not have a criminal record and, therefore, the prosecutor's argument vis-à-vis s 9D fell away. 5. Notwithstanding that concession, the plaintiff relied upon the evidence of the criminal record, as presented in the Local Court, as well as alleged deficiencies in the Facts Sheet, to support contentions as to the knowledge of Acting Inspector Southgate with respect to the same and as matters going to his state of mind vis-a-vis malice. I shall explore those various contentions so far as they concern Acting Inspector Southgate's involvement in the bail hearing on 28 October 2005, below. The knowledge of Acting Inspector Southgate vis-à-vis the Facts Sheet not referring to Ms Paisley 1. The offences recorded on the Facts Sheet were as follows: 1. aggravated indecent assault, victim under the age of 16 years (21 counts), contrary to s 61M(1) of the Crimes Act; and 2. aggravated sexual assault, victim under the age of 16 years (1 count), contrary to s 61J(1) of the Crimes Act. 1. The Facts Sheet contained, inter alia, the following relevant entries: OFFENCES ONE TO EIGHTEEN: VICTIM HLA. OFFENCE ONE to FOUR: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. On or about the 10th December 2001 the victim aged 12 years old attended a processing; session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The victim was seated in a chair directly opposite the accused with her legs being straddled over the side of the accused legs and under the arms of his chair. The accused and victim commenced staring at each other with their faces close to one another. After a period of time the accused has placed his right hand under the victim's top and touched her on her breasts (Offence 1). The accused has undipped the victim's pants and placed both thumbs on her pubic bone on top of her pubic hair and rubbed in circular motions (Offence 2). The accused placed his hand back under the victim's top and placed his hands on her breasts again (Offence 3). The accused placed his thumbs back under the victim's underwear on her pubic bone on top of her pubic hair and rubbed in circular motions (Offence 4). The session ended, OFFENCE FIVE to SIX: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. On or about the 29th January 2002 the victim aged 12 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The victim was seated in a chair directly opposite the accused with her legs being straddled over the side of the accused legs and under the arms of his chair. The accused has asked the victim if she was afraid of sex to which she replied yes. The accused asked the victim to picture him and her in bed together having sex. The accused and victim the accused has placed both hands under the victims top and touched her on her breasts under her bra (Offence 5). The accused has placed both of his thumbs underneath the victims [sic] underwear and on her pubic bone on top of her pubic hair and rubbed in circular motions (Offence 6). The session ended. OFFENCE SEVEN: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. On or about February/March 2002 the victim aged 12 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The accused told the victim to remove her clothing to which she complied. The accused had the victim accompany him to the small room attached to his office. The accused had the victim build up energy and jump up and down in front of him while she was naked. The accused said, "You have just orgasmed" (Offence 7). The session was completed and the victim left. OFFENCES EIGHT to NINE: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. On or about the 23rd April 2002 the victim aged 12 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The session started with the victim being taken into a smaller room attached to the accused office. The accused pulled down his pants exposing his penis, the accused has forced the victim to touch his penis, which she did with one finger then pulled her hand away. The accused pulled his pants back up (Offence 8). The processing session was commenced; the victim was seated in a chair directly opposite the accused with her legs being straddled over the side of the accused legs and under the arms of his chair. The accused has exposed his penis and forced the victim to place her hand upon it and move her hand in an up and down motion to which the victim complied. The accused penis became hard and erect this lasted for about three minutes (Offence 9). The accused returned his penis back into his pants and the session ended. OFFENCES TEN to TWELVE: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. OFFENCE THIRTEEN: Crimes Act 40/1900 Section 61J(1)(2d) Aggravated Sexual Assault. On or about the 14th May 2002 the victim aged 12 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The accused asked the victim to remove all of her clothing and lie under a doona on a mattress on the floor of the office. The victim complied with this request and got under the doona. The accused also got under the doona. The accused made the victim touch his penis with one finger which she did (Offence 10). The accused has climbed on top of the victim and had simulated sex with no penetration (Offence 11). The accused has licked both of the victims breasts (Offence 12). The accused licked the victims [sic] vagina once (Offence 13). The victim dressed and the session finished. OFFENCE FOURTEEN to FIFTEEN: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. On or about the 25th June 2002 the victim aged 12 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street Surry Hills. The victim went into the small room attached to the accused office with the accused. The victim was asked to undress to which she complied. The accused lay down on a mattress on the floor and pulled his pants down to his knees exposing his penis. The accused had the victim lie on top of him placing her legs on either side of his so that he was between the victims [sic] legs. The accused had the victim jump up and down on top of him with his penis rubbing the outside of the victims [sic] vagina. The accused was holding the victim around the waist at the time helping her to move up and down (Offence 14). Whilst moving the victim up and down the accused has licked and sucked the victims [sic] right breast (Offence 15). The victim said, "I am only 12" the accused said, "You are a free spirit, you're not a body. I will not take your virginity". The session ended and the victim got dressed and left. OFFENCE SIXTEEN to EIGHTEEN: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. On or about 2nd July 2002 the victim aged 12 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The victim went into the small room attached to the accused office with the accused. The victim was asked to undress to which she complied. The victim lay on the mattress on the floor of the small room next to the accused. The accused told the victim to orgasm by moving up and down and breathing deeply. The victim commenced moving up and down while on her back the accused has climbed on top of the victim and lay between her legs with his penis rubbing against the victims [sic] vagina. The accused moved in the same up and down motion as the victim (Offence 16). The accused has licked and sucked the victims [sic] right breast (Offence 17). The accused has gotten off the victim and held his erect penis in his hand and ejaculated, which has landed on the victims left thigh (Offence 18). When asked by the victim what the liquid was the accused said, "It's what makes the vagina smooth to let the dick go up". The session ended and the victim left. OFFENCES NINETEEN to TWENTY TWO: VICTIM OLR. OFFENCE NINETEEN to TWENTY: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. In between February and March 2002 the victim aged 12-13 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The victim was seated in a chair directly opposite the accused with her legs being straddled over the side of the accused legs and under the arms of his chair. The accused and victim commenced staring at each other with their faces close to one another, The accused has placed his hands underneath the victims top and cupped his hand around her breasts on top of her bra, keeping them there for about half an hour (Offence 19), The accused has undone the victims pants and pulled them partway down just below her hips. The accused has placed both hands underneath the victims [sic] underwear and placed his thumbs on the victims [sic] pubic bone just above her vagina and applied pressure with no movement. The accused held them there for about half an hour (Offence 20). The accused removed his hands and the session ended. OFFENCE TWENTY ONE to TWENTY TWO: Crimes Act 40/1900 Section 61M(1)(3a) Aggravated Indecent Assault. In March 2002 the victim aged 12-13 years old attended a processing session with the accused as the processor in his offices at 21 Mary Street, Surry Hills. The victim was seated in a chair directly opposite the accused with her legs being straddled over the side of the accused legs and under the arms of his chair. The accused and victim commenced staring at each other with their faces close to one another. The accused has placed his hands underneath the victims top and cupped his hand around her breasts on top of her bra, keeping them there for about half an hour (Offence 21). The accused has untied the victim's pants and pulled them partway down just below her hips. The accused has placed both hands underneath the victims underwear and placed his thumbs on the victims pubic bone just above her vagina making small circular motions with his thumbs for a period of about half an hour (Offence 22), The accused removed his hands and the victim has pulled her pants up and left the room. About 9.40am Thursday 27th October 2005 the accused, Ken DYERS was placed under arrest at his home address and conveyed to Sutherland Police Station. The accused was introduced to the stations custody officer at which time he was placed into custody and informed of his rights. The accused participated in a full electronic record of interview with investigating Police. At this time all twenty two allegations were put to the accused to which he made full denials. The accused stated that the incidents "did not happen. The accused was charged with the matters now before the court. 1. Acting Inspector Southgate gave evidence that he was the person who had ultimate responsibility for the preparation of the Facts Sheet. 2. It was submitted by the plaintiff that the Facts Sheet was "strikingly deficient" in that the Facts Sheet did not refer to "Ms Paisley". It was further submitted that Acting Inspector Southgate had knowledge that Ms Paisley was present during the alleged offences but, for reasons that have "never been satisfactorily explained", excluded that matter from the Facts Sheet. 3. In support of those propositions, the plaintiff relied upon the following evidence: 1. The series of e@gle.i entries created by Detective Senior Constable O'Meara on 1 December 2005 (set out earlier in this judgment). As earlier mentioned, the entries recorded that between 6 and 7 October 2005, Detective Senior Constable O'Meara reviewed the four electronically recorded interviews of HLA and handwritten notes were made by the officer. Those notes were subsequently typed in a word document titled: "Offence summary". Each entry recorded that the offence summary document "was later used to assist in the preparation of the facts sheet by D/S/C SOUTHGATE". The first three summaries referred to "Ms Linda Paisley" being present at the time of at least some of the alleged offences. 2. The Statement of OLR made to the NSW Police on 6 October 2005, specifically, paras 9, 14 and 16, which referred to Ms Paisley being present. Extracts of the relevant passages appear below: 9. … Linda PAISLEY was also in the room and she was sitting behind me a couple of meters away. I don't believe she would be able to see if Ken was touching me due to our locations and the chair I was sitting in. … … 14. … I had a session with Ken, the session started just like the other one with me sitting opposite Ken with my legs apart and with Linda PAISLEY sitting directly behind me a couple of meters away. … Ken got me to focus then he placed his hands underneath my top and cupped my breasts on top of my bra. He held them for about half an hour. I knew it was wrong but just let him do it. … 16.Ken removed his hand from under my pants and placed them back on the chair and the session ended. As with the previous session I described Ken moved back behind his desk and I left the room. Linda PAISLEY was still in the room when I left. 1. It was the plaintiff's case that Acting Inspector Southgate "wanted bail to be refused" and "closed his mind to the significance of Ms Paisley", with the result that the Facts Sheet was incomplete. The plaintiff, in that respect, contended: A fair and conscientious officer who bore no malice to Mr Dyers would have been astute to include the reference. Mr Southgate's judgment was blinded by his desire to present as strong a case as he could against Mr Dyers, and to keep him in prison. 1. The plaintiff further supported that position by emphasising the following evidence of Acting Inspector Southgate in cross-examination (it should be noted that Acting Inspector Southgate's evidence – described as "not altogether satisfactory" – was that he did not have a recollection of the bail hearing, but he did recall that an issue came up about a third party adult being present during at least some of the alleged offences. Acting Inspector Southgate denied knowing that the Facts Sheet was incomplete): Q. In your statement at paragraph 24, you give a reason why Ms Paisley was omitted from the Facts Sheet. Without looking at that, Mr Southgate, can you recall what that reason was? A. The reason was, at that point in time that we - it was undecided what her - her role within the whole investigation was going to be, whether she would be treated as a potential witness or as a potential co-accused. Q. What I want to suggest to you, Mr Southgate, is that that is not a good reason for omitting reference to Ms Paisley from the full facts. A. I disagree. Q. Why do you say that that is a good reason? A. Because it was an ongoing investigation and in that time we hadn't decided what we were doing. Q. Why is that a reason to exclude a reference to Ms Paisley from a document described as "full facts"? A. Cause that's the stance we took. Q. Was that your decision? A. I was part of that decision. Q. But you have already given evidence that you were responsible for these full facts? A. That's correct. Q. Are you not seeking to lay responsibility for the decision to omit Ms Paisley on anybody else, are you? A. No. Q. You're happy to take responsibility for that decision? A. That's incorrect. I'm happy to take responsibility for the facts, yes. Q. If it be right, and you can take it from me that it is right, that the facts sheet doesn't refer to Ms Paisley, that's a decision you took - that is, to not refer to Ms Paisley, correct? A. With - with consultation within the team, yes. Q. With whom? A. I wouldn't be able to tell you, with all the people that we discussed it. Q. Mr Jacob? A. I can't tell you whether I discussed it with him or not. Q. Mr Owen? A. I can't tell you whether I discussed it with him or not. Q. Ms O'Meara? A. I can't tell you whether I discussed it with her or not. Q. Mr Norris? A. I can't tell you whether I discussed it with him or not. Q. Ms Frame? A. I can't tell you whether I discussed it with her or not. Q. Are you able to give his Honour the names of any person you discussed it with? A. To say I have a recollection of that discussion, I can't. To say - there's - there's a team involved, and people within that team were Detective Senior Constable O'Meara, Detective Senior Constable Frame, Detective Senior Constable Norris - the potential to have that discussion with them, yes. Q. I want to suggest to you, Mr Southgate, if you were being fair to Mr Dyers, you would have included a reference to Ms Paisley in this full facts sheet. A. I disagree. … Q. Mr Southgate, it would have been fair to Mr Dyers to include in this full facts sheet that an adult third party was present during at least some of the alleged offences. That's right, isn't it? A. I disagree. Q. If you were being frank with the Court, you would have ensured that the full facts stated that for at least some of the offences, an adult third party was present. A. I disagree. Q. Do you agree that the presence of an adult third party was a highly material fact? A. No, I don't agree. Q. I want to suggest to you, Mr Southgate, that the presence of an adult third party was a highly material fact because it made the allegations against Mr Dyers less plausible. That's right, isn't it? A. I disagree. Q. And the existence of an adult third party present weakened the Crown case, didn't it? A. No, I disagree. Q. The true reason for excluding a reference to Ms Paisley or an adult third party is because you wanted to maximise the prospects that bail would be denied. A. I disagree. Q. I want to suggest to you, Mr Southgate, that the reason you proffer at paragraph 24 of your statement, namely, that the reason for the omission was because at that stage, police were unable to identify her role in the allegations made and whether she was to be a witness or a person of interest in the investigation is false. A. I disagree. 1. Notwithstanding that cross-examination, it should be noted, the plaintiff also stated: "[t]he Plaintiff does not go so far as to say that Mr Southgate consciously and deliberately set out to mislead the Court". 2. Having regard to that evidence and in support of there being a deficiency in the Facts Sheet, the following contentions were advanced by the plaintiff: 1. The presence of a third party adult during the alleged offences (namely, Ms Paisley) is plainly a "highly material fact": it weakened the Crown case because it made the allegations less plausible, and also raised the obvious question: "have you spoken to her?". 2. The fact that a decision had not been made as to what to do concerning Ms Paisley is not a rational reason to exclude a reference to her: "cause that's the stance we took" is not good enough, and reflects Acting Inspector Southgate's unwillingness to engage with questions. 3. A frank statement of the full facts would have referred to the fact that a third party adult was alleged to have been present. 4. The reason in Acting Inspector Southgate's mind to omit the reference was to maximise the prospects that bail would be denied. 1. The plaintiff also referred to Acting Inspector Southgate's evidence in cross-examination relating to his obligations as an investigator, as follows: Q. Did you understand during the process of your investigation that it was your obligation at all times to ensure that all relevant, reliable and admissible evidence was collected for presentation in Court? A. So can you give me that question again, sorry? Q. Did you understand that it was your obligation at all times to ensure that all relevant, reliable and admissible evidence was collected for presentation in Court? A. Yes. Yeah. Q. I want to suggest to you, Mr Southgate, that if you were carrying out a fair and proper investigation of Mr Dyers, you would have sought to speak with Ms Paisley before arresting and charging Mr Dyers. That's right, isn't it? A. That is correct. 1. In reply, the defendant submitted that the absence of reference to Ms Paisley in the Facts Sheet is explicable by the fact that Ms Paisley's role in the offending, at that point in time, remained undetermined. Further, it was contended, that the Facts Sheet never purported to be a précis of all the evidence available in relation to the incident (nor was it required to). 2. As to the same, the defendant submitted: 1. The defendant does not accept that the Facts Sheet was "strikingly deficient". The Facts Sheet set out the conduct which constituted the offences charged. 2. The "Offence Summary" contains a great deal of information that did not make its way into the Facts Sheet; it is not merely the references to Ms Paisley that have not been carried across. 3. The absence of references to Ms Paisley in the Facts Sheet is explicable by the fact that Ms Paisley's role in the offending remained undetermined at that point in time. 4. According to the document itself, the formal parts of the Facts Sheet were created by "Detective Norris". 1. As to the contention that the presence of a third party made the allegations less plausible, the defendant submitted: "The allegations against Mr Dyers are implausible only if one assumes his innocence. The criminal courts are regularly occupied by incomprehensible conduct where convictions follow". 2. In relation to the conclusion drawn by the plaintiff that the reason in Acting Inspector Southgate's mind to omit the reference was to maximise the prospects that bail would be denied, the defendant submitted that Acting Inspector Southgate had denied that proposition and that there was no basis upon which his evidence ought not to be accepted. 3. As foreshadowed above, an important issue arose as to the evidence given by Acting Inspector Southgate in the final answer extracted below: Q. I want to suggest to you, Mr Southgate, that if you were carrying out a fair and proper investigation of Mr Dyers, you would have sought to speak with Ms Paisley before arresting and charging Mr Dyers. That's right, isn't it? A. That is correct. 1. The plaintiff's position in relation to that evidence was that it was correctly recorded in the transcript. The plaintiff submitted as follows: 10. At T183-4, Mr Southgate was being cross-examined as to why he omitted reference to the presence of Ms Paisley in the "full facts" document handed up to the Court at Mr Dyers' bail hearing. 11. Mr Southgate's answer at T184.36 came in response to a different question: whether, if Mr Southgate was "carrying out a fair and proper investigation of Mr Dyers", Mr Southgate "would have sought to speak with Ms Paisley before arresting and charging Mr Dyers". 12. Mr Southgate's answer at T184.36 was premised on his acceptance of a "fair and proper investigation" as a meaningful concept. Mr Southgate's answer with respect to the PLA investigation also accepted this (T224.26). 13. Mr Southgate did not speak to Ms Paisley about the HLA and OLR allegations before arresting Mr Dyers. That is one contextual fact (along with several others) which rationally informs the assessment of Mr Southgate's state of mind vis-à-vis Mr Dyers in conducting the investigation, up to and including his sending the letter of 24 July 2007. 1. The defendant's initial position was that the transcript incorrectly recorded Acting Inspector Southgate's evidence, however, on review of the sound recording, the defendant submitted that the evidence was "indistinct". The defendant's position was as follows: 4. … the Court would regard the answer given by Det Southgate as an instance of him having misspoken. His answer is not wholly consistent with the other evidence he gave with respect to Ms Paisley at T183-4, and it is not wholly consistent with the evidence he gave with respect to conducting a "fair and proper investigation" of the PLA allegations at T224.26. 5. In any event, the evidence given by Det Southgate is of no significance. The question and answer relate to investigatory steps taken (or not taken) prior to Mr Dyers' arrest in October 2005 with respect to the allegations made by HLA and OLR. Even if the decision not to speak to Linda Paisley about those allegations before arresting Mr Dyers was inconsistent with there being a "fair and proper investigation" (whatever that means) that cannot rationally inform the determination of whether or not the sending of a letter by Det Southgate in July 2007 relating to completely unrelated allegations was done with an intention to cause harm to either Mr Dyers or Ms Hamilton. 6. In addition, for the reasons given below, the question proceeds upon a false premise, namely that there was an obligation upon Det Southgate to question Ms Paisley before arresting Mr Dyers. 1. Further, as to the "normative concepts such as 'fair' and 'conscientious'", introduced by the plaintiff, with respect to Acting Inspector Southgate, the defendant contended they "have no relevance to the mental element it is necessary for the plaintiff to establish". 2. In written submissions, the plaintiff also submitted: In his submissions, Mr Koops also referred to the fact that NSW Police had not interviewed Ms Paisley, the alleged third party witness, and characterised it as "an incredible shortcoming in this investigation". The Magistrate asked the NSW Police Prosecutor to put his mind to Mr Koops' submission in relation to a "third witness being present and not being interviewed". The police prosecutor took instructions from the informant (Mr Southgate), and submitted to the Court that "the other person that was in the room is going to be interviewed. At this stage, there's no brief been ordered in relation to this and clearly, we're aware of that person. They're going to be interviewed. Whether or not they're just a witness or whether they're a co-accused is a matter for that further investigation". That is, Mr Southgate was aware of the allegation that there was a third person in the room, but for reasons that have never been satisfactorily explained, excluded that matter from the Facts Sheet. [Footnotes omitted.] 1. In my view the criticism of Acting Inspector Southgate with respect to the omission of reference to Ms Paisley in the Facts Sheet at the bail hearing is misconceived. The omission of that information from the Facts Sheet was entirely explicable by the fact that Ms Paisley's role in the alleged offending had, at that time, not been determined. As the Prosecutor explained at the bail hearing, after Mr Koops had made a submission as to the significance of "a third party being present", the "other person in the room" was yet to be interviewed and a determination to be made if they were a witness or a "co-accused"; it may be inferred that is a reference to Ms Paisley. That was the explanation provided by Acting Inspector Southgate and, in providing it, no adverse view as to his credit may properly be formed. He was unfairly criticised for his answer "cause that's the stance we took" in answer to the question "why is that the reason to exclude a reference to Ms Paisley from a document described as the full facts?" when that question derived from his previous answer to a similar question – "because it was an ongoing investigation". 2. This was not a matter in which Acting Inspector Southgate closed his mind to the significance of Ms Paisley. Instead, he made a forensic decision to defer attempts to speak with Ms Paisley until after the arrest of Mr Dyers, the lawfulness of which is not and could not properly be in issue. 3. The decision to arrest Mr Dyers without speaking to Ms Paisley was clearly an option that was properly available to Acting Inspector Southgate. He was entitled to form the view that Ms Paisley's status as either a mere witness or a potential co-offender could not be determined at that point in time, and it was an appropriate investigative technique to lock Mr Dyers into a version of events prior to speaking with further (potential) witnesses. 4. In short, there was no obligation upon Acting Inspector Southgate to speak to Ms Paisley before arresting Mr Dyers in October 2005. 5. Acting Inspector Southgate was also cross-examined in the committal hearing of Mr Dyers. The following evidence was given by Acting Inspector Southgate in cross-examination: Q. Did you provide the statement of facts which was tendered to the Court on 28 October? A. Yes, that's correct. Q. That was you? A. Yes, I put it together, yes. Q. Is reference to Linda Paisley made in that document? A. No, it wasn't. Q. Why not? A. In fairness to her. We hadn't spoken to her yet. Q. What about in fairness to the accused by notifying the Court that there was potentially an eye witness to a good number of these events who hadn't been interviewed? A. Well, as far as at the end of the interview, Linda Paisley wasn't an eye witness according to the accused because he denies that any of these incidents occurred at all. 1. The plaintiff contended that the proposition seems to be that there was no unfairness to Mr Dyers to exclude the reference to the alleged eye-witness because Mr Dyers denied the incidents had occurred. It would be highly relevant to an accused (whether or not the incidents were denied), it was submitted, to know that the alleged victim had identified an eye witness. The plaintiff further contended that Acting Inspector Southgate's answer "suggests that fairness to Mr Dyers was not a matter that Mr Southgate had countenanced or to which he had given serious thought". This further supports, it was contended, the plaintiff's submissions above concerning the Facts Sheet. 2. As to the same, the defendant submitted: "It is not apparent what the supposed unfairness to Mr Dyers was. To the extent it was "highly relevant to an accused…to know" about the presence of a third person in the room, Mr Dyers was told of that fact by Det Southgate in the course of the ERISP (TB1623)". 3. The plaintiff's submission, again, represents a misunderstanding of the process undertaken at the bail hearing and as part of police investigatory processes. The omission of reference to Ms Paisley in the Facts Sheet was commensurate with that stage of the investigation and the uncertainty as to her significance. It was not a case of Acting Inspector Southgate being unfair to Mr Dyers but properly conducting the investigation. 4. Reference was made to evidence given by Acting Inspector Southgate agreeing to all "relevant, reliable and admissible evidence being presented to a Court" but the material here under consideration was not evidence in a trial but a Facts Sheet prepared by police for a bail hearing in a form permissible for that purpose but inadmissible in a trial. What is applicable to be incorporated into the police facts sheet will often depend upon the timing of the bail hearing and any ongoing investigation, including the prospect of further charges being laid. In this case, the Facts Sheet referred to the conduct which constituted the offences. Acting Inspector Southgate was cross-examined as to whether he prepared the Facts Sheet above (he accepted it was his responsibility) when it was clear the Facts Sheet was, in part, prepared by Detective Senior Sergeant Norris. 5. Finally, in this respect, reference was made by the plaintiff to a component of Acting Inspector Southgate's evidence concerning the approach by police to a "fair and proper investigation". Having regard to the sound recording of the evidence of Acting Inspector Southgate, the defendant's submission and the Court's recollection, it would appear the transcript should be treated as a correct transcription. However, this evidence concerns the investigating steps taken prior to Mr Dyers' arrest in October 2005, with respect to the allegations made by HLA and OLR, and cannot bear upon the question here under consideration. The evidence in question concerned the investigation of the allegation made by PLA. In that respect, I accept the submissions of the defendant at paras 4-6 of the Defendant's 14 February Note (extracted above). The knowledge of Acting Inspector Southgate vis-à-vis the Criminal Record 1. I turn to the issues concerning Acting Inspector Southgate's knowledge of the status of Mr Dyers' criminal record at the time of the bail hearing and the implications of a failure to provide a correct criminal record at the bail hearing for contentions as to malice. 2. The starting point, in that respect, is that Acting Inspector Southgate accepted that he knew at the time of the bail hearing that Mr Dyers had no convictions. 3. The plaintiff relied upon the inability of Acting Inspector Southgate to recall the "error" in the prosecutor's submissions with respect to the status of Mr Dyers' criminal record. Reference was made to the following exchange: Q. You knew at this time that Mr Dyers had no convictions? A. Yes, correct. Q. Do you recall jumping up and telling the prosecutor in your role as informant and instructor that there was an error in his submission because Mr Dyers did not have a conviction? A. I don't recall the conversation. Q. Just drop down to page 1759, the prosecutor says at about line 48 of the transcript, he says that - he says, "Nothing about this matter except possibility of the age of this defendant that puts him into any category that the court would consider granting bail notwithstanding the fact that police for some unknown reason granted bail last night". Do you see that? A. No, sorry, I can't find that paragraph. Q. If you go to page 1759 A. Yep? Q. and you see the number A. Okay, yeah, I found it, sorry. Can I please have the question? Q. Do you have a recollection of the prosecutor saying to the court that "for some unknown reason, Mr Dyers was granted bail last night"? A. No, I don't have a recollection of that. Q. Does this refresh your recollection as to you not knowing at this time why bail had been granted the previous night? A. No, it doesn't. Q. You have no recollection one way or the other as to when you came to learn that Mr Dyers had been granted bail the previous evening, is that right? A. Sorry? Q. Do you have any recollection at all as to when you learnt that Mr Dyers had been granted bail on the evening of 27 October 2005? A. No, I don't. Q. Do you have any recollection at any time of learning why he was released from - on bail? A. No, I don't. Q. Do you have any recollection of there being a discussion in court about whether or not Mr Dyers had a previous conviction? A. I don't have a recollection of those discussions. Q. Do you have any way of explaining why it was that the prosecutor came to submit to the court that Mr Dyers had a previous conviction? A. No. Q. Was it your role as the informant to ensure that the police prosecutor was actually informed as to Mr Dyers previous criminal history? A. No. Q. Who had that role? A. I don't know who that role on the day. Q. You were the informant, correct? A. Correct. Q. As the informant, I suggest that it was your role to ensure that the police prosecutor was not misinformed, correct? A. Sorry, I don't - I don't understand the question, sorry. Q. You as the informant had the role to ensure the police prosecutor was not misinformed, correct? A. No, that's not my role 1. In the Plaintiff's Closing Submissions, the plaintiff submitted that she does not bring a case that Acting Inspector Southgate gave the Court, through the prosecutor, "a document that he knew was a false statement of Mr Dyers' criminal record with the intention of misleading the Court". Rather, it was submitted, that the episode concerning the criminal record, and Acting Inspector Southgate's evidence as set out above, "is indicative of a general absence of concern on Mr Southgate's part regarding the fair treatment of Mr Dyers". 2. As to the incident involving the criminal record of Mr Dyers, the defendant submitted again that the COPS system had not recorded the fact that Mr Dyers' conviction had been quashed. The defendant submitted: 1. It is tolerably clear that what was handed up to the magistrate by the prosecutor was the Facts Sheet and Mr Dyers' criminal history. It is apparent that the COPS system did not include a reference to the High Court's decision and, therefore, "gave the appearance that there was an extant conviction". 2. It is not clear what the relevance is of the repeated reference to what is accepted by the plaintiff was not a deliberate attempt to mislead. Particularly in circumstances, where the explanation for why the prosecutor came to submit to the Court that Mr Dyers had a previous conviction is clear. It is not clear why this issue warrants repetition. 3. It was not suggested to Acting Inspector Southgate that the "episode concerning the criminal record" was "indicative of a general absence of concern… regarding the fair treatment of Mr Dyers". "Fairness" is not a relevant normative concept for the purposes of the tort of misfeasance in public office. Nor is it evident how a readily-explained error suggests a lack of concern. It was not suggested to Acting Inspector Southgate that he should have read what was provided to the prosecutor to confirm its accuracy, and Acting Inspector Southgate denied that it was his function to do so. Significantly, it was contended, there is no apparent reason why he was not entitled to simply print Mr Dyers' criminal history from COPS and provide that to the prosecutor. 1. I agree with the entirely of the defendant's submissions, in this respect, as summarised above. Further, I do not consider Acting Inspector Southgate's evidence reflects adversely on his credit. In my view, he gave his answers honestly within the limit of his recollection in a candid way. The knowledge of Acting Inspector Southgate vis-à-vis the health of Mr Dyers 1. On 27 October 2005, Mr Koops had a conversation with Acting Inspector Southgate and Detective Senior Constable O'Meara at Sutherland Police Station, prior to the police interview with Mr Dyers, in the presence of Mr Dyers and the plaintiff (which was also the day immediately prior to the bail hearing at Sutherland Local Court). 2. As earlier mentioned, during that conversation, Mr Koops explained that Mr Dyers was "unwell at the moment", that he was prepared to take part in an interview, but suggested that it be reconvened for the next day. Whilst Acting Inspector Southgate could not recall the entirety of that conversation at Sutherland Police Station, or the detail of his earlier telephone conversation, in his supplementary statement he accepted that the conversation took place. Relevantly, he recalled "Mr Koops saying that Mr Dyers was unwell, need food and that he wanted to reconvene the next day". 3. On 28 October 2005, Mr Koops advanced the following submission at Sutherland Local Court, with respect to the health of Mr Dyers, at the bail hearing: The health of the defendant is related to his age your Honour and it's very significant that he has very poor and ailing health. In the short time that we've had available to us to collect some medical material, we have a report from Dr John Hart in Sydney which sets out a very long list of extremely problematic health which I'll hand up to your Honour. It includes lumbar problems; lumbar spondylitis. He has prostrate problems; he has emphysema; he has incontinence; he has muscle problems in his shoulders; he has deep vein thrombosis, he had a pulmonary embolism in 2002; his deep leg vein thrombosis is potentially fatal which can reoccur with prolonged immobility which of course would be the situation in custody; he has extensive arterial disease; past episodes of myocardial infarction; he has had heart attack; he has a large hiatus hernia; he has multi-level degenerative disc disease; he has right hip degenerative subchondral cysts leading to advanced osteoarthritis which causes hip pain, and has a propensity towards collapsing and he has had heart murmur which is stable at the moment. 1. The transcript of the bail hearing, relevantly, has the following chronology of events: 1. After the initial submissions of the prosecutor, Mr Koops made submission on behalf of Mr Dyers, part of which included the above extract as to Mr Dyers' health, as well as submissions as to the inaccuracy of the criminal record. 2. In response to Mr Koops submission, the prosecutor made the following, inter alia, submission: HIS HONOUR: Mr Prosecutor, if you put your mind to the submission of Mr Koops in relation to allegedly a third witness being present and not being interviewed. PROSECUTOR: In relation to the original case or this one? HIS HONOUR: No, I'm not concerned about the original case, I'm only concerned about this one. PROSECUTOR: I hope the informant is here, he might be outside the courtroom, I'd have to seek instructions in relation to it sir. HIS HONOUR: I'd like you to put something to the Court in relation to that. PROSECUTOR: Thank you sir. 1. The next relevant occurrence is that the prosecutor indicated that he had obtained instructions in relation to the criminal history question, but there was no indication as to how those instructions were obtained. 2. There is nothing further on the record indicating whether or not Acting Inspector Southgate was present. 1. Mr Koops gave no evidence as to the presence or otherwise of Acting Inspector Southgate at the time of his submission as to the health of Mr Dyers. 2. Acting Inspector Southgate gave the following evidence: Q. Do you recall that Mr Koops made some submissions about Mr Dyers' poor health? A. I don't recall the submissions, no. … Q. If you go to page 1761, this is an aspect of Mr Koops' submissions, and he deals with Mr Dyers' health commencing at line 18. Mr Koops says… [submission extracted above read]. Mr Koops handed up the report. Does that refresh your recollection of things that Mr Koops said to the magistrate? A. No, not at all. Q. Do you have a recollection of knowing by no later than 28 October 2005 that Mr Dyers was suffering from very poor health and ailing health? A. No, I don't have a recollection. Q. You don't deny that that's what you knew at the time, do you? A. I don't have a recollection. Q. Yes, but you don't deny that you did know that, do you? A. I don't have a recollection. Q. Were you sitting in Court while Mr Koops was making his submissions? A. I don't have a recollection of that. Q. Were you listening to what Mr Koops was saying? A. I don't have a recollection of the Court day. Q. It's likely that you were listening to what Mr Koops was saying, isn't it? A. If I was in the courtroom, yes. Q. And as the informant, it's likely that you would have been in the courtroom? A. Look, I don't have a recollection of the Court day. Q. And I want to suggest to you, Mr Southgate, that certainly from what Mr Koops said, and thereafter, you had an appreciation that Mr Dyers was suffering from extremely poor and ailing health. That's right, isn't it? A. No, it's not right. Q. Do you deny that, do you? A. Yes. Q. I want to suggest, Mr Southgate, that that is not a truthful answer. A. I disagree. [Emphasis added.] 1. Notwithstanding the evidence of Acting Inspector Southgate that he did not have a recollection of the bail hearing and that he did not have an appreciation of the extent of Mr Dyers' poor health at the time of the bail hearing, the plaintiff submitted, that the Court should find that Acting Inspector Southgate "listened to Mr Koops' submissions concerning Mr Dyers' health and from at least that time onwards he understood that Mr Dyers was suffering from a long series of serious medical conditions". 2. Whilst it was conveyed to the Regional Commander, with greater specificity over evening on the 27 October 2007, prior to the bail hearing, Acting Inspector Southgate had only been advised by Mr Koops that Mr Dyers was "unwell" in a conversation prior to his client's interview at Sutherland Police Station. 3. It is clear from the aforementioned discussion, in this judgment, regarding the events from the arrest of Mr Dyers to the bail hearing that Mr Koops had not directly communicated to Acting Inspector Southgate the health concerns that he referred to at the bail hearing and communicated substantially to the Regional Commander. The controversy then becomes whether Acting Inspector Southgate had acquired knowledge those health concerns as a result of hearing them expressed during the course of the bail hearing. 4. Acting Inspector Southgate did not have a recollection of the proceedings at the bail hearing. The evidence of the proceedings before the bail court leaves open that Acting Inspector Southgate was not present, as he stated, during the submission by Mr Koops. As noted, Mr Koops does not deal with that question in his evidence. There is, in my view, no proper basis to conclude that Acting Inspector Southgate was untruthful in his evidence on that question and no finding of credit made with respect to him would indicate that any other view should be formed. The plaintiff has not established that Acting Inspector Southgate acquired knowledge of Mr Dyers' health of the type referred to by Mr Koops at the bail hearing by his presence at the bail hearing. 5. There is no evidence of any communication by Mr Koops or any other person to Acting Inspector Southgate after this bail hearing, which would have alerted him to the fact of the health complaints of Mr Dyers as outlined by Mr Koops to the Regional Commander or any health problems of that type of magnitude. The only communication was that at a time prior to Mr Dyers' interview, in which Mr Koops stated that his client was "unwell". As there was no evidence of a communication by the Regional Commander of the information he received on the evening of 27 October 2005 to Acting Inspector Southgate and I have concluded that the evidence does not permit a rejection of Acting Inspector Southgate's denial of having heard Mr Koops outline of the health complaints at the bail hearing, there is no basis upon which the plaintiff may properly submit that Acting Inspector Southgate was aware of what Mr Koops described as Mr Dyers' "extremely problematic health" as at the time of the bail hearing. 6. I will return to further contentions advanced by the plaintiff as to Acting Inspector Southgate's knowledge of Mr Dyers' health at various stages throughout the investigation at a later juncture in this judgment. Decision of the Sutherland Local Court to Grant Bail on 28 October 2005 1. Magistrate Bailey granted bail to Mr Dyers, with conditions. That decision is extracted below: HIS HONOUR: … In all the circumstances, I DO PROPOSE TO GRANT BAIL. I will place condition on which, to my mind, will ensure that, although I indicated earlier I am not so concerned about whether he will turn up for Court, it is just to protect the community at large. These conditions, hopefully, wil ensure that that they occur. THE FIRST CONDITION IS THAT HE WILL REPORT ONCE PER WEEK TO THE SUTHERLAND POLICE STATION. Any particular day he prefers? KOOPS: Wednesday, your Honour. HIS HONOUR: HE IS NOT TO ATTEND ANY PREMISES OR FUNCTIONS ASSOCIATED WITH THE KENJA ORGANISATION. HE IS TO ENTER INTO AGREEMENT WITHOUT SECURITY TO FORFEIT $50,000 IF HE FAILS TO COMPLY WITH THE BAIL UNDERTAKING. AN ACCEPTABLE PERSON IS TO ENTER INTO AN AGREEMENT AND DEPOSIT SECURITY TO FORFEIT THE AMOUNT OF $50,000 IF THE DEFENDANT FAILS TO COMPLY WITH THE BAIL UNDERTAKING, IN PARTICULAR, THAT ASPECT ABOUT ATTENDING ANY PREMISES OR FUNCTIONS ASSOCIATED WITH KENJA. IF THAT OCCURS, THAT WILL BE A BREACH OF THE BAIL AND, OF COURSE, THE MONEY WILL BE FORFEITED. 1. The acceptable person for the purposes of the "security" condition was PLM. On 28 October 2005, PLM deposited $50,000 at the Sutherland Local Court and entered an agreement to forfeit that sum in the event of non-compliance by Mr Dyers with his bail undertaking. 2. Following that decision, Magistrate Bailey directed that the police brief was to be served on or before 9 December 2005. 3. Mr Dyers remained on bail until his death in July 2007. 4. The plaintiff submitted, in light of that bail decision: "For a second time, the attempts of Caroola police to have Mr Dyers kept in prison were frustrated. Mr Southgate's evidence that he was 'completely' indifferent to the result is implausible and should be rejected". As a result of the above conclusions, the first submission should be rejected. Submissions containing flourishes of the kind regrettably were found in many parts of the plaintiff's submission. The above conclusions, together with my observation of Acting Inspector Southgate's evidence on the bail applications of Mr Dyers, in this respect, must also result in a rejection of the plaintiff's contention as to the implausibility of Acting Inspector Southgate's evidence. From Grant of Bail to the Committal Hearing – 28 October 2005 to May 2006 1. Acting Inspector Southgate accepted that in the months between the arrest in October 2005 and the committal hearing in May 2006: 1. he liaised from time to time with the ODPP; 2. he attended team meetings of Strike Force Caroola; 3. his duty book entries are the best way of ascertaining what he was doing during that period of time; and 4. one of his tasks, completed over that time, was the preparation of the police brief for the committal hearing. 1. On Friday, 9 December 2005, "the brief in the Dyers matters" was served on Mr Koops. This is evident by reference to Detective Sergeant Frame's duty log entry dated 9 December 2005, which recorded: "…at 10.00am out with D/S/C Southgate from SCC to 48 Martin Place to serve brief in relation to Kenneth DYERS on his solicitor Harland Koops". 2. It should be noted that, strictly speaking, two briefs were served with respect to each alleged victim, namely: 1. The NSW Police Indictable Brief: Indecent Assault of OLR, dated 6 January 2006; and 2. The NSW Police Indictable Brief: Sexual Assault of HLA, dated 6 January 2006. 1. The plaintiff submitted that the brief was finalised by Strike Force Caroola on 6 January 2006 (an inference supported by reference to the dates that appear on the brief before the Court). 2. Prior to turning to a factual controversy arising out of Acting Inspector Southgate's preparation of the brief and his decisions as to its contents, it is convenient to continue the summary of the events leading up to the committal hearing. 3. This period of seven months leading up to the committal hearing did not attract much attention within the plaintiff's written submissions. However, several documents created in that period, in addition to various duty book entries (as well as e@gle.i entries), were tendered and formed part of plaintiff's revised tender bundle. Those documents included: 1. Strike Force Caroola Investigation Progress Report Number 4, dated 31 October 2005 and 28 November 2005. 2. Extracts from Detective Chief Inspector Jacob's Notebook, dated 2-21 November 2005. 3. Statements of Police Officers: 1. Detective Senior Constable O'Meara, dated 3 November 2005; 2. Detective Senior Sergeant Norris, dated 5 and 6 December 2005; 3. Detective Sergeant Owen, dated 8 December 2005; 4. Acting Inspector Southgate, dated 8 December 2005; 5. Detective Angela Cranny, dated 5 January 2006; and 6. Detective Superintendent McKay, dated 8 March 2006. 1. Correspondence between Mr Koops and the NSW Police, dated 31 October to 8 November 2005. 2. Correspondence between Mr Koops and ODPP, dated 24 November 2005 to 23 May 2006. 3. Statutory Declarations: 1. Ms Paisley, dated 31 October 2005; and 2. Janet Broadbent, former member of Kenja, dated 25 November 2005. 1. The brief in relation to Mr Dyers: 1. The NSW Police Indictable Brief: Indecent Assault of OLR, dated 6 January 2006 (756 pages); and 2. The NSW Police Indictable Brief: Sexual Assault of HLA, dated 6 January 2006. (The brief with respect to HLA, which was before the Court, did not appear to be complete. It consisted of an index, a witness list and a "Discontinuance Statement" from HLA completed on 13 October 2004). 1. Other documents: 1. Statement of Ms Daniel, Senior Child Protection Caseworker for DOCS, dated 12 January 2006. 2. Letter from Mr H, Ms Patrique and HLA to the plaintiff and Mr Dyers, dated 24 May 2006. 1. A chronological summary of the events that occurred following the grant of bail and in the lead up to the committal hearing follows: 1. On 2 November 2005, Detective Chief Inspector Jacob recorded the following handwritten note in his Police Notebook, with respect to the correspondence and conduct of Mr Koops: Briefly confer with JS re letter received from solicitor Harland Koops re Mr Dyers. Read/access letter. Confer briefly with JS on issue raised by HK. JS explains position → allegations put to KD as would do with any information at the time of i/v – most appropriate. That excluded from facts placed before court – still under invest --- not i/v'd yet – unclear what if any part Linda P played, cannot rely on as "fact" – for consideration during bail etc – I have no problem with that anything further arising can be properly put before the court during … or bail app's as supplementary facts. I do have concerns arising from what appears to be inappropriate conduct by this solicitor. Need to explore this further and consider position after reviewing ERISP i/v. But of particular concern is the threats made to Dets JS and LO that he may take civil action against them both personally. Insufficient time to address with JS therefore instructed to: - - Record the letter in investigation log… - Contact with HK including threats - Provide transcripts of ERISP ASAP - Following further assessment will [seek] legal advice regarding the threats/actions - JS instructed not to respond to letter from solicitor / Indicating I would respond in writing 9/11 – as restdays until then. It was clear to me that JS and LO were impacted upon by the threats made by HK at the PS – the conduct of HK during ERISP needs to be explained/examined, the letter does not raise any issue that I've got concerns about →I will respond to letter… and seek any further contact be made through me until DPP liaison establish[ed]. 1. On 8 November 2005, Detective Chief Inspector Jacob replied to the communication of Mr Koops dated 31 October 2005. An extract of that letter appears below: I have read the details contained within that letter and spoken to Detective Southgate and O'Meara about issues arising on the 27 October 2005. I am satisfied with the actions of my officers. However, I do have a number of concerns about specific issues arising on that day not connected with the police and have therefore instructed my officers not to communicate with you directly on any further issues until the appointment of an Instructing Solicitor from the Department of Public Prosecutions. … In fairness I raise one of my concerns with you at this time. I am concerned about the manner and form of your comments directed toward Detectives Southgate and O'Meara on the day of Mr Dyer's [sic] arrest, in particular alleging they had committed an offence by arresting Mr Dyer[s] and threatening to take civil action against the New South Wales Police and those two officers personally. I will be seeking advice on that issue. 1. By a letter dated 8 November 2005, Mr Koops advised Detective Chief Inspector Jacob that "[a]t no stage was it said that an offence had been committed in arresting Mr Dyers". Notwithstanding that advice, in the immediate preceding sentence Mr Koops said: Mr Koops said to the Detectives that in his client's view the conduct of the police was inappropriate, that his arrest for the purposes of furthering their investigation was unlawful and that charging Mr Dyers in the circumstances of the matter in particular given the shortcomings in the police investigation prosecution of Mr Dyers would, in his view, be malicious and that Mr Dyers would consider legal action. 1. On 10 November 2005, Acting Inspector Southgate made telephone contact with Ms Broadbent, inquiring whether she would be prepared make a formal police statement. She declined to assist and sent a communication advising that all future contact with her should be directed through Mr Koops. 2. On 18 November 2005, Acting Inspector Southgate recorded the following in his duty book: "… contacted by Mr H informed that he believed Ken Dyers had checked himself into hospital". 3. In the Strike Force Caroola Investigation Report Number 4, dated 28 November 2005, Acting Inspector Southgate recorded the following update with respect to the investigation (since the last review): Matter had been allocated to Paul WAGSTAFF and Michael WALTON of the ODPP for the committal period. Organise transcripts of the interviews of DYERS, HLA and OLR. I ask checks conducted upon Linda PAISLEY and Janet BROADBENT, phone number identified for BROADBENT. BROADBENT contacted confirmed processing sessions between DYERS and HLA would not supply statement due to believing it would hurt DYERS case. ODPP appraised of this situation. Further witnesses identified, those being Tony ALBANESE, Harry CRAWFORD, Terry ALLPORT, Annette SALMON and Maree HUNT. Contact made with all. Statement obtained from Maree HUNT. Attend to brief preparation, due 9th December 2009. … Brief to be compiled and served, further enquiries in regards to further possible witness/suspects. Meeting with ODPP in regards to brief. 1. That same report was certified by the Squad Commander, Detective Superintendent Helen Begg, on 30 November 2005. Detective Superintendent Begg recorded the following comments: I have considered the welfare of staff involved in this Strike Force and wish to make the following comment: There have been concerns raised by the staff due to threats to sue addressed by management and letter to solicitors. … Any Further comment (if appropriate): Excellent job by investigators. … 1. On 24 November 2005, Mr Walton sent a communication to Mr Koops. By that communication, Mr Walton addressed three topics: 1. An extant application of Mr Dyers to vary his bail, listed for 1 December 2005. Mr Walton advised that he was presently seeking instructions and would "indicate the DPP's position as soon as I can". 2. Ms Broadbent and whether they could advise, as her lawyers, whether she would be "willing to provide a statement to police in relation to the telephone conversation she had with Detective Senior Constable John Southgate on 10 November 2005". 3. Ms Paisley and the police interest in making contact. Mr Walton inquired "whether you have any contact details for Ms Paisley? Any information you can provide about how to contact Ms Paisley would be greatly appreciated". 1. On 29 November 2005, Mr Koops replied to each of the inquiries of Mr Walton as follows: 1. "We note the DPP opposes the bail variation sought by our client"; and 2. "In relation to Janet Broadbent and Linda Paisley, we have no instructions to assist the DPP in the manner sought". 1. By that same correspondence, Mr Koops included the following allegation as to the unlawful conduct of the police: We refer to our correspondence with the police in this matter which we understand has been provided to you (our letter dated 31 October 2005 and 8 November 2005). As indicated in that correspondence, it is our client's view that the conduct of the police in this matter has not been bona fide and indeed it has been unlawful. This position is reinforced by the requests made in your correspondence. It is apparent from your request that the police have not conducted a proper, full investigation of this matter prior to charging Mr Dyers. The investigators have seriously failed to exercise objectivity. In the bail application at Sutherland, when confronted with the issue of the police having failed to interview Ms Paisley – a third party witness, the response of the police was to submit that "that issue may result in further charges". … It is clear that the police have failed to critically consider the allegations and the possibility that the complainants are mischievous liars. 1. Mr Koops also advised that Mr Dyers had been "hospitalised twice since his arrest and incarceration" (no particulars were provided as to location, time and/or cause). 2. On 5 and 6 December 2005, Detective Senior Sergeant Norris made telephone calls to both Ms Broadbent and Ms Paisley, respectively. The purpose of the contact was to enquire if either would be prepared to make a police statement. Ms Broadbent advised that she had made a statement with Mr Koops and directed the officer to speak with her lawyer. Ms Paisley declined to make a statement. 3. On 7 December 2005, Mr Walton sent a further communication to Mr Koops, which stated, inter alia: Bail variation I note that my last letter to you was incorrectly dated as 28 November 2005. That date should have been 5 December 2005. I apologise for that oversight. Further to that letter, can you confirm whether the Crown's offer, not to oppose Mr Dyers' application to vary bail if your client particularises his speaking events, is acceptable. If it is, the bail application will be a quick matter that can be dealt with before 12noon. 1. It may be noted, that the letter referred to in that first paragraph, does not appear to be before the Court. 2. On Friday, 9 December 2005, the brief in relation to Mr Dyers was served on Mr Koops. 3. On 6 January 2006, the brief was finalised by the NSW Police. 4. On 19 January 2006, following a mention at the Local Court, a committal hearing was fixed for 24-26 May 2006 on an estimate of 2.5 days. Five witnesses were required to attend: 1. three civilian: Mr H, Ms Patrique and OLR; and 2. two police: Acting Inspector Southgate and Detective Senior Sergeant Norris. 1. On 20 May 2006, Mr Walton sent a communication to Ms Ramena Kako, a solicitor at Henry Davis York, with respect to the upcoming committal hearing. He advised that, for the purposes of the committal hearing, "the Crown relies on the police brief and all statements subsequently served". The letter attached a list of all statements relied upon by the Crown and advised "[i]f you do not have any of these statements, please let me know and I will forward a copy to you". Committal Proceedings at Downing Centre Local Court – 24-25 May 2006 1. On 24-25 May 2006, Mr Dyers' committal hearing took place in the Downing Centre Local Court before Magistrate Trad. A transcript of those proceedings was before the Court. At the committal hearing, the following prosecution witnesses were cross-examined: 1. Ms Patrique; 2. Mr H; 3. OLR; 4. Acting Inspector Southgate; and 5. Detective Senior Sergeant Norris. 1. At the committal hearing, Acting Inspector Southgate gave evidence that he had reviewed the statements of the two complainants, namely, OLR and HLA, and had reviewed in detail what the complainants had said. He was aware that HLA had indicated in 2004 (and signed a letter in January 2005) that she did not want to be involved in any court proceedings. Acting Inspector Southgate was aware that HLA had referred to the presence of Ms Paisley during an alleged assault. 2. As earlier mentioned, Acting Inspector Southgate said that he had not taken any steps to speak to Ms Paisley or any other witnesses referred to by the complainant (namely, Ms Alison Scott and Ms Broadbent) prior to arresting Mr Dyers, and that a decision had been made to speak to Ms Paisley after Mr Dyers had been arrested. He was opposed to the granting of bail. 3. At the conclusion of the committal hearing, Mr Dyers was committed for trial in the District Court of New South Wales. His arraignment was listed on 9 June 2006. Magistrate Trad ordered that bail was to continue. Arraignment of Mr Dyers – 9 June 2006 1. On 9 June 2006, Mr Dyers' matter was listed for arraignment in the District Court on 21 counts of aggravated indecent assault and 1 count of aggravated sexual intercourse without consent relating to HLA and OLR. 2. The trial was scheduled to commence on 21 May 2007 ("the HLA/OLR trial"). The HLA/OLR Trial date vacated – 3 May 2007 1. That trial date was ultimately vacated due to a series of proceedings related to the health of Mr Dyers (which will be turned to in greater detail below). However, for present purposes, it is sufficient to outline the course of events that followed. 2. In early September 2006, Mr Dyers applied for a permanent stay of the criminal proceedings with respect to the HLA/OLR trial. On 30 April 2007, that application was heard before Phegan DCJ. On 3 May 2007, Phegan DCJ dismissed the application but, in light of the medical material before the Court, referred Mr Dyers to the Tribunal so that a determination as to his fitness to be tried may be made. On 27 June 2007, the Tribunal determined that Mr Dyers was not fit to be tried within the next 12 months. Following that decision, the ODPP were considering whether to proceed to special hearing. In light of Mr Dyers' death on 25 July 2005, no decision was made. CHAPTER IV: ACTING INSPECTOR SOUTHGATE'S KNOWLEDGE AS TO MR DYERS' HEALTH Introduction 1. The plaintiff advanced several submissions as to Acting Inspector Southgate's knowledge of Mr Dyers' health. The submissions are found in many parts of the plaintiff's submissions as to the chronological of events and malice (and credit). It is convenient to draw together those strands at this point. 2. In order to understand that analysis it is useful to briefly, and in summary form, recap the following. As earlier mentioned, the plaintiff pleaded that Acting Inspector Southgate made the decision to send the letter to Mr Koops, requesting that Mr Dyers be interviewed by Police in relation to PLA's allegations, "with the intention of harming Dyers and Hamilton". That act was done within the context of the Strike Force Caroola investigation into Mr Dyers (the immediate surrounding circumstances, in that respect, will be addressed later in the factual background). 3. The actions of Acting Inspector Southgate were, in part, characterised as malicious because they were taken in the light of, or notwithstanding, Acting Inspector Southgate's knowledge of Mr Dyers' poor health (although the submission occasionally extended to knowledge of a very poor state of health or even a knowledge of dire medical circumstances experienced by Mr Dyers). 4. I will commence by setting out an outline of the relevant chronology of the events that interconnect with the contentions advanced by the plaintiff in this respect. Some of this chronology will repeat subjects already dealt with in this judgment but are included to provide an overall picture of the plaintiff's case. They are as follows: 1. On 27 October 2005: 1. Prior to the interview of Mr Dyers at the Sutherland Police Station, Mr Koops told Acting Inspector Southgate that Mr Dyers was "unwell". 2. Following an initial decision by the police to refuse Mr Dyers bail, Mr Koops contacted the Regional Commander and applied for a bail review. Detailed submissions were advanced that listed the "medical conditions" of Mr Dyers. 3. Conditional bail was granted. The Regional Commander found that in light of "the reported medical conditions… the police station is not a suitable premise to keep him overnight". 1. On 28 October 2005: 1. Mr Dyers attended Sutherland Local Court before Magistrate John Bailey. Mr Koops appeared on behalf of Mr Dyers and made a fresh application for bail. Submissions were made by Mr Koops as to acutely adverse medical conditions experienced by Mr Dyers at that time. Sergeant P Upsall appeared for the prosecutor. Acting Inspector Southgate instructed the prosecutor. 2. Following the hearing of the above application, Magistrate Bailey granted Mr Dyers conditional bail. 1. On 18 November 2005, Mr H contacted Acting Inspector Southgate and informed him that "he believed Ken Dyers had checked himself into hospital". 2. In early September 2006, Mr Dyers filed a notice of motion seeking a permanent stay of the proceedings, on medical grounds. In the alternative, failing such an order, Mr Dyers sought "such other orders as the Court thinks fit". A significant volume of medical and affidavit evidence was served in support of that application. 3. On 30 April 2007, the hearing of the stay application commenced before Phegan DCJ (and continued over a few days). 4. On 3 May 2007: 1. Phegan DCJ delivered judgment. His Honour found that Mr Dyers was not fit to stand trial. In the result, the trial dates were vacated and the matter referred to the Tribunal. The stay application was dismissed. 2. Acting Inspector Southgate's duty book entry recorded: "Decision made not to release current investigation material to DPP". 1. On 7 June 2007, the Tribunal heard Mr Dyers' matter with respect to his fitness to be tried. 2. On 27 June 2007, the Tribunal published its unanimous determination pursuant to s 16(1) of the Mental Health (Criminal Procedure) Act 1990 (NSW) and s 82 of the Mental Health Act 1990 (NSW) that, on the balance of probabilities, Mr Dyers would not become fit to be tried within the period of twelve months following Phegan DCJ's finding of unfitness (on 3 May 2007) and recommended that the "current arrangements" for Mr Dyers' care and treatment continue. 3. On 24 July 2007, Acting Inspector Southgate sent the letter to Mr Koops. 1. The contentions were raised as to Acting Inspector Southgate's knowledge of Mr Dyers' health concerned various stages throughout the investigation into Mr Dyers, namely: 1. the bail hearing at Sutherland Local Court; 2. the stay proceedings; 3. the Tribunal proceedings; and 4. the sending of the letter. The Bail Hearing 1. As I have earlier found, the only communication to Acting Inspector Southgate vis-à-vis the health of Mr Dyers as at the time of the bail hearing, was via a conversation with Mr Koops prior to Mr Dyers' interview, in which Mr Koops stated that his client was "unwell". I do not consider it may be concluded that Acting Inspector Southgate was aware of what Mr Koops described as Mr Dyers' "extremely problematic health" or as put to Acting Inspector Southgate, he had an "appreciation that Mr Dyers was suffering from extremely poor and ailing health" up to the stay proceedings, to which I will turn to below. 2. Further, I do not consider that Acting Inspector Southgate's denial of such knowledge or appreciation of Mr Dyers' state of health as formulated by the plaintiff was untruthful on my observations of his evidence (which I shall discuss further below) and having regard to the objective circumstances as may bear upon that question. The Stay Proceedings 1. On or around 2 November 2005, Detective Chief Inspector Jacob had a meeting with Acting Inspector Southgate with respect to the conduct of and communication by Mr Koops with Strike Force Caroola officers, in particular, Acting Inspector Southgate and Detective Sergeant Frame. Whilst it is unnecessary to set out the record of that meeting at this stage, it is sufficient to note that Detective Chief Inspector Jacob instructed Acting Inspector Southgate "not to respond" to the latest communication from Mr Koops. Further, Detective Chief Inspector Jacob recorded: "I will respond to letter… and seek any further contact be made through me until DPP liaison establish[ed]". The subsequent police record as to the management of senior police officers of this issue were described earlier under the heading "From Grant of Bail to the Committal Hearing – 28 October 2005 to May 2006". 2. On 18 November 2005, Acting Inspector Southgate recorded the following entry in his Duty Log: … Contacted by Mr H informed that he believed Ken Dyers had checked himself into hospital. 1. During cross-examination, with respect to that Duty Log entry, Acting Inspector Southgate gave the following evidence: Q. Well, can I ask you to take up volume 1 at page 1883 - make that 1901. Do you recognise this as your duty book entry for 18 November 2005? A. Yes. Q. It says, "On duty at 7am at Parramatta, attend/check memos, significant events, attend to court, Strike Force Caroola, contacted by Mr H, informed me" - what does it say after that? A. It's a little bit cut - here after what - "he believed Ken Dyers had checked himself into hospital". Q. Does that refresh your recollection of Mr H telling you that Mr Dyers had checked into hospital? A. No, it doesn't. Q. Do you have a recollection of learning that Mr Dyers had checked into hospital at least once between the bail hearing and the committal? A. Yes, yes. Q. You do you have a recollection of learning that? A. I - I have a recollection that he had been in the hospital in the lead up, yes. Q. How did you learn that? A. I have no recollection. Q. Does this serve to refresh your recollection that you did have conversations with Mr H? A. No, it doesn't. [Emphasis added.] 1. As mentioned, in early September 2006, Mr Dyers filed a notice of motion seeking a permanent stay of the proceedings, on medical grounds. Acting Inspector Southgate gave evidence that he recalled Mr Dyers' application to have the criminal proceedings stayed, however, he did not have a recollection of Mr Dyers' "medical ailments" as at the committal hearing: Q. Now, you have a recollection, do you, of an application by Mr Dyers to have the criminal proceedings stayed? A. I do have that - a recollection that he had that, yes. Q. That was an application made after the committal. A. I don't have a recollection of the dates. Q. I want to suggest to you that by the time of the committal hearing, you were aware that Mr Dyers was suffering from a whole series of serious medical ailments? A. I don't have a recollection. Q. Do you deny that you were aware of that fact? A. I don't have a recollection of - of it. Q. Not prepared to deny it, is that the position? A. I'm sorry, could you re-word the question or re-ask the question again? Q. Do you deny that you were aware, by the time of Mr Dyers's committal hearing, that Mr Dyers was suffering from an extensive series of health ailments? A. I don't, yeah - I don't recall. Q. Do you understand the difference between not recalling something and denying something, don't you? A. That's what I'm saying, I don't recall. [Emphasis added.] 1. Between 24-26 October 2006, Acting Inspector Southgate made notations of conversations and/or meetings with Mr Walton and/or Mr McCarthy of the ODPP, regarding Mr Dyers' stay application. During cross-examination, as to those conversations, Acting Inspector Southgate stated he could not recall them. His evidence, in that respect, is extracted below: Q. That's a duty book entry of yours, 24 October 2006. Is it not? A. Yes, it is. Q. After your meal break you refer to, "Speak with Michael Walton, DPP." What does it say after that? A. It's cut but "Dyers's stay application, attend to office duties." That in part - I can see - it's - it appears to be Dyers's stay application. Q. Do you have a recollection of speaking to Mr Walton about Mr Dyers's stay application? A. No. Q. Except that by this time, that is to say 24 October 2006, you were aware that Mr Dyers had made a stay application. A. I'd say yes, I was aware. Q. And it's likely, is it not, that you would have discussed with Mr Walton the basis upon which Mr Dyers was making that application? A. I can't - I can't comment to that. Q. Then on page 3144, it's your duty book entry for 25 October, you say in the second line, was it, "Continue with" - what does it say? A. Tape copying. Q. And then on the next line? A. "Re: Strike Force Caroola, stay matter." Q. Are you able to recall what that was a reference to? A. No, I can't recall what it was in reference to. Q. Go to page 3145. A. Yes. Q. Your duty book entry for 26 October 2006. A. Yes, yeah. Q. On the third line, you say, "To Sydney District Court re: Dyers stay appeals. Stay application stood over to 13 December 06. Have meeting with Tony" - is it - "McCarthy, Crown Prosecutor re: appeal." A. Yep. Q. Do you have any recollection of attending the District Court 26 October 2006 in relation to the stay? A. No, I don't have an independent recollection. Q. What about a meeting with the crown prosecutor? A. No, I don't have a recollection. Q. I want to suggest to you, Mr Southgate, that it's the case that you were informed by Mr Walton, or Mr McCarthy, or someone else from the DPP as to the basis of Mr Dyers' stay application. A. I can't recall the conversations. 1. As earlier mentioned, the hearing of the stay application was fixed for 30 April 2007 and took place over a few days. Phegan DCJ delivered judgment on 3 May 2007. (It appears that at least Detective Sergeant Frame attended Court on that day). 2. The following summary is derived from that judgment: 1. Phegan DCJ described the two applications before the Court as follows: The first part of the Notice of Motion is an application for a permanent stay of proceedings. However, implicit in the alternative orders sought in the Notice of Motion and explicitly addressed in a very comprehensive way in both the evidence and in counsel's submissions, is the questions of whether the applicant is fit to stand trial. 1. His Honour dealt with the applications in reverse order, due to a concession from the Crown "that the applicant is not fit to stand trial". Phegan DCJ observed "[t]hat position is supported by not only the medical evidence, but also on the affidavit evidence [before the Court]". 2. His Honour found: "the applicant is not fit to stand trial and that were the matter to go no further, the appropriate procedure would be that which is provided for in the Mental Health (Criminal Procedure) Act 1990". In the result the trial dates for the HLA/OLR trial were vacated and Mr Dyers referred to the Tribunal. Phegan DCJ acknowledged that he had "no power to bind or direct the conduct of the Tribunal", but specifically drew "the Tribunal's attention to the compelling evidence in this case or the progressively deteriorating condition of [Mr Dyers] and ask that all possible steps be taken to deal with the matter with expedition". 3. The parties tendered a great deal of medical evidence. Phegan DCJ noted that all of the experts agreed in the diagnosis that, "because of the state of cognitive deterioration, brought on by a condition of dementia, there is every reason for continuing deterioration to be expected and certainly no prospect of any reversal in that process of deterioration". 4. Phegan DCJ observed that, on the evidence of Dr Murray (the Crown's expert) and Ms Roberts, there was a "noticeable and less differential decline in cognitive function over the last 6 months". This was no longer confined to "matters of detail" or to "particular cognitive functions". There had been, over the last six months, a "convincing indication of a continuing and significant deterioration in cognitive function". 5. Phegan DCJ dismissed the stay application. His Honour concluded that he could not "find any basis on which [he could] treat this case as outside the general principles laid down by the Court of Criminal Appeal in WRC (2003) 59 NSWLR 273, which involves quite exceptional circumstances in order for there to be a permanent stay". His Honour declined to grant orders permanently staying the proceedings, but noted that there was an alternative process that flowed from a finding of unfitness to stand trial. 1. On 3 May 2007, the date of Phegan DCJ's decision, Acting Inspector Southgate recorded the following in his Duty Log: 1. "on duty at 7am … meal break 1.30-2pm … off duty 5pm"; and 2. "on route make and receive numerous calls re: S/F Caroola". 1. During cross-examination, Acting Inspector Southgate gave evidence as to his knowledge of the outcome of the application: Q. Do you have a recollection of being made aware of the outcome of Mr Dyers' stay application? A. Yes, I - I'm aware - I became aware of the outcome of the application, yes. Q. But you have no recollection of whether you became aware by an oral communication, an email or in any other way? A. Correct, I don't have a Q. No recollection of who told you? A. No. Q. And no recollection of what you were actually told? A. No. Q. Did you become aware at some point that Mr Dyers' application for a permanent stay had failed? A. Look, I - I don't recall about a permanent stay application. Look, I - I have a knowledge of that there was - a stay was put in for 12 months, and I don't know why that - that's what my recollection is. Not that - whether something had failed, but just that there'd been a stay put in for 12 months. Q. Do you recall being told that Mr Dyers had been found unfit to stand trial? A. Yes. Q. But you don't recall whether or not the District Court had dismissed the application for a permanent stay? A. I don't have an independent recollection of that, no. Q. You were told, weren't you, that the medical evidence presented on behalf of Mr Dyers and on behalf of the Crown indicated that Mr Dyers was mentally and physically frail? A. I - I don't recall the information that was passed to me. Q. I'm going to suggest to you, Mr Southgate, that you were in close contact with the DPP in relation to Mr Dyers' application for a permanent stay, and that you were kept abreast of the basis upon which Mr Dyers was making that application. A. I can agree that I was kept - that - that I would have contact with DPP updating me on - on the stay, but to say that I was given in-depth information in relation to what the grounds were, or anything like that, no, I don't - I don't recall that at all. Q. You recall, don't you, that you were told that there was medical evidence indicating that Mr Dyers was physically and mentally frail. Correct? A. No, I don't recall the documentation. Q. I'm going to suggest to you, Mr Southgate, that you were told that there was medical evidence adduced by Mr Dyers and by the Crown that indicated that Mr Dyers was physically and mentally frail, and that based on that evidence Justice Fegan had concluded that Mr Dyers was unfit to stand trial. A. Look, I - I can recall having information to say that he was found unfit to stand trial on medical grounds. What the contents of that, I don't recall what the contents of. But yes, I recall that, getting information that said he was unwell, and he was found not fit to stand trial at Court by Mr Fegan. I'm fully aware of that, but I really am not aware of the exact grounds or medical conditions that was relied on for that. Q. You're not aware of the exact medical grounds, but in the broad, you're aware of the medical grounds. Correct? A. In a broad sense, yeah, there was some medical grounds that I, I suppose, yeah, I would have been aware of. Submissions 1. The plaintiff relied upon the 18 November 2005 Duty Log entry as evidence of Acting Inspector Southgate's "knowledge of Mr Dyers' poor health" (emphasis added). The defendant submitted: "It is not apparent what relevance is said to attach to Acting Inspector Southgate's Duty Book entry of 18 November 2005 recording that Mr H had contacted him and said he believed Dyers had checked himself into hospital". 2. In light of Acting Inspector Southgate's 24-26 October 2006 Duty Log entries noting conversations with the ODPP vis-à-vis Mr Dyers' stay application, it was submitted that his regular contact with the ODPP supports an inference that he was informed of "the basis of Mr Dyers' stay application". 3. The plaintiff also contended that Acting Inspector Southgate was aware of the decision of Phegan DCJ and, in light of the detailed outline of the health issues facing Mr Dyers within that judgment, an inference may be made that Acting Inspector Southgate was, by that means, aware of Mr Dyers "extremely poor state of physical and mental health" (or as was put to Acting Inspector Southgate in cross-examination, "physically and mentally frail"). 4. The plaintiff submitted that the Court should find that Acting Inspector Southgate was made aware on (or soon after) 3 May 2007 that Phegan DCJ had concluded that Mr Dyers was unfit to stand trial and that Mr Dyers was in an extremely poor state of physical and mental health − which was deteriorating rapidly. 5. Given the available inference that Acting Inspector Southgate would have been made aware of the stay application at the relevant time, the plaintiff relied upon Acting Inspector Southgate's inability to recall conversations around that time with respect to the stay application to undermine his credit. The plaintiff submitted as follows: 113. Mr Southgate was taken to his Duty Book entry for 24 October 2006. That recorded "Speak with Michael Walton, DPP", and then continued "Dyers's stay application, attend to office duties". Mr Southgate said that he had no recollection of speaking to Mr Walton about Mr Dyers' stay application, but that he was aware, by 24 October 2006, that Mr Dyers had made a stay application. Mr Southgate said that he could not comment on whether it was likely that he would have discussed with Mr Walton the basis upon which Mr Dyers was making that application. As the Officer in Charge of the investigation, the strong likelihood is that he would have done so. 114. It was put to Mr Southgate that he was informed by Mr Walton, or Mr McCarthy, or someone else from the DPP, as to the basis of Mr Dyers' stay application. Mr Southgate's evidence was that he could not recall the conversations. Nevertheless, the strong likelihood is that he would have been informed. 1. The defendant contended: Even if it could be assumed that as the officer in charge of the investigation Det Southgate was likely to have discussed the stay application with Mr Walton, the ambiguity in the question (what does "basis" mean?) does not entitle a finding that Det Southgate knew that Mr Dyers had any particular ailment or disability. Unless Det Southgate in fact knew that Mr Dyers suffered from a particular ailment, it is not apparent what the relevance of any of this material is. Consideration 1. Acting Inspector Southgate's evidence on these issues was, in summary: 1. He made a duty book entry on 18 November 2005 that Mr H had informed him that Mr Dyers had "checked himself into hospital", but he had no independent recollection of that information being conveyed to him. 2. He had a recollection of Mr Dyers being in hospital between the bail hearing and the committal hearing regarding the HLA/OLR allegations. He did not recall where he had received that information from at that time, including whether it was received from Mr H. 3. He did not recall that Mr Dyers was suffering from an "extensive series of health ailments" at the time of his committal hearing. 4. He was aware Mr Dyers brought an application to stay the criminal proceedings concerning the HLA/OLR allegations by 24 October 2006. Entries were made in his duty book on that topic 24-26 October 2006. He had no independent recollection of attending the District Court or meeting with the Crown prosecutor and could not recall having a discussion with Mr Walton or any other officer from the ODPP as to "the basis of Mr Dyers' stay application". 5. Acting Inspector Southgate became aware of the "outcome of the stay application", but did not recall the means of acquiring that information. Whilst he did not know that a permanent stay had been refused, he was aware Mr Dyers had been found unfit for trial. 6. Acting Inspector Southgate agreed that he would have been in contact with the ODPP regarding "the stay" but did not recall being given "in-depth information in relation to what the grounds were" for the stay application or that there was medical evidence advanced on behalf of that application. 7. He conceded, however, that he recalled having information that Mr Dyers was "found unfit to stand trial on medical grounds" but not as to the content of the "medical grounds" or the "existing medical grounds or conditions" or reasons other than Mr Dyers was unwell. 1. I do not regard Acting Inspector Southgate's inability to recall the content of conversations with the ODPP and, in particular, the provision of detailed information regarding Mr Dyers' medical condition at the time, reflects poorly on his credit. He readily conceded that he had received information regarding the stay application, the finding of unfitness for trial and that Mr Dyers was unwell (and at one stage had checked himself into hospital). 2. His lack of recollection of particular conversations with the ODPP or particular communications with them regarding the details of Mr Dyers medical conditions, if those details were in fact given, in the absence of records of the same is not implausible. Furthermore, the context of his answers, in that respect, must be properly understood – when Acting Inspector Southgate stated "but to say that I was given in-depth information in relation to what the grounds were, or anything like that, no, I don't – I don't recall that at all", in substance, he was saying that he could not recall any information of that type being provided to him. That is consistent with his answer in cross-examination, to which I have earlier referred, where he denied a very broad proposition that from the bail hearing ("thereafter") he had an appreciation that Mr Dyers was suffering from extremely poor and ailing health. 3. His unusual answer that "I can't comment to that" may be explained by the question posed, which directed attention to the "basis upon which Mr Dyers' was making [his] application". The question concerned his discussion with Mr Walton and seems to reflect upon the appropriateness or foundation to convey the effect of any such discussion with Mr Walton as he stated that he could not recall any discussion with Mr Walton on the topic a short time later in his cross-examination. 4. The evidence reveals that Acting Inspector Southgate had discussions with Mr Walton and perhaps other ODPP officers regarding the stay application and the decision of Phegan DCJ, the frequency of which is unclear, but was in the nature of "updates". Acting Inspector Southgate knew that Mr Dyers was found unfit for trial and referred to the Tribunal. He also knew that the application had been pursued on medical grounds. He also knew Mr Dyers was unwell and had been hospitalised since the bail hearing. 5. I then turn to the stay application. 6. Acting Inspector Southgate's concessions as to those matters and that, in a broad sense, he was aware of the medical grounds that underpinned Mr Dyers' application for a stay does not give rise to the inference, on the evidence before the Court, that Acting Inspector Southgate knew, as at the time of the decision of Phegan DCJ, that Mr Dyers was, as submitted by the plaintiff, in an extremely poor state of physical and mental health which was deteriorating rapidly. 7. There appears to be no other issue of Acting Inspector Southgate's knowledge of Mr Dyers' condition until the Tribunal proceedings. The Tribunal Proceedings and Findings 1. On 7 June 2007, the Tribunal heard Mr Dyers' matter. My Dyers attended the hearing in person, accompanied by Mr Koops and Mr Paul Byrne SC. The plaintiff and Mr Timothy Walker, the personal assistant of Mr Dyers, were also present. 2. On 12 June 2007, Acting Inspector Southgate recorded in his Duty Log that he "contact[ed] [the] Mental Health Review Tribunal "Re: Dyers Fitness (not fit for trial)". 3. On 27 June 2007, the Tribunal published its unanimous determination that, on the balance of probabilities, Mr Dyers would not become fit to be tried within the period of twelve months following Phegan DCJ's 3 May 2007 finding of unfitness. 4. As to the prospect of further offending, the Tribunal observed: … However, taking all that into account, all of the matters asserted, alleged against or otherwise attributed over the years to Mr Dyers which might raise criticism of his release, considering the safety of others in the community, are alleged to have occurred in the context of the administration of Kenja, particularly in one-on-one situations with young girls. The evidence before the Tribunal today is that Mr Dyers does not, and indeed cannot, physically administer Kenja in Kenja communication sessions, and that his movements are limited to his home or otherwise under the direct supervision of his partner or assistant, so that for those reasons at least any concerns that might arise by reason of the legal history and the allegations over many years do not appear to be reflected in Mr Dyers's [sic] current circumstances. The evidence is that he will not and cannot participate in the relevant sessions. Any allegation that he does will no doubt lead to an immediate application to the District Court to revoke bail, and may well lead to the Tribunal having to convene an immediate review for the purpose of making a further recommendation to the Minister on the question of detention … [Emphasis added.] 1. As to bail, the Tribunal made the following recommendation: … that Mr Dyers's [sic] present release be continued on bail and his physical care be noted as sufficiently attended to by the service of his personal assistant and Ms Hamilton, together with his treating general practitioners, so that it is not necessary to further consider the question of Mr Dyers being placed in detention, at least pending the determination of the District Court as to whether limiting term should be imposed after a special hearing. 1. The Tribunal also observed that neither Mr Dyers' "safety nor the safety of any member of the community is likely to be endangered by his continuing to remain on release subject to bail whilst the proceedings are pending". 2. The Tribunal recommended "that the current arrangements for Mr Dyers's [sic] care and treatment continue to apply". 3. The Tribunal notified the Court and the ODPP of its opinion and determination and recommendations. 4. The Tribunal referred to Mr Dyers' "progressive overall deterioration, not only in respect of his mental state and dementia, but also in his physical state"; and to his "deteriorating physical and mental conditions". 5. During cross-examination Acting Inspector Southgate accepted that he was aware of the proceedings before the Tribunal and the relevant outcome of those proceedings. That evidence is extracted below: Q. You were aware that the matter was referred to the Mental Health Review Tribunal? A. Yes. Q. Were you aware the that the Mental Health Review Tribunal had concluded that Mr Dyers was unlikely to be fit to stand trial for the next 12 months? A. Yeah, I have that - I had that information, yes. Q. And that there had never been a stay of Mr Dyers' prosecution to your knowledge, had there? A. Sorry? Q. There had never been a stay of Mr Dyers' prosecution, had there? A. I don't actually understand that question, sorry. Q. This is the position isn't it? You became aware on about 3 May 2007 that the District Court had ruled that Mr Dyers was unfit to stand trial. Correct? A. Whether it was on that date, yes, but I become aware that he was found not fit to stand trial. Q. And that the trial that was scheduled to commence on 21 May was vacated. You became aware of that? A. Yes. Q. You became aware that the matter was referred to the Mental Health Review Tribunal? A. Yes, I did. Q. And you were aware that the Mental Health Review Tribunal concluded that he was unlikely to be fit to stand trial for 12 months? A. Yes, I was. Q. And that the Office of the DPP was considering whether or not to proceed with a special hearing? A. Yes, I'm aware that - I had knowledge that that - that occurred, although that was a thought. I had knowledge that that was a thought from the DPP. 1. Whilst Acting Inspector Southgate accepted he had knowledge of the decision, he could not recall whether he had, in fact, reviewed the decision. That evidence is extracted below: Q. Do you have page 3815 open in front of you? A. Yes, I do. Q. Do you recognise this as a determination by the Mental Health Review Tribunal in respect of Mr Dyers? A. That's what it appears to be, yes. Q. Do you recall reviewing this determination? A. No, I don't. Q. It's likely than not that it came to your attention and that you did review it. A. No, I can't comment whether I did or not. Q. You just have no recollection one way or the other? A. Of - of this document, no. Q. You may have seen it, reviewed it, you may not have, you just can't recall? A. That's correct. 1. The plaintiff correctly submitted that Acting Inspector Southgate accepted that he was aware that the matter had been referred to the Tribunal, was aware that the Tribunal concluded that Mr Dyers was unlikely to be fit to stand trial for 12 months, and also that the ODPP was thinking about whether to proceed to a special hearing. The Sending of the Letter 1. During cross-examination, Acting Inspector Southgate was questioned as to his knowledge at the time of the sending of the letter. That evidence is extracted below: Q. I just want to identify a few matters as at 24 July 2007. At the time you came to sign and send this letter, you were aware that Mr Dyers had been found unfit to stand trial by the District Court and the Mental Health Review Tribunal? Correct? A. That's correct, yes. Q. You were aware that Mr Dyers was an elderly man in his mid 80s. A. Yes. Q. You were aware that he was suffering from serious mental and physical ailments? A. I'm not aware of what those ailments were, like, I don't recall what they were. Q. But you were aware that he was mentally and physically unwell? A. Yes, yes. Q. You were aware that Mr Dyers hadn't been informed about the Bundeena allegation? A. As in prior to this coming to court? Q. Yes. A. Yeah, I hadn't informed anyone of any allegations. Q. You were aware that Mr Dyers had been on bail since October 2005? A. Yes. Q. You were aware that he was on bail against and contrary to the submissions that had been made on behalf of the police force? A. Yes. … Q. I want to suggest to you, Mr Southgate, that when you sent the letter of 24 July 2007 to Mr Koops, it was sent with the dominant purpose of tormenting Mr Dyers. A. No, I disagree. Q. And tormenting Ms Hamilton. A. I disagree. Q. You knew that he was physically and mentally unwell and a letter such as this one, referring to assaults occurring in 2006, would cause Mr Dyers to suffer in an acute way. A. I disagree. Q. And the reference to 2006 in the letter was inserted deliberately with the design to have Mr Dyers fear that his bail would be revoked. A. No, disagree. Q. I want to suggest that there was no good forensic reason for this letter to be sent in the terms it was sent. That's right, isn't there(as said)? A. No, I disagree. Consideration 1. I accept the submission of the defendant that there is no evidence that Acting Inspector Southgate had any relevant detailed knowledge of the findings of the Tribunal concerning Dyers' conditions. 2. It follows that, up to the decision of the Tribunal, the evidence does not support a finding that Acting Inspector Southgate was specifically aware that Mr Dyers was in an extremely poor state of physical and mental health that was deteriorating rapidly. I also agree that any awareness that Mr Dyers was unfit to stand trial does not amount to an awareness that he was also unfit to attend an interview. Those are different and distinct matters and ones not addressed in the plaintiff's evidence. 3. It was submitted by the defendant that it was not put to Acting Inspector Southgate that Mr Dyers was in an extremely poor state of physical and mental health that was deteriorating rapidly. However, if the relevant question to Acting Inspector Southgate is to be understood as concerning the whole period from the bail hearing until the sending of the letter, then it was put to Acting Inspector Southgate that Mr Dyers had (and Acting Inspector Southgate appreciated this) "extremely poor and ailing health", which Acting Inspector Southgate denied (he was also asked if he had been informed that Mr Dyers' health was poor and ailing and he was physically and mentally frail). What Acting Inspector Southgate understood at the time of the sending of the letter was, as he conceded in his evidence in cross-examination (see below), namely, that Mr Dyers was mentally and physically unwell. 4. I agree with the submission advanced for the defendant that that knowledge would not have alerted Acting Inspector Southgate to any psychiatric or psychological condition or abnormal or mental state affecting Mr Dyers. There is no proper foundation in the evidence that Acting Inspector Southgate knew that Mr Dyers was susceptible to psychological injury. There is also no evidence that Mr Dyers, due to his emotional or mental state, was at risk or known to be at risk of suicide or any other kind of self-harm by anyone, including the plaintiff. CHAPTER V: THE STRIKE FORCE CAROOLA INVESTIGATION INTO THE ALLEGATIONS OF PLA IN 2007 Introduction 1. It should be further observed, at the outset, that various aspects of the ensuing investigation and the conduct of Acting Inspector Southgate in or in connection with the Bundeena allegation were central the plaintiff's contention as to targeted malice (when taken with earlier events described in this judgment, or singularly, in relation to this investigation). The plaintiff also developed, as I have noted, a global submission that Acting Inspector Southgate held a firmly held view that Mr Dyers was a paedophile cult leader who should be in prison, which view, it was contended, was a shared view within Strike Force Caroola and influenced or underpinned the investigation. However, as I will later observe, despite the pleadings of the plaintiff placing reliance upon Acting Inspector Southgate's actions with regard to the historical allegations vis-à-vis malice, little attention was directed, in that respect, in her closing submissions. It remains, to some extent, unclear how the plaintiff would contend that Acting Inspector Southgate's participation as the Officer in Charge in the investigation of the historical allegations per se constituted malice in the sense contemplated by the tort (I will return to the issues associated with the historical allegations later in the judgment). Central to the plaintiff's case was that the pursuit of an investigation into the Bundeena allegation by Acting Inspector Southgate constituted malice (in various ways), irrespective of the existence of the historical allegations. 2. At para 97 of the 4FASOC, it was pleaded, inter alia, by the plaintiff, that Acting Inspector Southgate: 1. procured, or caused to be procured, allegations from PLA that she had been assaulted by Mr Dyers; 2. procured, or caused to be procured, PLA's June 2006 alleged Bundeena assault allegation, which he knew; alternatively, believed to be false; and/or 3. sent the 24 July 2007 letter knowing or alternatively believing that the Bundeena allegation was a false allegation in order to be in a position to continue his malicious investigation of the Strike Force Caroola police against Mr Dyers and Kenja, to arrest and charge Mr Dyers, refuse Mr Dyers bail, and thereby inflict harm on Mr Dyers and the plaintiff. 1. Whilst the plaintiff's contentions in the developments of these pleadings will require considerable development during the course of the following analysis of the investigation of Bundeena and historical allegations, there were three principal elements underpinning the contention of targeted malice in this respect: 1. The core allegations pleaded against Detective Sergeant Frame are that between 19 and 25 April 2007 she "procured" the Bundeena allegation from PLA. The Bundeena allegation came to be made by PLA only after some prompting or encouragement by Detective Sergeant Frame as to whether there had been assaults in 2006 or 2007. The prompting or encouragement was more likely to have been subtle, rather than overt. It is in this sense, it was submitted, that the allegation was "procured", that is, obtaining the Bundeena allegation with some care and effort. The plaintiff did not squarely advance a submission that Acting Inspector Southgate had procured the Bundeena allegation in that fashion, but rather, suggested that Acting Inspector Southgate exercised some influence in that respect. It was said Acting Inspector Southgate liaised with Detective Sergeant Frame and that they worked as a team. 2. The incidents giving rise to the Bundeena allegation did not occur – thus, a finding was sought that the Bundeena allegation was untrue, albeit in the context of civil proceeding. 3. In pleadings, Acting Inspector Southgate sent the letter knowing or alternatively, believing the Bundeena allegation was false (in order to continue his malicious investigation of Strike Force Caroola against Mr Dyers and to refuse Mr Dyers bail. 4. In submissions, the plaintiff contended that Acting Inspector Southgate did not believe the Bundeena allegation or was indifferent to its truth. The plaintiff contended that Acting Inspector Southgate "must have known that the inclusion of the Bundeena allegation in PLA first statement was 'suspect and dubious'". 5. It was improbable the events constituting the Bundeena allegation occurred (it was contended the Bundeena allegation was "glaringly" or "strikingly" improbable). 6. It must have been obvious to both Detective Sergeant Frame and Acting Inspector Southgate that the Bundeena allegation was strikingly or glaringly impossible and should not have been the subject of investigation. A fair investigator would have appreciated that "the even[t] did not occur, and that most likely it was being given to provide to police what PLA's conceived that they wanted to hear". 7. It was also contended that both Acting Inspector Southgate and Detective Sergeant Frame were acutely conscious of the significance of the Bundeena allegation taking place while Mr Dyers was on bail, namely, that an arrest for such offence was likely to result in his bail being revoked and Mr Dyers returning to custody with resultant harm to the plaintiff and Mr Dyers. 1. The plaintiff provided an encapsulation of its case, so far as it pivoted upon the Bundeena allegation, as follows: 150. The Court should find that the Bundeena allegation only came to be made by PLA only after some prompting or encouragement by Ms Frame as to whether there had been assaults in 2006 or 2007. The prompting or encouragement is more likely to have been subtle, rather than overt. It is in this sense that the allegation was "procured". Both Ms Frame and, importantly for present purpose, Mr Southgate did not believe the Bundeena allegation or were indifferent as to its truth. Mr Southgate must have known that the inclusion of the Bundeena allegation in the statement was suspect and dubious. Together with the submissions made above (and below), the following matters support this conclusion: (a) The Court can and should conclude, on the evidence, that the Bundeena allegation did not occur. (b) Prior to the preparation of her first statement dated 23 April 2007, PLA had alleged that she had been assaulted by Mr Dyers between the ages of 12 and 15, but had not made the Bundeena allegation. The allegation was first made during the time her first statement was prepared with Ms Frame. (c) PLA's statement was taken with the aid of her handwritten narrative. As noted above, it is likely, and the Court should find, that PLA was asked (most likely on 10 April 2007) to record her recollections and provide them to Caroola police, and that is what she did. Ms Frame used the handwritten narrative as the basis for the 23 April 2007 statement. The absence of any reference in the handwritten note is conspicuous and must have been noted by Ms Frame. Ms Frame's evidence that it was not relevant should not be accepted. Ms Frame also gave evidence that she assumed that the Bundeena allegation was not in the handwritten narrative because as it was more recent, she would have a better recollection of it and would not need notes. That makes no sense. The notes set out in detail events taking place right up to the time the notes were written. The absence of any reference to the Bundeena incident in the handwritten notes must have strongly suggested to any fair investigator that the even[t] did not occur, and that most likely it was being given to provide to police what PLA conceived that they wanted to hear. (d) It is highly likely that Mr Southgate had access to and read the notes at the time the statement was prepared. It is highly likely that he appreciated that the notes formed the basis of the typed statement and that he was conscious that the notes did not refer to the Bundeena incident. Mr Southgate was liaising with Ms Frame about the content of PLA's statement during its preparation. Mr Southgate and Ms Frame worked as a team. (e) It must have been obvious to both Ms Frame and Mr Southgate that the Bundeena allegation was strikingly improbable. (f) Both Mr Southgate and Ms Frame must have been acutely conscious of the significance of an allegation of assault taking place while Mr Dyers was on bail (that is, post 27 October 2005) – by which time PLA was 18 years old. Each of them would have been conscious that an arrest in respect of allegation pre-dating 25 October 2005 would be unlikely to result in bail being revoked, while an arrest for offences taking place after that date was likely to result in bail being revoked. (g) As explained elsewhere in these submissions, the Court should find that Mr Southgate held a firmly held view that Mr Dyers was a paedophile cult leader who should be in prison. That view was held more widely within Strikeforce Caroola, and is likely to have been a shared view. 151. A diligent and impartial police officer should have at least interviewed (for example) the complainant's mother, who was apparently downstairs whilst the incident occurred. Matters such as this ultimately support the overall submission that at the time that the letter dated 24 July 2007 was sent to Mr Koops, the requisite mental element of malice was present in the NSW Police and that the NSW Police were essentially attempting to have Mr Dyers incarcerated by any means, thereby taking steps along the way that were not consistent with a bona fide investigation. A diligent, impartial police officer must have or should have come to the conclusion that the alleged Bundeena incident could not have occurred. [Footnotes omitted.] 1. For convenience the various components of the plaintiff's submissions in this respect shall be referred to by submission paragraph number, for example, Plaintiff's Closing Submissions at para 150(b). The pleadings and contentions by the plaintiff based upon the Bundeena allegation and the circumstances surrounding the making and investigation of that allegation shall hereinafter be described as "the plaintiff's Bundeena case". 2. That submission contains an admixture of various submissions directed to the three primary contentions of the plaintiff that are summarised above. Whilst there is a degree of overlap between the factors relied upon as to those three primary elements and further, the factors needed to be considered overall in a cumulative sense, it was accepted by senior counsel for the plaintiff that it was convenient, for the purposes of analysis, to divide discussion broadly between those matters connected to the following: 1. the question of procurement; and 2. those matters directed to the truth of the Bundeena allegation and whether or not Acting Inspector Southgate knew or alternatively believed the Bundeena allegation was false or was indifferent to its truth. The Bundeena allegation was glaringly improbable. 1. I will accept, with those same caveats, the appropriateness of dividing up the discussion, as to the plaintiff's Bundeena case, into two broad groupings: "the procurement argument", as to the first category, and "the knowledge or belief argument", as to the second. 2. It will be observed that many parts of the facts and circumstances relied upon by the plaintiff had Detective Sergeant Frame taking steps without the apparent express direct supervision or participation of Acting Inspector Southgate in carrying out that step. Whilst the proceedings against Detective Sergeant Frame were discontinued, the defendant is correct to submit that it remains necessary to consider the plaintiff's submissions against Acting Inspector Southgate on the plaintiff's Bundeena issues, here raised in conjunction with the matters pleaded and submitted against Detective Sergeant Frame. This is particularly so in relation to procurement. In short, although tortious conduct is no longer pleaded against Detective Sergeant Frame, contentions of fact continue to be pleaded against her the proof or otherwise of which, significantly bear upon the establishment of the case against Acting Inspector Southgate. It may also be noted, that, if proven, those allegations would be seriously prejudicial to professional integrity of Detective Sergeant Frame and reputation as a detective sergeant of police with an unblemished record of service in the NSW Police Force for over 18 years. 3. This led the defendant to make a further submission which I consider to be correct. In order for the plaintiff's Bundeena case to be made out against Acting Inspector Southgate, the following requirements need to satisfied: 1. the substantive facts pleaded and submitted against Detective Sergeant Frame are proved; 2. it is proved that they were variously known to Acting Inspector Southgate to be the facts when he sent the letter; and 3. he sent the letter for the dominant purpose of causing injury to Mr Dyers and the plaintiff. (I will separately consider the significance of the historical allegations). 1. As to those requirements, the defendant advanced the following submissions: 76. … Without proof of these matters there is no basis for a finding that Southgate knew or believed the Bundeena allegation was false. The allegation in the terms given by PLA in her statement is not on its face, in the context of the detailed history of alleged abuse of her by Dyers over many years, glaringly improbable, nor is there any apparent reason why Southgate should have so regarded it. 77. On the evidence known to Southgate he would have been in serious dereliction of duty if he had decided to dismiss the Bundeena allegation out of hand without investigating it. Having regard to PLA's history of abuse by Dyers in the circumstances of her highly unusual relationship with him, the Bundeena allegation is neither more nor less improbable than her allegations of earlier abuse. The earlier allegations are strongly consistent with similar allegations made against Dyers by HLA and OLR. 78. It is unrealistic to think that Southgate should have invited Dyers to be interviewed (which of itself does not appear to be criticised) about part only of PLA's allegations against him. 79. Reference is made to Annexure A at [131]-[151]. 1. The facts pleaded by the plaintiff against Detective Sergeant Frame are set out in the 4FASOC at paras 39, 42, 45-50, 52, 58-61 and 75. The relevant paragraphs are extracted below: 39. In the circumstances: i. the fact of Dyers' stay application was known to Jacob, Owen, Norris, Southgate, Frame and O'Meara; ii. material, of which Jacob, Owen, Norris, Southgate, Frame and O'Meara were aware, was served in relation to the stay application showing that Dyers was extremely frail and weak, and would find it extremely difficult to cope with stressful situations. … 42. On 4 April 2007 PLA's lawyer advised Frame that PLA wished to make a complaint of sexual offences against Dyers. Frame made a record of this conversation in her NSW Police Duty Book. She did not make a record on e@gle.i. of the conversation. 45. On 10 April 2007, PLA met with Frame and Owen at NSW Police headquarters at Parramatta. Frame made a record of the meeting in her NSW Police Duty Book. She entered on e@gle.i a record of that meeting. Owen reviewed the e@gle.i entry. Frame also recorded in her NSW Police Duty Book on 10 April 2007 that she had entered the details of the 10 April 2007 meeting on e@gle.i that day. 46. On 10 April 2007 Frame: i. created a purported e@gle.i record of her conversation of 4 April 2007 with PLA's lawyer. (Southgate did not review and "accept" the e@gle.i entry until 30 May 2007, after PLA had completed her two statements); ii. failed to record in her NSW Police Duty Book that, on that date, she had recorded on e@gle.i a record of her 4 April 2007 conversation with PLA's lawyer. Particulars a. In particular, PLA's lawyer did not say to Frame that PLA wished to make a complaint of being assaulted by Dyers "from the time that she was 12 years old until recently", and did not say to Frame that "the latest offence was approximately six months ago". b. Frame made the record knowing that, six months prior to 4 April 2007, Dyers was on bail, after having been committed to the District Court, and seeking a permanent stay. 47. At all material times, Southgate and Frame were aware of the statements and material that NSW Police (including Southgate and Frame) obtained concerning PLA's allegations against Dyers. 48. On 18 April 2007: i. Southgate and Frame met with PLA, PLF, and PLA's younger brother at NSW Police headquarters in Parramatta. ii. Neither Southgate nor Frame made a record of what was said at that meeting; iii. Neither Southgate nor Frame entered on e@gle.i a record of the meeting. 49. On 19 April 2007, PLA commenced a statement to NSW Police in the matter of Dyers (PLA's First Statement). Frame took PLA's First Statement. 50. In taking PLA's First Statement, Frame and PLA used a handwritten statement signed by PLA, across pages marked with dates 27 November 2006 to 1 February 2007 ("PLA's Handwritten Statement"), which was contained in her personal diary (the "Blue 2007 Diary''). … 52. Frame procured from PLA the allegation contained in paragraphs 66 to 72 of PLA's First Statement, that Dyers had assaulted PLA at the home of Dyers and Hamilton in Bundeena, NSW (the "alleged Bundeena assault"). Particulars i. PLA nominated no day, month, or year for the date of the alleged Bundeena assault; ii. In the context of paragraph 65 of PLA's First Statement, however, the alleged Bundeena assault apparently occurred after February 2006; iii. Frame knew that at that time, Dyers was on bail, and that an allegation that Dyers committed sexual assault during 2006 could be utilised by NSW Police to revoke his bail. … 58. On 25 April 2007, Frame met with PLA in Melbourne. PLA provided Frame with her: i. "2006 RMIT Diary"; ii. "Pink Notebook"; and iii. "Blue 2007 Diary". 59. Between 19 and 23 April 2007 Frame procured from PLA an allegation that she was sexually assaulted by Dyers in Bundeena between 11 June 2006 and 18 June 2006. Particulars In her NSW Police Duty Book for 25 April 2007, Frame recorded that she met with PLA, and that: "There she handed me two diaries and one notebook. PLA went through the diary and determined that she was sexually assaulted by Ken Dyers in Bundeena between 11th of June 2006 and 18thJune 2006"; ii. Frame knew; alternatively, believed that, during the period 11 June 2006 to 18 June 2006, Dyers was on bail after his first appearance in the District Court and that an allegation that Dyers committed sexual assault in June 2006 could be utilised by the Caroola Police to continue their malicious investigation against Dyers and Kenja, to arrest and charge Dyers, and to refuse him bail; iii. Frame knew; alternatively, believed that, that none of the documents that PLA provided her with corroborated the alleged Bundeena assault allegation, or the allegation of any assault between 11 June 2006 and 18 June 2006; iv. PLA would not have made the Bundeena allegation independently of her contact with police; particularly Frame and Southgate, in April 2007; v. The Bundeena allegation was made by PLA only after some prompting or encouragement by Frame as to whether there had been assaults in 2006 or 2007. The prompting or encouragement is more likely to have been subtle, rather than overt. It is in this sense that the allegation was "procured"; vi. Neither Frame nor Southgate believed the Bundeena allegation was true, and they were indifferent to its truth. 60. On 25 April 2007, Frame did not take a further statement from PLA concerning the alleged Bundeena assault. 61. Frame retained each of the documents referred to in paragraph 58, above. … 75. Frame procured from PLA false details of the alleged Bundeena assault. Particulars i. [struck.] ii. In PLA's Second Statement, PLA said that the alleged Bundeena assault occurred "during the week from the 11th of June 2006 and the 18th of June 2006". In the circumstances referred to in paragraph 59, above, Frame knew: alternatively, believed, that this was false; iii. In paragraphs 8 to 10 of PLA's Second Statement, PLA provided an account of the circumstances leading to the alleged Bundeena assault that was significantly inconsistent with the account provided in Pei's First Statement. iv. Frame believed that the Bundeena assault allegation was false; v. Frame did not take from PLA further particulars of any assault by Dyers upon her, aside from that which allegedly occurred at Bundeena between 11 and 18 June 2006; vi. Frame knew; alternatively, believed, that, during the period 11 to 18 June 2006, Dyers was on bail and that an allegation that Dyers committed sexual assault in June 2006 could be utilised by the Caroola Police to continue their malicious investigation against Dyers and Kenja, to arrest and charge Dyers, and to refuse him bail. Relevant Events to the taking of PLA's First Statement PLA, Mr Slater and Ms Stevenson 1. The plaintiff relied upon a statutory declaration of Ms Stevenson declared in Sydney on 26 April 2007. In the declaration, Ms Stevenson describes herself as being "involved in the Kenja Organisation" and that she was a director of the "Melbourne Kenja Centre". 2. Ms Stevenson deposed that she had dealings with PLA from when she moved to Melbourne in 2005. She also deposed that PLA commenced a relationship with Mr Slater that commenced in 2005. It was said the relationship was "unstable" and that Mr Slater wanted to leave. 3. Ms Stevenson said that Mr Slater and PLA split up on 27 February 2007. 4. Provided with Ms Stevenson's statement were two statutory declarations said to be made by PLA. The first of those declarations was dated 8 March. A second declaration was dated 13 March. The 8 March declaration from PLA was in the following terms: I, PLA … do solemnly declare that I never told my ex boyfriend Huw Slater that Ken Dyers raped me. Huw Slater said this because I believe he wanted to go out with my friend Sadira Campbell or perhaps because I was pregnant and he was scared to be held responsible. Ken Dyers did not rape me. Signed PLA 08.03.07 1. The 13 March declaration from PLA is extracted below: I had an identity that had a mind that was a compulsive liar. I lied to my boyfriend about being raped or molested in order to keep him. The only time I have been raped was when I was 14 years old by a 16 year-old boy at a party. I am writing this under no pressure. I no longer have the need to lie. I have my own mind back now. 1. Ms Stevenson's account of the making of the declaration is in stark contrast to that of PLA (which was not in evidence as to its truth but was information available to investigators). Ms Stevenson's account of taking both declarations was as follows: First Statutory Declaration by PLA 13. On 8 March 2007 Sadira came to my office and told me that Huw had said things to her about PLA. 14. Sadira said that Huw had told her that PLA had on many occasions used emotional issues to keep Huw as a partner. She said PLA had told Huw that she was going to commit suicide, that she would cry and scream to get Huw to stay with her and also that Ken Dyers had raped her when she was younger. 15. I met with PLA that evening and told her about the things Huw had been reported as saying. She said regarding the allegation concerning Ken Dyers "no, that didn't happen. Ken did not rape me or anything like that He wouldn't do anything like that''. 16. PLA was distressed at hearing this news and said to me that she wished to make a written statement to confirm that this was false. Attached is a copy of the statutory declaration made on 8 March 2007 which PLA wrote and gave to me on that date. 17. On 11 March 2007 I had a meeting with Huw and asked him to leave Kenja because of his unethical behaviour. Second Statutory Declaration by PLA 18. On 11 March 2007 PLA came to see me in my office. She was very distressed and angry. She said she was upset that Huw had been asked to leave and she could not be without him. She said to me that when she was young, about 11 years old, she thought she had been raped by her [older] brother and her father. She said she thought as a young girl that it was true, but that It was a fantasy. I thought PLA was becoming very unstable and depressed. 19. On 12 March 2007 PLA came to see me again and again was emotionally distressed. She told me about being raped by a 16-year old boy at a birthday party when she was 14. She spoke about sleeping under school buildings and sneaking away from home at night I thought PLA was becoming very disjointed and incoherent and making up stories. 20. On 13 March 2007 PLA telephoned me and said Sadira had told her that she had been having a sexual relationship with Huw during the time of her abortion. She said she wanted to see me. She came to see me again around 10.30 in the morning. She said to me that she had been saying things that were not true and that she had told a lot of lies. She said she had lied about everything and that she had created a lot of problems. She said she wanted to make a statement about her lying to make sure there was no misunderstanding. As a result of that wish, PLA prepared a second statutory declaration, dated 13 March 2007, a copy of which is attached. 21. In relation to the two statutory declarations, I did not suggest or invite PLA to make those statements. PLA raised the request indicating she wished to record her thoughts in writing of her own accord. 1. In contrast, from an investigator's viewpoint, PLA, in her first statement to police stated that she had been coerced into making the declarations. Her account was as follows: 103. On March the 8th 2007 I was at home and Karli called me on my mobile phone and told me that she needed some help with something at her house and that she would pick me up in a few hours. I then called Huw and told him that I was worried about what was going to happen. Huw told me not to worry and that it probably wouldn't be a big deal. 104. Around 6:00pm Karli came around to my house at Clifton Hill. Karli was driving her white Suzuki Sierra. I got into the car and Karli drove me to her house which is in South Yarra. When I got to her apartment the two of us sat down in the living room. Karli said, "I'm sorry for misleading you and telling you I had something for us to do, but I'm worried. Huw called me today and told me that you had told him that Ken had raped you and we both know that that's a lie" I said, "I didn't tell him it was Ken". Karli ignored that and said, "I want you to write a statutory declaration that what Huw says is a lie". Karli had a pen and paper waiting. Karli handed me some lined paper and a pen. Karli told me what to write and began dictating. I wrote something like "Huw had made up this allegation because he wanted to break up with me to go out with Sadira. It went on to say that I had never been raped by Ken or molested. As she was looking up the numbers of JP's to get it signed I was sending Huw text messages. Huw messaged back and told me that he was really worried and that I should go and meet him at Federation Square when I had finished. 105. Karli and I went to her car and she drove me to a Pharmacy in Bridge Road at Richmond. The pharmacy was on the ground floor of a block of offices. It was on the corner of Punt Road. The woman who signed the document was young and had blonde hair. I think she was the pharmacist. 106. The reason why I lied to Karli about what Huw had told me was because I was afraid that she would tell Ken as I was still frightened of him. I signed the statutory declaration because I felt intimidated and I also just wanted to get out of Kenja and I would have done anything to be allowed to be let out of Kenja. This was also the reason why I signed a second statutory declaration. 107. Karli dropped me off in her car in the city near Federation Square. Huw was there waiting for me. He had been waiting there for a few hours and was really worried. That night I stayed at his house in Footscray. 108. On Sunday the 11th of March 2007 Karli asked Huw to leave Kenja saying that he had betrayed people's confidences and tried to ruin the friendship between Sadira and me. 109. About fifteen minutes after Huw had been kicked out of Kenja I met Huw in Elizabeth Street Melbourne. At the time I was on my way to meet Nicky ROBINSON as we had planned to go to the movies at 3:00pm. During this meeting Huw asked me to tell Karli the truth about what had happened with Ken. 110. Nicky· and I went to see the 4:30pm session of "The Good German" that was playing at Nova Dendy Cinema on Lygon Street Melbourne. 111. After the film I saw with Nicky I called my mum on her mobile and told her everything about what had happened between Ken and me. Mum panicked and kept asking me "Why now? Why are you bringing it up now?" Mum had assumed that I had been in contact with someone who had been kicked out of Kenja and was trying to bring down Ken. Mum kept saying the words "go still" and told me to tell Karli that I had told her about what had happened. I told mum that I wanted to leave Kenja and mum kept saying "go still". I'm not sure exactly what mum meant when she said go still, but I think it means calm your mind as in don't be rash and tell people about this. I think I was on the phone to my mum for about an hour. 112. While I was on the phone to mum I was on my way to a meeting with Karli. The meeting was in Karli's office at the Kenja centre in Bourke Street Melbourne. When I got there I asked if I could speak to her in her office. I'm not sure of the exact conversation but it went something like. I said, "You know how I had said that what Ken did to me was okay, well it wasn't okay and I don't want him to get away with it". Karli kept saying, ''What are you planning to do about it?" I said, "I don't want to go to the police. I just want to get out". Karli said, "You need to clear the attached spirit that is angry at Ken and wants to destroy Kenja". I agreed to come back the next day for a session with Karli. 113. The following day which was Monday the 12th of March 2007 I went for another meeting with Karli in her processing room in Bourke Street Melbourne. I think I got there at about 4:00pm. It seemed as if Karli. had been speaking to Ken and Jan as she seemed to be very hostile. Karli was accusing me of speaking to my [younger] brother and HLA who had both been kicked out of Kenja. She went on to say that I was making up this story with Anna. I was angry and upset at what was happening but I agreed to have one last session with Karli. During the session Karli kept refuting everything I said. I told Karli that Ken had touched my vagina and tried to have sex with me and that he had given me oral sex. Karli began screaming at me. She was calling me a bitch and a liar and saying things like, "And after all he's done for you, this is how you repay him". 114. After a few hours I felt as if I had no choice but to tell Karli that what I had said about Ken DYERS was in fact a lie and that all I wanted to do was leave Kenja. I told her that I would sign anything as long as I could leave. At this stage I felt very trapped. I did not leave the meeting until about 8:30pm. I couldn't leave on bad terms as a lot of my stuff was at Kenja and with Sadira who was also a member of Kenja. I wanted to leave quietly rather than having my character smeared. 115. After I left I bumped into Sadira on the street. She was on the corner of Swanston and Latrobe Street in Melbourne. She was near RMIT. Sadira told me that Huw had told her everything and that she had been the one who told Karli, not Huw. Sadira went on to say that she wouldn't have done all of this if I had told her about what Ken had done to me. She also told me that she thought that I was lying because I wanted attention and I wanted Huw back. She told me that Huw had been with her all afternoon. 116. That night I met up with Huw and we had dinner at a Vietnamese restaurant in Liverpool Street which is near Parliament Station. I called mum from the restaurant on my mobile phone to try and persuade her to believe me. My mum told me that I was just making this all up for attention and that I was sick because of the abortion. I didn't want to go home as I felt betrayed by Sadira and Huw didn't want to go home as he was not welcome. The two of us stayed at my work which was at Fresh and Wild in Fitzroy Street St Kilda. 117. The following day which was the 13th of March 2007, Sadira called me and told me that her and Huw had been together in February 2007 and that she had to tell me because Huw would never tell me. I called Huw and he admitted that they had been together. Huw told me that he didn't tell me as he didn't want to hurt me. 118. Later that evening Karli came and picked me up from Clifton Hill station. I had my bags as I was planning to stay at Mark CHUDLEIGH and Nicky Robinson's house at [redacted] Karli had brought with her some papers to make a statutory declaration. Karli again handed me the paper and a pen and she began to dictated what she wanted me to write. This was along the lines of "I had an attached spirit that wanted to destroy Kenja and this caused me to accuse Ken DYERS of rape. This is a lie. Ken DYERS did not rape me. I am not being forced to write this." Karli drove me to the same pharmacy on Bridge Road at Richmond. We went into the Pharmacy and the same lady with blonde hair signed the statutory declaration. Karli then drove me to Mark and Nicky's house. 1. On 27 March, PLA met with her father in Melbourne and made various statements including that Mr Dyers had sexually assaulted her. Both PLA and PLF refer to this meeting in their statements to police. I shall return to relevant details when those statements are addressed in detail. Contact is made to Detective Senior Constable Norris – 30 March 2007 1. On 30 March 2007, Mr H contacted Detective Acting Sergeant Norris and advised that he had been contacted by PLF (the father of PLA). PLF had told him that he and his daughter had recently left Kenja and that "PLA told him that Ken Dyers had sexually molested her during her time there". Mr H advised that he would encourage PLF to contact investigators. 2. At around the same time, there were serious events occurring concerning the breakdown in the marriage between PLF and PLM, as well as some other difficult personal matters for PLA. That fact is relevant to the events of that evening at the premises that had been the PLA's family home, namely, there was an altercation involving PLF and Ms Wendy Tinkler (a friend of PLM) (another friend of PLM, Beatrice D'Heucqueville, was also present at the time of the altercation). 3. On 30 March 2007, PLM made a formal police statement and described the altercation as follows: 9. PLF was flailing his arms around while he was yelling. He turned to Wendy and said, "You bitch, you bitch! Get out of my house!" He hit out at Wendy with his right back of his hand. It struck Wendy on her right upper arm. Wendy screamed and I ran to get the phone and I called "000". I noticed that Wendy had actually fallen to the floor and was rubbing her arm. 1. Whilst waiting for the police to arrive, PLM received a phone call from her daughter, which she did not answer. At around 10.40pm, PLA left a voice message on her mother's mobile phone. In that message she said: Mum, its PLA, um, give me a call. I'm sure (sighs) you're aware that you've made a really terrible mistake. I'm just ringing to tell you that if you don't call the police and tell them that you and Wendy and Beatrice have been making up that story about being hit by Dad, that I will go to the police, tomorrow, and tell them everything I haven't told anyone before now, but I will, I'll tell the police tomorrow if you don't ring up right now. I know that you've just turned your phone off and I know you'll get your messages eventually, and if you're smart, if you're all smart people, you will just drop this and you will call the police and you will tell them that you were mistaken and Dad didn't hit anyone, which you know is true and I know is the truth. Be smart. Don't be stupid, be smart. You want to protect your friend? Then be smart. Call the police. 1. PLA also left a voice message on Ms Tinkler's mobile phone. In that message she said: Hi Wendy it's PLA. Um, I can't get on to PLM so I hope you'll pass on the message that I'd like to speak to her and that if she's going to be smart about all this then she'll call the police and tell them that this whole story about you being hit is fabricated. Otherwise I will go to the police and tell them what happened to me from when I was 12 til the age of 15. So it's your choice, the ball's in your court, if you want to be smart about this then you'll call the police right now, and you'll say that you lied about being hit by my dad, which we all know is not true. But - black and white - you do the right thing. Ok, bye. [Emphasis added.] 1. At this time, PLA was 19 years old and, as mentioned, was living in Melbourne. In referring to "what happened to me from when I was 12 til the age of 15", she was referring to events that were alleged to have occurred approximately 4-7 years earlier. 2. Following that altercation between PLF and Ms Tinkler, PLF was arrested and charged with common assault. PLF denied the assault. An apprehended violence order was also taken-out against PLF by Ms Tinkler, PLM and Ms D'Heucqueville. 3. In an e@gle.i entry dated 19 July 2007, Acting Inspector Southgate recorded that the assault charge by Ms Tinkler was ultimately withdrawn "due to conflicting evidence supplied by Wendy Tinkler and medical records of the same". PLF and PLA's instructions to Mr Rattenbury – 2 April 2007 1. On 2 April 2007, PLF met with Mr Lionel Rattenbury, a partner at Armstrong Legal. He instructed Mr Rattenbury, inter alia, to act for him in relation to the charge of common assault upon Ms Tinkler. 2. On 3 April 2007, following that meeting, Mr Rattenbury wrote a letter to PLF. By that letter, Mr Rattenbury confirmed his instructions, which included, inter alia, the following: We understand from our discussion with you that the alleged assault upon Wendy Tinkler did not occur but was staged by Wendy and supported by members of a sect known as 'Kenja'. You believe this false evidence was contrived in order to prevent your daughter PLA from making a complaint to the Police that she had been sexually abused from the age of 12 to 15 by the leader of this sect, Ken Dyers. We note that you want us to provide you and your daughter with advice in respect of her complaint to Police in relation to sexual molestation by Ken Dyers. You also want us to provide you with advice on how we can prevent the activities of 'Kenja' continuing in the future. [Emphasis added.] (That letter shall hereinafter be referred to as "the Rattenbury letter"). 1. That above extract refers to at least two sets of instructions: 1. First, with respect to PLF's defence, namely, that Ms Tinkler's allegation was false and contrived to prevent a complaint being made with respect to "sexual abuse" PLA experienced from the age of 12 to 15 by the leader of Kenja. Implicit in that instruction, is a contention that Ms Tinkler (and other members of Kenja) were aware of that particular abuse and wanted to keep it concealed. 2. Secondly, with respect to PLA and PLF seeking advice as to PLA making a complaint to the police in relation to "sexual molestation" by Mr Dyers. 1. The plaintiff contended that PLA was also present at the meeting on 2 April 2007. Reference, in that respect, was made to the handwritten entries within PLA's 2007 Diary (identified in the Overview of Relevant Factual Circumstances above as "the Blue diary") Given the focus of attention on the handwritten narrative within that diary, I shall, as noted previously, refer to both that diary and the handwritten narrative as "the handwritten narrative"). The handwritten narrative was written shortly after 10 April 2007. An extract of the handwritten narrative appears below: On Monday at 3, I met with Lionel Rattenbury, dad's lawyer about the matter of both my abuse and reporting it and also dad's defense [sic] against the false allegations of assault. I told him all the details and he told me to talk to John Southgate. I made a report the week after. … [Emphasis added.] 1. The plaintiff submitted, in light of that entry, the following inferences are available: 1. It was likely that PLA also attended that meeting and that is what she is referring to when speaking of a meeting with him on "Monday". 2. The reference to making a report "the week after" must be a reference to the meeting with police on 10 April 2007. 1. I accept those submissions. 2. In light of events that follow, it is evident that PLA decided to take the course of making a formal complaint to the police with the aid of her solicitor. This is demonstrated by the fact that Mr Rattenbury made contact with Detective Sergeant Frame, to which I now turn. Mr Rattenbury's contact with Detective Sergeant Frame – 4 April 2007 1. On 4 April 2007, Mr Rattenbury spoke with Detective Sergeant Frame over the telephone. Detective Sergeant Frame made reference to that telephone call in her statement before the Court. She deposed at para 20: 20. On 4 April 2007, I received a telephone call from Lionel Rattenbury solicitor. He indicated that he was acting on behalf of PLA's family and advised that PLA wished to make a formal complaint that she had been assaulted by Mr Dyers from the time when she was twelve years old until a recent date. An appointment was made for PLA to meet with investigators on 10 April 2007. I made a record of this phone call on 4 April 2007 in my Duty Book. I made a more detailed record of this phone call on the e@gle.i system on 10 April 2007. I was not on duty between 6 and 8 April 2007. [Emphasis added.] 1. Detective Sergeant Frame's duty book entry of 4 April 2007 recorded: Receive a phone call at 4.45pm from solicitor Lionel Rattenbury. He advised that PLA wished to make a complaint of sexual offences against Ken Dyers. He was spoken to and appointment made for AM 10/4/2007. [Emphasis added.] (This duty book entry shall hereinafter be referred to as "the 4 April Duty Book entry"). 1. The 4 April Duty Book entry referred to a telephone call by Mr Rattenbury relaying instructions received from PLA. 2. That same day, Detective Sergeant Frame made an appointment to meet with PLA on 10 April 2007, and reviewed the earlier transcript of the PLA interview by Kogarah JIRT in 2003. That review occurred before she met with PLA. 3. On 10 April 2007, Detective Sergeant Frame created an e@gle.i entry with respect to her phone call with Mr Rattenbury of 4 April 2007. It was dated "04/04/2007" and titled: "Phone Calls received from Lionel RATTENBURY re PLA Family". Under the subheading "Brief Description" the following entry appeared: On the 4/04/2007 Detective FRAME received a phone call from a Solicitor by the name of Lionel RATTENBURY from Armstrong Legal. Contact phone numbers [redacted] and [redacted]. He stated that he was acting on behalf of the PLA's family consisting of PLF and PLA. He advised that his client PLA wished to make a formal complaint of being assaulted by Ken DYERS from the time that she was 12 years old until recently. He stated that the latest offence was approximately six months ago. He further stated that he believed that Ken DYERS was continuing to have private sessions with children, however this was done at an address in the city, but away from Kenja premises. He also stated that Wendy TINKLER and Beatrice D'HEUCQEVILLE may be able to assist with the investigation. Mr RATTENBURY stated that his client PLF had been charged with assaulting a member of KENJA. He alleges that this assault was fabricated by KENJA members. Arrangements were made for PLA to meet with investigators on Tuesday 10/04/2007 at 9:00am. On the 5/04/2007 Detective Sergeant OWEN contacted Lionel RATTENBURY in order to confirm the appointment for the 10/04/2007. This appointment was confirmed and arrangements were made to speak directly with PLA and her father. Mr RATTENBURY was eager to suggest investigative techniques that could be utilised by investigators. He was advised that investigators would first obtain a statement from PLA and then direct the investigation as they saw fit. The direction and investigative techniques would not be shared with him in order to maintain the integrity of the investigation. He was also advised that the purpose of the investigation was to investigate offences against PLA and not on supporting the investigation into the assault matter involving PLF. [Emphasis added.] (That entry shall hereinafter be referred to as "the 4 April e@gle.i record"). 1. It should be noted that the 4 April e@gle.i record concerned two separate phone calls on successive days. This is evident by the following: 1. the record is entitled: "Phone Calls received from Lionel RATTENBURY re PLA Family" (emphasis added); and 2. two separate phone calls are clearly identified: 1. "On the 4/04/2007 Detective FRAME received a phone call…" and 2. "On the 5/04/2007 Detective Sergeant OWEN contacted Lionel RATTENBURY in order to confirm the appointment for the 10/04/2007. This appointment was confirmed and arrangements were made to speak directly with PLA and her father…". 1. In Detective Sergeant Frame's statement, she gave evidence that she was responsible for recording information within the e@gle.i system that related to events in which she was involved. She also stated that "in circumstances where another police office also played a role in an event, that office may have been responsible for the creation of the Product Details" (see at para 9). 2. In light of the fact that the 4 April e@gle.i entry was "created" by Detective Sergeant Frame, it can be inferred that the officer prepared the final paragraph with input from Detective Sergeant Owen. As is evident from other e@gle.i entries before the Court, the use of "first person" narration is avoided, with the relevant conduct being clearly assigned to a particular officer(s). It may be accepted then that final paragraph of that entry concerned a call made by Detective Sergeant Owen and the notation that "Mr RATTENBURY was eager to suggest investigative techniques…" concerned a conversation between Detective Sergeant Owen and Mr Rattenbury, which conversation was subsequently reiterated to Detective Sergeant Frame. 3. It is useful at this juncture, to note the following relevant differences between the 4 April Duty Book entry and the 4 April e@gle.i record: 1. The 4 April Duty Book entry, which was the first record produced of the phone conversation between Mr Rattenbury and Detective Sergeant Frame. It was a handwritten note, on that date in the Duty Book of Detective Sergeant Frame. 2. The 4 April e@gle.i record, was produced later in time and was a further record of the same conversation; a matter which was raised as a matter of significant controversy in the plaintiff's submissions. It is an electronic record created on e@gle.i, which was created on 10 April 2007. 3. There many differences in the record of the conversation as between two records but the one which attracted considerable controversy (and, in fact, the only real controversy) in these proceedings was the words appearing in 4 April e@gle.i record: "until recently" and "the latest offence was approximately six months ago" in the following component of the 4 April e@gle.i record: He advised that his client PLA wished to make a formal complaint of being assaulted by Ken DYERS from the time that she was 12 years old until recently. He stated that the latest offence was approximately six months ago. 1. The plaintiff did not dispute the accuracy or reliability of the 4 April Duty Book entry. The plaintiff accepted that the evidence revealed that Mr Rattenbury had called Detective Sergeant Frame on 4 April 2007 to indicate that he acted for PLF and PLA and, in that capacity, communicated that PLA wished to make a complaint of sexual offences against Mr Dyers. However, the plaintiff contended that the Court should infer that Mr Rattenbury only communicated a complaint of sexual offences occurring from 1999 to 2002. 2. Thus, he communicated, it was contended, the effect of what he had recorded in his letter of instructions insofar as the Rattenbury letter refers to ages in which offences were said to occur. The plaintiff contended that the Court should not on that and other bases accept that Detective Sergeant Frame's record of a recent assault in the 4 April e@gle.i record or her evidence concerning the same in the proceedings was reliable or accurate. 3. Detective Sergeant Frame was cross-examined with respect to the 4 April Duty Book entry in the following terms: Q. You can see that in the duty book entry that you made on 4 April 2007 that there is nothing about sexual offences taking place on PLA from the age of 12 years old until recently. That's correct, isn't it? A. Yes. Q. And you can also see that there's nothing in your duty book entry about the latest offence taking place approximately six months beforehand. That's right, isn't it? A. Yes. … Q. If that is what you were told by Mr Rattenbury, that description "until recently", sexual assault taking place until recently would have concerned you, wouldn't it? A. Yes. Q. It would have meant that PLA was still at risk of harm by Mr Dyers. Correct? A. Yes. Q. And it would have meant that Mr Dyers was still committing sexual offences. Correct? A. Yes. Q. And it would have meant that Mr Dyers was still committing sexual offences whilst on bail. Correct? A. Yes. Q. If that report had been given to you, you would have had immediate concerns about PLA's safety. That's right, isn't it? A. No. Q. No. If it had been reported to you that PLA had been sexually assaulted by Ken Dyers from the age of 12 years until recently, you wouldn't have had concerns about PLA's safety. Is that right? A. I would have, but she was living in a place where she was safe at that point in time. Q. How did you know that? A. I'm not sure when I would have known that. Q. If Mr Rattenbury had said that PLA had been sexually assaulted until recently, wouldn't your first question have been, "When, what do you mean by recently?" A. Yes. Q. Because recently could mean months beforehand, is that right? A. Yes. Q. Recently could mean weeks beforehand. A. Yes. Q. Recently could be days beforehand. Correct? A. Yes. 1. Following that evidence, Detective Sergeant Frame was cross-examined with respect the 4 April e@gle.i record, as follows: Q. The e@gle-i entry that relates to Mr Rattenbury telling you that offences have taken place 6 months beforehand, was than an entry that was amended some time after 10 April 2007, to your knowledge? A. No. Q. How do you know that? A. It was not on the submit update - it would come up on your list. Q. Because in these documents that I've just taken you to, except for one document, your one e@gle-i entry of 10 April, in all those other documents you make no mention of what Mr Rattenbury said to you happened to PLA. Correct? A. Yes, I don't think he told me what happened to PLA. Q. What about the fact that there'd been sexual assaults, apparently within the 6 months beforehand? A. We didn't discuss the specifics. Q. Except you say he told you that. Is that right? A. What he said was what he said, the one line, that's about it that I can remember. That's all he told me. Q. And that entry was made at least 6 days after that telephone call. Correct? A. Yes. First Meeting at Police Headquarters in Parramatta on 10 April 2007 1. On 10 April 2007 at around 8.15am, there was a meeting between Detective Sergeant Frame and Mr Rattenbury in the foyer of Police Headquarters in Parramatta. At a slightly later point, PLF and PLA joined the meeting and Mr Rattenbury departed. Detective Sergeant Owen became part of the meeting at about the same time as PLF and PLA. 2. Detective Sergeant Frame created both a duty log entry and an e@gle.i entry with respect to this meeting. Both records are extracted below: Duty Log – Date: Tuesday, 10/4/2007 At 8.10am attend foyer a [sic] meet solicitor Lionel Rattenbury re S/F Caroola. Then at 8.30am meet with PLA & PLF with D/Sgt OWEN re S/F Caroola and PLA making a compliant re Alleged sexual assault. So engaged until 10.30am. Details of meeting then recorded on eaglei … E@gle.i Entry – Date Created: 10 Apr 2007 About 8:10am on 10/04/2007 Detective FRAME met with Solicitor Lionel RATTENBURY in the foyer of Police Headquarters. He was informed that investigators would discuss the investigation procedures with PLA and PLF. Upon the arrival of PLA and PLF Lionel RATTENBURY left headquarters. Detective FRAME and Detective Sergeant OWEN had a meeting with PLA and PLF. The contents of this meeting are attached. 1. The end of the above e@gle.i entry records: "The contents of this meeting are attached" (hereinafter "the meeting note"). An extract from the meeting note appears below: … [Mr Rattenbury] was spoken to prior to the arrival of PLA and PLF. He was informed that investigators would outline the procedures involved in the investigation. About 8.30am on 10/04/2007 PLA and PLF arrived at PHQ. Due to the fact that PLF has a current AVO and assault charges pending against Kenja members he was advised that investigations undertaken by SCS would not be aligned to matters concerning himself, nor would they be conducted to assist with his matters. He was advised that a statement would be obtained from him in relation to PLA's matters. PLF and PLA both expressed a desire to contact other Kenja members. They were advised not to do this as not to compromise or contaminate possible witnesses and their evidence. PLF also expressed a desire to self fund and use a private investigator. This was discouraged by investigators. Both were informed that investigators would manage the investigation and decisions made. PLF will take a primary role in matters of victim care and welfare issues. PLA was advised that counselling services could be arranged for her. The issue of particularising offences was raised and PLA stated that she had some diaries that may assist her to recall when the offences occurred. She stated that these documents were at her mother's home. At present there is an AVO in place that restricts her father's access to the home. PLA was going to make arrangements with Rose Bay Police to gain access to her mother's house in order to collect her belongings. This would be in order to prevent a breach of the peace. During this meeting PLA and PLF were given the opportunity to read a copy of the transcript of the interview that PLA took part in on 27/08/2003. This was to refresh her memory. The meeting concluded at approximately 10:30am with investigators arranging to contact PLA next week to determine whether she had been able to locate her diaries and to arrange a suitable time to commence taking her statement. [Emphasis added.] 1. At this juncture, it may also be noted, an issue was raised, by the plaintiff, with respect to the diaries at her mother's house, referred to in the meeting, "that may assist her to recall when the offences occurred". The plaintiff contended that because PLA moved to Melbourne in February 2006, it may be inferred that the diaries at her mother's house – in Sydney – were from earlier than 2006. 2. The defendant correctly submitted, in this respect, that it is not apparent why PLA's 2006 diary, for example, was necessarily in Melbourne (as opposed to Sydney in her mother's house). Notwithstanding her move to Melbourne, the defendant noted, PLA would return to Sydney at the end of the academic year. The Handwritten Narrative of PLA 1. As earlier mentioned, the handwritten narrative was written shortly after the meeting of 10 April 2007. The handwritten narrative addressed instances of alleged abuse when PLA was aged between 12 and 15. It did not refer to the Bundeena allegation. 2. At the bottom of one page within the handwritten narrative, PLA recorded the following: "fax (02) 8835-8688 (Police St)". The plaintiff contended that fact supports a finding that the handwritten narrative or part thereof was sent via fax. 3. Large sections of the handwritten narrative appear, almost word-for-word, in identical terms in PLA's First Statement. During cross-examination, Detective Sergeant Frame stated it was "possibl[e]" that the handwritten narrative was the basis of PLA's First Statement. 4. During cross-examination, Detective Sergeant Frame accepted: 1. the details contained within the handwritten narrative were important to the process of taking the statement; 2. she read those details because those details would guide her as to what was going to be included in the statement; and 3. it was possible that PLA sent the handwritten narrative by facsimile prior to taking the statement. 1. I accept that Detective Sergeant Frame received the handwritten narrative before taking PLA's First Statement and that the handwritten narrative substantially formed the basis for that statement. Acting Inspector Southgate returns from annual leave on 16 April 2007 1. Acting Inspector Southgate was on annual leave between 24 March and 15 April 2007. On 16 April 2007, upon his return, he was informed of Detective Sergeant Frame's contact with Mr Rattenbury on 4 April 2007 and the meeting on 10 April 2007. Acting Inspector Southgate was not present the meeting on 10 April 2007. 2. At para 47 of Acting Inspector Southgate's statement, he stated: 47. On 30, May 2007, I "reviewed" Frame's e@gle.i entry in relation to her contact with Mr Rattenbury on 4 April 2007. I note that this product was created on e@gle.i on 10 April 2007 and that I have been informed of this contact and the meeting on 10 April 2007 on my return from leave on 16 April 2007. I note that accepting products on e@gle.i is an administrative step and does not affect whether or not a product is available and able to be viewed on e@gle.i Second Meeting at Police Headquarters in Parramatta on 18 April 2007 1. On 18 April 2007, Acting Inspector Southgate and Detective Sergeant Frame met with PLA, PLF and PLA's younger brother. Both officers recorded a note of the meeting in their respective Duty Book entries on 18 April 2007. 2. Detective Sergeant Frame recorded the following in a Duty Log bearing the same date: … At 8.40am meet with PLF, PLA and PLA's younger brother re investigation and obtaining a statement from each of them in relation to S/F Caroola. Arrangements made to obtain a statement from them. … 1. Acting Inspector Southgate recorded: "meet with PLF, PLA, and PLA's younger brother re: allegations related to Dyers. S/F Caroola Statements organised to be taken on 19/07/07". PLA's First Statement dated 23 April 2007 1. From 19 to 23 April 2007, Detective Sergeant Frame obtained a statement from PLA detailing her allegations. As mentioned, PLA's statement was dated 23 April 2007 ("PLA's First Statement"). The statement was 25 pages long, with 143 paragraphs and three hand drawn annexures signed by PLA. 2. A record of the process is noted in Detective Sergeant Frame's Duty Book entries dated 19 to 23 April 2007. Detective Sergeant Frame's statement provides further detail of the process: 24. … PLA and I were in an interview room. No other person was present in the room and PLA did not have any relative or support person present at the police station. No electronic recording was made of our meeting. Because of the sensitive nature of the information being provided by PLA, it was considered best practice that no other person be present so as to inhibit or influence her account. It was also the practice and procedure I followed that if a person was likely to be a witness to the information provided to police, that person should not be at the police station at the time of taking such statement. 1. A brief overview summary of the contents of that statement is as follows: 1. PLA explained that in 2003, when she was 16 years old, she lied when she spoke with the police and DOCS (a reference to the earlier interview conducted by Kogarah JIRT). 2. PLA made allegations as to sexual offences concerning Mr Dyers which were said to have occurred while she was about 12 through to 17 years old. That placed the alleged offending between 1999 and 2004. 3. PLA discussed her first processing sessions, which occurred whilst she was in Year 6 at Public School. She also discussed an instance whereby Mr Dyers confronted her about her sexual deviancy. 4. PLA moved in February 2006 to Melbourne to attend university. She was 18 years old at the time. She attended "RMIT University". She would travel back and forth to Sydney to visit family and to attend Kenja. 5. PLA's First Statement placed the Bundeena allegation, during the time she was attending university, when she travelled to Sydney (see paras 66-72, extracted in full below). She stated that she was "not sure of the exact dates" but would be able to "clarify the date" if she was "able to access my uni diary that is in Melbourne". 6. PLA recorded attending Kenja at the same time as HLA and OLR. 7. From April to December 2006, PLA was in a relationship with Mr Slater. They remained friends following the end of the romantic relationship. 8. In January/February 2007, PLA confided in Mr Slater, that she had been raped by "Ken". Mr Slater recommended that PLA contact Ms Stevenson. 9. Between February and March 2007, PLA participated in "processing sessions" with Ms Stevenson. During the sessions, PLA stated that she had been raped when she was "younger" and that "Ken touched me during sessions". 10. On 8 and 13 March 2007, following conversations with Ms Stevenson, PLA wrote and signed two statutory declarations, denying that she had been raped or molested by Mr Dyers. PLA deposed that Ms Stevenson dictated what to write. She stated that she signed the statutory declarations because she "felt intimidated and I also just wanted to get out of Kenja and I would have done anything to be let out of Kenja". 11. PLA described arguments she had with PLM in March 2007 that related to her communicating to her mother "everything about what had happened between Ken and me". 12. On 22 March 2007, PLA telephoned her father (he was overseas at the time) and "told him everything that had happened". On 27 March 2007, upon his return to Australia, PLA met in person at a hotel and "told him everything that had happened from the beginning". 13. PLA records meeting with Mr Rattenbury, with her father, on 2 April 2007, and meeting with "the Detectives" on 10 and 18-23 April 2007. She deposed at the meeting on 10 April 2007, the Detectives "outlined the process of making a formal complaint to police". 1. Reference may be made to aspects of the cross-examination of Detective Sergeant Frame regarding the taking and content of PLA's First Statement. 2. Before coming to that cross-examination I note that my observation of Detective Sergeant Frame is that she engaged with the questions asked of her in a forthright and coherent manner. I consider her to be a credible witness. 3. During cross-examination, Detective Sergeant Frame gave evidence as to her perception of PLA's credibility as a witness. An extract appears below: Q. At paragraph 25 of your first statement please, exhibit 7 - could I take you to page 6, paragraph 25. The first sentence is, "My assessment of PLA in providing her statement was that she was an apparently truthful and credible witness." Can you see that? A. Yes. Q. How did you know that, that she was an apparently truthful and credible witness? A. By her demeanour, the way she presented herself, the way she spoke. 1. Detective Sergeant Frame was then cross-examined at length about PLA's statements with respect to the "lies" she told to Kogarah JIRT in 2003, which is extracted below: Q. She started her statement by describing in the first 18 paragraphs how she'd lied in a recorded interview in August of 2003. Correct? A. Yes. Q. You were aware, therefore, that she was a person who was capable of lying. That's right? A. Yes. Q. And making conscious decisions about lying. Correct? A. Yeah. Although it's not uncommon for victims of sexual assault not to disclose what's happened to them until they're much older in life and a lot - have choice as an adult to make a report. Q. PLA was 16 when she said, "Nothing had ever happened to me." That's correct, isn't it? A. Yes. Q. And at 19 she was saying, "I lied before." Correct? A. Yes. Q. She was no common victim or no ordinary victim of sexual assault, was she? A. Sorry, I don't know what you mean. Q. That was something out of the ordinary, PLA. It wasn't that she didn't disclose sexual assault, she denied that it had happened at all. Correct? A. It's very common for victims of sexual assault to do that. Q. To deny that any sexual assaults had taken place. A. Yes. Q. What PLA did was to say, "It all did take place and I lied when I answered questions three or four years before." Correct? A. Yes. 1. Next, Detective Sergeant Frame was asked a series of questions relating to the impact of PLA's allegations upon both the HLA/OLR trial and the ongoing investigation into Mr Dyers: Q. As at the finishing of your taking of the statement on 23 April 2007, you understood that PLA was no longer going to be a witness who would help Mr Dyers or be favourable to Mr Dyers at his upcoming trial. Would that be a correct statement? A. Sorry, I don't understand. Q. In 2003, PLA said nothing happened to her. Correct? A. Yes. Q. As at 23 April 2007, she was giving very different details. Is that right? A. Yes. Q. Did you speak to Detective Southgate about - at the end of taking the statement about what PLA had said to you? A. Yes. Q. And you, in fact, decided to go to Melbourne to make some investigations to corroborate or support some of the details she'd given you. Is that right? A. Yes. Q. And you did that as of 24 April. Correct? A. Yes. Q. Did you recommend that you go to Melbourne with Detective Southgate to make these inquiries about matters that might support PLA? A. I was told to go to Melbourne. Q. Did you have any say in that? A. No. Q. Who told you to go to Melbourne? A. It would have been one of my supervisors at the time. Q. And did they order you to go to Melbourne? A. It was the most logical choice, if I'd taken a statement and had the knowledge of what we're investigating, it was appropriate for me to go to Melbourne. Q. You were the one who had important details about what needed to be investigated, correct? A. Yes. Q. As at 23 April, did you talk to Detective Southgate about the possibility now that PLA who charges would be laid against Mr Dyers in relation to? A. Would be too early to determine. Q. Why was that? A. We were still conducting our investigation and corroborating evidence. Q. And corroborating evidence, and was that evidence corroborated over the next few days that you were in Melbourne? A. Yes. The historical allegations 1. The following section sets out the historical and Bundeena allegations as set in PLA's First Statement. The material, whilst not tendered as to the truth of the documents, is relevant as the formal record before the investigating officers. 2. The historical allegations as to offending between 1999-2004 contained in PLA's First Statement were lengthy and detailed. There appears below a partial extract as follows: 31. Ken told me when I was about twelve that I had sexual degradation in my energy field and that we had to handle that in a special session. He asked me a question that was something like "Who do you feel loves you?" I replied, "My mum and Dad". Ken words to the effect of, "No which men love you". I said, "Dad, [my older brother] and [my younger brother]". He said, "Okay let's handle the sexual energy your dad lays on you" I had to describe the sexual pictures to him in detail, which I had a lot of trouble with as I didn't really know anything other than the basic mechanics of sex. He insisted that I tell him what the pictures were otherwise I would be "stuck with it for the rest of my life". I began to try to describe what I thought sexual pictures would be like. I said that they were pictures of sex, masturbation and oral sex, but I couldn't expand on this when he asked me to as I didn't know what a penis looked like or any details of sexual behaviour. I had about three sessions that were like this one. 32. A few weeks later I can remember having a meeting with Ken where my [older] brother was there. The meeting took place in Ken's office in Commonwealth Street Surry Hills. Ken started by asking [PLA's older brother] who he thinks about when he masturbates. [My older brother] was really embarrassed but after a while he said people like Elle McPherson and other models. He also mentioned Person 1 who was in the room. Person 1 is a member of Kenja. Ken asked [my older brother] if he ever thinks about me when he masturbates. [My older brother] said no, but Ken kept on asking him until [my older brother] said yes. I was really confused at the end of the meeting. 33. About six months later I can remember having a ·session with Ken about a car accident I was involved in when I was younger. During this session I had to go through every detail of the accident. I couldn't remember anything about the accident as I was only two or three years old at the time. I told Ken that I didn't remember and he told me that I should "decide to know as a spirit". I felt as if I had to tell Ken something so I told him what I had heard mum and dad talk about. This session took place in a centre we used only for a short time. This was in between the time Kenja moved from Commonwealth Street into Mary Street. I think the centre we used for a short time was in George Street Sydney. 34. Soon after Kenja moved into the premises in Mary Street Surry Hills I can remember having another session with Ken. I think I was in year seven at St Catherine's School. I would have been either 12 or 13 at the time. This session took place in Ken's office. There were two parts to Ken's office. The main part of his office had a desk and a number of office chairs that had wheels on them. There was a book shelf in the room opposite Ken's desk. I think it was the same furniture from the other property. Ken's office had a window and with a veranda that you step out on to. As you walk into his office there is a room to the side of the office. This room has a mattress in it up against the wall that could be put onto the floor. The back wall to this room had a shelf in it. On top of the shelf was a box of tissues. Just outside this room there was a kitchenette. I have drawn a picture of the layout of Ken's office on the corner of Mary and Reservoir Streets in Surry Hills. This drawing is attached to this statement and labelled as annexure 2. … 35. This session was during the Klowning segment of a workshop. This would have been on a Saturday night. There was another female in the room, but I'm not sure who it was. At the time Person 2 was my processor. I was dressed in a white and blue dress and a scarf around my head. Ken asked if I was wearing underwear. I said, "Yes I was wearing underwear and a bra". He said, "In previous sessions I had had uncomfortableness there and that this was because I was physically uncomfortable due to the elastic in my bra and underpants". He told me to take them off so the session would run better and the energies would flow better. I began to modestly take off my bra by undoing the straps on my dress. Ken told me that he has no significance on my body and to take my dress off as well. I began to cry as I was scared and uncomfortable. I looked around to the other person in the room but they had their eyes closed. I said that I didn't understand why I had to be naked and couldn't we process like before. Ken said that the process wouldn't work and that unless I wanted my life to be "Fucked up" I would do what he said. 36. I took my clothes off but couldn't stop crying. Ken said that it was just energy and that the reason why I was so upset was that my Dad and [PLA's older brother] had put sexual pictures on my body that were dirty. We had a session that lasted an hour and a half during which he didn't touch me. When I was putting my clothes back on. He commented that the pictures were especially bad for my nervous system and it is undeveloped and that I don't have any pubic hair and very small breasts. He also asked me why I wore a bra because my breasts were too small and told me that it was bad for my circulation to wear tight bras and my age. 37. That night I thought about telling my mum what had happened but I was very embarrassed. I also thought that she would be angry at Dad and [my older brother] for blanketing (the word for the sex pictures that Ken called it) me. The term blanketing meant that at home one person would imagine having sex with another person and even if the other person wasn't aware of it then it would still make their energy field dirty. 38. I can remember feeling really ashamed and dirty and intensely angry at Ken, but my most prominent feeling was being confused. 39. The next session was a few weeks later. I think I was still in year 7. I would have been about 12 or 13 years old at the time. This session also took place in Ken's office in Mary Street. I think it was in the afternoon or the early evening. I walked into Ken's office and Ken said that I had been blanketing with other men in Kenja and that this was very destructive. He said that some men had told him they had been having sexual thoughts about me, "fucking you in the arse and coming on your face and breasts". This made me extremely distressed as I had trusted everyone in Kenja previously and thought of them as like a family. I remember starting to cry and asking Ken to tell me who these people were. I named two people that seemed to me to be the mostly likely people to do such a thing. Ken was making me guess who they were. Ken said there were many others as well but he wasn't going to tell me, that I had to use my knowingness. By my knowingness he means that you should make a wish and then you should know. It is like an instinctive thing. He said, "Now do you know why we need to handle that attached spirit? You will be a dumping ground for people's sexual degradation. You will have no future other than as a psychic slut". 40. I was very distressed by this point. He had made it clear to me that despite how hard it may be I had to be strong and behave and go through the whole process with him. He didn't tell me what it would involve but I knew I would have to do more naked processing. By this point I was willing to believe that this was the only thing that could save me. 41. Ken and I went into the small processing room in the office. This is the room I described earlier that has a mattress in it. Ken told me to take off my clothes. Person 3 was in the room but she didn't say anything. Person 3 is a member of Kenja and at the time she was a processor. She is still a member of Kenja but is no longer a processor. I remember that I had a rash on my bottom and I had my back towards PLA so I was really embarrassed about the fact that she would see me naked as well. 42. I took my clothes off, but Ken was fully clothed. He told me to lie on my back and to open my legs. I lay down on the mattress which was on the floor. Person 3 was sitting on a chair in the corner of the room. I did this very scared, but also thinking that this was my chance to get through my problems. Ken knelt in between my legs and ran his hands up and down the inside of my thighs. He told me he had to stimulate me so the attached spirit would come into my eyes and he would clear it. He continued rubbing my thighs and stomach before cupping his hands over my breasts and massaging them. The whole time he was looking into my eyes waiting for the attached spirit to take over my body. Before this time I had never masturbated so when he put his finger on my clitoris and rubbed it in circles the intensity I felt shocked me. I felt uncomfortable. He was pressing really hard and it was pleasurable but painful at the same time. As he was doing this he was speaking to the spirit he saw in my eyes. He said, "Come out and show yourself bitch". 43. After a few minutes I pulled away and tried to tell him that I didn't want to do it anymore. I told him that it hurt when he touched me and that this was wrong. I said there had to be another way to solve my problems. He started talking to Person 3, ignoring me and talking about me in the third person. He said that my natural sexual responses were abnormal pointing out that I wasn't sexually excited when he was stroking my body and that this meant it may have been too late already to help me. Ken walked out of the room angrily and Person 3 followed. I was confused and upset and l wanted to leave but I was scared about what would happen to me if what Ken said was true that I'd become a sexual dumping ground. … 45. I can remember another session that I had with Ken. This session would have been about one month after the last session. I think I was still in year seven. I would have been about 12 to 13 years old at the time. The session took place in the room next door to Ken's office where there was a mattress (Ken's processing room). I think that it was on a Wednesday afternoon after school. Person 3 was also present in the room. This was about two weeks after the first session where Ken was touching me. I think I was still in year seven at school. I had to take all of my clothes off and lay down on the mattress. Ken was fully clothed and he lay down next to me. Ken was lying on his side and was stroking my whole body with his hand. He was stroking from my breasts down to my stomach and down my thighs. While he was doing this he had the top of his knee wedged between my upper thighs so that his knee was resting on the outside of my vagina. Ken started massaging my clitoris with his finger and after a while I had an orgasm. 46. This was the first time I had ever had an orgasm. Ken told me to keep my eyes open while I had an orgasm because if I closed my eyes while I was having an orgasm then the orgasm would go to the attached spirit. After I had an orgasm I started getting wet in between my legs. Ken said to Person 3, "She's lubricating too much I need to take my pants off"'. Ken took his pants off and after a while he started to touch my clitoris again but it hurt and I pulled away and told him that it was too tender. When I told him that it was too tender he stopped. I then started to use this as an excuse to get him to stop. … 49. I can remember having another session with Ken which took place not long after the session where I had my first orgasm. I think I was still in year seven at School. I was about 12 to 13 years old at the time. This session occurred on a Wednesday afternoon after school. I went to Ken's office in Mary Street at Surry Hills. I went into Ken's office and we started talking. From there Ken and I went into the room next to his office that has the mattress in it. I took all of my clothes off. In this session Ken took all of his clothes off. We were both naked. At the time I had my period. I told Ken that I had my period and he said that it was okay and that we could work on other things. Ken said that he had to see whether I responded when he touched me on the anus. I was lying down on the mattress and Ken was lying next to me so we were side by side. We were both lying on our sides so that we were facing each other and we had eye contact. Ken reached around me and inserted the tip of his finger into my anus. He moved his finger around. He did this for about a minute. He kept asking me if I liked it. I sort of nodded. Ken stopped and told me that the reason that I like it was because I had "the attached spirit of a fag and we had to handle it". For the rest of the session we would just lie side by side and look at each other's eyes. Every so often I would nod and he'd pause the session and I would tell him what I'd experienced in that part of the session. … 56. I can remember having another session where I was alone with Ken which occurred about a month after the time that I received the threatening email. I went to a session in Ken's office in Mary Street Surry Hills. The session started in the main part of the office and then moved into the room next to his office with the mattress in it. Both Ken and I took off our clothes and we were lying down on the mattress. I was lying on my back and Ken was lying on his side facing me. Ken told me that I needed to be good at sex so that when I get a boyfriend he won't cheat on me. He went on to say that he would try to stretch my hymen so that he wouldn't break it and it wouldn't hurt. While he was talking he was massaging my clitoris with his middle finger. He then put his finger inside my vagina. He was moving his finger around. While he was doing this he told me that he was trying to stretch it out (my hymen). 57. While still on the mattress, Ken was on lying on his side facing me and then he just rolled over so that he was lying on top of me. He had his hands either side of me. My legs were open and he was lying in between them. Ken then thrusted in and up into my vagina. I felt squishiness inside my vagina. That confused me as I thought that he was going to wait and have sex with me when he had a condom I could feel the squishy thing going in and out of my vagina. I think it was his penis I am not certain. That went on for about ten minutes until Ken just stopped. He just seemed to finish when he wanted. 58. I can remember an incident that happened on my 15th Birthday which was the [redacted]. That year my birthday fell on a Wednesday. At school during the day two good friends of mine had forgotten that it was my birthday. After school l went into Ken's the main office and he gave me a little glass owl as a present. He wished me a Happy Birthday. He asked if I'd done anything special for my birthday. I started crying and told him that my two friends had forgotten my birthday. 59. On that afternoon Ken and I had a session. It was different from the normal sessions that we had previously had. Ken normally starts a session by staring at me. On this time he began kissing me on my mouth. We both took our clothes off and Ken began to touch me on my clitoris with his finger. He did this until I orgasmed. Then he gave me oral sex. By this I mean he had his face in between my legs and he had his tongue on my clitoris and vagina. I wasn't able to have an orgasm from oral sex so Ken began to massage my clitoris with his finger until I had another orgasm. While he was doing this he had his mouth on both of my nipples. He used to say that one of my nipples was slower than the other one. He would give them their own personalities. I can remember him saying that "one of them was more assertive than her sister". At the end of the session he said to me "I didn't forget your birthday". … The Bundeena allegation 1. The Bundeena allegation as recounted in PLA's First Statement at paras 66-72 is extracted below. (It is important to make clear that the material here set out is to reveal what information was at hand to investigators. The material was not tendered as to the truth of the allegation): 66. I can remember coming back to Sydney and staying with my mum. I am not sure of the exact dates that I was here, if I was able to access my uni diary that is in Melbourne I would be able to clarify the date. 67. On this visit I had a conversation with mum as I was upset about the fact that Ken had accused my [older] brother of "blanketing me" and that Ken had made up things about [my older brother] and my dad. I wanted to confront Ken about those issues. The next day a meeting was organised for me to go to Ken and Jan's house at Bundeena. 68. The following day mum and I drove out to Ken and Jan's house at Bundeena. I am not sure of the exact address but I know where the house is as I have been there many times before. When I got to the house I saw Ken and Jan. There were only the four of us at the house. The four of us had a meeting in the lounge room. I told all of them what was on my mind and about the fact that I thought that Ken had treated [my older brother] really badly when he was younger and that in fact I hadn't been mistreated by my dad or my brother. Ken got really angry and kept saying that all the time that he had spent with me was wasted and that he was trying to save me but I had gone back down. He offered me one last chance to get through what I needed to process. I agreed and Ken and I went upstairs to the study. Mum and Jan waited downstairs. 69. When we got inside the study Ken said, "Do you really want to get though this?" I said, "Yes". He said, "We'll have to go back to processing like we used to, so take off all of your clothes". I took all of my clothes off so that I was naked and Ken kept his clothes on. Both of us sat in chairs opposite each other. I was very angry at the situation as I had just started going out with my boyfriend. Ken began the session by staring into my eyes. He didn't really say anything. He put both of his hands out and reached over and grabbed hold of my breasts. He had one hand on each breast and he was massaging my nipples. He said, "I am touching you to try and get that attached spirit angry". 70. I was getting angry. After a few minutes he ran his hands down my body and onto my clitoris. He started massaging my clitoris with his finger until I orgasmed about five minutes later. After that Ken took his hands off me and we continued the processing session with both of us sitting down staring at each other for about an hour. At the end of the session Ken asked me for some feedback. I told Ken that he was right after all and that everything that he had said about my dad and [my older brother] was true. I said this to Ken because I was afraid of Ken and also because I was worried that if I stayed true to what I had come there for then I would be forced to do more sessions with him. Which I didn't want to do. 71. I did not give Ken any permission to touch me in any way. I felt that I was forced to take part in the session. It wasn't a physical force but I felt mentally pressured. I thought that Ken would get very angry if I didn't take part in the session. 72. I was at Ken and Jan's place for about three hours. I was there during the middle of the day. Mum drove me home after we had finished. I have drawn the layout of the study at Ken's house in Bundeena. This drawing is attached to the statement as Annexure "3" 1. Detective Sergeant Frame was cross-examined with respect to the absence of reference to the Bundeena allegation in the handwritten narrative and the circumstances in which the Bundeena allegation arose during the taking of PLA's First Statement. Her evidence, in that respect, is extracted below: Q. Having read the transcript of the diary entry, you can see that nowhere in that diary entry was there any details at all about a sexual assault by Mr Dyers at Bundeena in 2006. That's right, isn't it? A. She does mention the matter of "both my abuse", so I'm not sure what that means exactly. There's no paragraph. Q. At paragraphs 66 to 72 of her statement of 23 April 2007, PLA described in detail an allegation of sexual assault at Bundeena at Mr Dyers' and Ms Hamilton's house. A. Yes. Q. You know that? A. Yes. Q. You know that there is no mention at all of the details of that incident in the handwritten notes. That's correct, isn't it? A. No Q. Which part of the handwritten notes are you referring to? A. I'm on page 6, the paragraph starting, "On Monday at 3 I met with Lionel Rattenbury, dad's lawyer, about the matter of both my abuse and reporting it and, also, dad's defence against the false allegations of assault." Q. Did you take that to be a reference to Bundeena? A. I don't know what it's a reference to, but just that she mentions "both of my abuse". I'm not sure what that means, but Q. It could be referring to the fact of her abuse as well as her father's defence in a criminal charge. Is that right? A. It's possible. Q. Can you accept the proposition that there's no mention at all of this Bundeena incident in the handwritten notes. You accept that, don't you? A. I've forgotten the word "Bundeena and Bundeena", yes, there's nothing there. Q. Because it's described in some detail in the statement you took between 19 April and 23 April. Correct? A. Yes. Q. What that means is, the details of the Bundeena allegation, the Bundeena incident, that must have come up during the course of your questions and answers with PLA during the taking of her statement. Is that right? A. Yes. … Q. How did it come to be that PLA mentioned an incident in Bundeena in detail in her statement which was not contained in her handwritten notes? How did that come out? A. When I take a statement, I work through chronologically from the furthest point up until the most recent point, and generally I'm saying, "What happened next?", "What happened next?", and I let them tell me what's happened. Q. The statement though is not in chronological order. Can you turn to the statement starting at page 3252? Can you see that the first 18 paragraphs of the statement, or from paragraphs 3 to 18 are PLA's explanations of why she lied in her interview in August of 2003? A. Yes. Q. That's not in chronological order though, is it? A. Well, it makes sense to start there. Q. She then describing going to Kenja and leaving in 2007. Can you see that at paragraph 22? A. Yes. Q. Moving forward, the paragraphs 66 to 72 relate to the Bundeena allegation. Can you see that? A. Yes. Q. And then at paragraph 73, PLA describes other occasions of sexual contact between herself and Mr Dyers. Can you see that? A. Yes, I believe they're offences that she was unable to particularise or link to any point in time, as the abuse was happening so often. … Q. When PLA gave you details about the Bundeena allegation, in paragraphs 66 to 72, did you ask her why that was not contained in the handwritten notes? Was that something that you asked her? A. No. Q. Wasn't that an important thing for you to ask? A. No. Q. PLA had described recent sexual conduct to you during the course of taking her statement which was not included in the handwritten note - wasn't that something important to you, to know why that was the case? A. I would assume that as it was more recent, she would have a better recollection and wouldn't be needing to rely on notes or have me 1. As to the significance of the Bundeena allegation in contrast to the historical allegations, Detective Sergeant Frame gave the following evidence: Q. Wasn't it something that was very significant for you investigating Mr Dyers when she disclosed details of something taking place at Bundeena? A. It was as - just as serious as every other allegation she disclosed. Q. Except it took place while Mr Dyers was on bail for the offences involving HLA and OLR - that's right, isn't it? A. Yes. Q. That's what made the Bundeena incident very important, correct? A. I didn't treat it any differently to any other incident she disclosed. Q. It was different because what PLA had described was Mr Dyers committing sexual offences while he was on bail - you understood that was the difference about the Bundeena incident, didn't you? A. Yes. Q. That being the case, the allegations of sexual offences by Mr Dyers whilst he was on bail, you understood that that would be a reason upon being charged, for him to no longer have bail. That's right, isn't it? A. Bail's not a - not my concern. It's up to another court or a sergeant to determine that, not me. … Q. As a police officer involved in child protection, it was important to you that PLA made allegations that Mr Dyers was committing sexual offences while he was on bail for other sexual offences. That was important to you, wasn't it? A. No more important than any other allegation she disclosed. Q. Was there any difference in your mind between the description of the Bundeena incident and the other incidents? A. Sorry? Q. When you say it was no more important than the other allegations, in your mind did you see any difference between her description of the Bundeena incident and the other description of other incidents that PLA gave? A. I think there were some similarities and there were some differences. PLF's Statement dated 20 April 2007 1. Acting Inspector Southgate attended to the statements of PLF and PLA's younger brother (beyond the acknowledgement of its existence, the statement of PLA's younger brother was not the subject of submissions). 2. PLF's statement was dated 20 April 2007. It was 8 pages long, with 40 paragraphs. 3. The following is an extract from that statement: 28. I organised to fly to Melbourne and arrived on Tuesday the 27th of March 2007 in the early hours of the evening. I made my way to a hotel I had booked and met PLA there. PLA seemed happy to see me and we talked about what was going on with her for about three hours. As with the telephone conversation I can't recall the exact conversation but to the best of my memory it went like this. I said, ''Tell me what has happened". PLA said, "I have been sexually molested by Ken DYERS from the age of twelve years to about fifteen years on a regular basis, almost weekly in the one on one processing sessions with Ken. It has also happened on occasion more recently". I said, 'What did Ken do"? PLA said, "It started at first with me removing my underpants and sitting in front of Ken with my legs open with no physical contact It progressed to him touching me around my genital area and stimulating me with rubbing. Then it went to him putting his finger inside me and stimulating me to have an orgasm. I was told to have oral sex with him, he could not get an erection but he made me put his penis inside my mouth. We would both be naked and he would lay on top of me and partially penetrate me and have simulated sex''. I said, 'Was there anyone else in the room at the time"? 29. PLA said, "In the early stages there were, I recall Person 3 was present on one of the occasions that Ken stuck his finger up my vagina as I was upset after it happened and Ken said laughingly to Person that I was not the only one that he had stuck a finger up isn't that right Person 3. I also remember Person 2 being present on some of the occasions and also possibly Person 1". I said, "I am disgusted to hear that he did that to you. I am also disgusted that he would do this to our family after the trust we have shown to him. I feel guilty as your father not having protected you. Why didn't you tell me when it was happening to you"? [sic] PLA said, "I was too embarrassed and ashamed to tell a man about it". I said, "Why didn't you talk to PLM about it"? PLA said, "I didn't think that I would be believed and that she would support me". 29. We also discussed how.it was outrageous the way in which my wife PLM responded to these allegations and horrific for PLA to have suffered that response from her mother. I said, "How did all this come out"? PLA said, "I was having a processing session with Carly STEPHENSON about five weeks ago. During the session Carly told me that she sensed that I had been molested or raped or sexually interfered with. That she could see it in my energy field. I hesitated to say anything at first but after some more coaxing from Carly I said that I had been sexually interfered with by Ken DYERS. Carly flew into a rage and started shouting at me that I was lying and that it was not true. I was surprised that Carly shouted so loudly, it was unusual for her to act that way. Carly asked me to retract what I said but I told her it was true and it had happened. Carly refused to let me leave and insisted that I write out a statement that these things were not true. That Ken would go to jail and die there if I made these allegations. Carly asked me if I wanted for Ken to die and I told her I didn't. Carly insisted I write out a statement that Ken had not interfered with me and made me sign it in the presence of a JP. I felt I had to do it otherwise they would not just let me go". I said, "It sounds like you were coerced into making and signing that statement". PLA said, "I know, I was and it upsets me that Carly acted like that to what I told her, I thought of her as someone I could trust and as a friend". [Emphasis added.] 1. Acting Inspector Southgate was cross-examined about that statement, in particular the plaintiff placed emphasis upon the two questions and questions: Q. PLF didn't say anything to you about his daughter PLA being assaulted by Mr Dyers at his home in Bundeena, did he? A. I don't recall conversations. Q. If PLF had said to you that PLA had told him that she'd been assaulted by Mr Dyers at his home in Bundeena, you would have been astute to include that in this statement, wouldn't you? A. Yeah, yeah. I'm - so assumption - yes. 1. As to his preparation of the statement, Acting Inspector Southgate gave the following evidence: Q. … You were aware whilst you were preparing the statement with PLF that Ms Frame was preparing a statement of PLA? A. I mean, I can't recall how things went but I am aware that Fiona Frame took PLA's statement, yes. Q. That continued, that process of taking that statement continued for two or three days after you prepared PLFs' statement. A. I - I don't know the timeframe, sorry. Q. Do you recall liaising with Ms Frame about the content of PLA's statement during the period that that statement was being prepared? A. I - I do recall that liaised with Fiona Frame, yes. Q. You were talking to her constantly in this period - well, you were preparing PLF's statement, she was preparing PLA's statement, that's right, isn't it? A. Could you expand on what you mean by "talking to her constantly" through this process, sorry? Q. You were the officer in charge of this investigation at this time, were you not? A. Yes. Q. And Ms Frame was an investigator who reported to you? A. To some degree, yeah - we - we didn't operate like that. Q. You did or you did not? A. We worked as a team, we - like, we worked as a team - yeah, I'm the OIC, the buck stops with me, yeah. Q. I want to suggest that during the period of time that Ms Frame was preparing the statement of PLA, she kept you informed as to the broad contents of that statement? A. Yeah, I don't recall about - how the - what form updates took. Q. It's likely that you did, isn't it? A. I can't say. Investigators travel to Melbourne – April 2007 1. In the second half of April 2007, Acting Inspector Southgate and Detective Sergeant Frame went to Melbourne to conduct some further investigation with respect to the allegations of PLA. 2. On 25 April 2007, Detective Sergeant Frame met with PLA. In her duty book entry for that day, Detective Sergeant Frame recorded that: There she handed me two diaries and one notebook. PLA when through the diary and determined that she was sexually assaulted by Ken Dyers in Bundeena between 11th of June 2006 and 18th June 2006. This was when she was visiting Sydney to see her [older] brother who was visiting from USA. Virgin Blue records support this. ... Then obtain a notebook statement from PLA authorising police to obtain her medical records. 1. The three documents provided by PLA were as follows: 1. a Student Diary 2006, RMIT University; 2. a 2007 Desk Diary with a blue cover; and 3. a notebook with a pink cover. 1. Following that meeting, the date of the Bundeena incident, namely, between around 11 and 18 June 2006, was confirmed. PLA was 18 years of age at the time of the alleged incident. Correspondence between Detective Chief Inspector Jacob and Mr Koops – April 2007 1. On 24 April 2007, Detective Chief Inspector Jacob wrote a letter to Mr Koops. He wrote: As you are aware, members of my squad are currently conducting investigations into serious allegations against your client Mr Ken DYERS. As part of these ongoing investigations I am prepared to advise that we are currently investigating further allegations made by PLA. Part of these investigations relate to an alleged "Attempt to Pervert the Court of Justice" by Ms Karli STEVENSON in the swearing of a false affidavit. Ms STEVENSON has been spoken to by investigators today, declined to assist and advised them that you are her legal representatives. I consider the original (and any copies) of any affidavit executed by PLA and currently in the direct or indirect possession of Ms STEVENSON or any other agent or representative of the Kenja organisation as "exhibits" in this ongoing criminal investigation. … I currently have investigators in Victoria conducting inquiries, they will be there until Thursday afternoon (26/4/07) to collect any such documents. 1. On 26 April 2007, Mr Koops sent a letter to Detective Chief Inspector Jacob. The letter attached: 1. Two statutory declaration of PLA, sworn 8 March 2007 and 13 March 2007, in which PLA declared that Mr Dyers had not sexually assaulted her; 2. A statutory declaration of Ms Stevenson, sworn 26 April 2007; and, 3. The transcript of two telephone messages left by PLA on the telephones of PLM and Ms Tinkler on 30 March 2007. 1. On 27 April 2007, Mr Koops sent a further letter to Detective Chief Inspector Jacob. The letter attached: 1. a statutory declaration by PLM, sworn on 27 April 2007; and, 2. a statement by PLM made to NSW Police on 30 March 2007. 1. Mr Koops' letter asked police to let him know if there were any persons who police would like to interview. In his evidence, Acting Inspector Southgate said that investigators did not take-up an invitation to speak with PLM and the plaintiff submitted he "was unable to proffer an explanation for not having done so". That evidence is extracted below: Q. If you go back to page 3685, see there that Mr Koops says that he encloses a statement made to police by PLA on 30 March 2007 containing instructions from Sadira Campbell, expect to provide you with further material and then says, "Please let me know for any persons whom you would like to interview and I will obtain instructions in that regard." A. Yep. Q. That was an invitation that was never taken up by police, was it? A. To that - to the time of Mr Dyers's passing, no, but it was an ongoing investigation. Q. Why didn't you, after seeing this letter, immediately get in touch with Mr Koops and say we'd love to have an interview with PLM? A. I can't tell you why that decision was made. Q. Well, the decision was made because you were not looking for evidence that will exculpate Mr Dyers, you were looking for evidence that would incriminate him. That's the reason, isn't it? A. No, that's not true. 1. On 30 April 2007, Detective Chief Inspector Jacob sent a letter to Mr Koops acknowledging receipt of material sent on 26 and 27 April 2007. In that communication, the Detective Chief Inspector also stated: I will advise in due course on anything arising which I expect will include requests to provide original statutory declarations of PLA and requests to interview a number of other persons. 1. On 30 April 2007, Mr Koops sent a letter to Detective Chief Inspector Jacob attaching a statutory declaration of Ms Sadira Campbell, sworn on 30 April 2007. The decision to not release "current investigation material" to the ODPP – 3 May 2007 1. On 3 May 2007, Acting Inspector Southgate's duty book entry recorded: "Decision made not to release current investigation material to DPP". That material consisted of documents relevant to Strike Force Caroola's investigation into the allegations of PLA and was not material with respect to the charges brought against Mr Dyers concerning allegations concerning HLA and/or OLR. 2. As at 3 May 2007, Strike Force Caroola had a "substantial amount" of material regarding the PLA allegations which was not disclosed to the ODPP. It included: 1. PLA's First Statement; 2. the 2006 RMIT Diary; 3. the Pink Notebook; 4. the 2007 Diary; 5. PLF's statement; 6. PLA's younger brother's statement; 7. Mr Huw Slater's Statement, dated 25 April 2007 (former boyfriend of PLA); 8. Ms Lesley Conway's Statement, dated 25 April 2007 (Mr Slater's mother); 9. Ms Lynne Stone's Statement, dated 26 April 2007 (principal of PLA's high school); and, 10. Ms Adrienne Heslop's Statement, dated 27 April 2007 (Ms Heslop witnessed PLA's statutory declarations of 8 and 13 March 2007, respectively). (That material shall hereinafter be referred to, collectively, as "the PLA material"). 1. The statement of Mr Slater was taken by Acting Inspector Southgate. 2. The statements of Ms Conway and Ms Heslop were taken by Detective Sergeant Frame. 3. The pleadings in the 4FASOC, with respect to the statements of Mr Slater, Ms Conway, Ms Stone and Ms Heslop, were as follows: 62. On 25 April 2007, Huw Slater ("Slater") provided a statement to NSW Police in the matter of Dyers. Slater had been in a relationship with PLA, and had been in Kenja. Southgate took Slater's statement. Slater's statement made no reference to any assault by Dyers on PLA in 2006, or to any assault by Dyers on PLA at Bundeena. 63. On 25 April 2007, Lesley Conway ("Conway") provided a statement to NSW Police in the matter of Dyers. Conway is Slater's mother. Frame took Conway's statement. According to Conway, on 17 March 2007 Slater had said to Conway that PLA was "the friend who was raped by Ken when she was somewhere between when she was 12 and 14 years old". Conway's statement made no reference to any assault by Dyers on PLA in 2006, or to any assault by Dyers on PLA at Bundeena. 64. On 26 April 2007, Lynne Stone ("Stone") provided a statement to NSW Police in the matter of Strike Force Caroola, relating to PLA's former interactions with the NSW Police. Stone was the Principal of PLA's high school. … 67. On 27 April 2007, Adrienne Heslop ("Heslop") provided a statement to NSW Police in the matter of Dyers. Frame took Heslop's statement. Heslop had witnessed PLA's two Statutory Declarations of 8 and 13 March 2007. 1. In addition, Strike Force Caroola had all of the material that had been provided by Mr Koops, namely: 1. two statutory declarations of PLA sworn 8 March 2007 and 13 March 2007; 2. a statutory declaration of Ms Stevenson sworn 26 April 2007; 3. transcript of two telephone messages left by PLA on the telephone of her mother and the telephone of Ms Tinkler; 4. a statutory declaration of PLM sworn 27 April 2007; 5. a statement PLM made to NSW Police on 30 March 2007; and 6. a statutory declaration sworn by Sadira Campbell, dated 30 April 2007 (friend of PLA and Mr Slater). PLA's Second Statement dated 4 May 2007 1. On 4 May 2007, Detective Sergeant Frame took a second statement from PLA concerning Mr Dyers ("PLA's Second Statement"). 2. PLA's Second Statement was short and essentially clarified the dates between which the Bundeena incident allegedly occurred. That statement was not provided to the ODPP. The plaintiff submitted that it should have also been provided. 3. The plaintiff addressed PLA's Second Statement at paras 195-197 of her written submissions. The submissions primarily concerned the role of Detective Sergeant Frame and her duty log of 25 April 2007. The plaintiff also repeated an earlier contention, namely, that Detective Sergeant Frame received part of the 2007 Diary by facsimile and omitted to record this in her duty log. The defendant correctly submitted that those submissions are irrelevant. The Letter and the Death of Mr Dyers – July 2007 1. On 24 July 2007, Acting Inspector Southgate wrote and a signed a letter to Mr Koops. That letter, for convenience, is repeated below: As you are aware an investigation into allegations of a serious nature made by PLA against your client Mr Ken DYERS is being undertaken. As part of this investigation investigators wish to offer your client, Mr Ken DYERS the opportunity to be interviewed in relation to these allegations. The allegations relate to numerous Aggravated Sexual Assaults, Sexual Assaults, Aggravated Indecent Assaults, and Indecent Assault offences between 1999 and 2006. It would be appreciated if a written reply to this request could be forwarded to this office. 1. In that letter, the allegations concerned a period of 7 years, from 1999 up to and including 2006. During that period, Mr Dyers had been involved in the following: 1. some of the criminal trials in the District Court; 2. conviction and sentencing appeal at the Court of Criminal Appeal; 3. appeal at the High Court; 4. made an application for a permanent stay; and 5. was on bail. 1. In his statement of 17 October 2018, Acting Inspector Southgate deposed: 53. After reviewing all statements obtained by Police and the material forwarded by Mr Koops to Police, it was my view that Mr Dyers should be offered the opportunity of being interviewed so that the allegations made by PLA could be put to him. I did not turn my mind to the fact that the allegations included offences said to have occurred while Mr Dyers was on bail. 1. Acting Inspector Southgate was cross-examined with respect to his decision to send the letter: Q. I want to suggest to you, Mr Southgate, that when you sent the letter of 24 July 2007 to Mr Koops, it was sent with the dominant purpose of tormenting Mr Dyers. A. No, I disagree. Q. And tormenting Ms Hamilton. A. I disagree. Q. You knew that he was physically and mentally unwell and a letter such as this one, referring to assaults occurring in 2006, would cause Mr Dyers to suffer in an acute way. A. I disagree. Q. And the reference to 2006 in the letter was inserted deliberately with the design to have Mr Dyers fear that his bail would be revoked. A. No, disagree. Q. I want to suggest that there was no good forensic reason for this letter to be sent in the terms it was sent. That's right, isn't there(as said)? A. No, I disagree. 1. Acting Inspector Southgate was further cross-examined on this topic at some length with respect to his intention in sending the letter. During that cross-examination, he disavowed the notion that the letter was intended to insinuate that Mr Dyers' bail was in jeopardy, or that the thought of a breach of bail conditions had crossed his mind. An extract of that cross-examination appears below: Q. Incidentally, at the time you sent the letter, it was your intention to refer charges against Mr Dyers, wasn't it? A. I can't tell you what my intention was at that - that period of time, back - back then. I can't say that there was ever a decision made to lay charges. It was still an ongoing investigation, and it's my memory no decision had been made in relation to charges or how those charges would be formulated or - yeah, so. Q. Is it your evidence that you just can't recall one way or the other whether a decision had been made to charge Mr Dyers in relation to the allegations made by PLA? A. I don't recall a decision to charge ever being made - to actually lay charges ever being made. 1. At or around 9.00am on 25 July 2007, Mr Koops telephoned the plaintiff and read out the contents of the letter to the plaintiff. The plaintiff conveyed the contents of the letter to Mr Dyers. 2. Mr Dyers said to the plaintiff words to the effect of: They have gone too far now. This is ridiculous. How can they pursue this? Harland sent them all that material about PLA and her problems. Surely they can see that this is nonsense. 1. After the phone call from Mr Koops, Mr Dyers and the plaintiff had a conversation in words to the following effect: Dyers: Why can't I just go and deal with this now? This is so frustrating. Hamilton: The police say there are allegations in 2006. That is just last year. You were on bail. PLA was living in Melbourne. Dyers: I didn't realise that. Now I do, and what it means. They want to revoke bail. They want to kill me. If I go to gaol I'll be murdered. I need some space, can you get me a cup of tea? 1. Following that conversation, the plaintiff prepared a cup of tea for Mr Dyers. The plaintiff returned to the bedroom in which Mr Dyers was resting, and saw him seated on the side of the bed, with a shotgun across his lap. 2. The plaintiff pleaded with Mr Dyers not to do anything with the shotgun. Mr Dyers pulled the bedcover partly over his face, and placed the shotgun muzzle at his upper neck, saying "just let me go through this". 3. The plaintiff next heard a muffled thud, and Mr Dyers' body slumped backwards onto the bed. The plaintiff removed the bedcover, and saw the horrific damage that the shotgun discharge had caused. 4. At or around 10.30am, a triple-0 call was made by Ms Stevenson. She told the operator that her friend needed help and had a gunshot wound to the head. Senior Constable Sara Burgess attended the scene and a police report was prepared. An extract of that report appears below: The deceased was seen to be lying across his single bed, face up on his back with a shotgun next to the bed, still touching his hand. The deceased had a massive injury to his face, starting under his chin. Next to the deceased on the bed was his defacto, Jan Hamilton. Jan was sitting next to the body screaming, "What have you done!" Next to the gun was a shotgun cartridge, and above the deceased, consistent with a self inflicted entry wound under the chin, was a small hole in the ceiling, surrounded by blood splatter. It appears the deceased has removed his shotgun from the suitcase that he keeps in his cupboard, loaded the gun and placed the barrel under his chins [sic] and pulled the trigger, killing him instantly. Upon speaking with his defacto it was established that the deceased has had a long running court matter going involving charges of child sexual abuse. The nature of the charges are unknown to attending police. The deceased's solicitor and long time friend of the family confirmed that he was representing the deceased on a number of sex related charged. The same solicitor, Mr Harland Koops received a phone call from the deceased's defacto indicating that he had just taken his own life. The deceased was also a member, or founder, of a cult-like association called "Kenja". During the investigation at the scene the defacto, Jan Hamilton, was not co-operative with police and it wasn't until the final stages of the investigation that it was discovered she was actually in the room at the time the deceased killed himself. Jan Hamilton informed Det Sgt Marzol that she saw the deceased put the gun under his chin, and his head under the covers of the bed, and she couldn't believe what was happening. She thought he was just going through a process, she then claims to have heard a "pop" sound and saw blood. When she pulled back the bed sheet, he was dead. The deceased was in poor health at the time of his death and it is clear that after receiving news from his solicitor this morning in relation to the pending court matters it became to [sic] much for him to manage. Crime Scene officers from Hurstville and Detectives from Sutherland L.A.C all attended and concluded there was no suspicious circumstances the wound is self-inflicted. 1. The duty log entries of Acting Inspector Southgate, Detective Senior Constable O'Meara and Acting Sergeant Norris, created on 25 July 2007, each record being informed that Mr Dyers had died. Both Acting Inspector Southgate and Acting Sergeant Norris recorded "suicide". 2. The final document produced with respect to the investigation by Strike Force Caroola was the POA dated 19 February 2008, which I have dealt with earlier. CHAPTER VI: THE PROCUREMENT ARGUMENT 1. Whilst, the plaintiff ultimately contended that the tort could be established upon the letter per se, she nonetheless actively prosecuted a case that the Court should find the existence of malice upon the basis of the procurement of the Bundeena allegation, predicated, as I have earlier summarised, upon the actions of Detective Sergeant Frame in procuring the Bundeena allegation in the course of the taking of a statement from PLA, arising out of her allegations of sexual offending by Mr Dyers against her and, in a less well defined way, Acting Inspector Southgate's engagement with Detective Sergeant Frame's conduct in that respect. 2. As was earlier mentioned, the plaintiff's contention was that Detective Sergeant Frame undertook this process subtly but it was nonetheless at least implicit in the submissions of the plaintiff that her actions were deliberate and in contemplation of the adverse consequences for Mr Dyers vis-à-vis his bail status. 3. The plaintiff did not identify with precision the factors said to establish its case on procurement but I have proceeded upon the basis that she had contemplation, most significantly, the matters raised for consideration under this heading but also, in furtherance of her case, the factors said to arise under the following heading of "The knowledge or belief argument", to which I shall next turn. 4. Nonetheless, senior counsel for the plaintiff seemed to have a preference for dealing with the procurement argument first in order and I shall adopt that course. Prior to the preparation of PLA's First Statement, PLA had alleged that she had been assaulted by Mr Dyers between the ages of 12 and 15, but had not made the Bundeena allegation. The allegation was first made during the time her first statement was prepared with Detective Sergeant Frame (para 150(b)) Plaintiff's Submissions 1. As earlier mentioned, in substance, the plaintiff's submission was that PLA did not, by direct communication or through her solicitor or father, make any allegation of a sexual offence as to the Bundeena allegation until the preparation and/or making of her statement dated 23 April 2007. 2. In terms of the immediate issues, concerning events up to the taking of PLA's First Statement, that contention was predicated upon the Court being asked to make the following primary findings: 1. First, the 4 April e@gle.i record should not be treated as an accurate or reliable record of the complaint relayed by Mr Rattenbury to Detective Sergeant Frame in a telephone conversation of 4 April 2007, insofar as the record stated that Mr Rattenbury described the complaints as extending to sexual offending "until recently" or that the latest offence was "approximately 6 months ago". 2. Secondly, the 4 April Duty Log entry did contain a record of the content of the conversation in question. Notwithstanding the absence of a reference to a particular timeframe for the sexual offending in the 4 April Duty Log entry, it may be inferred that Mr Rattenbury had conveyed the sexual offending occurred whilst PLA was 12 to 15 years of age given the instruction he had received from PLF. 3. Thirdly, the meeting note contains no reference to either the Bundeena allegation or sexual offending within a date range that extended to the time of that alleged offence. 4. Fourthly, the handwritten narrative contains no reference to either the Bundeena allegation or sexual offending within a date range that extended to the time of that alleged offence. 1. In summary, the plaintiff submitted as follows: 1. The 4 April e@gle.i record is the "only" document pre-dating 19 April 2007 (namely, the when police commenced taking statements from PLA and PLF) that records that PLA had made "any complaint about being assaulted in the past year by Mr Dyers". The plaintiff relied on that fact to contend the 4 April e@gle.i record was not an "accurate or reliable record". Whilst the submission was advanced generally with respect to the entirety of the record, the plaintiff's submissions, as to issues of accuracy and reliability, were primarily directed at Detective Sergeant Frame's record of her 4 April 2007 conversation with Mr Rattenbury, namely, where he said that PLA wanted to make a complaint that Mr Dyers had assaulted her "from the time that she was 12 years old until recently. He stated that the latest offence was approximately six months ago". 2. The plaintiff submitted the 4 April e@gle.i record was not a "reliable or accurate" for the following reasons: 1. The plaintiff relied upon the consistent references to a complaint of sexual abuse by Mr Dyers when PLA was aged "12 to 15". Reference, in that respect, was made to PLA's voice message to Ms Tinkler of 30 March 2007 and the age range mentioned in the Rattenbury letter. As well as, PLA's note in the handwritten narrative that stated she had told Mr Rattenbury "all the details" at the meeting. None of those records stated, it was contended, that "Mr Dyers had molested her in the past year at Bundeena while PLM was downstairs in the house". 2. The 4 April Duty Log "records the content of the conversation" between Mr Rattenbury and Detective Sergeant Frame. In that light it was contended that Mr Rattenbury was never told about sexual offending that occurred "until recently" or "approximately six months ago". The 4 April e@gle.i record was, therefore, not "supported" by the 4 April Duty Log entry. This appeared to be a reference to the increased detail within the 4 April e@gle.i record, namely, the reference to recent sexual offending, in particular, sexual offending within the last 6 months prior to the telephone conversation, which detail does not appear in the 4 April Duty Log entry. 3. The 4 April e@gle.i record is inconsistent with the Rattenbury letter. That submission appears to be based on the absence of reference to sexual offending that occurred "until recently" or "approximately six months ago" within the Rattenbury letter. 4. The 4 April e@gle.i record was "not supported by any notes of the meeting that took place on 10 April 2007, including Ms Frame's careful typewritten note" (a reference to the meeting note). The plaintiff contended that "if such an allegation were made on 4 April 2007, it would have informed the discussion on 10 April 2007, and been recorded in some way". The Court should infer that at the meeting on 10 April 2007, Detective Sergeant Frame and Detective Sergeant Owen were told that PLA wished to make a formal complaint concerning allegations of sexual assault that occurred while she was 12 to 15 years old. That inference, it was contended, is consistent with PLA's voice message to Ms Tinkler, as well as what PLA had told Mr Rattenbury. 5. The 4 April e@gle.i record is inconsistent with the handwritten narrative. The plaintiff submitted that the handwritten narrative only refers to abuse when PLA was aged between 12 and 15. It does not refer to any alleged offences "recently" or "approximately six months ago". It did not expressly refer to the Bundeena allegation. 6. The 4 April e@gle.i record is inconsistent with PLA's First Statement. Reliance, in this respect, was placed upon the fact PLA was not prepared to nominate "recently" or "approximately six months ago" as a timeframe at the time of her statement, save for an indication that the Bundeena allegation occurred after February 2006. 7. The 4 April e@gle.i record is inconsistent with the evidence from the plaintiff and PLM at the hearing; each of whom gave evidence that there was never an occasion when just four people, namely, the plaintiff, Mr Dyers, PLA and PLM, attended the house at Bundeena. 8. In light of Detective Sergeant Frame's evidence in cross-examination, the plaintiff sought to cast further doubt on the accuracy and reliability of the 4 April e@gle.i entry by contending it was inconsistent with Detective Sergeant Frame's "own conduct". The plaintiff contended that, if PLA had reported "recent" assaults, such an occurrence was likely to have triggered immediate action on the part of Detective Sergeant Frame to investigate whether Mr Dyers was continuing to offend (notwithstanding bail conditions) and whether there were people at risk. Consideration 1. In substance, the plaintiff sought the Court draw an inference from the evidence discussed under this heading that PLA had, prior to the taking of her first statement, confined her complaint to allegations of sexual offending that occurred while she was 12 to 15 years old and, by extrapolation, not offending which had occurred at a time recent to her communication with police or within about 6 months of that communication as specified in the 4 April e@gle.i entry. I do not consider that such an inference may be drawn on the evidence, and, further, the evidence is consistent with PLA identifying that she wished to make not only the historical allegations but an allegation or allegations of recent offending; the 4 April e@gle.i record being an accurate and reliable record of that fact. The evidence only extends to one alleged event of sexual offending which meets the description in the 4 April e@gle.i record of "recently" or within about six months and that was the Bundeena allegation. It follows that whilst PLA did not communicate the Bundeena allegation as such prior to her first statement, she did so, in substance, by reference to the offending. 2. My reasons for that conclusion shall be broken into two parts, dealing with three broader considerations and then dealing with some particular matters. I shall commence with the broader considerations. 3. First, in weighing the evidence, the defendant correctly submitted, it is appropriate to be conscious of avoiding placing undue focus on "bits and pieces" of evidence relied on out of their proper context. The risk is that picking out a part of the evidence, in a complex and substantial police investigation, in support of an argument that a component favourable to a party in that part contributes to the drawing of the inference the party advocates, while overlooking parts of the evidence adverse to the drawing of the inference, is "unhelpful" because of its propensity to result in error. For example, it was correctly submitted by the defendant, that the balance of the 4 April e@gle.i record (putting aside for the moment the reference to the recency of the sexual offending) established that Detective Sergeant Frame "took care to carefully record the substance of what Mr Rattenbury said to her" or, more particularly, took that care in making sure that, the record of her own conversation, but also, that relayed to her by Detective Sergeant Owen was accurately recorded. I refer, in that respect, to the following passage of the 4 April e@gle.i record: … Mr RATTENBURY was eager to suggest investigative techniques that could be utilised by investigators. He was advised that investigators would first obtain a statement from PLA and then direct the investigation as they saw fit. The direction and investigative techniques would not be shared with him in order to maintain the integrity of the investigation. He was also advised that the purpose of the investigation was to investigate offences against PLA and not on supporting the investigation into the assault matter involving PLF. 1. The defendant contended that "[t]he care with which Frame recorded her discussion with Mr Rattenbury points firmly to the accuracy of the second paragraph of the note". I accept with that submission insofar as the style and content of the record gave that impression. 2. When read as a whole, it may be accepted that the 4 April e@gle.i record appears to be a contemporaneous and conscientious recording by Detective Sergeant Frame, with respect to the substance of her conversation with Mr Rattenbury on 4 April 2007, and the subsequent conversation between Detective Sergeant Owen and Mr Rattenbury on 5 April 2007, which was relayed to her for the purposes of entry into e@gle.i. 3. A further observation may be made in that respect. It is true that the plaintiff contended that the contents of the conversation between Detective Sergeant Frame and Mr Rattenbury was that appearing in the 4 April Duty Book entry. However, within that broad submission, the plaintiff did not explain why the Court should reject parts of the 4 April e@gle.i record, other than the contested reference to the sexual offending occurring recently or within approximately six months. That same observation can be extended to Detective Sergeant Frame's recounting of Detective Sergeant Owen's discussion with Mr Rattenbury on 5 April 2007. The difficulty for the plaintiff's argument in that respect (confining the record to the 4 April Duty Book entry) is exacerbated by a failure to directly cross-examine Detective Sergeant Frame on the 4 April e@gle.i record. Detective Sergeant Frame was asked about the 4 April e@gle.i record. The question essentially concerned whether the content of the Bundeena allegation was conveyed by Mr Rattenbury. Detective Sergeant Frame was concerned to point out that Mr Rattenbury did not provide any evidence of the details of sexual offending, but only made a reference to the time of the offending. 4. The second broad basis for my conclusion is as follows: 1. In substance, the plaintiff wishes the Court to find that, notwithstanding the 4 April e@gle.i record, PLA had not made a complaint to Detective Sergeant Frame of a recent occurrence of sexual offending by Mr Dyers prior to her first statement based upon inferences drawn from references to an the age range for the sexual offending found in her voicemail to Ms Tinkler, the Rattenbury letter (insofar as PLA was present whilst PLF gave instructions) and the absence of reference to recent occurrences or the Bundeena allegation in the 4 April Duty Book entry, the meeting note and the handwritten narrative. From this, the Court was asked to infer there was, therefore, no reference to the Bundeena allegation until this statement. 2. Particular aspects of that submission will be dealt with below, but two important matters need attention at the outset. The first is that an absence of a reference to the Bundeena allegation, as such, in the various records referred to above does not logically preclude a conclusion that a broader complaint of sexual offending in more "recent times", proximate in time to the events giving rise to the Bundeena allegation was expressed from which it may be inferred a reference was being made to the Bundeena allegation. 3. The Bundeena allegation was about 9 months prior to PLA report of sexual offending to her father in Melbourne. It would not seriously be suggested that was not offending captured by the word "recently" or "the latest offence was approximately six months ago". (In the latter case, in circumstances where PLA had not been absolutely definitive in her estimate of the date giving rise to the Bundeena allegation). 4. That analysis significantly demonstrates the plaintiff's reliance upon the cross-examination of Acting Inspector Southgate when he (properly) conceded that, if PLF had reported to him the Bundeena allegation he would have been "astute" to include that fact in PLF's statement, is not a concession that nothing referable to the Bundeena allegation reporting was stated by PLF as to sexual offending against his daughter. The absence of a reference to the Bundeena allegation per se does not properly give rise to an inference that PLF had not, in substance, referred to events of that character. 5. Whilst it is true that PLF did not refer to the Bundeena allegation in his statement, as such, he did refer to PLA reporting to him on 27 March 2007 that "it has also happened on occasion more recently". As the senior counsel for the defendant pointed out, this statement arose from a non-leading question from PLF, during a meeting with his daughter. I have earlier mentioned, this must be taken as referable to the events to the Bundeena allegation given the timing of the allegation and the absence of other allegations of sexual offending or historical allegations at or about that time. 6. Furthermore, there is a reasonable inference available (as conveyed by PLF's statement) from PLA's statement to her father on 27 March 2007 that she did not refer to the details of the Bundeena allegation at the time because she was embarrassed or ashamed to tell "a man" or, in particular, her father, about it and would receive no support from her mother. She was able to report some historical offending to her father, but that referred to offending as a child and not where she had acquired the status as a young adult by the time of the events constituting the Bundeena allegation. 7. A further significant consideration immediately springs from that analysis. The statement by PLF to Acting Inspector Southgate was made on 20 April 2007 at the time Detective Sergeant Frame was preparing PLA's First Statement and, thus, in Detective Sergeant Frame's absence. There is no evidence to suggest Detective Sergeant Frame was in any way involved in the taking of PLF's statement, although various submissions were made that the evidence pointed to him playing a role in "procuring" the Bundeena allegation which I shall later reject. 8. There is much force in the defendant's submission that the fact of PLF's independent reporting of his daughter's statement as to the recent occurrence of sexual offending is "fatal" to the drawing of an inference that Detective Sergeant Frame "procured" the Bundeena allegation from PLA when she took her statement. It has a further implication, in the immediate context. The statement of PLA to her father of a recent occurrence of sexual offending predates the meeting between PLF and Mr Rattenbury. The meeting with Mr Rattenbury was less than a week later and puts in context how his letter may be properly construed as I will discuss below. 9. That fact weighs in favour of the drawing of an inference that Mr Rattenbury did report the recent occurrence of sexual offending to Detective Sergeant Frame, as recorded in the 4 April e@gle.i record. The absence of reference to recent offending in the voicemail may, in that context, simply be an omission in what seemed to be a hurried communication in circumstances where the details of the alleged historical sexual offending were clearly exercising PLA's mind as she went into considerable detail about them in the discussion with her father and in the context where, on her view, her mother's friend was bringing false charges against her father in order to prevent disclosure of sexual offending. 10. These considerations stand against the drawing of an inference that a complaint of recent sexual offending was not made on 4 April 2007. It may also be noted that the meeting note does not specify any complaint as such. 1. Thirdly, whilst the plaintiff is entitled to point to gaps in PLA reporting as a reason for raising questions as to reliability in the 4 April e@gle.i record, her submission does show little recognition of the subject matter of the complainant. As Detective Sergeant Frame who had some experience or speciality in the area of investigating child sexual offences, pointed out, the reporting of sexual offending by victim may give the appearance of inconsistency or unreliability because reporting is delayed. Offending is even denied. This is no doubt a consequence of the trauma and stigma attached to sexual offending which, will often lead to that very style or manner of reporting, namely, complaints or reports that are disjointed, fragmented or inconsistent. 2. It does not follow then that PLA reports fail to mention the Bundeena allegation until her final statement, and they are limited her complaints, save for the 4 April e@gle.i record, to the historical allegations. PLA reported recent offending, which was sufficiently proximate to the Bundeena allegation. Her account fo the same was a very short time before the interview with Mr Rattenbury. Furthermore, there was, as I have mentioned, a reasonable explanation for the failure to provide details of the Bundeena allegation. 3. Further, the reporting to Detective Sergeant Frame of the historical and Bundeena allegations was, in fact, over a very short time frame of 21 days. 4. The handwritten narrative is not inconsistent with the 4 April e@gle.i record. The plaintiff's contention, in this respect, was based on the absence of reference to the Bundeena allegation within the handwritten narrative. That may represent an issue going to the reliability of PLA's accounts if she were found to be a poor historian in that respect (I will return to that issue in dealing with the Plaintiff's Closing Submission at para 150(c) below) but it does little to demonstrate that Detective Sergeant Frame had not given a reliable and accurate record of her conversation with Mr Rattenbury. As mentioned, the handwritten narrative was written during the course of PLA locating relevant details of her complaints for the purposes of her statement, which was given a short time after the handwritten narrative was written. I do not consider Detective Sergeant Frame's explanation as to a failure to refer to the Bundeena allegation may be dismissed as fanciful. The handwritten narrative was never intended as a statement or exhaustive depiction of events. The absence of a reference to the Bundeena allegation may be explained as neglect because of its recency but also because a focus of PLA's attention up to that point had been to refer to recent offending, rather than to particularise the event. I do not accept the words "all the details" should be read literally when considered in the context of it forming part of an understanding of a diary entry. 5. Finally, and in many respects, most importantly, Acting Inspector Southgate proceeded upon the basis of a statement he had received that PLA had reported to her father, in late March, recent offending which required investigation. The Bundeena allegation is an illustration of recent offending which to Detective Sergeant Frame had both similarities (and differences) to historical allegations. 6. There are further particular reasons for the conclusion I have reached for the following reasons: 1. The 4 April Duty Book entry is a record of the fact of the conversation on 4 April 2007. It is not, nor does it purport to be, the content of the conversation. I reject the plaintiff's contention that the 4 April Duty Book entry is a complete record of the conversation. It does not purport to be a statements made directly by a complainant. (It might be added, that was the very purpose of the meetings that were subsequently scheduled between PLA and the investigators). By its terms, it is evident that it is merely a notation of, inter alia, tasks attended to within the course of conducting police duties. 2. The 4 April Duty Book entry is not inconsistent with the 4 April e@gle.i record. The fact the 4 April Duty Book entry does not record the words "until recently" does not cast any real doubt upon that because it is only a Duty Book entry and, further, it does not include any dates, which may otherwise suggest some limitation on the date range for the alleged offending which was dismissed. 3. The Rattenbury letter is not inconsistent with the 4 April e@gle.i record. 1. First, the two records are directed at separate purposes. The Rattenbury letter is a summary of PLF and PLA's instructions to Mr Rattenbury, with respect to two separate matters. It is a record of instructions between a solicitor and client(s). The 4 April e@gle.i record is made within the context of a police investigation. It is a record of instructions received from a solicitor as relayed to a police officer. 2. Second, as to the difference in "date range" (or reference to ages) between the two documents, the content of the Rattenbury letter must be understood by reference to its context. The date range contained within the Rattenbury letter does not represent inconsistency, as that date range concerned instructions with respect to PLF's defence. No date range is attached to the second set of instructions as to PLA seeking advice as to reporting allegations of "sexual molestation" in the Rattenbury letter. That entry needs to be viewed in the light of PLF's statement as to the complaints made by his daughter which include allegations of recent sexual offending. Nor do I accept the Rattenbury letter represents a summary of "all the details" PLA relayed to him on 2 April 2007 by virtue of what PLA said in the handwritten narrative. As to the same, the defendant correctly submitted that the words "all the details" could not sensibly be taken literally. 1. The meeting note does not include any reference as to details of the offences, including relevant dates, as that was not the purpose of the meeting. In particular, it is clear, that particularisation of the offences would be the purpose of a subsequent meeting: "The issue of particularising offences was raised and PLA stated that she had some diaries that may assist her to recall when the offences occurred". No adverse inference can be drawn from the absence of any reference to particulars of the alleged offending. 2. As to the cross-examination of Detective Sergeant Frame as to the 4 April Duty Log entry (and the defendant's reliance upon that cross-examination as to the 4 April e@gle.i record), it is true that Detective Sergeant Frame stated that a report of recent sexual assault would have been of concern because it represents PLA was still at risk of harm and Mr Dyers was committing offences whilst on bail, but Detective Sergeant Frame disagreed that she would have had immediate concerns as to PLA safety because she "was safe at that point in time" (although she was unsure when she would have known that information). Detective Sergeant Frame's evidence in that respect is credible as the very process PLA was embarking upon, as a young adult, was to resist being placed in a vulnerable position by Mr Dyers. Further, there was a question to be addressed, before "action" being taken, and that was to commence an investigation, one part of which was to consider whether PLA had negatived consent. 3. Further, I accept the submission of the defendant that there was no apparent reason why a duty book should record the level of detail about which the officer was cross-examined. Further, the defendant correctly contended, "no inference whatsoever is available from its absence". 4. In any event, Detective Sergeant Frame gave evidence that during the course of the conversation with Mr Rattenbury, he told her what was communicated in the contents of the 4 April e@gle.i record without the "specifics" of the Bundeena allegation. She made that entry about six days after the phone conversation. That evidence came after an unsuccessful cross-examination of Detective Sergeant Frame suggesting that the 4 April e@gle.i record may have been in some way amended after the entry was created on 10 April 2007. Her evidence as to the communication from Mr Rattenbury and the accurate recording of that communication in the 4 April e@gle.i record was not diminished by cross-examination. 5. I do not consider the fact that PLA was unable to offer a date for the Bundeena allegation in her first statement, other than to say it was after February 2006, was inconsistent with the 4 April e@gle.i record. I accept the submission of the defendant that the reference to "after February 2006" refers to an event that occurred after she started at university, the detail of which could be explained upon by recourse to the RMIT student diary (the diary helped PLA confirm dates she attended Sydney during the 2006 university year). 6. As to the evidence of PLM and the plaintiff concerning the alleged Bundeena incident, which they denied, the defendant submitted those are not matters which can rationally be taken into account in disbelieving Detective Sergeant Frame's record of what was said by Mr Rattenbury (on the basis of what was said to him by PLA and/or PLF). I accept that submission. The absence of any reference in the hand written narrative to the Bundeena allegation should have alerted a fair and competent investigator to that the event did not occur and that it was most likely given to provide to police what PLA's conceived that they wanted to hear? (para 150(c)) Plaintiff's Submissions 1. Returning to the absence of any reference to the Bundeena allegation in the handwritten narrative, the plaintiff contended that fact should have alerted a fair and competent investigator that the event either did not occur or "that it was most likely given to provide to police what PLA's conceived that they wanted to hear". 2. In that light, it was submitted, the Bundeena allegation only came to be made by PLA as a result of "prompting or encouragement" by Detective Sergeant Frame as to whether there had been assaults in 2006. It was contended that the prompting or encouragement was more likely to have been subtle, rather than overt. It is in this sense, it was submitted, that the allegation was "procured". 3. In summary, the plaintiff submitted: 1. In light of the timing of the handwritten narrative's production, together with PLA's recording of a police facsimile number within that narrative, it was likely that PLA was prompted to prepare the handwritten narrative by Detective Sergeant Frame at the meeting on 10 April 2007. The handwritten narrative (or part of it) was made available to Detective Sergeant Frame, by facsimile, prior to the taking of PLA's First Statement. 2. The handwritten narrative was used conspicuously in the preparation of PLA's First Statement. However, Detective Sergeant Frame made no reference to the handwritten narrative within the statement. By that submission, it would appear the plaintiff seeks an adverse finding to be drawn against Detective Sergeant Frame, namely, discrediting the objectivity and transparency of Detective Sergeant Frame's conduct as an investigator throughout the preparation of PLA's First Statement. 3. Relevant aspects of the handwritten narrative were deliberately excluded from within PLA's First Statement. It was submitted that PLA's reference to, inter alia, her dinner with Mr H as well as her description of Kenja as a "hurtful, evil cult that destroys lives and freedoms" were both relevant to the case brought against Mr Dyers. It was contended that such exclusions are demonstrative of biased decision making, namely, a conscious decision to exclude material "that might be harmful to the case against Mr Dyers". By that submission, the plaintiff once again, appeared to suggest unfairness on the part of Detective Sergeant Frame, through her decision to omit material that was "necessary" for objective and fair investigation. 4. The handwritten narrative did not refer to any "recent" sexual offending at Bundeena or otherwise. Further, within the same entry, as earlier mentioned, it was submitted that PLA recorded that she told "all the details" to Mr Rattenbury on 2 April 2007. That omission, together with the absence of any express reference to the Bundeena allegation in the Rattenbury letter and the statement of PLF, was relied upon to support an adverse inference that Detective Sergeant Frame procured from PLA the Bundeena allegation (contained in paragraphs 66 to 72 of PLA's First Statement). As earlier mentioned, reliance, in that respect, is placed upon that fact that the Bundeena allegation, in terms, is first articulated during the preparation of PLA's First Statement. 5. Reliance was also placed upon PLA's reference to 2006, namely, the year in which she moved to Melbourne to commence University studies, in the paragraph preceding the Bundeena allegation. The plaintiff appeared to seek to establish that Detective Sergeant Frame knew that, at that time, Mr Dyers was on bail, and that an allegation that Mr Dyers committed sexual assault during 2006 could be utilised by Strike Force Caroola to revoke his bail. 6. The 2006 RMIT student diary does not corroborate the Bundeena allegation; rather, it only confirms the dates PLA was in Sydney in 2006. That diary does not describe the Bundeena incident or otherwise refer to PLA going to Bundeena to meet with Mr Dyers. Thus, the plaintiff contended: "It is likely that PLA was concocting the Bundeena allegation during the process of the taking of her first statement (during which she had recalled being in Sydney at some time on 2006)". Consideration 1. I have earlier made findings as to the handwritten narrative which I will not repeat, but adopt, here. 2. The handwritten narrative was prepared in accordance with an entirely orthodox and proper request by Detective Sergeant Frame for PLA to consider the details of the allegations she had advised in advance of giving a formal police statement. 3. I accept the submission of the defendant that it is not apparent why the formal statement should include an acknowledgement of the existence of the handwritten narrative in preparing the statement. No such proposition was put to Detective Sergeant Frame in cross-examination. 4. Detective Sergeant Frame had been informed by Mr Rattenbury that PLA was intending to make a complaint about recent sexual offending. Irrespective of the information given to Acting Inspector Southgate by PLF as to PLA's complaint as to recent sexual offending, the fact that a recent allegation, albeit in the detailed form of the Bundeena allegation, was provided to Detective Sergeant Frame, would not have been cause for alarm or concern as the complainant merely provided the details of that recent offence. That was the very step PLA had been asked to take on 10 April 2007, namely, the assessment of details. 5. In a sense, the plaintiff meets these considerations by contending that there was something aberrant about the Bundeena allegation as it was "glaringly improbable". In a further section in this judgment I will reject the contention advanced in that manner. 6. Detective Sergeant Frame gave an explanation that she viewed the absence of a reference to the Bundeena allegation in the handwritten narrative as merely a case of PLA not feeling the need to provide those details in preparation for her statement because it was a recent occurrence and because it did not need historical explanation. By this answer, I understood that PLA would require less reflection on details and times because of the currency of the alleged events. As mentioned, I accept Detective Sergeant Frame as a credible witness and one possessing relevant experience and skills in the area of sexual offending. Whist there is an obvious question as to the absence of reporting in the handwritten narrative (to which I will further return below), I do not consider the officer's opinion, when seen in the light of her experience with respect to the reporting of child sexual offending, to be implausible. There is no contradictory evidence. 7. In any event, the submission by the plaintiff is directed globally to the investigation. That brings next to account the statement taken from PLA. 8. The defendant correctly submitted (consistently with my earlier findings) that, whilst PLF's statement does not record an incident occurring at Bundeena, it did record PLA having told PLF, on 27 March 2007, that "it has also happened on occasion more recently". That reference to "recently", it was correctly contended (as I have found), was consistent with the Bundeena allegation being made by PLA prior to, and independently of the interview with Detective Sergeant Frame and, therefore, the prospect of prompting or inducement. 9. As to the plaintiff's submission "that it is likely PLA was concocting the Bundeena allegation during the process of the taking of her first statement", I also accept the defendant contentions that such a submission was "sheer speculation" and that "[n]othing in the evidence gives rise to this inference". It was further correctly submitted: In the unlikely event that she did concoct the allegation there is no basis for inferring that Frame knew it was concocted and equally no basis for inferring that Southgate must have known, from what PLA said in her statement, that the allegation was concocted and therefore disbelieved it. 1. I will return to my reasoning in this respect in the section of the judgment dealing with "the knowledge or belief argument". 2. As to the contended "omissions" in PLA's First Statement, I accept the Court is not in a position to conclude anything about the absence of the references to Kenja as a cult appearing in the formal statement. The comments are equally consistent with the abuse having occurred as it having not occurred. There was no basis for inferring that this was known to Acting Inspector Southgate. 3. Ultimately, the difficulty for the plaintiff sustaining this contention is the absence of evidence as to any communication between Acting Inspector Southgate and Detective Sergeant Frame as to the handwritten narrative or even that Acting Inspector Southgate had any knowledge of the handwritten narrative. It was not put to Acting Inspector Southgate in cross-examination that Detective Sergeant Frame had procured or induced the Bundeena allegation simpliciter or knew it was untrue. Procurement was only mentioned in the context of Acting Inspector Southgate's use in the POA. Further, Detective Sergeant Frame was never asked if she believed it, just whether it was unusual to her. Acting Inspector Southgate was asked whether he believe it was true and did not ask whether Detective Sergeant Frame procured. 4. I do not consider the evidence permits a conclusion that, as submitted by the plaintiff, that there is no evidence that Acting Inspector Southgate "deliberately ignored" the contemporaneous documentary evidence provided by PLA, in particular, the handwritten narrative. Whilst the plaintiff placed emphasis upon the timing at which the handwritten narrative became available to Detective Acting Sergeant Frame, that evidence does not permit an inference to be drawn as to the state of mind of Acting Inspector Southgate, namely, malice with respect to that material, during the course of the investigation. Acting Inspector Southgate was liaising with Detective Sergeant Frame about the content of PLA's First Statement during its preparation – Acting Inspector Southgate and Detective Sergeant Frame were worked as a team (para 150(d)) Plaintiff's Submissions 1. In summary, the plaintiff sought the following adverse findings, with respect to the conduct of Acting Inspector Southgate and Detective Sergeant Frame, throughout the preparation of PLA's First Statement: 1. It is highly likely that Acting Inspector Southgate had access to and read the handwritten narrative at the time that PLA's First Statement was prepared. 2. It is highly likely that Acting Inspector Southgate appreciated that the handwritten narrative formed the basis of the typed statement and that he was conscious of the fact that the handwritten narrative did not refer to the Bundeena allegation. 3. Acting Inspector Southgate was liaising with Detective Sergeant Frame about the contents of PLA's First Statement during its preparation. 4. Acting Inspector Southgate and Detective Sergeant Frame worked as a team. Consideration 1. I have earlier dealt with the contentions in (1) and (2) above. 2. I reject the third and fourth of those contentions insofar as they concern procurement. My reasons for that decision are as follows. 3. The plaintiff contended that "Mr Southgate was liaising with Ms Frame about the content of PLA's statement during its preparation". Reference, in that respect, was made by the plaintiff to the evidence of Detective Sergeant Frame in cross-examination, namely, where she accepted the proposition that she spoke to Acting Inspector Southgate at the end of taking a statement about what PLA said to her. That line of questioning is extracted below: Q. Did you speak to Detective Southgate about - at the end of taking the statement about what PLA had said to you? A. Yes. Q. And you, in fact, decided to go to Melbourne to make some investigations to corroborate or support some of the details she'd given you. Is that right? A. Yes. Q. And you did that as of 24 April. Correct? A. Yes. [Emphasis added.] 1. During the course of oral submissions, with the respect to any conversation had between Acting Inspector Southgate and Detective Sergeant Frame "at the end of taking the statement", the defendant correctly contended that the above answer was "the extent of the evidence" of discussions between Acting Inspector Southgate and Detective Sergeant Frame at the end of the taking of PLA's statement by Detective Sergeant Frame. 2. As earlier mentioned, Acting Inspector Southgate did not interview PLA at the time at which PLA's First Statement was taken. Detective Sergeant Frame interviewed PLA. Acting Inspector Southgate's position as Officer in Charge, together with the fact the he engaged in conversation with an investigator on Strike Force Caroola, does not allow for an inference that he "procured" or "caused to be procured" any allegations against Mr Dyers or, more specifically, the Bundeena allegation. Further, such exchanges are to be expected between investigators, particularly that of an Officer in Charge and an investigator within the same taskforce. 3. Turning to the plaintiff's reliance upon the "regular" communication within Strike Force Caroola, the defendant correctly contended that approach "is not appropriate" as a means of proof of Acting Inspector Southgate's involvement in the asserted procurement (which I have, in any event, rejected). I accept the following submission: … regular communications [do not] imply that Detective Frame told Detective Southgate in relation to PLA's statement and, particularly, the Bundeena allegation, in effect, she had wheedled that allegation about Bundeena out of PLA when taking her statement [or that] Detective [Sergeant] Frame, did not believe it to be true, which is another way of saying she believed it to be untrue. That inference, we submit, is not open, merely because there were communications between Detective Southgate and Frame. 1. As to the above cross-examination of Detective Sergeant Frame, with respect to the preparation of statements, the defendant correctly submitted that the matters identified, by the plaintiff, do not provide a basis for imputing to Acting Inspector Southgate any particular knowledge that Detective Sergeant Frame had. An illustration is the 10 April 2007 meeting. Acting Inspector Southgate was not present at the meeting. He did not author the meeting note and, further, the contents of that meeting note were not put to him during cross-examination. I do not consider it may be inferred that the Acting Inspector Southgate had knowledge of what was discussed at the meeting. 2. Further, it was not suggested to Detective Sergeant Frame, that she told Acting Inspector Southgate she did not believe the Bundeena allegation to be true. 3. There is real force in the defendant's contention that "the ultimate and essential inference [the plaintiff sought to have drawn] against Detective Southgate must be that, having been so informed by Detective Frame, he also knew or believed that the Bundeena allegation was untrue and therefore necessarily embarked with Detective Frame on a false investigation of the allegation as part of what is said to be his plan - to use our phrase - to weaponise it and later use it against Mr Dyers". 4. The aforementioned findings and those that will follow in this judgement mostly result in a conclusion that such an inference should not be drawn having regard to the evidence in the proceedings. Conclusion: Procurement 1. In the circumstances, and subject to additional issues as to the resolution of the knowledge or belief argument of the plaintiff, I will address in the next section of this judgment, I do not find that Acting Inspector Southgate procured, or caused to be procured, the allegations from PLA that she had been assaulted by Mr Dyers, including, in that respect, the Bundeena allegation CHAPTER VII: THE KNOWLEDGE OR BELIEF ARGUMENT 1. I shall repeat, for convenience, the remaining bases for the plaintiff's case against Acting Inspector Southgate of misfeasance in public office (other than particular issues relating to the sending of the letter per se and issues of malice raised with respect to his decision not to release the current investigation material to the ODPP, which shall be dealt with separately below). Those bases are as follows: 1. the incidents giving rise to the Bundeena allegation did not occur – thus, a finding was sought that the Bundeena allegation was untrue, albeit in the context of civil proceeding; 2. by the plaintiff's pleadings, Acting Inspector Southgate sent the letter knowing or alternatively, believing the Bundeena allegation was false (in order to continue his malicious investigation by Strike Force Caroola against Mr Dyers and to refuse Mr Dyers bail; 3. by the plaintiff's submissions, the plaintiff contended that Acting Inspector Southgate did not believe the Bundeena allegation or was indifferent to its truth. The plaintiff contended that Acting Inspector Southgate "must have known that the inclusion of the Bundeena allegation in PLA first statement was 'suspect and dubious'"; and/or 4. the lack of probability of its occurrence (it was contended the Bundeena allegation was "glaringly" or "strikingly" improbable). 1. The relevant aspects of the plaintiff's pleadings, with respect to Acting Inspector Southgate and the knowledge or belief argument, are extracted below: 97. Southgate, from about the time he was assigned to Strike Force Caroola to the time of Dyers' death in July 2007. … xix. acted upon PLA's allegations that Dyers had assaulted her between 1999 and 2006: a. knowing; alternatively, believing, that PLA was an unreliable witness and in the belief that she was most likely lying; and b. knowing; alternatively, believing, that the alleged Bundeena assault of June 2006 was a false allegation; i. in order to be in a position to continue his malicious investigation of the Caroola police against Dyers and Kenja, to arrest and charge Dyers, and to refuse him bail; ii. to prepare and send the 24 July 2007 Letter; and iii. thereby inflict harm upon Dyers and Hamilton … xii. deliberately ignored documents that PLA provided to Frame (including PLA's Handwritten Statement) that were inconsistent with, or failed to corroborate PLA's Police Statements; xiv. procured, or caused to be procured, PLA's June 2006 alleged Bundeena assault allegation, which he knew; alternatively, believed, to be false; 1. This aspect of the plaintiff's Bundeena case is primarily reflected in para 150(a), (e), (f) and (g) of the Plaintiff's Closing Submissions. For ease of reference, those submissions are repeated below: a. The Court can and should conclude, on the evidence, that the Bundeena allegation did not occur. e. It must have been obvious to both Ms Frame and Mr Southgate that the Bundeena allegation was strikingly improbable. f. Both Mr Southgate and Ms Frame must have been acutely conscious of the significance of an allegation of assault taking place while Mr Dyers was on bail (that is, post 27 October 2005) – by which time PLA was 18 years old. Each of them would have been conscious that an arrest in respect of allegation pre-dating 25 October 2005 would be unlikely to result in bail being revoked, while an arrest for offences taking place after that date was likely to result in bail being revoked. g. As explained elsewhere in these submissions, the Court should find that Mr Southgate held a firmly held view that Mr Dyers was a paedophile cult leader who should be in prison. That view was held more widely within Strikeforce Caroola, and is likely to have been a shared view. Plaintiff's Submissions The Events Constituting the Bundeena Allegations Did Not Occur? 1. The evidence relied upon by the plaintiff was as follows: 1. The evidence of the plaintiff that PLA had never attended the Bundeena residence, accompanied only by PLM, in her presence. 2. The evidence of PLM that she had never been to the Bundeena residence when only PLA, the plaintiff, Mr Dyers and herself were present. PLM also gave evidence that she did not go to the Bundeena residence with PLA during June 2006. The plaintiff described the evidence during cross-examination as "credible" and "powerful evidence that the Bundeena incident in fact never occurred". 3. The contemporaneous documentary evidence in the proceedings, in particular: 1. The handwritten narrative; 2. The 4 April Duty Book entry; and 3. The 4 April e@gle.i record. (I have earlier made findings with respect to the (2) and (3) above). 1. The plaintiff submitted that such evidence "enables the Court to conclude on the balance of probabilities that the alleged Bundeena incident did not occur". 2. That submissions was expanded in the following exchange with the Court, springing from an acceptance by the plaintiff that PLA had not been before the Court: BRERETON: Because your Honour has the benefit of evidence in particular from both the plaintiff and PLM who were, on the account that's seen in the statement, present and both gave evidence that there was never such an occasion. Both were cross-examined, and I think it'd be fair to say, aggressively on that question but both were asked about it and they both were steadfast in that evidence. And your Honour should accept that evidence. Once your Honour has accepted that evidence then it explodes the Bundeena incident as something that occurred. So there is evidence, powerful evidence. Mr Dyers can't give evidence about it, clearly. PLA is in the USA, I think, on the evidence. But there were two other people who were there and both gave very, very strong and lightly challenged evidence about the events. There's very clear and strong evidence that your Honour would be able to rely on to come to the conclusion that it never occurred. And that's relevant for a number of reasons. It's relevant to, you only get to procure if it never occurred because it can't procure something unless it didn't occur. So it's factually relevant to that question. And it assists in drawing conclusion as to the likely views and attitudes of Mr Southgate. HIS HONOUR: So the conclusion that you ask should be reached in the absence from the only two persons who were privy - that is directly - to the allegation made. BRERETON: They were the only two persons who were privy in the sense of being in the one room at the one time but in term of the event more broadly understood is the plaintiff and PLM on the allegation were downstairs. HIS HONOUR: All right. Well, the second question is the question that you're raising in that respect. The right question in terms of the tort or is the proper question, is the subject matter of the statement something which required investigation? Because in essence you wish to submit that, it should not have been the subject to an investigation as I understand it. BRERETON: That question is easily answered if your Honour were to accept that the allegation was essentially engineered or procured and that Mr Southgate knew about that. In those circumstances it's not an independent allegation. It doesn't bear the character of HIS HONOUR: All that question does is put out of account the two witnesses who were called here because those two persons as I understand it were not interview and that is part of your case BRERETON: It is. HIS HONOUR: at or about the time of the allegation being made and prior to the letter being sent. BRERETON: Yes. [Emphasis added.] 1. It was submitted that a finding that the Bundeena incident did not occur is relevant to whether or not PLA made it up, and is relevant to whether Acting Inspector Southgate thought that she made it up. The Court should not be distracted by a submission that this would be tantamount to a finding that PLA had committed an offence. She is not a party to the proceedings and there is no suggestion that she is a necessary or proper party to them. The Court should not shy away from making findings in the present case, on the civil standard, between the parties to the proceedings on the evidence before the Court. 2. Senior counsel for the plaintiff replied: Plainly enough, PLA didn't give evidence. Her statements aren't in evidence in these proceedings as truth of what they assert. There's no reason, we submit, in principle why your Honour should not come to a conclusion as to whether or not in fact the Bundeena allegations occurred merely because PLA hasn't been called by either party to give evidence. It's a matter that arises in these proceedings between these parties and the absence of PLA doesn't provide a reason why a question cannot or should not be addressed. Glaring Improbability 1. In the Plaintiff's Closing Submissions, the plaintiff contended that the Bundeena allegation, as described by PLA, was "on its face, a glaring improbable circumstance; namely, that a 19-year-old girl goes upstairs, while her mother and the Plaintiff remain downstairs – whilst this serious sexual assault, committed by an 84 year old man, supposedly happened upstairs". 2. In oral submissions, senior counsel for the plaintiff further explained this aspect of the plaintiff's case as follows: The reason why it's glaringly improbable factually, is because the allegation involved a 19 year old woman, travelling to Bundeena with her mother in order to confront Mr Dyers because PLA was upset about some things that Mr Dyers had said about her [older] brother. So they go to Bundeena together, mother and daughter. 19 year old woman. They did have a confrontation at Bundeena involving Mr Dyers, the plaintiff, PLA and PLM, her mother. There was anger and friction at that meeting. And then what is contemplated or is alleged is that Mr Dyers, who's then a frail, sick man in his 80s, went upstairs with a 19 year old woman while her mother and his spouse were downstairs and there was the encounter involving PLA taking her clothes off and being molested by Mr Dyers at a time when it was about two weeks after he had been committed to stand trial in relation to HLA and OLR and a few days before the arraignment. At that time, PLA was identified as a key witness for Mr Dyers in that forthcoming trial. So, we submit that the idea that there would be that combination of events, we say, is a glaringly improbable set of circumstances. That a 19 year old, having had an angry confrontation with a man who's in his 80s with her mother and his partner being there, then going upstairs and having this assault take place in circumstances where it was anticipated that, in the relatively near future Mr Dyers would be standing trial in relation to allegations of abuse in relation to two other women. 1. The plaintiff contended that the Bundeena allegation is distinguishable from "the other allegations". It was submitted: 38. The Bundeena allegation is qualitatively markedly different to the other allegations. This was not an alleged processing session on Kenja premises, with children, that turned into alleged sexual abuse. Instead, it was an organised meeting at Mr Dyers' house with a 19 year old, following an explosive argument about Mr Dyers' ill treatment of PLA's family, after which Ms Hamilton and PLA waited downstairs while a "processing" session occurred upstairs behind closed doors. The incident allegedly occurred at an objectively significant point in time: just after committal and indictment on 22 counts of alleged sexual assault. It was not at all strongly consistent with similar allegations by HLA and OLR. It screamed out as an unlikely event. The Defendant's submissions assume that the Bundeena allegation was made independently by PLA. The Plaintiff submits that is not what occurred and the circumstances of the making of the complaint are highly relevant to what should have been done with the complaint. 1. The contention vis-à-vis the "glaring improbability" of the Bundeena incident was put to Acting Inspector Southgate during cross-examination (as well as his "belief" with respect to the same). That exchange is extracted below: Q. And didn't it occur to you that it was highly improbable that approximately two weeks after being committed to stand trial in respect of 22 offences in relation to HLA and OLR that Mr Dyers would be engaging in the activities that he was accused of engaging by PLA? A. No, I don't. Q. Why not? A. Because I don't. Q. Do you recall why you didn't think that was pretty unlikely? A. No, I can't say what was in my mind at that time. Q. What was in your mind at that time was a conviction that Mr Dyers was a serial paedophile, isn't it? A. No. Q. That's what you thought at the time. A. No. Q. And you could only think that this was not improbable if you thought that Mr Dyers was a complete monster. Correct? A. Sorry, re ask that question, sorry. Q. You could only think that it was not improbable that Mr Dyers would undertake what he was accused of doing if you thought that he was a complete monster. A. No, that's not correct. Q. Was it commonplace in your experience for men in their mid 80s to engage in these kinds of activities alleged by PLA whilst his partner, the young girl's mother, were downstairs? A. I'm sorry, I haven't ever investigated every incident of - of that nature. So for me to be able to say to circumstances of it Q. Talking about your experience. A. Sorry? Q. In your experience. A. From my experience. No, it's not commonplace, no. Q. Did you think that it was conceivable that in June 2006 Mr Dyers would engage in these activities with a person who at that time had been nominated as a witness, was likely to be giving evidence in his favour. A. Yes, I do. Q. You thought that that was something that was, what - possible, probable? A. Possible, yeah. [Emphasis added.] 1. The plaintiff submitted that the above responses of Acting Inspector Southgate were "evasive and defective" and indicated his "inability to grapple with the improbability of the Bundeena 'incident', and to explain his own mental processes". In light of the answers extracted above, the plaintiff contended that "[t]he Court should conclude that Mr Southgate must have thought that it was highly improbable that Mr Dyers was guilty of the Bundeena allegations". 2. As to the meaning of the expression "glaringly improbable", in this context, the plaintiff submitted: The language of glaringly improbable is ours. It doesn't come from the cases. It's an expression used because we say it should inform the likely view that Mr Southgate took to the allegation. We submit that he didn't believe that it was a truthful allegation and, if it is glaringly improbably then that supports the submission that he didn't believe that it was a truthful allegation. [Emphasis added.] 1. As to the question of any obligation to investigate in the circumstances, the plaintiff admitted: HIS HONOUR: So the question then becomes and there's a dual question here. Is this the right question or not? Was it encumbe[nt] upon Southgate or Frame to conduct an investigation in the light of the receipt of that allegation? BRERETON: Well, we answered that in a number of ways. We say the first answer is no. It wasn't incumbent in regard to the circumstances in which the allegation came about. Secondly, we submit that even if there was an obligation to investigate, it still raised the question, was the letter sent as part of that investigation or was it sent as we submit with a view to torment and cause harm to Mr Dyers. That's the ultimate question. HIS HONOUR: Put aside the latter part of your answer which is not contained within the question I'm asking. BRERETON: Yes. HIS HONOUR: If I could return to 360 as it were, to the issue I raised just before lunch about the requirements of investigators. This most sharply fixes upon the basis for the question and assistance that I've asked for, but even assuming that the officers concerned consider that the allegations were improbable, would they not be required to investigate it? Firstly because of it's subject matter in nature, but secondly because the same person was the subject of making exculpatory statements in favour of Mr Dyers on a prior occasion? BRERETON: If PLA had essentially walked into the station and said, "This is what happened to me, I was molested between the ages of 12 to 15, or 12 to 17, and I was molested nine months or so ago at Bundeena. In that scenario, it's not difficult to see why it's said that a officer acting reasonably and responsibly would wish to investigate those matters. They may not be able to be criticised if they decline to do so but it's difficult to see how they could be criticised if they decide to investigate. But that's not what happened in this case. There's a much bigger and more sophisticated history. There was a lot more to this case than, effectively, a bland allegation made by PLA. There's - and we traverse in great detail in our submissions as to how it all came about. It's that character and colour that is critical in this case. Ultimately, the question is, perhaps, less about whether is there an obligation to investigate, but more, was this an investigation that was being carried out for a proper purpose, bona fide, or were the steps being taken by Mr Southgate being taken maliciously? That's really the question. The question of whether there was an obligation to investigation, at least to me, is not ultimately the right question in terms of the application of the tort. [Emphasis added.] 1. During closing submissions, the plaintiff submitted that she principally put her case, as follows: the Bundeena allegation forms part of the plaintiff's case in establishing the foundation for malice. However, it was also submitted that, the prior events culminate in the act, as follows: It's a series of steps and events that, when looked at in the whole, can result in a proper finding from your Honour and the correct finding is, at the moment, the letter was sent that was the malicious intent. Everything before then, together, results in your Honour being able to comfortable draw that conclusion. 1. However, senior counsel for the plaintiff also made the following refinement, by overview, to the plaintiff's case in this respect: BRERETON: At an overview level, we submit that there were the series of steps and actions undertaken by Mr Southgate that serve to lead to the conclusion that there was the malicious intent on 24 July. If your Honour were not to accept all of the submissions that we've made before 24 July, I accept that we would have - it's difficult to see how your Honour could conclude that things changed on 24 July and the letter was sent maliciously in circumstances where everything up to that point in time had been benign. But we don't go so far as to say that if we fail on any one of those steps along the way, it means that we fail overall. Your Honour gave the example of the bail hearing. We make some submissions about the bail hearing… If we're right, that assists as part of the picture. If we're wrong, it doesn't mean that we fail to establish the relevant malicious intent on 24 July. It's just, that event doesn't contribute in an evidentiary sense to that conclusion. Failure in relation to elements along the way don't result in failure of the ultimate submission, which is what was in Mr Southgate's mind when he sent the letter. HIS HONOUR: Included in that submission is Bundeena. BRERETON: Included in that is Bundeena, with the recognition that that would be the one that would put the biggest hole in our evidentiary picture. … Knowledge or Belief of False Allegation or Indifference to Truth 1. The plaintiff submitted that both Detective Sergeant Frame and Acting Inspector Southgate did not believe the Bundeena allegation or were indifferent as to its truth. It was submitted that Acting Inspector Southgate "must have known that the inclusion of the Bundeena allegation in the statement was suspect and dubious". 2. In cross-examination the following proposition was put to Acting Inspector Southgate: Q. I want to suggest to you, Mr Southgate, that in April, May, June and July 2007, you did not believe that what PLA alleged of Mr Dyers in her statement of paragraphs 65 to 72 were true. A. I disagree. 1. In addition to submissions already addressed with respect to the procurement argument and the probability of the occurrence of the Bundeena allegation, the plaintiff, in the broad, advanced the following contentions in support of her knowledge or belief argument: 1. Acting Inspector Southgate had reason to believe PLA was an unreliable witness and/or that she was most likely lying. 2. Detective Sergeant Frame and Acting Inspector Southgate's knowledge of the significance of an allegation of assault taking place whilst Mr Dyers was on bail, namely, that an arrest for offences taking place after 27 October 2005 would likely result in his bail being revoked. 3. Acting Inspector Southgate had a firmly held view that Mr Dyers was a paedophile cult leader who should be in prison. That view was held more widely within Strike Force Caroola, and is likely to have been a shared view. 1. Further, the plaintiff also contended that the evidence of Detective Sergeant Frame's conduct is admissible against Acting Inspector Southgate "because the evidence is that Mr Southgate and Ms Frame were in constant contact and collaboration, and worked as a team. The Court should infer that Mr Southgate was aware of the conduct of Ms Frame". PLA's earlier denials 1. The plaintiff submitted that it was relevant that in the interview on 27 August 2003, when PLA was 16 years old, that she had strongly denied that Mr Dyers had molested her and had referred to HLA as a "liar". This reliance appears to suggest that Acting Inspector Southgate had reasons to believe PLA was an unreliable witness and/or that she was most likely lying. 2. Notwithstanding Detective Sergeant Frame's evidence with respect to victims of sexual abuse, namely, that it was "very common" for victims of sexual assault to deny that anything had happened and that it is "not uncommon for victims of sexual assault not to disclose what's happened to them until they're much older in life", the plaintiff emphasised the generality of such evidence. Reliance was placed on the fact that Detective Sergeant Frame did not give evidence: 1. that it was common for 16 year olds to deny that they had been sexually assaulted, and then three or four years later, to say that they had lied previously; 2. that it was common for alleged victims to defend their alleged abusers, and to say that other complainants were "liars" (as PLA had done concerning HLA); or 3. that investigators from DOCS and police were commonly unable to discern or suspect when 16 year olds were not telling the truth. 1. Further, it was contended, "there is no evidence that the DOCS and police investigators who spoke with PLA in 2003 (when she was 16) had any reason to suspect that she was not telling the truth, and had in fact been abused by Dyers". The significance of an allegation of assault taking place while Mr Dyers was on bail (para 150(f)) 1. In support of the plaintiff's Bundeena case, the plaintiff also contended that Mr Dyers' bail status was particularly relevant to Strike Force Caroola. As noted above, the plaintiff contended (at para 150(f)): (f) Both Mr Southgate and Ms Frame must have been acutely conscious of the significance of an allegation of assault taking place while Mr Dyers was on bail (that is, post 27 October 2005) – by which time PLA was 18 years old. Each of them would have been conscious that an arrest in respect of allegation pre-dating 25 October 2005 would be unlikely to result in bail being revoked, while an arrest for offences taking place after that date was likely to result in bail being revoked. 1. This was because, if there was an arrest of Mr Dyers – in respect of an alleged assault in either 2006 or 2007 – "there was a likelihood that his bail would be revoked and that he would be incarcerated in accordance with s 9B of the Bail Act". Senior counsel submitted the following: [W]hat is really critical and fundamental to understand is the significance of the Bundeena allegation because it constituted an alleged offence whilst Mr Dyers was on bail. So that was the thing that threatened his freedom. So that's why the Bundeena allegation was so important. And an aspect of Mr Southgate's evidence that was quite unsatisfactory is when he denied that he had any appreciation that that was an offence that was committed whilst Mr Dyers was on bail. So the investigation; there was no doubt steps taken. Mr Southgate and Ms Frame did go to Melbourne. When one looks at the things that they did, they are all consistent with seeking to obtain incriminating evidence rather than exculpatory evidence, but they were certainly doing things. Meanwhile, the trial in relation to HLA and OLR was imminent, then there was the stay, then there was the uncertainty about whether there would - what would be the outcome of the mental health review tribunal. That wasn't decided until late June and at that point it looked like Mr Dyers may or may not have a special hearing. It wouldn't be at trial for some time, that the DPP was considering whether or not there should be a special hearing and that the 24 July letter came relatively shortly after the mental health review tribunal essentially confirmed that he was unfit to stand trial and that point there was the uncertainty about whether there would be a trial in relation to HLA and OLR. (That submission shall be considered in the following part of this judgment). 1. The plaintiff contended that Acting Inspector Southgate would have been "acutely aware" that a complaint concerning an assault in 2006 or 2007 "posed an immediate threat to Mr Dyers' freedom". Both Acting Inspector Southgate and Detective Sergeant Frame were cross-examined with respect to the "importance" and "relevance" of bail. 2. The relevant extracts of Acting Inspector Southgate's cross-examination, as to bail, appears below: Q. It was obvious to you when you read the statement that the allegation in relation to Bundeena involved a possible offence that was committed while Mr Dyers was on bail? A. No, it wasn't. Q. It wasn't in your mind? A. No, it wasn't. Q. But you said a moment ago that you were conscious that he'd been on bail since October 2005. A. That's correct. Q. And you were conscious that this allegation involved something that was said to have occurred after February 2006. A. Yes. Q. And it's just inconceivable, can I suggest to you, Mr Southgate, that you would not have turned your mind to the proposition that this involved an accusation of an offence committed whilst Mr Dyers was on bail. A. I'm sorry, that's the case though. Q. Would you agree that if you were doing your job properly, that's something that you must have had in mind? A. No, I don't agree with it. Q. Can I suggest that you must have been conscious that Mr Dyers was charged with committing an offence whilst on bail, that bail was likely to be revoked. A. No. … Q. Sitting here today, Mr Southgate, it's obvious to you now, isn't it, that if Mr Dyers had been charged in 2007 with an offence of a sexual nature, that it was likely that his bail would be revoked. That's right, isn't it? A. No, it's not. Q. Why is that? A. Because you're taking into consideration the circumstances of the - the stay that was already under way and in place, that that from - in my mind would have impacted on - like, I wouldn't have considered that - that any court would have refused him bail. But that's just my thoughts on it. … Q. I want to suggest, Mr Southgate, that it did occur to you that the alleged Bundeena incident, if it occurred, occurred whilst Mr Dyers was on bail. A. No, it didn't. Q. If you go to your first statement at paragraph 53, if you look at the last sentence, you say, "I did not turn my mind to the fact that the allegations included offences said to have occurred while Mr Dyers was on bail." I want to suggest to you that that is an untrue statement. A. That's incorrect. Q. I want to suggest to you, Mr Southgate, that the Bundeena allegation was of particular significance to you because it provided a mechanism by which police could ultimately seek to have Mr Dyers' bail revoked. A. No, I disagree. … Q. And the reference to 2006 in the letter was inserted deliberately with the design to have Mr Dyers fear that his bail would be revoked. A. No, disagree. [Emphasis added.] 1. The answers of Acting Inspector Southgate were contrasted with that of Detective Sergeant Frame. An extract of her evidence appears below: Q. The importance of bail is that, firstly, it ensures that someone is going to come to Court to answer their charges. That's your understanding, isn't it? A. Yes. Q. And the other important aspect of bail, as you understand, is that it's relevant to whether someone can continue committing offences. Is that right? A. Yes. Q. If you had a concern about a person continuing to commit offences, that would be a strong reason for seeking bail to be refused. Is that right? A. Yes. Q. Similarly, if someone is on bail and they were committing offences, that would give you immediate concern. Would that be correct? A. Yes. 1. As to that evidence, the plaintiff submitted "[t]here is no reason to think that Mr Southgate did not have a similar understanding". Further, the plaintiff contended that it was "inconceivable" that Acting Inspector Southgate, as an experienced detective, could have failed to turn his mind to the fact that the Bundeena allegation involved an offence that was committed while Mr Dyers was on bail and that if Mr Dyers were charged, it was likely that bail would be revoked, or not granted. Thus, the plaintiff submitted that Acting Inspector Southgate was "seeking to deny the obvious, and his evidence should be rejected". Conclusion: The Knowledge or Belief Argument 1. As mentioned, the essential allegations pleaded against Detective Sergeant Frame were that, between 19 and 25 April 2007, she procured the Bundeena allegations from PLA and, having done so, she did not believe it. I have made findings adverse to the plaintiff's case on procurement by Detective Sergeant Frame in the preceding section of this judgment, namely, the evidence did not establish procurement as contended for by the plaintiff. A further component of the plaintiff's case as to procurement, vis-à-vis, the belief or the truth of the allegation by Detective Sergeant Frame, was predicated upon the contention that the Bundeena investigation was glaringly improbable and/or did not occur. 2. I will find below that the plaintiff's contentions as to the glaring improbability of the Bundeena allegation may not be accepted on the face of PLA's First Statement and in the context of the history of the alleged abuse of her by Mr Dyers over many years or the allegations of abuse concerning HLA and OLR. Based on that conclusion, the previous section of my judgment dealing with the procurement pleadings and contentions of the plaintiff and the conclusions reached immediately below, I reject the plaintiff's procurement argument. 3. I accept the submission of the defendant that, on the plaintiff's pleaded case against Acting Inspector Southgate, those findings regarding Detective Sergeant Frame stand against the pleadings of misfeasance against Acting Inspector Southgate regarding procurement and more generally. 4. The pleading that Acting Inspector Southgate knew or believed the Bundeena allegation shall be addressed further below, together with my reasons for rejecting the plaintiff's case as to "glaring improbability". However, as I shall find, it is unnecessary to return to the plaintiff's case as to whether or not the Bundeena allegation did not occur. A finding that events giving rise to the Bundeena allegation did not occur could not constitute a finding relevant to the proof that Acting Inspector Southgate knew it did not occur. I shall find that the plaintiff has not established that Acting Inspector Southgate had the knowledge or belief (or indifference to the truth) which is said to underpin the misfeasance in this case. 5. Further, those conclusions raise serious doubt (save only for the further two sections of this judgment concerning the sending of the letter per se and decision not to provide material to the ODPP) about the plaintiff's case theory, namely, that the investigators of Strike Force Caroola and, in particular, Acting Inspector Southgate conducted a malicious investigation based upon the precept that Mr Dyers was a paedophile leader of a cult who had to be punished and that they could, and did act, in substance, unlawfully in many and various ways, to see that he was punished. 6. In proceeding to my further reasons for those conclusions, it is useful to encapsulate the plaintiff's case. The plaintiff maintained that targeted malice, namely, that malicious injury was occasioned by Acting Inspector Southgate to Mr Dyers through an act that injuriously affected Mr Dyers and herself and may be established by virtue of the contentions I have summarised above under this heading of the judgment. 7. Acting Inspector Southgate sent the letter knowing or believing (or being indifferent to the truth) that the Bundeena allegation was a false allegation in order to be in a position to continue a malicious investigation against Mr Dyers and then to arrest and charge him, resulting in a refusal of bail. The revocation of bail meant the Mr Dyers would be in custody. 8. On the plaintiff's case, Acting Inspector Southgate acted with the malicious purpose of contriving to have Mr Dyers bail revoked so he could be put in custody by means of informing Mr Dyers, through the letter, of criminal allegations relating to the period of 1999 and 2006, and, in that respect, bringing in the Bundeena allegation that was alleged to have occurred whilst Mr Dyers was on bail; Acting Inspector Southgate affirmatively knowing the Bundeena allegation to be untrue, not believing it or being indifferent to the truth of it. 9. In PLA's First Statement, she made historical allegations, as well as the Bundeena allegation. She had made earlier complaints of the historical allegations on a number of occasions, prior to making a formal complaint to police. PLA raised the historical allegations, in terms, (although with some variation to the account given in her statement) with her father at the end of March 2007 (or at least he records the same in his statement of evidence), in her meeting with Mr Rattenbury, (albeit in less detailed terms) and, in broad terms, in her voicemails to her mother and Ms Tinkler. In the latter respect, it may be inferred from the communication from PLA to her mother, in the voicemail, that PLA was of the view that her mother knew of the historical allegations and was stating that if the assault allegations, against her father, were not discontinued that she would report the historical allegations to police. That conclusion comes from the passage in the voicemail to the mother in the following terms: I'm just ringing to tell you that if you don't call the police and tell them that you and Wendy and Beatrice have been making up that story about being hit by Dad, that I will go to the police, tomorrow, and tell them everything I haven't told anyone before now, but I will, I'll tell the police tomorrow if you don't ring up right now. … Be smart. Don't be stupid, be smart. You want to protect your friend? Then be smart. Call the police. 1. Moments later, PLA left a voicemail on Ms Tinkler's mobile phone, in which she made reference to the historical allegations: "I will go to the police and tell them what happened to me from when I was 12 til the age of 15" (emphasis added). 2. It might also be noted that, soon after the voicemails, PLF attended upon Mr Rattenbury at which point he asserted that the assault allegations brought against him were designed to prevent PLA "from making a complaint to the Police that she had been sexually abused from the age of 12 to 15 by the leader of [Kenja], Ken Dyers". 3. Whilst the pleadings may have sought to traverse the historical allegations vis-à-vis procurement, there was no dispute raised in the contentions by the plaintiff in closing submissions that the historical allegations should be viewed as glaringly improbable or contrived and concocted, as was contended for with respect to the Bundeena allegation. The plaintiff's contentions as to the knowledge and belief held by Acting Inspector Southgate (of false allegations) were founded on his knowledge and belief with respect to the Bundeena allegation. 4. The foundation for that position, no doubt lay in the fact that the historical allegations were very similar, both in time and content, to the allegations made against Mr Dyers by HLA and OLR, giving rise to criminal proceedings against Mr Dyers. That position may also be explained upon the basis that the plaintiff viewed the historical allegations as not giving rise to the prospect of a revocation of bail. 5. Whilst an investigation of the historical allegations would have no doubt been required to take into account exculpatory considerations, such as the surrounding circumstances in which the allegations were made (the family dispute between PLF and PLM and the assault allegations regarding Ms Tinkler) and the contrary position adopted by PLA in the 2003 interview, on what was known to Acting Inspector Southgate, he would have been, to use an expression adopted by the defendant in the context of the Bundeena allegation, in serious dereliction of duty if he had decided to dismiss the historical allegations out of hand without investigating them, given their nature (a detailed history of alleged sexual abuse by Mr Dyers over many years) and their coincidence with, and correspondence with, allegations made by other alleged victims in a very similar context, namely, children of persons who were members of Kenja. 6. It was contended by the plaintiff that the Bundeena allegation was "qualitatively markedly different to the other allegations", although that submission was not well developed. Whilst there were plainly differences between the circumstances giving rise to the historical and HLA/OLR allegations and the Bundeena allegation, in my view, that submission may not be accepted on the evidence as to the allegations in these proceedings, namely, the historical allegations and the HLA/OLR allegations. 7. A primary feature of all of the allegations was that the acts complained of occurred during, what was termed in Kenja circles, a "processing session". Whilst the methodology employed in those processing sessions conducted by Mr Dyers (as "processor"), allegedly resulted in sexual offending, varied throughout the respective allegations, there were also significant consistencies. Each of the accounts involved a gradual course of conduct in which there was an increasing sexualisation of the activity, although the extent of the alleged sexual activity varied depending upon the overall period in which the sexual offending was alleged to occur. Thus, the Bundeena allegation involved, on PLA's account, a processing session in which Mr Dyers stated that, "We'll have to go back to processing like we used to, so take off all of your clothes". Similarly to the accounts recorded in the historical and HLA/OLR allegations, Mr Dyers, in the Bundeena allegation, sat opposite PLA whilst fully clothed and began the session by staring into her eyes. During the course of the session, he progressively touched her body including her breasts and "clitoris" and massaged her clitoris until she orgasmed. Whilst that was an advanced stage of the alleged acts, it was consistent with later stages of "processing" in the case of HLA (and PLA, being a reference to the later stages of the historical allegations). 8. It is true that the Bundeena allegation contained elements of difference but they were not, in my view, sufficient to warrant a conclusion that the Bundeena allegation was materially inconsistent with the historical and HLA/OLR allegations, which, as mentioned above, concerned allegations of earlier sexual offending. For example, the incident giving rise to the Bundeena allegation was said to have occurred at Mr Dyers' residence, which was not a feature of the prior allegations. However, it must be recalled that, by that stage, Mr Dyers was excluded from Kenja premises because of his bail conditions. Further, the positioning of PLA in a room isolated from other persons was also consistent with earlier allegations (although sometimes he had another person in the room or nearby at the Kenja premises). It is also true that the Bundeena allegation does not refer to a mattress being in the room or Mr Dyers laying on the mattress, but that practice was variable at the Kenja premises under the earlier allegations. In the Bundeena allegation, the processing session was alleged to have been conducted in an upstairs study at the Bundeena residence. 9. It is also true, by way of difference, that PLA was older than other complainants. It was said that she was a "19 year old woman", suggesting adulthood. In fact, PLA was 18 years of age at the time of the alleged offending in Bundeena. It would seem she was some 2 years older than the last of the historical allegations. HLA and OLR were significantly younger at the time of the alleged sexual offending against them, but all of the complainants are children of Kenja members who were placed under the authority of Mr Dyers as the head of that organisation. All of the complainants were of or around the same age at the time the alleged offending commenced. 10. Of greater significance would be the fact that any charges of sexual offending would differ for the Bundeena allegation given the age of PLA and some additional issues of proof would arise such as negativising consent. But this would not be expected to significantly alter the investigation methodology and certainly not whether an investigation may be undertaken. 11. A further feature relied upon by the plaintiff, to demonstrate a relevant distinction, was that Mr Dyers was considerably older at the time of this offending; but it is not entirely clear what significance that has as a point of difference. He was the person of interest in all investigations. 12. In this case, a difference in the background to the complaint was that both the plaintiff and PLA's mother were present in the house downstairs. However, it is not unlikely that parents who were engaged in the process of bringing their children to activities and sessions at Kenja, in light of the ages at which they were introduced to the processing sessions. Further, as to the presence of the plaintiff, she was the co-founder of the organisation and this was her residence together with Mr Dyers (a separate issue was also raised regarding the truth of the Bundeena allegation, based upon the evidence of the plaintiff and PLM, namely, as to whether they were ever together at the same time at the Bundeena residence, I will return to this below). 13. Another distinguishing feature referred to by the plaintiff was that the circumstances constituting the Bundeena allegation arose out of anger by Mr Dyers at PLA challenging him over his alleged conclusion that her brother was "blanketing" her. This represents a point of difference as well as similarity. The similarity is this: "blanketing" is a pejorative term relating to sexual thoughts being held by one family member (in this case) against another. This had been raised as a "processing issue" in earlier accounts given by PLA. To use PLA's description, taken from her first statement, with respect to historical processing: "I also thought that [Mum] would be angry at Dad and PLA's older brother for blanketing (the word for the sex pictures that Ken called it) me. The term blanketing meant that at home one person would imagine having sex with another person and even if the other person wasn't aware of it then it would still make their energy field dirty". As to anger, this was also a feature of the historical allegations of PLA. 14. The conclusion that the Bundeena allegation was not "qualitatively markedly different to the other allegations" (and, further, that there were significant similarities) throws up two difficulties for this aspect of the plaintiff's case. First, the similarities between the historical and HLA/OLR allegations and the Bundeena allegation would at least, suggest a logical and common sense basis to investigate all of the PLA allegations, both the historical and Bundeena allegations. That analysis may be transposed to the sending of the letter, which appears to refer to all allegations made by PLA, as indicated by the date range referred to in the correspondence. The plaintiff did not adequately explain why it would be appropriate for Acting Inspector Southgate to have invited Mr Dyers, via his solicitor, to take part in an interview, as to only part of the allegations made by PLA, namely, the historical allegations. It would be unrealistic to expect such a course to be taken by Acting Inspector Southgate. The reliance upon an allegation dated "2006" exciting the risk of a bail revocation (which I will find was low) is not a logical rejoinder to that proposition. 15. Secondly, when seen in this light, there is a strong basis to conclude that the investigation of both the historical allegations and the Bundeena allegation was a matter that fell well within the broad discretion available to investigating police, as I have discussed, earlier in this judgment, as a matter of law and principle. 16. Nonetheless, the plaintiff would seem to contend, that any such analysis must succumb to an acceptance that, when viewed objectively in the light of the actual circumstances constituting the Bundeena allegation, or, when seen in the light of the available evidence in these proceedings, namely, that of the plaintiff and PLM, the Bundeena allegation was glaringly or strikingly improbable. Further, it was submitted that the Court should conclude that Acting Inspector Southgate "must have thought that it was highly improbable that Mr Dyers was guilty of the Bundeena allegations". 17. Acting Inspector Southgate accepted that it was not commonplace to investigate allegations such as those found within the Bundeena allegation. However, the evidence in his supplementary statement was that, having read PLA's First Statement, he considered the Bundeena allegation was possibly true: "I accept that the incident could have occurred and required further investigation". It was not his role as an investigator to determine that the allegation was actually true but whether the allegation required investigation. 18. He denied that no steps were taken by him to test the veracity of the Bundeena allegation or to have it independently corroborated. He disagreed that is was "truly bizarre" or "highly unlikely" that a young woman of about 18 years of age would travel to Mr Dyers home to confront him and be assaulted by Mr Dyers two weeks after he was committed to stand trial on the HLA/OLR allegations. 19. A question asked in cross-examination commenced with "And didn't it occur to you that it was highly improbable…" and Acting Inspector Southgate responded, "No, I don't", indicated that he did not conceive at the relevant time the Bundeena allegation was glaringly improbable. Acting Inspector Southgate also rejected a proposition put to him in cross-examination that concluding the Bundeena allegation was not improbable would be tantamount to viewing Mr Dyers as a "monster". 20. In reply to the plaintiff's contention that "it was not apparent to Mr Southgate that PLA's 2006 Bundeena allegation even amounted to and offence" (presumably a reference to PLA's age), the defendant submitted, whilst that might have been the case, there certainly would have been an issue about consent. However, even so, that does not "mean that of itself was not a reason not to seek to interview Mr Dyers about the whole of PLA's allegations". 21. I accept that submission. The facts and circumstances of sexual offending vary greatly. The issue of defence(s) may be canvassed in that context. It is difficult to see how the discretion of an investigating officer would be exercised in these circumstances not to investigate all allegations even if the investigation as to some allegations raised doubts as to others. 22. As to steps taken in the investigation, Acting Inspector Southgate referred to the taking of the statement of PLF (he was unaware if at the time he was aware of the Bundeena allegation), his travel to Melbourne when he endeavoured to meet with Ms Stevenson (he was directed by her to Mr Koops) and attendance upon a pharmacy (where PLA's statutory declarations were signed). He took a statement from Mr Slater, met with Ms Conway and obtained PLA's medical records. A statement was also taken from Ms Heslop. Acting Inspector Southgate subsequently took a statement from PLA's older brother. In doing so, he was aware that PLA had, in 2003, "denied that Mr Dyers had behaved improperly toward her" but that this inconsistency did not warrant the investigation not being undertaken. 23. Acting Inspector Southgate denied that the aforementioned investigative steps were not designed to investigate the veracity of the Bundeena allegation, as all the steps were "part of one investigation"; although, he accepted the steps were not "directly" designed to consider whether PLA attended upon the Bundeena residence in June 2006. That evidence is consistent with the steps undertaken by Acting Inspector Southgate. 24. He also rejected a proposition put in cross-examination that he was only "looking for things that would incriminate Mr Dyers". He could not recall if he had spoken to PLM and the plaintiff, or, if available technology that may have established PLA and her mother's movements at the relevant time was utilised (this cross-examination concerned the plaintiff's evidence that PLA had not been to her home accompanied only by her mother, and PLM evidence that she had not been to the Bundeena residence when only PLA, the plaintiff and Mr Dyers and herself were present and that she did not travel to the Bundeena residence when PLA was in Sydney in June 2006). 25. It was submitted that Acting Inspector Southgate's evidence in answer to a series of propositions put to him by the plaintiff that the Bundeena allegation was "highly improbable", namely: that it did not occur to him that it was improbable, together with his answer as to why he disagreed the allegation was improbable: "Because I don't", and his evidence that he "can't say what was in my mind at that time", were "evasive" and "deflective". The latter proposition mistakes Acting Inspector Southgate's evidence which was to steadfastly reject the various formulations as to improbability put to him, as I have described above. 26. Whist the submission was fixed upon a particular part of his evidence, I do not consider the evidence to be evasive and deflective, in this area of questioning, but responsive and direct. I do not consider it to be unreliable. 27. Having regard to the aforementioned analysis of the history of alleged abuse by Mr Dyers of PLA and the counterpart historical abuse alleged with respect to HLA and OLR, in the circumstances of PLA's highly unusual relationship with Mr Dyers, in the context of the Kenja organisation, I accept the defendant's submission that, "the Bundeena allegation is neither more nor less improbable than her allegations of earlier abuse". 28. That conclusion is not weakened, in my view, by the fact of the encounter giving rise to the Bundeena allegation arose from an angry confrontation or the alleged sexual offending occurred whilst PLA's mother and the plaintiff were downstairs at the Bundeena residence, for the reasons given above. 29. Further factors that relevantly bear upon the question of improbability include the fact that PLA was listed as a witness for the HLA/OLR trial, and Mr Dyers was subject to bail at the time of the Bundeena allegation. However, to suggest that, even in the ordinary course of sexual offending, let alone the alleged history of sexual offending here under consideration that this must be considered so unusual as to constitute a glaring improbability would be a significant overstatement. Given the issue is probability, that assessment needs to be further made contextually. Here, the context is that of an allegation of a long history of serious and persistent sexual offending occurring in, it would appear (on the accounts given by complainants), the highly unusual circumstances in which Mr Dyers was alleged to have obtained access to the complainants. The nature of the relationships, the alleged sexual offending in that context and their durability (the long period of alleged offending) permit of a conclusion as to the greater prospect of the risk of offending and the lesser prospect of abatement by the circumstances operating at the time of the Bundeena allegation vis-à-vis judicial proceedings and the operation of bail conditions. 30. The plaintiff submitted that Acting Inspector Southgate never interviewed, or attempted to interview, PLM and that there was no evidence that he ever intended to do so. The plaintiff contended that a diligent and impartial police officer should have at least interviewed the complainant's mother, who was apparently downstairs whilst the incident occurred. It was submitted by the plaintiff that the Court should conclude, as was put to Acting Inspector Southgate in cross-examination, that Acting Inspector Southgate was not interested in pursuing exculpatory evidence, but only incriminating evidence. 31. However, the fact that Acting Inspector Southgate could have interviewed PLM does not mean that he should have done so before requesting an interview with Mr Dyers. Further, I accept his evidence that he was examining the veracity of the Bundeena allegation and taking steps to have it independently corroborated in the context of an ongoing investigation. Additionally, there was reason for Acting Inspector Southgate to expect that PLM, like the plaintiff, was, as the defendant put it, "in Mr Dyers' camp". 32. The following matters support an inference that PLM may have appeared to Acting Inspector Southgate to be in "Mr Dyers' camp": 1. Mr Koops, the solicitor for Mr Dyers, was also the solicitor for PLM; 2. PLM was previously listed as the "acceptable person" on Mr Dyers' bail undertaking, with respect to the HLA/OLR charges and had deposited $50,000 cash as security for his compliance with that bail undertaking; 3. PLM was a member of Kenja and PLA's voicemail to her mother referred to Mr Dyers as PLM's "friend" who PLM could still "protect" if she withdrew the false allegation of assault against her father; 4. PLF had told his solicitor that PLM (together with other members of Kenja) had fabricated assault charges to prevent his daughter from reporting sexual offending committed against her by Mr Dyers; and 5. PLA told Acting Inspector Southgate in his statement that he and PLA had discussed "how outrageous the way in which my wife PLM responded to these allegations and horrific for PLA to have suffered that response from her mother". 1. The omission of an interview with PLM before interviewing Mr Dyers was not suggestive of malice. There is substance in the submission made by the defendant that it was a reflection of the reality of the situation Acting Inspector Southgate faced, in which, rather than Acting Inspector Southgate interviewing witnesses, Mr Koops undertook the role of investigator. The investigative process adopted, with respect to PLA, was open to Acting Inspector Southgate within his discretion. 2. Further, it is not correct to say that Acting Inspector Southgate was unable to proffer an explanation for not taking up the invitation to speak with PLM. What Acting Inspector Southgate was unable to offer an explanation for was not taking up that invitation "immediately". The preceding question and answer in this respect correctly observes that the investigation was ongoing. 3. There was no evidence that police were not going to interview PLM. The fact that Acting Inspector Southgate had not interviewed either the plaintiff or PLM, prior to the sending or the letter, does not mean he would not eventually do so. The ongoing investigation was cut short by the suicide of the alleged offender. 4. The plaintiff also relied, in this respect, upon the statements by PLA in her 2003 interview. I do not consider that this factor would not have been a basis for investigating officers to exercise their discretion not to investigate the Bundeena allegation. Further, Detective Sergeant Frame gave evidence that it was common for victims of sexual assault not to disclose until they were older, and to deny that they had been assaulted at all. 5. The defendant submitted that the earlier denial by PLA, at a time when she and her family remained members of Kenja and Mr Dyers was a person in whom PLA and her family had trust and confidence, is explicable as an incident of ordinary human behaviour about which judicial notice has been taken: M v R (1994) 181 CLR 487 at 515. Although, the plaintiff contended, "[t]his appears to be a submission on the topic on which his Honour indicated that he would not be able to take on judicial notice (at T72.3)". I do not accept that submission. The topic here under consideration was different. 6. I also note, in this respect, that PLA's affidavit gave information that investigating officers may have had regard, namely, to other circumstances affecting the receipt of disclosures for PLA (such an her account of the particulars of the 2007 statutory declaration at the hands of Ms Stevenson). 7. On these bases, there is no proper basis to reject Acting Inspector Southgate's evidence: it conforms with that analysis and was given in a particular context, namely, the view of a senior investigating police officer. 8. Four further or supplementary considerations bear upon the pleadings and contentions of the plaintiff as to Acting Inspector Southgate's state of knowledge, belief or indifference as to "false allegations" made in the Bundeena allegation. 9. First, there is no proper basis, on the evidence, to infer that Acting Inspector Southgate must have known from the taking of the statement from PLF and the reading of PLA statements that the Bundeena allegation was false, concocted or contrived by PLA. That conclusion arises, in part, from my findings rejecting the plaintiff's contentions regarding glaring improbability. 10. Secondly, as to the contention by the plaintiff that the Bundeena allegation was glaringly improbable and would have appeared so to Acting Inspector Southgate from the review of PLA's First Statement through to the sending of the letter, the Bundeena allegation was, as I have observed, neither more improbable or less improbable than the other historical allegations which were either committed for trial or the subject of investigation. Further, I accept the submission by the defendant that the Bundeena incident is really only "glaringly improbable" if one assumes, without reservation, Mr Dyers' innocence and, therefore, disregards all of the other evidence available to Acting Inspector Southgate (including the earlier statements of HLA and OLR). If one has regard to that other evidence, the Bundeena incident was, in the light of the above analysis, not "glaringly improbable". 11. Thirdly, and furthermore, my findings with respect to the plaintiff's factual contentions made against Detective Sergeant Frame are relevant here. The particulars of malice with respect to the Bundeena allegation provided by the plaintiff in its submissions were principally made against Detective Sergeant Frame, save for a contention as to the failure to interview the plaintiff and PLM, which I have dealt with above. Those submissions were also directed to the question of whether the events said to have occurred under the Bundeena allegation had occurred. Further, findings as to Acting Inspector Southgate's relevant engagement with Detective Sergeant Frame (as I have found in respect to the plaintiff's contention in para 150(d)), the aforementioned analysis under this heading and Acting Inspector Southgate's own evidence as to the state of his knowledge and belief warrant a rejection of the plaintiff's submissions regarding knowledge, belief and indifference in this context. 12. Fourthly, there is no basis for inferring, on the evidence, that Detective Sergeant Frame expressed to Acting Inspector Southgate doubt as to the truth or reliability of the account given to her by PLA. Detective Sergeant Frame's evidence was unequivocal that PLA's first statement described a sexual assault. It may further be inferred Detective Sergeant Frame knew of the fact that PLA intended to make an allegation of recent sexual offending by virtue of the communication from Mr Rattenbury recorded in the 4 April e@gle.i entry. 13. The plaintiff also sought to make out its contentions as to targeted malice on the basis that Bundeena allegation was untrue. 14. It is unnecessary to consider the truth of the Bundeena allegation beyond its probability in the context of considering the veracity of an investigation because I have found that Acting Inspector Southgate did not undertake the investigation knowing or alternatively, believing that the Bundeena allegation was a false allegation so as to allow the continuance of a malicious investigation (which I find not to be proven on the evidence) with a view to arresting Mr Dyers and revoking his bail. 15. Further, as earlier observed, a determination as to whether the Bundeena allegation did not occur (or probably did not occur) does not constitute a finding relevant to the proof that Acting Inspector Southgate knew it did not occur. 16. I accept that PLM and the plaintiff gave evidence which, if accepted, and there is no challenge to their credit, is exculpatory of Mr Dyers with respect to the Bundeena allegation. Whether or not that evidence may, as the plaintiff submitted, be described as "powerful", let alone lead to only one conclusion, may be significantly doubted, particularly if translated into the context of an ongoing investigation. 17. Further, whilst the defendant did not put the credit of the plaintiff and PLM in issue here (maintaining that the contentions and evidence as to the truth of the Bundeena allegation were irrelevant), it may be expected, in all the circumstances, that credit issues may arise in a trial involving the Bundeena allegations, particularly, in relation to PLA's mother. 18. The statements of PLA and PLF (and other evidence incriminating Mr Dyers) are not in evidence as to the truth of their statements, however, the statement of PLA (allowing for attacks on her credibility arising from the PLA 2003 interview and the statutory declarations, no doubt seen in the light of that which she spoke of in her statement regarding the circumstances of the obtaining of those statutory declarations) and the prospect of tendency evidence give rise to a substantial and proper basis upon which an investigation may have been undertaken with respect to the Bundeena allegation. 19. Finally, in respect of the plaintiff's submissions as to truth of the allegation, I accept the submission by the defendant that a finding by this Court that it probably did not occur would effectively be tantamount to a finding that PLA had intentionally lied to Detective Sergeant Frame to falsely implicate Mr Dyers. That would effectively be a finding that PLA had committed a serious indictable offence in circumstances where she had had no opportunity to defend herself. PLA appears to be situated in the United States of America. That step should not be taken, as a matter of fairness, where PLA cannot appear before the Court and such a finding is unnecessary to resolve the relevant issue in the proceedings in that respect. 20. If I had formed a conclusion as to the truth of the Bundeena allegation, I would find that the evidence did not permit, to the requisite standard, the making of such a finding that the allegation was untrue or that PLA was concocting the Bundeena allegation during the process of taking her first statement, having regard to my findings as to the plaintiff's submissions as to "glaring improbability" of her account. 21. Two other considerations require attention before drawing an overall conclusion based on the plaintiff's case of targeted malice. First, there are submissions of the plaintiff concerning material relating directly to the letter. That consideration brings with it submissions of the plaintiff that the letter, when properly understood, excited the prospect of the revocation for bail and Mr Dyers being taken into custody. Those issues go further to the issue of whether Acting Inspector Southgate had an actual intention to cause harm to Mr Dyers. 22. I will address the defendant's limitation defence and questions of damages, to the extent, required after providing my overall conclusion as to whether the plaintiff has proved misfeasance in public office with respect to Acting Inspector Southgate. 23. For the purposes of the issues presently under examination. I reject the plaintiff's pleaded case and contentions as summarised in [830(2)], [830(3)] and [830(4)] above, and find it unnecessary to decide the proposition as to whether the Bundeena allegation occurred (see [830(1)]). CHAPTER VIII: THE DECISION TO SEND THE LETTER 1. This section of the judgment shall deal with the contentions of the parties as to the sending of the letter per se, together with the remainder of the plaintiff's contentions as to malice insofar as it was contended that Acting Inspector Southgate was conscious of the significance of the Bundeena allegation taking place whilst Mr Dyers was on bail and that an arrest for further sexual offending would result in him being charged and refused bail and, thereby, return to custody; and the letter was intended to inflict harm upon the plaintiff and Mr Dyers. Plaintiff's Submissions 1. During closing submissions, returning to the tort sought to be established, the plaintiff was asked to address how the plaintiff could establish the letter was sent maliciously if she failed upon her case with respect to the Bundeena allegation. Senior counsel for the plaintiff, I repeat, conceded: If we don't persuade your Honour that the Bundeena allegation - there are various way it can be put but what we've described as the Bundeena allegation, the PLA material, is we have relied on that quite heavily to seek to demonstrate the malicious mind. And I make no bones about the fact that if we don't persuade your Honour in relation to the Bundeena allegation that does put a hole in our case… 1. Following that concession, it was further submitted: … that's not fatal to our case because there are still a substantial number of elements to the Bundeena allegation including its, we say, glaring improbability, the extremely curious circumstances in relation to the handwritten narrative. All those elements which suggest that the Bundeena allegation is spurious would be sufficient, coupled with the other evidence we rely on, to make good the malicious intent on the part of Mr Southgate. 1. However, it was accepted that, if the Court were to reject all of the plaintiff's submissions as to the Bundeena allegation: "we've got a pretty tough hurdle to satisfy your Honour that the letter was sent maliciously. We accept that". 2. In that light, I will consider the further aspect of the plaintiff's case regarding the letter, as a further discrete consideration, but bearing in mind the earlier conclusions in this judgment. 3. After the phone call from Mr Koops, Mr Dyers and the plaintiff had a conversation. For convenience, I shall extract part of the passage again: Dyers: Why can't I just go and deal with this now? This is so frustrating. Hamilton: The police say there are allegations in 2006. That is just last year. You were on bail. PLA was living in Melbourne. Dyers: I didn't realise that. Now I do, and what it means. They want to revoke bail. They want to kill me. If I go to gaol I'll be murdered. I need some space, can you get me a cup of tea? 1. The plaintiff submitted, correctly, that the plaintiff was not challenged with respect to that evidence. It was further contended "[t]he link between allegations from 2006 and the risk of bail being revoked was obvious to Mr Dyers. 2. It is inconceivable that what was immediately obvious to Mr Dyers would have been lost on Mr Southgate". I do not accept that submission based upon that which I discuss in the remainder of this part of the judgment. 3. The plaintiff advanced the following further submissions regarding the letter (some of which overlap with the discussion of bail below).I shall summarise many of those submissions below, and others during the course of my consideration in this area, as follows: 1. Acting Inspector Southgate "must have expected and intended that the contents of the letter would be conveyed to Mr Dyers". 2. The police records immediately prior to sending of the letter, namely, from 2-20 July 2007, indicated that Strike Force Caroola had "determined that they would charge Mr Dyers regarding the allegations made by PLA". In support of that submission, the plaintiff produced a document entitled "Steps taken by Caroola Police leading up to 23 July 2007" (see Annexure A to the Plaintiff's Closing Submissions), which indexed numerous duty log and e@gle.i entries created in that period. The plaintiff contended that those entries "indicated that they were about to charge Mr Dyers in relation to the allegations made by PLA". 3. The Court should find that, as at 24 July 2007, "it was intended to prefer further charges against Mr Dyers in relation to the allegations made by PLA". The evidence of Acting Inspector Southgate on the topic, including reference to the POA, should not be accepted. That contention is tied to a broader criticism of the credit of Acting Inspector Southgate. The plaintiff submitted that: Like most of his other responses, his answers were, evasive, defective and non-comital. He was not prepared to make any concessions, not even when faced by the fact of his authorship of a document whose terms were expressed in unambiguous language. 1. The most significant part of the letter was the reference to "2006". Reference, in that respect, was made to the fact that any offending over that course of time would have meant that Mr Dyers was offending while on bail in relation to those. It was contended that Acting Inspector Southgate "must have known that the specific references to 2006 would mean that Mr Dyers would fear that he would be placed in custody by police. It was a specific matter to which the Tribunal had drawn attention in its reasons, when assessing Mr Dyers' prospect of further offending. That submission appears to be related to state of Mr Dyers' mental and physical health at that time. 2. Acting Inspector Southgate was cross-examined on this topic at some length. During that cross-examination, he disavowed the notion that the letter was intended to insinuate that Mr Dyers' bail was in jeopardy, or that the thought of a breach of bail conditions had crossed his mind. That evidence, it was submitted by the plaintiff, should be rejected and the Court should find that one of the letter's dominant purposes was to cause Mr Dyers to fear that he would be put into custody. 3. Thus, the letter constituted a threat that My Dyers' liberty would be taken away, sent with the intention of causing Mr Dyers and the plaintiff harm. It was intended to convey to Mr Dyers that Strike Force Caroola had decided to arrest and charge him. What had to follow from that arrest and charging was that he would be denied bail, as the alleged offences had taken place while Mr Dyers had other criminal matters going ahead against him at the time The Court should find that Acting Inspector Southgate knew that the 24 July 2007 letter would come as a shock to Mr Dyers, as he intended that it should. 4. Mr Dyers understood that Strike Force Caroola were determined to have him put in gaol, with bail refused. Given the nature of the child sexual offence allegations, Mr Dyers' extremely serious ailments, and his previous experience in prison, Mr Dyers must have feared that going back in to gaol would likely lead to his death. 5. Acting Inspector Southgate knew, after the stay application, that Mr Dyers' cognitive functioning was limited. In light of the finding of unfitness, Acting Inspector Southgate knew that Mr Dyers was not mentally fit to participate in a police interview concerning alleged events between 1999 and 2006. In particular, Mr Dyers was suffering from serious physical and mental conditions, including dementia, which affected his memory. There was no basis for Acting Inspector Southgate to believe that Mr Dyers had the capacity to participate in a formal police interview regarding new allegations. 6. In all the circumstances, and in the absence of any identifiable reason for sending the 24 July 2007 letter, the only reasonable inference is that Acting Inspector Southgate's decision to send the letter was one intended to harm Mr Dyers, as well as the plaintiff, and the Court should so find. It was put to Acting Inspector Southgate that one of the purposes of the 24 July 2007 letter was to torment the plaintiff. Acting Inspector Southgate disagreed, but his evidence should not be accepted. 7. There was no contradiction between Acting Inspector Southgate's already having made a decision to charge Mr Dyers, and inviting him to participate in an interview. Mr Dyers was going to be charged. The plaintiff, in that respect, drew a parallel to the earlier arrest and interview that occurred in October 2005. It was submitted, that if he attended for an interview, he would have been charged at the conclusion of it. 8. Thus, it was contended that the Court should find that Acting Inspector Southgate wrote the letter with the intention of causing Mr Dyers (and the plaintiff) psychological harm. The psychological harm would arise from the fear that Mr Dyers would have had of being placed back into custody. Consideration 1. The plaintiff contended that there was no reason and no legal obligation on police to offer Mr Dyers a recorded interview. In light of the correspondence between Strike Force Caroola and Henry Davis York in April 2007, whereby Mr Dyers was made aware of the allegations by PLA and denied those allegations, Mr Dyers could only deny any further allegations made by PLA. It was contended that Strike Force Caroola would still have charged him, even if he denied all of the allegations (this is what had happened in October 2005). 2. However, a reasonable and plausible explanation for the sending of the letter was that Acting Inspector Southgate, in a manner not inconsistent with police practice, in the circumstances, thought it appropriate to offer Mr Dyers the opportunity of being interviewed by the police so that PLA's allegations could be put to him in terms. An interview, if it occurred, would serve two purposes. First, Mr Dyers would learn for the first time what PLA's allegations against him were. That would be valuable information to Mr Dyers. Secondly, Mr Dyers would be given the opportunity of providing whatever responses, if any, he wished to give to the allegations. On the assumption that Acting Inspector Southgate may have anticipated denials, they could not have harmed Mr Dyers. It may be added that the interview was intended to address both the historical and Bundeena allegations. 3. There is nothing out of the ordinary about the letter. It is polite, factual and void of any threat. The defendant correctly contended that "Detective Southgate can't really be held responsible for the misinterpretation". 4. It was contended by the plaintiff that as at the date of the sending of the letter Acting Inspector Southgate intended to "prefer" further charges against Mr Dyers in relation to allegations made by PLA including the Bundeena allegation. The plaintiff returned, in that respect, to the evidence of Acting Inspector Southgate as to the POA; which was the subject of earlier discussion and to which I will return, momentarily, after considering some of the other bases relied upon by the plaintiff for that contention. 5. One basis for this contention was, it was submitted, the police records immediately prior to sending the letter indicated that police were about to charge Mr Dyers. That submission related to Annexure A to the Plaintiff's Closing Submissions, which was entitled: "Steps taken by Caroola Police leading up to 23 July 2007". Those records do not, however, contain a statement by police that they intended to charge Mr Dyers. The records do show that there was an accumulation of investigatory material which implicated Mr Dyers in relation to the allegations of sexual offending by PLA. However, the records also contained exculpatory material largely the product of communications from Mr Koops. 6. Another basis for the contention that Mr Dyers would be charged was that this was the course taken by police in October 2005 after an interview. However, whilst that may have created a concern or even an expectation on Mr Dyers part, the circumstances were not necessarily ad idem with those operating in October 2005. There are four points of distinction in that respect: 1. It is true that Mr Dyers was interviewed in October 2005 in relation HLA/OLR allegations, but that interview was preceded by an unannounced arrest. The defendant correctly submitted, if Acting Inspector Southgate had intended to maliciously charge Mr Dyers, he could have arrested him, with no invitation for an interview in advance of arrest. 2. The procedure Acting Inspector Southgate decided upon was consistent with Detective Inspector Jacob having written to Mr Koops on or about 28 April 2007, stating that allegations had been made by PLA and were under investigation. There was, therefore, considerable notice of the steps taken by the police and considerable input, in that respect, from Mr Dyers' lawyer. 3. The letter is often spoken of as a letter to Mr Dyers. No doubt it was a communication to him but the procedure adopted was to send it to his solicitor, thereby, creating an intervening step permitting Mr Dyers to not only seek advice but to determine the procedure that he would wish to adopt, responsive to the correspondence. In fact, the process adopted permitted of a further intervening event, which was Mr Koops first reading the letter to the plaintiff over the telephone. Mr Dyers never actually received a physical copy of the letter. 4. As the defendant emphasised, at the time the letter was sent, the investigation was ongoing and, in particular, as I have found, there is no basis in the evidence to find that the police did not intend to interview PLM and the plaintiff. 1. This brings attention to the POA and the evidence of Acting Inspector Southgate. As will be recalled, Acting Inspector Southgate wrote that part of the POA in which it is stated that "there was a current investigation and an intention to prefer additional charges against [Mr Dyers] in relation to the victim PLA". During cross-examination, Acting Inspector Southgate was cross-examined as to that statement. He stated that he could not recall what his thoughts were at the time of typing the document, but stated that there "definitely a potential" to prefer additional charges at the time. He was challenged as to his use of the word "potential", as the POA did not refer to that condition. It was said that his answers were evasive, deflective and noncommittal and that he was not prepared to make concessions even when faced by the fact of his authorship of a document whose terms were expressed in unambiguous language. 2. I have not formed the view that Acting Inspector Southgate's evidence, in this respect, was evasive, deflective, non-committal or a refusal to face the obvious. He had made concessions previously, in the light of various documentary records such as his duty book, and was here, in my view, endeavouring to deal with his thoughts at the time that he made the entry in the POA. In the light of him indicating that he could not recall what his thoughts were at the time of the typing of the POA, he was asked whether it was likely that his thoughts were "that there was an intention to prefer additional charges against Dyers". It is in that context that he gave the answer "there was definitely a potential, yeah". He was earlier asked that same question and indicated that he could not "say that there was ever a decision made to lay charges. It was still an ongoing investigation, and it's my memory no decision had been made in relation to charges or how those charges would be formulated". The effect of his evidence was that there was a strong possibility that charges would be laid against Mr Dyers. The word "definitely" before "a potential" was to indicate, using his own language, that the potential was relatively high. It is most likely, in that context, that he was referring to "intention" in a colloquial sense, as an aim or even a plan, for which there was a strong potential but disputed that a decision had been made to charge; a plausible explanation, given that there was no recorded decision of that kind despite an exhaustive examination of police records and there was an ongoing investigation which involved interactions with Mr Koops, Mr Dyers solicitor. 3. It follows from that analysis that, whilst the charging of Mr Dyers at the conclusion of an interview may have been an available option, for which there was a real possibility, it does not follow that this was the only option. That conclusion should not be taken as an acceptance of the defendant's submission that the letter was an invitation for an interview as a mere "follow up" or following some period of investigation but, particularly for present purposes, it also does not follow that the Strike Force Caroola police, and in particular, Acting Inspector Southgate had made a decision per se at the time of the sending of the letter to charge Mr Dyers either generally or at the conclusion of any interview process. 4. In any event, if at the time Acting Inspector Southgate did intend to charge Mr Dyers, his offer to interview Mr Dyers in order to put PLA's allegations to him was appropriate. 5. Further, there is no evidence (and no questions asked by the plainitff) as to what charges it were intended to be preferred by Acting Inspector Southgate, and whether those charges included the Bundeena allegation. 6. I reject, therefore, the contention that Strike Force Caroola had fixed their minds as to no other course than arresting Mr Dyers after his interview and charging him, even though there was a real prospect of that occurring. Having regard to the aforementioned considerations and the conclusions I have reached as to prospects and circumstances of Mr Dyers being charged there is a sound basis for concluding that the reason for sending the letter was identified by the letter itself. 7. I do not consider that the prospects of the revocation of bail if Mr Dyers was charged warrants any diminution of that approach. 8. As mentioned earlier, it was the contention of the plaintiff that Acting Inspector Southgate and Detective Sergeant Frame knew that the Bundeena allegation (identified by reference to the year 2006 in the letter) would give rise to the prospect of the revocation of bail and therefore Mr Dyers being taken into custody. It was also contended that Acting Inspector Southgate must have known that the specific references to "2006" in the letter would mean that Mr Dyers would fear that he would be placed in custody. In the summary of the plaintiff's submissions, in this part of the judgment, reliance was placed upon the determination of the Tribunal. The relevant part of which was as follows: PROSPECT OF FURTHER OFFENDING … However, taking all that into account, all of the matters asserted, alleged against or otherwise attributed over the years to Mr Dyers which might raise criticism of his release, considering the safety of others in the community, are alleged to have occurred in the context of the administration of Kenja, particularly in one-on-one situations with young girls. The evidence before the Tribunal today is that Mr Dyers does not, and indeed cannot, physically administer Kenja in Kenja communication sessions, and that his movements are limited to his home or otherwise under the direct supervision of his partner or assistant, so that for those reasons at least any concerns that might arise by reason of the legal history and the allegations over many years do not appear to be reflected in Mr Dyers's current circumstances. The evidence is that he will not and cannot participate in the relevant sessions. Any allegation that he does will no doubt lead to an immediate application to the District Court to revoke bail, and may well lead to the Tribunal having to convene an immediate review for the purpose of making a further recommendation to the Minister on the question of detention … [Emphasis added.] 1. It was further suggested that Acting Inspector Southgate's evidence in cross-examination disavowing the notion that the letter was intended to insinuate that bail was in jeopardy or that the thought of a breach of bail conditions had crossed his mind should be rejected. However, apart from the premise that Mr Dyers would definitely be charged, the submissions essentially precede upon the basis that it was also inevitable that bail would be revoked. 2. The question is further complicated by the fact that charges were never formulated, let alone laid, with respect to the allegations made by PLA. It is clear that the provisions of s 9(2)(a) of the Bail Act 1978 would not have applied in Mr Dyers case. That provision provided that a person accused of an offence is entitled to be granted bail unless a Court is satisfied that the Court is, pursuant to the consideration of the matters referred to in s 32, justified in refusing bail. That conclusion may be reached because the provisions of s 9B(1)(a) provide that s 9 does not apply to the grant of bail to a person accused of an offence, if, at the time of the offence is alleged to have been committed, the person, in connection with any other offence, was at liberty on bail. In this case, any offence arising out of the Bundeena allegation would, as a matter of the timing of the alleged offence, have occurred at a time when Mr Dyers was on bail. 3. Nonetheless, it appears to me that Mr Dyers would have strong prospects for the grant of bail. Whilst the prospective charge or charges, which are unknown, would have been of a sexual nature, serious, involve concerns as to the protection of the complainant and the community and Mr Dyers was facing a trial as to the HLA/OLR allegations, there would be, as contended by the plaintiff herself, issues as to the strength of the Crown case (charges relating to the Bundeena allegation would face issues as to consent and a defence case may raise the alleged contradiction arising from the evidence of the plaintiff and PLM, and, all PLA allegations were affected by, inter alia, the position taken by PLA in 2003 and her statutory declarations in 2007), doubts as to the prospect of the committing of a further serious offence, because of the deterioration in Mr Dyers' health since the committing of any alleged offence arising out of the Bundeena allegation on the plaintiff's case, and because Mr Dyers had a lawful purpose for bail, namely, the treatment of his declared physical and mental ailments (as well as the very existence of those conditions per se). 4. In R v Brown [2013] NSWCCA 178 (per Rothman, Fullerton and Beech-Jones JJ) the following was stated (at [10]-[12] and [17]): [10] The statutory presumption in favour of the grant of bail in s 9 of the Bail Act is displaced in this case by the operation of s 9B(1)(d) and s 9B(3) of the Bail Act, respectively, because the respondent was, at the time of the alleged offence, subject to a bond to be of good behaviour and because he had previously been convicted of an indictable offence. Other even more stringent provisions apply that relate to the burden imposed on the respondent: see below at [12] and following. [11] The displacement of the statutory presumption in favour of bail, without more, results in a residual common law preference for the grant of liberty. [12] Nevertheless in this case, the respondent is a repeat offender having previously been convicted of a serious personal violence offence. As a consequence, the Bail Act requires the refusal of bail unless the Court is satisfied that exceptional circumstances justify the grant of bail… … [17] As already stated, in ordinary circumstances there is a statutory presumption in favour of bail. The Bail Act then provides, in relation to certain circumstances (circumstances relating either to the applicant for bail or the nature of the offence), for the ordinary statutory presumption to be neutralised: see, for example, s 9A and s 9B of the Bail Act. In other cases the applicant for bail bears an onus to satisfy the Court that bail should not be refused: see, for example, s 8A, s 8B, s 8C, s 8D, s 8E and s 8F of the Bail Act. 1. Some further observations may be made in this respect. First, the provisions of s 9D of the Bail Act 1978 did not apply. It was not necessary to show exceptional circumstances. Secondly, the observations of the Tribunal really extend no further than that further offending would likely result in an application to revoke bail. That is hardly surprising. The Tribunal does not venture as to the likelihood of bail being obtained. In my view, the Tribunal was essentially focusing its attention upon the risks associated with the release of Mr Dyers. If the Tribunal was venturing an opinion that revocation of bail was likely, then I would not agree. 2. I do not consider that it was inevitable or highly likely that bail would have been revoked assuming Mr Dyers was charged with sexual offending arising out of the Bundeena allegation and the Crown sought the detention of Mr Dyers. My view is that there were good prospects of bail provided suitable conditions were offered by Mr Dyers. 3. I consider that, absent the plaintiff making good the various layers of its contentions to establish malice based upon various historical factors leading to a decision to investigate the Bundeena allegation and its contention as to the Bundeena allegation, there is a strong basis for concluding that the reason for sending the letter was identified by the letter itself. 4. Finally, for reasons earlier given, I do not accept that Acting Inspector Southgate would have known (if it were the case) that Mr Dyers could not participate in an interview for medical reasons. This was a matter his solicitor may have raised on his behalf upon receipt of the letter. Conclusion 1. I reject the plaintiff's contentions that the sending of the letter was actuated by "malice" within the meaning of that expression as I have discussed earlier in the section of this judgment dealing with issues of law and principle. 2. Before turning to my overall conclusion on the application, I shall deal with the submission of the parties as to the decision to not release "current investigation material" to the ODPP and the limitation defence. I shall reject the defendant's submissions in that latter respect. Overall, I conclude the plaintiff has not made good its claim based upon the tort of misfeasance in public office and dismiss the claim. CHAPTER IX: THE DECISION TO NOT RELEASE "CURRENT INVESTIGATION MATERIAL" TO THE ODPP 1. On the date that Acting Inspector Southgate made the decision not to release the "current investigation material" (in particular, the PLA material) the outcome of Mr Dyers' stay application was delivered. At para 46 of Acting Inspector Southgate's statement, he deposed: 46. On 3 May 2007, I was made aware of the outcome of Mr Dyers' stay application. I also made a decision that the current investigation material in relation to the allegations made by PLA was not to be provided to the ODPP at that stage. I did not consider the material was relevant to the ODPP at that stage given the ongoing nature of the investigation and my understanding that a stay was in place. Annexed hereto and marked "NN" at page 89 is a true copy of my Duty Book entry from 3 May 2007. 1. The documentary evidence indicates that the decision was made by Acting Inspector Southgate. In cross-examination, he accepted that the decision was his: Q. Now, you say at paragraph 46 you made a decision that the current investigation material in relation to the allegations made by PLA was not to be provided to the ODDP at that stage. A. Yep. Q. Do you recall making that decision? A. I don't - I don't recall the decision. Yeah, I can't recall the actual decision. I can obviously see that I made a decision, I don't recall whether I discussed with the team and that position was came - came about. But yes, I don't actually recall the decision. 1. The evidence does not disclose whether he made the decision before or after he learned of the outcome of the application before Phegan DCJ. 2. During cross-examination, Acting Inspector Southgate admitted that he was "aware of disclosure laws": Q. Do you recall being aware in May 2007 as to the content of the obligations imposed upon you in relation to making disclosures to the DPP? A. I'm not - I was aware of disclosure laws, yes. 1. However, as the cross-examination continued, when pressed with respect to his obligations under s 15A, Acting Inspector Southgate gave the following evidence: Q. You were conscious on and from 23 April 2007 right through to the date of Mr Dyers' death that you had an obligation, a statutory obligation, to disclose PLA's statement to the DPP. That's right, isn't it? A. No. No, it's not. Q. You turned your mind to whether or not the information should be disclosed to the DPP, didn't you? A. According to my duty book, yes. Q. Do you recall the thought processes that went through your mind? A. I can't see why, I'm sorry. Q. I want to suggest to you, Mr Southgate, that you must have known that you had an obligation to disclose PLA's 23 April statement to the DPP. That's right, isn't it? A. No. Q. And that you made a deliberate decision not to disclose that statement to the DPP because you didn't want there to be any kind of external scrutiny of that statement. That's right, isn't it? A. No, that's not correct. Q. You wanted to be able to hold on to that information, and in particular, in relation to the Bundeena incident, so that you could deploy that as and when you saw fit. A. No, that's not correct. 1. A transcript of PLA's interview was included in the police brief, and this was referred in a letter sent to Mr Dyers' lawyers regarding the witnesses and evidence to be adduced at the committal hearing. 2. Acting Inspector Southgate spent some time preparing the police brief, and was aware that the transcript was in the brief. He accepted that it was included because it was potentially exculpatory of Mr Dyers and knew that PLA was named as a witness, and a potential witness for Mr Dyers. That evidence is extracted below: Q. Do you have a recollection, if you go back to page 2612, the summary of the interview and the last line, is it PLA is aware of HLA's complaint and is of the firm belief that HLA is telling lies? A. Yes, I can see that line, yes. Q. This was included in the police brief because it was something that was potentially exculpatory of Mr Dyers. That's right, isn't it? A. Yeah, that's correct. Q. If you go to page 2892 you'll see there there's a witness list and summary of evidence. A. Yes. Q. Seventeen potential witnesses are identified, including yourself, number 3. A. Yes, that's correct. Q. And number 14 was PLA. A. Yes. Q. And the summary of evidence is that she was nominated as a possible complainant, denies any improper behaviour by Ken Dyers, whilst she has been attending Kenja. A. Yes. Q. So you were conscious at the time the police brief was prepared and served and thereafter, PLA was identified as a possible witness in relation to the HLA/OLR offences. Correct? A. Yes. Q. Potentially, an important witness for Mr Dyers. A. I don't want to comment on what sort of level of witness she may have been but she was definitely a potential witness for Mr Dyers, yes. 1. As a result of the PLA material provided to Strike Force Caroola, PLA was now likely to be a witness who would support the Crown case. It was put to Acting Inspector Southgate that PLA's allegations constituted an "explosive development in the Strike Force Caroola investigation". Acting Inspector Southgate disagreed. He did accept, however, that it was a "development" within the investigation. 2. Once Strike Force Caroola had acquired the PLA material, as part of the investigation into the Bundeena allegation (and earlier allegations of sexual assault), Acting Inspector Southgate was aware that there was now another complainant alleging sexual assault by Mr Dyers, and in timeframe proximate to the HLA/OLR allegations. The plaintiff contended, in such circumstances, Acting Inspector Southgate could have only understood this as being highly significant and important. 3. In the ordinary course of a matter, an additional complainant's allegations would usually be the subject of charges against an accused person, and it would be expected that the ODPP would seek that the charges be heard at the same time as charges relating to other complainants. Alternatively, the ODPP could have sought to use an additional complainant's evidence as evidence of an accused person's tendency towards certain conduct, such as committing sexual offences on young girls. 4. In late April and early May 2007, Mr Dyers' trial date of 21 May 2007 was imminent. 5. Acting Inspector Southgate was cross-examined on the issue of disclosure. It was put to him that his decision not to disclose was a deliberate one, done with the aim of avoiding external scrutiny of the statement, in the fashion outlined above. An extract of that evidence appears below: Q. You were conscious on and from 23 April 2007 right through to the date of Mr Dyers' death that you had an obligation, a statutory obligation, to disclose PLA's statement to the DPP. That's right, isn't it? A. No. No, it's not. Q. You turned your mind to whether or not the information should be disclosed to the DPP, didn't you? A. According to my duty book, yes. Q. Do you recall the thought processes that went through your mind? A. I can't see why, I'm sorry. Q. I want to suggest to you, Mr Southgate, that you must have known that you had an obligation to disclose PLA's 23 April statement to the DPP. That's right, isn't it? A. No. Q. And that you made a deliberate decision not to disclose that statement to the DPP because you didn't want there to be any kind of external scrutiny of that statement. That's right, isn't it? A. No, that's not correct. Q. You wanted to be able to hold on to that information, and in particular, in relation to the Bundeena incident, so that you could deploy that as and when you saw fit. A. No, that's not correct. Plaintiff's Submissions 1. The plaintiff relevantly pleaded, in this respect, that Acting Inspector Southgate: … withheld from the NSW Director of Public Prosecutions (and thereby Dyers and the Court): PLA's First Statement; the 2006 RMIT Diary; the Pink Notebook; the Blue 2007 Diary (including PLA's Handwritten Statement); and the statements of PLF, PLA's younger brother, Slater, Conway, Stone and Heslop. … 1. The plaintiff contended that decision was "unlawful and indefensible". 2. As to the purported "unlawful" nature of the decision, the plaintiff referred to s 15A of the Director of Public Prosecutions Act 1986 (NSW), which relates to disclosures by law enforcement officers. At the relevant time, that provision stated: 15A Disclosures by investigating police officers (1) Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. (2) The duty of disclosure continues until one of the following happens: (a) the Director decides that the accused person will not be prosecuted for the alleged offence, (b) the prosecution is terminated, (c) the accused person is convicted or acquitted. … (5) The duty imposed by this section is in addition to any other duties of police officers in connection with the investigation and prosecution of offences. 1. The plaintiff submitted that "there can be no question that the duty of disclosure in s 15A had been engaged" as Mr Dyers had been charged with "alleged indictable offences", which Acting Inspector Southgate was investigating. The plaintiff submitted that the material that Acting Inspector Southgate withheld was material that "might reasonably be expected to assist the case for the prosecution or the case for the accused person". 2. The plaintiff submitted that in cross-examination, Acting Inspector Southgate admitted that he was "aware of disclosure laws". 3. In written submissions, the plaintiff returned to a consideration of the Kogarah JIRT investigation into PLA's initial allegation. It was submitted: 181. In PLA's 27 August 2003 interview with Police and DOCS, she denied any wrongdoing by Mr Dyers or Kenja. PLA said that she "hadn't heard of" anyone going into a room with Dyers by themselves, and confirmed that she had never done that. PLA was aware of HLA's complaints against Mr Dyers. According to PLA, Ms HLA was "just a liar" and PLA believed Ms HLA's allegations were "all lies". PLA confirmed that "nothing like that" had ever happened to her, and she would tell her parents or a friend if it did. 1. The plaintiff contended that the PLA 2003 interview was "very important evidence". In light of that evidence, it was submitted that PLA was going to be a highly important witness for Mr Dyers at his trial regarding the HLA/OLR allegations. The Crown had an obligation to lead her evidence, even though the evidence did not assist the Crown case. A transcript of the PLA 2003 interview was included in the police brief, and this was referred in a letter sent to Mr Dyers' lawyers regarding the witnesses and evidence to be adduced at the committal hearing. 2. The plaintiff contended that such material "would have served to raise serious questions in the minds of impartial persons (such as the ODPP) as to the veracity of PLA". 3. As mentioned above, in late April and early May 2007, Mr Dyers' trial date of 21 May 2007 was imminent. Acting Inspector Southgate would have known, based on his experience as a police officer, that once Strike Force Caroola provided the PLA material to the ODPP, the ODPP would have been required to disclose that material to Mr Dyers, and it would have to be disclosed quickly. Once that happened, the police would no longer have any control over the PLA material and how it could be deployed. 4. The plaintiff contended that the decision to withhold disclosure was a deliberate one – which is why Acting Inspector Southgate made a point of recording that decision (being a reference to the earlier extracted duty log entry). 5. As to Acting Inspector Southgate's response to the question addressing the alleged "aim of avoiding external scrutiny contention" (extracted above), the plaintiff contended that "the Court should not accept that answer". 6. Acting Inspector Southgate was unable to give a satisfactory reason for failing to disclose the material. The plaintiff submitted that the officer's justification by reference to the "ongoing nature of the investigation" as a reason "is implausible". In that respect, the plaintiff contended: 192. … It flies in the face of the obligation of disclosure specified in s 15A(1), which requires "police officers investigating alleged indictable offences…to disclose to the Director all relevant information…obtained during the investigation…". Likewise, Mr Southgate's reliance (see [46] of the 17 October 2018 statement) on his "understanding that a stay was in place" should be rejected. He was cross-examined on this issue; his answers were evasive, and cast no light on his thought processes in 2007. 193. For the reasons outlined above, it is not possible to infer any proper reason why Mr Southgate would withhold information about the PLA material, given its acute relevance and importance to the Crown case. The PLA material had to be disclosed to the DPP. No police officer acting conscientiously could have come to a different view. 194. The available inference is that by Mr Southgate not disclosing the PLA material, Mr Southgate could use the material for his own purposes, which involved harming Mr Dyers, without the hindrance of what the disclosure might have caused. His decision not to provide this important material to the DPP reveals continuing malice in his mind. 1. As to the material provided by Mr Koops to Detective Chief Inspector Jacob on 26, 27 and 30 April 2007, the plaintiff pleaded that Acting Inspector Southgate "failed to consider impartially [that material] … in respect of the allegations made by PLA". In written submissions, the plaintiff contended that the mere existence of such material "would have served to raise serious questions in the minds of impartial persons (such as the DPP) as to the veracity of PLA". I have earlier addressed those contentions. 2. In reply, the plaintiff advanced the following submissions: 40. The fanciful submission is made at DCS [86] that there was no need to disclose the PLA material, because it related to a "different investigation". There was no "different investigation". This was part of the same ongoing investigation. It was, as Mr Southgate at least conceded, a "development" in the investigation. 41. The submission at DCS [89] that the PLA material was relevant only to later disclosure is similarly artificial. The Plaintiff's case is that, objectively, the PLA material was a highly significant development in the current criminal prosecution of Mr Dyers concerning the HLA and OLR allegations. Mr Southgate had to disclose it to the DPP – whether it assisted the Crown case, or the Defence case. 42. Mr Southgate made a conscious decision not to release the PLA material to the DPP. This was in breach of his obligations. The terms of that decision are recorded with unequivocal clarity. They do not contain any temporal qualification (such as "at this time" or 'until after the conclusion of the investigation', for example). 43. The submission at DCS [89] that Mr Southgate's "record could only be relevant to later disclosure" makes no sense. Essentially, the Defendant's submission appears to be that on 3 May 2007, Mr Southgate made a record of his non-disclosure, in order that (at a later time, when he did make the disclosure, as he had always planned to do, in conformity with his obligations) there would be a record of the earlier occasion on which he had made the opposite decision. There is no reason, logic or plausibility to this. 44. Consistent with the terms of 3 May 2007 Duty Book entry, there is no evidence that Mr Southgate ever disclosed the PLA material to the DPP. 45. In all this, there is a basic contradiction that the Defendant cannot avoid. A "decision" is a conscious action. If at 3 May 2007, Mr Southgate did not know that he had an obligation to disclose the PLA material to the DPP, then there was simply no "decision" to make, or record. If at 3 May 2007, Mr Southgate did not believe that he had an obligation to disclose the PLA material to the DPP (because that was a "different investigation") then there was no reason to record that decision – and certainly no need to record it in relation to this investigation. The "decision" only arose because Mr Southgate knew what his disclosure obligations were. 46. The Plaintiff should not be obliged to explain or postulate why Mr Southgate recorded his decision. The fact is that he did make that decision. 47. One available inference as to why he recorded it, however, is that Mr Southgate made his decision not to disclose after discussion with other members of Strike Force Caroola. The following exchange occurred in cross-examination: Q. Do you recall making that decision? A. I don't - I don't recall the decision. Yeah, I can't recall the actual decision. I can obviously see that I made a decision, I don't recall whether I discussed with the team and that position was came - came about. But yes, I don't actually recall the decision. 48. The submission at DCS [90] is premised on the spurious and adventitious characterisation of the PLA investigation as a 'separate' investigation. The evidence is that it was part of the same investigation. Ms Frame was cross-examined on what else she had to do to investigate the PLA allegations (see [77] Plaintiff's submissions). 49. Moreover, if the pre-2006 allegations from PLA were strongly consistent with the allegations from HLA and OLR, this constituted yet another compelling reason to release the PLA material to the DPP (and not withhold it). Defendant's Submissions 1. The defendant made the following submissions in this respect: 84. With respect to the submissions at [175]-[184] re Southgate's decision of 3 May 2007 "not to release current investigation material to DPP", the decision falls for assessment in the context of the surrounding evidence. PLA's 2003 material was exculpatory of Dyers in relation to the allegations made against him by HLA and OLR. These had been disclosed to the DPP and were part of the prosecution brief in those matters. As at 3 May 2007 the investigation into the allegations made against Dyers by PLA a few days before was ongoing. Dyers was already aware from Jacob's letter to Mr Koops of 24 April 2007 that police were investigating allegations made against him by PLA. 85. Further, on 26 April 2007 Mr Koops wrote to Jacob attaching a number of documents intended to cast doubt on the reliability of PLA's complaints. On 27 April 2007 Mr Koops again wrote to Jacob attaching documents provided by PLM. Jacob acknowledged receipt of this correspondence by letter dated 30 April 2007. On 3 May 2007 Dyers' trial date was vacated, as Southgate knew at the time. 86. At PCS [179] the plaintiff submits that there can be no question that the duty of disclosure in s.15A of the Director of Public Prosecutions Act 1986 (NSW) had been engaged. The defendant does not accept that it was. As a matter of construction of s.15A(1) the PLA material did not need to be disclosed. This is because the PLA material was obtained during a different investigation from the investigation of the "alleged offences" in respect of which there was, at that time, a "case for the prosecution or a case for the accused person" arising out of the HLA/OLR investigation. 87. So far as concerns Southgate's motive for non-disclosure, it is also relevant to note that s 15A(1) does not mandate that disclosure be made within a specified minimum time. It is to be inferred that disclosure is to be made within a reasonable time of police obtaining disclosable material. What is a reasonable time will depend on myriad circumstances and would be expected to differ from case to case. Southgate's note carries no implication that the current investigation material would never be disclosed to the DPP, merely that it would not be disclosed at that time. 88. At PCS [180] the plaintiff places reliance on Southgate's general concession that he was "aware of disclosure laws". That is not a concession that Southgate knew or believed as of 3 May 2007 that he had an obligation to disclose the PLA material to the DPP in connection with the prosecution of the HLA/OLR charges. 89. With respect to the submissions at PCS [181]-[183], the plaintiff's case appears to be that Southgate realised that the PLA material constituted "an explosive development in the S/F Caroola investigation" which supported the Crown case against Dyers on the HLA/OLR charges. The plaintiff's case theory also appears to be that realising this, Southgate decided not only to conceal the PLA material from the DPP, contrary to the interests of the Crown case, but also to make a permanent record of the fact that he had done so. This is implausible. The record could only be relevant to later disclosure. 90. The submission at PCS [184] that Southgate could have only understood the PLA material as being highly significant and important to the HLA/OLR allegations (and therefore immediately disclosable to the DPP) should be rejected. Southgate knew that Dyers' trial had been put off for about a year. It was not put to Southgate that he intended never to disclose the material to the DPP. Given the ongoing nature of the investigation into PLA's allegations there was nothing inappropriate about deferring disclosure of the material to the DPP until the investigation was concluded. 91. The submission at the close of PCS [187] that disclosure of the material would have served to raise serious questions in the minds of impartial persons (such as the DPP) as to PLA's veracity contradicts the plaintiff's submission that the material would have been regarded by the DPP as highly relevant to proof of the HLA/OLR allegations and that Southgate was conscious of this. In any event, the submission is speculation. 92. It does not support the obscure submissions at PCS [188]-[189] that Southgate was aware disclosure of the material to the DPP would mean that he had lost control of the material and how it could be used. Also obscure is the submission at PCS [194] that it should be inferred Southgate did not disclose the material so he could use it "for his own purposes, which involved harming Mr Dyers, without the hindrance of what the disclosure might have caused." These submissions are redolent of hindsight reasoning supporting a speculative theory which is not available if the evidence is assessed prospectively as it must be. 93. The issue of non-disclosure to the DPP is irrelevant to proof of the plaintiff's case unless the evidence establishes a direct link between Southgate's (malicious) decision not to disclose to the DPP made on 3 May 2007 and his (malicious) decision to send the 24 July 2007 letter to Mr Koops. There is no evidence of such a link. Fundamentally the plaintiff's proposition means that as early as 3 May 2007 Southgate had already decided to maliciously use PLA's allegations, and in particular the Bundeena allegation, knowing or believing they were untrue, to physically traumatise Dyers and the plaintiff in his quest to have Dyers' bail refused and jailed for life. Further, he had maliciously decided that the weapon he would use to inflict these injuries was down the road sometime to send a letter to Mr Koops offering Dyers the opportunity of being interviewed in relation to PLA's allegations with the point of the spear being the statement that the period of the allegations extended into the time that Dyers was on bail in relation to the HLA/OLR charges. These speculative propositions are not supported by the evidence and should be rejected. [Footnotes omitted.] Consideration 1. It will assist in the consideration of this issue to briefly recap some aspects of the factual background. 2. As at the 3 May 2007, the following developments had occurred: 1. PLA and PLF had made statements to Detective Sergeant Frame and Acting Inspector Southgate, respectively, regarding allegations of sexual offending made by PLA against Mr Dyers. Those allegations consisted of the historical allegations and the Bundeena allegation. 2. On 24 April 2007, Detective Chief Inspector Jacob, wrote to Mr Koops advising that police were currently investigating "further allegations" made by PLA. 3. Mr Koops wrote to Detective Chief Inspector Jacob, on various dates from 26 April 2007, attaching documents attempting to cast doubt on the reliability of PLA's complaints. 4. The trial for the charges against Mr Dyers with respect to alleged sexual offending against HLA and OLR was vacated after the refusal of the stay those proceedings and the referral for a fitness hearing to the Tribunal. 5. On that date, Acting Inspector Southgate made an entry in his Duty Book to the effect that a decision had been made not to release current investigation material regarding the PLA allegations to the ODPP. 6. The investigation into the allegations made by PLA continued from 3 May 2007 until the death of Mr Dyers. 1. The historical and Bundeena allegations made by PLA in 2007 were potentially inculpatory in the HLA/OLR trial. The PLA material also included the statement of Mr Slater and Ms Conway. I agree with the submission of the plaintiff that, in the ordinary course of a matter, an additional complainant's allegations would usually be the subject of charges against an accused person, and it would be expected that the ODPP would often seek that the charges be heard at the same time as charges relating to other complainants. Alternatively, the ODPP could have sought to use an additional complainant's evidence of historical allegations as evidence of an accused person's tendency towards certain conduct, such as committing sexual offences on young girls (depending upon the factual chronological order of the allegations in evidence). 2. A further consideration is that, as at 3 May 2007, Acting Inspector Southgate had material regarding PLA's allegations which had the prospect of adversely impacting upon the exculpatory material in the brief of evidence for the HLA/OLR trial, namely, the PLA 2003 interview. The PLA material included statements by PLA, PLF, together with, inter alia, a statement by Mr Slater and Ms Conway. (It might be noted that other exculpatory material such as the statutory declaration of Ms Stevenson had been supplied to the ODPP by Mr Koops). 3. It follows from that description of the material that the provisions of s 15A of the Director of Public Prosecutions Act were engaged. Strike Force Caroola were investigating alleged indictable offences, namely, the historical and Bundeena allegations of PLA. The investigation of that matter was on foot at the time that the trial of the HLA/OLR matters was extant. For the reasons given above, it might be reasonably be expected that the material described above could be expected to assist the case for the prosecution. 4. In that respect, I refer to the judgment of Schmidt AJ in Gillett v State of New South Wales [2009] NSWSC 421 ("Gillett") at [8], [29]-[30], [32] and [58] as to which I agree as follows: [8] The duty of care claimed was not one which arose from the criminal investigation. Breach of s 15A of the Director of Public Prosecutions Act was alleged. Had the material in question been provided to the DPP as that section required, it was likely that no criminal proceedings would have been instituted against the plaintiff. At the trial, after the completion of the Crown's first witness, it was conceded by the prosecutor that there was no evidence capable of establishing a prima facie case against the plaintiff. No further evidence was offered and the trial judge was invited to direct the jury to acquit… … [29] In the case of this legislation, the purpose of the provision in question is, it was accepted by the parties, to ensure a fair trial. This follows because of the prosecutorial obligation to disclose information, which a police officer is obliged by s 15A to provide to the DPP, to a defendant. The effect of the duty appears to go somewhat further. By the section, police officers 'investigating alleged indictable offences' are obliged to provide the DPP with 'all relevant information, documents or other things obtained during the investigation', whether it assists the prosecution case, or the defence, no matter when it comes into their hands, until either: (a) the Director decides that the accused person will not be prosecuted for the alleged offence, (b) the prosecution is terminated, (c) the accused person is convicted or acquitted. [30] The section does not only concern itself with a trial, but also with the question of whether there will be a prosecution. It follows that the real consequences of the ongoing duty may include not only ensuring a fair trial if charges are pursued, but also that prosecutions are not pursued in the face of information which shows that offences charged were not committed, and also conversely, that they are pursued, when there is information which shows that they were committed. That accords with the explanation of the amendment given in the Second Reading Speech, where it was observed by The Hon. E. M. Obeid (Minister for Mineral Resources, and Minister for Fisheries), that: …pre-trial disclosure ensures that prosecutors disclose all evidence available to them, not just the evidence in the prosecution's possession that is favourable to its case… … [32] As has been observed in the authorities, care needs to be taken in using Second Reading Speeches as aids to interpretation. They are regarded as rarely being useful in ascertain the meaning of a provision. (See Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Reports 81-951). Nevertheless, they have been regarded as relevant when it is the purpose of the legislation, or the mischief to which it is directed, which is being considered. (See the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006) at [3.4]) … … [58] The plaintiff here seeks to argue that in the circumstances in which the s 15A duty was imposed on the investigating police officer, such a duty arose. I am not able to be satisfied that the plaintiff has shown that this is an entirely hopeless claim. In Tame there was no question that the police officer who had there clearly made a mistake or been careless, had also failed to comply with any legal obligation. This is not such a situation. While here, too, a mistake or carelessness is relied on, that occurred in the context of the duty which s 15A imposes. It is in the face of that duty, that the question of whether a common law duty was owed to the plaintiff arises to be considered. [Emphasis added.] 1. I also refer in this respect, with the observations of R S Hulme J in R v Lipton [2011] NSWCCA 247, as to the provisions of s 15A(1), with which I agree, which are in the following terms (at [124]): [124] While I can accept that it is possible to disclose a document, that is its existence, without revealing all the detail of its contents, I do not see how it is possible to disclose "all relevant information" without revealing the content of that information, including the content of any documents. And while it may be that from time to time there is information that the police, with perfectly proper motives, do not wish to disclose, at least in detail, to the DPP (and the DPP may wish not to see), Parliament has dictated what must occur. If the result is inconvenient, it is a matter for Parliament to change. 1. I accept the submission of the plaintiff that Acting Inspector Southgate made a conscious decision not to release the above material. I do not accept, however, that it may be concluded that there were no temporal aspects to Acting Inspector Southgate's decision. The reliance, in that respect, upon the Duty Book by the plaintiff again misunderstands the limited functional aspects of such documents and furthermore, attempts to mistakenly undertake a process of construction of a handwritten duty book entry, such as, pointing to the absence of words such as "at this time". The Acting Inspector gave clear evidence, in his statement, that he had made a decision not to provide the material "at that stage" – thus, there was a temporal aspect to his decision. 2. It is true that, when cross-examined, Acting Inspector Southgate exhibited a lack of recall as to his state of mind at the time of the making of the decision, notwithstanding the terms of his statement. However, it was not actually put to Acting Inspector Southgate that he never intended to disclose the material to the ODPP. Further, it is an implausible proposition that Acting Inspector Southgate never intended to provide the material to the ODPP. On balance, I consider that the evidence given in his statement should be accepted. (I note that the plaintiff's submissions on this question, in fact, vary because it is suggested in one part of the plaintiff's submissions that the Acting Inspector Southgate may deploy the material "as and when you saw fit"). 3. That conclusion gives rise to the question as to whether or not there should be implied in the provisions of s 15A a condition that the disclosure should be given in a reasonable time. 4. Section 15A does not impose and obligation to disclose within a specified time. However, having regard to the purpose of the provision, as discussed in Gillett, it would seem that an implication may be drawn that the legislation intended full and timely disclosure of the relevant material. On that construction, the obligation may vary depending on the circumstances and, therefore, from case to case. 5. That said, strictly speaking, the issue is not whether there was a failure to disclose under s 15A, as such, but whether the fact of the nondisclosure was consistent with the plaintiff's submissions as to Acting Inspector Southgate's conduct, in that respect, amounting to malice. 6. It is unnecessary to reach a final conclusion as to this issue as I do not consider that, even if an implication of the kind sought by the defendant may be found to exist, Acting Inspector Southgate's decision in relation to nondisclosure is consistent with the provision. Whilst he was intending make disclosure, as I have found, it is unlikely that he would have done so until after the conduct of interviews referrable to the allegations made by PLA. That brought with it a timeframe which, even allowing for the context of the delayed trial, was incompatible with the strictures of the provisions of s 15A(1). 7. However, it is a significant leap to draw a conclusion from that failure to malice where in the immediate context known to Acting Inspector Southgate was that the criminal trial had been vacated and was later affected by the decision made by the Tribunal to declare Mr Dyers unfit for trial for 12 months. 8. The failure was explicable as a mistake or misjudgement excited by a knowledge which may be imputed to him that the trial would be considerably delayed having been vacated and even aside from the decision that Mr Dyers was unfit for trial. A basic knowledge of court listing arrangements after a person has been referred to the Tribunal under s 14 of the Mental Health Act 1990 (NSW), following a finding that the person is unfit to be tried for an offence, would result in such a conclusion. The Tribunal determined that Mr Dyers was not fit to be tried for a period of 12 months, simply exacerbated any delay. To that may be added, as earlier mentioned, that it was not put to Acting Inspector Southgate that he never intended to disclose the material to the ODPP. I have found that there was not an absence of such an intention. 9. Fundamentally, and in the light of the findings earlier in this judgment, I do not consider the evidence as to non-disclosure demonstrates that, as at 3 May 2007 Acting Inspector Southgate had decided to maliciously use the Bundeena allegation, knowing or believing it was untrue, to cause harm to Mr Dyers and the plaintiff, particularly with a view to having Mr Dyers' bail revoked and him being imprisoned. More particularly, the evidence does not establish the requisite link between Acting Inspector Southgate's decision not to disclose to the ODPP made on 3 May 2007, contrary to the provisions of the Director of Public Prosecutions Act, and his decision, contended to be malicious, to send the letter. 10. The further contention of the plaintiff was that, in late April and early May 2007, Mr Dyers' trial date of 21 May 2007 was imminent. Acting Inspector Southgate would have known, based on their experience as police officers, that once they provided the PLA material to the ODPP, that the ODPP would have had to disclose that material to Mr Dyers, and it would have to be disclosed quickly. Once that happened, police would no longer have any control over the PLA's material, how it could be deployed, and with the aim of avoiding external scrutiny by the ODPP. The evidence on this question essentially comes from Acting Inspector Southgate and is to the contrary I accept his evidence as to that matter. This combined with my earlier findings must result in a rejection of this further contention of the plaintiff. CHAPTER X: LIMITATION DEFENCE Plaintiff's Submissions 1. It was common ground that the claim was for personal injury and, therefore, that Pt 2 of Div 6 of the Limitation Act 1969 (NSW) was engaged. 2. It was agreed by the parties that the defendant bore the onus of proving that the plaintiff's claim was time-barred. In that respect, the plaintiff referred to Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 71-76 and Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; ("Baker-Morrison") at [14]. 3. What is "discoverable" for the purposes of s 50D of the Limitation Act was "the cause of action". The "fact" contemplated by s 50D(1)(b) is a relationship between the injury or death on the one hand and the fault of the defendant on the other, with the relevant connection being one of causation: Baker-Morrison at [3], [28], [39] and [45]. 4. Basten JA in Baker-Morrison (at [25]) addressed the content of each of the "facts" in s 50D(1). Basten JA stated, for the purposes of the fact of the injury or death (s 50D(1(a)) that in some cases, injury may be readily apparent, for example, a physical wound (as was the case in Baker-Morrison) but psychological injury will raise additional questions(at [26]). 5. That example (despite the inapplicability of s 33 of the Civil Liability Act 2002 (NSW)), applies to the psychological injury in the present case. 6. For the purposes of s 50D(1)(c) of the Limitation Act – the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action – the knowledge required is one to be informed by professional expertise. In Baker-Morrison, Basten JA stated at [41]–[42]: [41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being 'of a decisive character' for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one 'knowing those facts and having taken the appropriate advice on those facts' would hold the identified opinion. [42] The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, eg, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind. 1. Section 50D(1)(c) of the Limitation Act requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made of the seriousness of injury sufficient to justify the bringing of proceedings: Baker-Morrison (at [4] and [44]). In that case, Basten JA regarded satisfaction of s 50D(1)(c) as dependent upon: "the exercise of both legal and medical expertise" (at [41]) and that "the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made" (at [44]). 2. In State of New South Wales v Gillett [2012] NSWCA 83 ("Gillet"), the respondent's negligence claim was based on the single allegation of the failure of the Police Service to disclose to the DPP all relevant information and documents obtained during an investigation of the respondent's conduct, which preceded his being charged with a number of criminal offences. The alleged breach of statutory duty was the failure of the Police Service to discharge its obligations under section 15A of the Director of Public Prosecutions Act 1986, to disclose to the DPP all relevant information and documents obtained in the investigation that might assist the case of the prosecution or the defence. The obligation was a continuing one until, relevantly, the prosecution was terminated or the person was either convicted or acquitted. The respondent's complaint was that the Police Service failed to disclose documents that assisted his case. The primary judge stated that the question for his determination was whether the respondent's cause of action was discoverable before the day, three years before he commenced his action. 3. Campbell JA stated in Gillett (at [131]) that for a person: [131] … to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Therefore knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being "fault", actionability is likewise one of the "key factors necessary to establish liability" that must be known before s 50D(1)(b) is satisfied. 1. In order to "know" whether an injury was sufficiently serious to justify the bringing of an action within the meaning of s 50D(1)(c), a person must also know not only that the injury was serious, but also, in approximate terms, whether that injury was sufficient to bring the person over any of the statutory thresholds that now exist: Baker-Morrison at [16], [24], [41] and [46]. 2. The phrase "ought to know" in s 50D(2) of the Limitation Act is identified by reference only to what the putative plaintiff "would" have found out, if he or she had taken all reasonable steps, and not to the failure of another person. The word "would" in that provision is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice: Baker-Morrison at [37], [57]-[59]. 3. The defendant's case is that that the post-discoverability commenced on the date of Mr Dyers' death, that is, 25 July 2007. 4. There is no evidence to sustain the proposition that Ms Hamilton's cause of action was "discoverable" by her on 25 July 2007. Consistent with the authorities on 25 July 2007, the plaintiff: 1. did not know she had suffered personal injury; 2. did not know that personal injury was caused by the fault of the defendant; and 3. did not know that the personal injury was sufficiently serious to justify the bringing of an action on her cause of action. 1. Nor could it be properly argued that the plaintiff ought to have known each of those matters on 25 July 2007. 2. However, those matters cannot have been known any earlier than (and indeed would only be known subsequent to) the date upon which a medical practitioner first diagnosed a recognised psychiatric condition arising from Mr Dyers' death. 3. That occurred on 18 August 2011, when Dr Hardy (the plaintiff's physician) initially diagnosed PTSD. That diagnosis was confirmed by a consultant psychiatrist, Dr Glenys Dore, in a report received by the plaintiff on 14 January 2012. The plaintiff contends that, even that date would represent the earliest time that her cause of action was "discoverable" in the relevant sense. Defendant's Submissions 1. Section 50A of the Limitation Act provides that Pt 2, Div 6 of the Limitation Act applies to "a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise." Section 11 of the Limitation Act defines "personal injury" to include "any disease and any impairment of the physical or mental condition of a person." The cause of action sued upon by the plaintiff is governed by the provisions of Pt 2, Div 6 of the Limitation Act (by virtue of s 13 of the Limitation Act, the fact s 14(1)(b) provides a longer limitation period applicable to the plaintiff's claim is of no assistance to the plaintiff). 2. The limitation period is provided for by s 50C(1)(a), which provides that: 50C Limitation Period for Personal Injury Actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the "3 year post discoverability limitation period", which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, … 1. The determination of the date upon which the cause of action is discoverable by the plaintiff is governed by s 50D of the Limitation Act. 2. There is no definition of "injury" that is generally applicable to the Limitation Act, or to s 50D in particular. The meaning of "injury" must, therefore, be determined by the context in which it appears, and in particular s 50A, and it is properly regarded as coterminous with "personal injury". In the present context, "injury" means "any disease or impairment of the mental condition" of the plaintiff. 3. The plaintiff's reply simply stated that her statement of claim was filed within the 3 year post-discoverability period and is, therefore, not time-barred. By letter dated 29 October 2018, the plaintiff purported to provide particulars of her reply, noting that "on 18 August 2011, Dr Hardy (the plaintiff's physician) first diagnosed Post Traumatic Stress Disorder". It appears from that document that the plaintiff's case is that she did not know the fact that the injury concerned had occurred until at least 18 August 2011. By further letter dated 30 October 2018, the plaintiff asserted that she did not know any of the matters referred to in s 50D(1)(a)-(c) of the Limitation Act, albeit this consequence is said to follow from the fact that "the first time there was any diagnosis of psychological impairment following the death of Mr Dyers was 18 August 2011 when Dr Mark Hardy…made a diagnosis of post-traumatic stress disorder". However, the relevant fact alleged to be unknown is the fact that injury had occurred. 4. The defendant accepted that it bore the legal onus to prove, on the balance of probabilities, that the plaintiff knew, or ought to have known, before 22 February 2010, each of the three matters specified in s 50D(1)(a)-(c). However, it was contended the plaintiff bore an evidential onus as to those three matters: see Donmez v Neissa [2012] VSC 73 at [33]. That is an evidential burden that the plaintiff had not discharged, having adduced no evidence directed towards that issue. 5. The proposition that the plaintiff's cause of action was not discoverable until the diagnosis of PTSD on 18 August 2011 suffered from two deficiencies: there is no evidence that this was the "first" diagnosis by Dr Hardy, or indeed anybody else. It misunderstands what is required for a person to know of the fact that injury has occurred. 6. In relation to the first deficiency, the evidence is to be weighed according to the capacity of the party to adduce it: see Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. There is no evidence from either the plaintiff, or from Dr Hardy, that this was the first time she had been diagnosed with PTSD. Nor does the plaintiff say that she was unaware that she suffered from PTSD, or any other psychiatric ailment, until 18 August 2011. It was in the capacity of the plaintiff, and not the defendant, to adduce that evidence, and the plaintiff had failed to discharge her evidential onus in that regard. 7. It was not necessary for the plaintiff to know that she suffered from a condition diagnosed as post-traumatic stress disorder in order to know that "injury had occurred". All that the plaintiff needed to know was that suffered from "an impairment of her mental condition". This did not require an awareness that her signs and symptoms constituted a recognisable psychiatric illness. In the context of the definition of "personal injury" in s 11 of the Civil Liability Act (not materially different to the definition in section 11 of the Limitation Act) the NSW Court of Appeal had consistently held that the definition of "personal injury" and its reference to the "impairment of a person's … mental condition" was apt to include the anxiety and distress resulting from intentional torts: see State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [124] per Ipp JA, [212]-[216] per Basten JA; State of New South Wales v Corby (2010) 76 NSWLR 439; [2010] NSWCA 27 at [47] per Basten JA; State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276; State of New South Wales v Williamson [2011] NSWCA 183 at [67] per Campbell JA (in the subsequent appeal reported at (2012) 248 CLR 417, the High Court did not reject this conclusion). 8. To the extent that some intermediate appellate decisions suggest that it is necessary that a plaintiff be aware that their symptoms amounted to a psychiatric illness (see, Commonwealth of Australia v Dinnison (1995) 56 FCR 389; [1995] FCA 192 and Commonwealth v Smith [2005] NSWCA 478 ("Commonwealth v Smith") those decisions are only authority for that proposition in the specific context in which they were made, namely, claims for personal injury damages for psychiatric injury resulting from negligence, in which the very existence of the cause of action was dependant upon there being a recognised psychiatric injury. It was in that context that it may properly be said that a plaintiff cannot know that their cause of action was discoverable unless they know of the existence of an essential element of that cause of action, ie injury of a particular type. There is no such limitation with respect to the tort of misfeasance in public office, where damages are recoverable for distress and anxiety, and there was no warrant for engrafting some such additional requirement upon the statutory definition and language. 9. Further, it was contended that what was clear was that, in any particular case, it may be sufficient that the plaintiff was aware of the relevant signs and symptoms (Commonwealth v Nelson [2001] NSWCA 443 at [68] ("Nelson") per Rolfe AJA), and that it was not necessary to know the technical name or description that may be given to it (CRA Ltd v Martignago; Costain Australia Ltd v Martignago (1996) 39 NSWLR 13 at 20-21 ("Martignago") per Clarke JA). Nothing said in Commonwealth v Smith, even assuming it is authority for any proposition outside of the context of a claim for damages for negligently-inflicted mental harm, is in absolute terms to the contrary. 10. The plaintiff experienced symptoms of shock, distress, depression and anxiety throughout the period commencing as early as Mr Dyers' arrest in 2005. It is clear that these were not mere emotional experiences but were having a functional impact upon her capacity and she was, in fact, aware at the time that she was "emotionally destroyed", that her own mental health had deteriorated, and that her state of anxiety and depression would not pass and she was unable to move on with her life. She was suicidal shortly after Mr Dyers' suicide and for the first year after his death would constantly scream whenever she was driving home alone in her car. 11. The plaintiff acknowledged that she believed she had suffered psychological harm and damage by reason of the conduct of police but does not say that this is a belief that she did not have at the time, and does not say that she only came to this belief after Dr Hardy's 18 August 2011 report. 12. The reference in s 50D of the Limitation Act to what a person "knows" means that the person has "a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purpose of legal proceedings". Such a belief "may be held on firm grounds or on shaky grounds", and is not an assessment of the prospects of success in the prospective proceedings: Baker-Morrison at [45]. It follows that the knowledge requirement is capable of being met, even if the evidence to prove the claim remains deficient at the time: Frizelle v Bauer [2009] NSWCA 239 at [28]; Allianz Australia Insurance Ltd v Mercer (2016) ALR 157; [2016] TASFC 2 at [86]. 13. The plaintiff has not given any evidence that she was unaware of any of the fact that she had suffered injury until after 22 February 2010. There is no explanation for the absence of such evidence. It was submitted that the Court should infer that such evidence would not have assisted the plaintiff's case with respect to the discoverability of the plaintiff's cause of action and the Court is entitled to more readily draw the inference available from the evidence that the plaintiff in fact did know that she had suffered injury in the relevant sense prior to 22 February 2010. It is sufficient that the plaintiff knew that she suffered from an impairment of her mental condition. Even if it is necessary to demonstrate that the plaintiff knew she suffered from a psychological illness, it was contended, the constellation of symptoms which she experienced from the moment of Dyers' death as described in her affidavit were sufficient to make her actually aware that she was suffering from a psychological illness, even if she did not then know what it was called. 14. If, contrary to these submissions, the Court found that the plaintiff did not know the fact that the injury concerned had occurred, the Court should alternatively find that the plaintiff ought to have known the fact that injury had occurred. 15. The phrase "ought to know" in s 50D(2) of the Limitation Act is premised upon an assumption that the person had not taken all reasonable steps to ascertain the particular fact, and required an assessment of what would have been ascertained had such steps been taken: Baker-Morrison at [58]. In Commonwealth v Smith (at [186]) Basten JA referred with approval to the statement by Baroness Hale in Adams v Bracknell Forest Borough Council [2005] 1 AC 76 at [88] to the effect that the Court is concerned with knowledge the plaintiff might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for the plaintiff to seek. It was submitted that, as Basten JA observed at [187], "[t]he term "ought" requires more than explanation - it requires justification". 16. Hence, it was submitted, there was no explanation, let alone justification. There was no evidence at all of any step taken by the plaintiff to address what were, on her own evidence, severe and debilitating symptoms of distress, anxiety and depression. It must have been apparent to her, as she stated in her affidavit, that her mental health had deteriorated, she had suffered psychological harm, and she was unable to move on with her life. It was reasonable in those circumstances to have sought help from an appropriate medical practitioner. There was no explanation as to why the plaintiff did not do so. There was no evidence from either the plaintiff or any medical evidence to the effect that something inherent in her condition prevented her from doing so. 17. Nor was there any evidence of any other subjective feature of the plaintiff which explains her failure to do so. There was an unexplained and unreasonable delay of more than 2½ years. If the plaintiff had sought treatment and/or advice when she reasonably ought to, she would have been informed that she suffered from a recognisable psychiatric injury in the same way she became aware of that fact (at the latest) when she saw Dr Hardy in August 2011. 18. The Court should be satisfied that the plaintiff, in fact, did know that she had suffered injury in the relevant sense prior to 22 February 2010, or at the very least that she ought to have known that fact. 19. The plaintiff did not make submissions that she was not aware of matters referred to in ss 50D(1)(b) and 50D(1)(c) other than by reason of the fact that she was not aware of her injury. The plaintiff did not submit that if she was aware or ought to have been aware of her injury, she was nonetheless not aware of the matters in (b) and (c). Conclusion: Limitation Defence 1. There was no dispute that the determination of the limitation defence turned substantially upon the provisions of ss 50C and 50 D of the Limitation Act. Further, both parties placed considerable reliance upon Baker-Morrison. 2. Sections 50C(1),50D(1), 50D(2) and 50D(3) of the Limitation Act relevantly provide as follows: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the "3 year post discoverability limitation period", which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the "12 year long-stop limitation period", which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note: The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. 1. Both parties accepted the applicability of the 3 year post-discoverability limitation period. The issue in dispute was, rather, when the 3 year post-discoverability period commenced. 2. The relevant medical history in that respect is set out in the following table: Date Event Source 28 July 2011 Consultation with Dr Mark Hardy, General Practitioner whom notes that he counselled Ms Hamilton at length regarding Mr Dyers' death. Report of Dr Anthony Samuels dated 30 April 2015 page 4. 18 August 2011 Consultation with Dr Mark Hardy, General Practitioner. Report of Dr Anthony Samuels dated 30 April 2015 page 4. Mental Health Plan created. Ms Hamilton referred to Dr Selwyn Smith, Psychiatrist. Consultation with Dr Mark Hardy, General Practitioner. 18 November 2011 Mental Health Plan reviewed. Report of Dr Anthony Samuels dated 30 April 2015 page 4. Ms Hamilton referred to Zora Impey (presumably a psychologist). Consultation with Dr Mark Hardy, General Practitioner. 22 November 2011 Referred to Dr Selwyn Smith, Psychiatrist, in which Dr Hardy provides extensive background information and notes "it is only fair to tell you that [Ms Hamilton] may seek legal remedy against the NSW Police in the future". Report of Dr Anthony Samuels dated 30 April 2015 page 4. Dr Hardy concluded: "… I firmly believe [Ms Hamilton] requires specialist review and may need treatment. …" 10 December 2011 Consultations with Dr Glenys Dore, Psychiatrist. Report of Dr Glenys Dore dated 14 January 2012 page 1. 17 December 2011 14 January 2012 Report of Dr Glenys Dore dated 14 January 2012 page 1. Report of Dr Glenys Dore dated 14 January 2012 page 1. Period of Injury 1. Section 11 Limitation Act defines 'personal injury' to include: [A]ny disease and any impairment of the physical or mental condition of a person. 1. The defendant (Defendant's Closing Submissions at para 127) submitted that it was not necessary that the plaintiff know that she suffered from a condition diagnosed as post-traumatic stress disorder in order to know that "injury had occurred". All that the plaintiff needed to know is that [she] suffered from "an impairment of her mental condition". This did not require an awareness that her signs and symptoms constituted a recognisable psychiatric illness. 2. The defendant further submitted (Defendant's Closing Submissions at para 129) that what is clear is that in any particular case it may be sufficient that the plaintiff is aware of the relevant signs and symptoms. 3. Conversely, the plaintiff ostensibly submitted that 'personal injury' pursuant to s 11 of the Limitation Act required knowledge of a recognised psychiatric condition. 4. The plaintiff submitted that this occurred on 18 August 2011, when Dr Hardy (the plaintiff's physician) initially diagnosed PTSD. However, the plaintiff contended that the earliest time that her cause of action was "discoverable" in the relevant sense was when the PTSD diagnosis was confirmed by consultant psychiatrist, Dr Glenys Dore, in a report received by the plaintiff on 14 January 2012. 5. It is unclear as to what would, and what would not, constitute an impairment of a person's mental condition in accordance with the definition of "personal injury" contained in s 11 of the Limitation Act), particularly in relation to the tort of misfeasance in public office. 6. What is clear is that a recognised psychiatric illness would fall within that description. Section 50D(1)(a): the fact that the injury concerned has occurred 1. It is clear that, as the plaintiff has submitted, psychological injuries can be contrasted to physical wounds; the latter being, in many cases, readily apparent. In Baker-Morrison, Basten JA observed (at [26]) that: [26] [I]t should be noted that, in the case of a psychological injury, additional questions will arise. For example, does "injury" refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a "recognised psychiatric illness" from emotional distress as required by the Civil Liability Act, s 33? 1. I note that s 33 of the Civil Liability Act is not applicable to this case. 2. As mentioned above, the Defendant's Closing Submissions (at para 129) refers to Nelson, per Rolfe AJA (Sheller and Hodgson JJA agreeing), (at [68]) as authority for the propositions that it may be sufficient for discoverability that the plaintiff "was aware of all the symptoms from which he was suffering" and it is not necessary to know "the technical name or description of an injury but its effect, actual and potential, upon the applicant" (see also: Martignago at 20-21 per Clarke JA). 3. Those propositions accurately reflect the law. However, in Nelson, what Rolfe AJA (at [68]) stated was that: [68] In the instant case, [the plaintiff] was aware of all the symptoms from which he was suffering. He had received psychological counselling and had seen a psychiatrist. There was no suggestion that the symptoms would become worse. The extent or limits of the condition from which Mr Nelson was suffering had been reached. In these circumstances, it seems to me, that his lack of knowledge that the problems could be described as Post Traumatic Stress did not in any way affect the extent of his personal injury. Rather, that was a way in which it could be described. However, as Clarke JA said, the Court is not concerned "with the technical name or description of an injury but its effect, actual and potential, upon the applicant". It would be very strange if a person, aware of all the symptoms and in circumstances where there was no evidence that they would worsen, could say that he or she was not aware of their extent merely because different doctors may describe them differently. [Emphasis added.] 1. In Nelson at [80] Rolfe AJA stated: In any event, Mr Nelson had to overcome not only subjective awareness, but the requirement that he ought to have become aware. As I have said, on several occasions, his symptoms were well known to him, and he was treated for them. In these circumstances, it seems to me, that there is much force in the submission of Mr Hoeben that he ought to have asked Mr Bourke and/or Dr Dinnen the cause of his problems. Further, he saw Dr Pattinson, a psychiatrist of his own choice and whom he paid. There was no reason he could not have asked him from what he was suffering. There was nothing, so far as the evidence disclosed, precluding Mr Nelson's asking such a question and, if he did not receive a satisfactory answer, seeking further medical advice. 1. Hence, in Nelson it was concluded that the plaintiff's cause of action was discoverable (at least 3 years) before an official diagnosis of PTSD had been communicated, by a psychiatrist's report, to the plaintiff. The court's determination, however, was based upon both: 1. the plaintiff being aware of all of his symptoms; and 2. that the plaintiff had undertaken psychological counselling and seen a psychiatrist (which clearly substantially informed the Court's factual finding in Nelson). 1. Nelson, therefore, is not authority for plaintiffs becoming aware of a psychological injury independently of professional consultation, as the defendant appeared to submit by referring to accounts by the plaintiff when she was aware of her own negative psychological experiences. 2. It may be observed that some of the events upon which the defendant relies occurred prior to the date of Mr Dyers' death as the events referred to relate to the plaintiff's experiences of symptoms of shock, distress and anxiety throughout the period commencing as early as Mr Dyers' arrest in 2005. Those pre-death (and therefore injury) references are irrelevant to the present limitation defence and appear incongruent with both the plaintiff's claim and the case authorities regarding ss 50C and 50D of the Limitation Act. 3. In my view, the defendant's submissions fail to address the ratio expressed in Baker-Morrison, which is that professional expertise or assessment (medical and legal knowledge) are critically important factors in determining when a plaintiff's cause of action is discoverable. Section 50D(1)(b): the fact that the injury or death was caused by the fault of the defendant 1. As to s 50D(1)(b), Basten JA observed in Baker-Morrison at [28] that: [28] That which is identified as "discoverable" for the purposes of s 50C is "the cause of action". The "fact" contemplated by paragraph (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation. 1. Those conclusions are relevant to the plaintiff's knowledge of each of the "facts" in s 50D(1) of the Limitation Act. 2. In State of New South Wales v Gillett [2012] NSWCA 83, Campbell JA made the following observations (at [122]) about the Limitation Act: [122] It is possible that personal injury or death could be the result of tortious conduct, or other wrongful conduct, that is not negligent. Actions for assault, false imprisonment and breach of statutory duty are possible examples. It is a reasonable inference that the terms of s 50D(1)(b) Limitation Act differ from the recommendations of the Ipp Report by having as one of the elements of discoverability that "the injury or death was caused by the fault of the defendant" to enable the provision to cover this wider range of circumstances in which a cause of action to recover damages for death or personal injury might arise. 1. The "fault" of the defendant referred to in s 50D(1)(b) of the Limitation Act is to be ascertained by reference to legal concepts, not moral blameworthiness, so that, while there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise, the key factors necessary to establish legal liability must be known. 2. In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 ("Bostik Australia"), Beazley JA stated at [38]-[49] that it is not sufficient for the purposes of the Limitation Act, s 50D(1)(b), that a person merely knows the facts necessary to establish the fault of the defendant. The person must also know that a defendant was, as a matter of law, liable to pay damages. 3. Further, a "knowing" of a defendant's fault is a legal matter and a plaintiff's awareness (or lack thereof) of their legal rights is therefore relevant (see Baker-Morrison, per Basten JA (at [38]-[40]); and Bostik Australia, per Beazley JA (as her Honour then was) at [38]-[49]. Section 50D(1)(c): injury sufficiently serious to justify bringing a cause of action 1. As to s 50D(1)(c), in Baker-Morrison (at [41]) Basten JA states: [41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but "sufficiently serious to justify" a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being "of a decisive character" for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one "knowing those facts and having taken the appropriate advice on those facts" would hold the identified opinion. 1. In light of the authorities to which I have referred, the 3 year post-discoverability period commenced once both: 1. medical consultation had enabled the plaintiff to be made (or ought to have been made) aware of all the symptoms that she was suffering; and 2. had legal advice so as to satisfy the requirements of ss 50(1)(b) and 50(1)(c). Consideration 1. I disagree with the plaintiff (Plaintiff's Closing Submissions at para 295) that the earliest time that Ms Hamilton's cause of action was "discoverable" was when the diagnosis of PTSD was confirmed by Dr Glenys Dore in the report dated (and received by Ms Hamilton) on 14 January 2012. 2. The evidence indicates that Ms Hamilton had seen medical professionals in relation to her mental health issues from 28 July 2011. Ms Hamilton had a mental health plan created for her on 18 August 2011 and was referred to Dr Selwyn Smith, Psychiatrist (and according to the plaintiff's submissions was diagnosed by Dr Hardy as having PTSD on same date). Ms Hamilton then had her mental health plan reviewed on 18 November 2011 and was referred to Zora Impey. 3. The plaintiff therefore either knew (or ought to have known) the cause of her problems prior to the report of Dr Glenys Dore dated 14 January 2012. Indeed, if she ought to have become aware of her condition and its cause by asking Dr Glenys Dore during the consultations on 10 December and 17 December 2011. 4. The plaintiff knew or ought to have known of the occurrence of the injury (s 50D(1)(a)) and that the injury was caused by the fault of the defendant (s 50D(1)(b)) no later than 17 December 2011. 5. With respect to s 50D(1)(c), I note that on 22 December 2011 Dr Hardy was either informed by, or inferred that, Ms Hamilton was contemplating commencing legal proceedings in relation to her injury. I further note that the report of Dr Glenys Dore dated 14 January 2012 was produced at the request of Ms Hamilton's solicitor, Mr Harland Koops. 6. The three year post-discoverability limitation period commenced no later than 17 December 2011 (date of the second of two consultations with Dr Glenys Dore, psychiatrist) and no earlier than 18 August 2011 (date of initial PTSD diagnosis by Dr Hardy, General Practitioner). My preference is the former, given that Dr Glenys Dore is a mental health specialist (psychiatrist) and because it can be safely concluded that Ms Hamilton had by that time been provided legal advice pertaining to her potential cause of action. 7. In any event, both dates fall within the three year post-discoverability limitation period with reference to the filing of the statement of claim on 22 February 2013. 8. The defendant's limitation defence must fail. CHAPTER XI: THE CLAIM FOR DAMAGES 1. Whilst the plaintiff's action has failed, it is appropriate, so far as applicable, to consider the plaintiff's case in damages in the event my conclusion is rejected. 2. Upon the basis that there is common ground that the Civil Liability Act does not govern the plaintiff's entitlement to damages (see s 3B(1)(a) and noting that the primary conclusions of the Court is that the question of an entitlement to damages does not arise as the plaintiff has not established the element of the tort that a public officer had an intention to cause harm to the plaintiff, then the questions potentially arising with respect to damages are as follows: 1. Did the plaintiff suffer relevant harm? The subsidiary issues raised were in this context whether the harm was to be assessed by reference to the plaintiff or Mr Dyers and must the plaintiff establish a psychiatric illness or is "mere distress, injured feeling, indignation or annoyance" enough? 2. Was the harm caused by the tortuous act of Acting Inspector Southgate? 3. Does Mr Dyers' suicide constitute a novus actus interveniens? 4. What is the entitlement to damages? 1. The subsidiary questions as to the last mentioned issue were: 1. What should be assessed as general damages? 2. Are aggravated damages available and, if so, what should be assessed for such damages? 3. Is the test that, something more than "mere malice is required"? If so, has the plaintiff passed that threshold? On that test or not, what is the assessment for exemplary damages? 1. Whilst I shall summarise the argument as to the fourth question above, it is unnecessary to ultimately resolve that question because of the conclusion I have reached as to causation in relation to question 2. I have, therefore, not assessed damages in relation to question 4 and confined any observations, in that respect, to the issues of principle and fact raised by the parties. QUESTION 1: Did the plaintiff suffer relevant harm? The subsidiary issues raised in this context were whether the harm was to be assessed by reference to the plaintiff or Mr Dyers and whether the plaintiff must establish a psychiatric illness or is "mere distress, injured feelings, indignation or annoyance" enough? 1. In Mengel, Deane J (at 370) stated: 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. 1. Also in Mengel, Brennan J (at 358) stated: [T]he tort of misfeasance in public office is not concerned with the imposition of duties of care. It is concerned with conduct which is properly to be characterized as an abuse of office and with the results of that conduct. 1. In Farrington (at 293), Smith J, stated: Proof of damage is, of course, necessary in addition. In my view, therefore, the rule should be taken to go this far at least, that if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person. 1. In Watkins v Secretary of State [2006] UKHL 17 ("Watkins"), Lord Bingham (at [7] and [27]) stated: [7] There was no challenge to the judge's findings of bad faith against the three officers, nor to his finding that their conduct had caused the respondent no financial loss or physical or mental injury, which in argument was helpfully described as 'material damage', an expression understood to include recognised psychiatric illness but not distress, injured feelings, indignation or annoyance. [27] For these reasons, and those given by my noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and Lord Carswell, I would accordingly rule that the tort of misfeasance in public office is never actionable without proof of material damage as I have defined it. I would accordingly allow the appeal, set aside the Court of Appeal's order save as to costs and restore the order of the judge. The appellant must, conformably with the condition imposed below, pay the respondent's costs of this appeal to the House. 1. In Nyoni at [97] the Court, with reference to Watkins stated: [97] The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham's more modern characterisation, "material damage" such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): see Watkins at [7], [27]. 1. Moreover, in Three Rivers (at 1270) Lord Hobhouse said: The tort is historically an action on the case. It is not generally actionable by any member of the public. The plaintiff must have suffered special damage in the sense of loss or injury which is specific to him and which is not being suffered in common with the public in general. … the plaintiff has to be complaining of some loss or damage to him which completes the special connection between him and the official's conduct. 1. The abovementioned authorities clearly indicate the following: 1. Firstly, in a case of misfeasance in public office, damage cannot successfully be made out without proof of damage. 2. Secondly, financial injury, physical injury or mental injury, are capable of sustaining an action. 3. Thirdly, the notion of "material damage" includes recognised psychiatric illness but not distress, injured feelings, indignation or annoyance (see Watkins (at [7]). 1. I consider that the plaintiff did suffer psychiatric illness that is capable of making out the tort of misfeasance in public office. QUESTION 2: Was the harm caused by the tortuous act of Acting Inspector Southgate? Defendant's Submissions 1. The defendant's submission as to causation and remoteness were advanced substantially through its written submissions, which were as follows: 1. It is necessary for the plaintiff to prove against Acting Inspector Southgate that he acted maliciously, that is, with a malicious state of mind, in two respects. The first is with respect to the abuse of his functions as an investigating police officer. The second is with respect to the harm alleged to have been caused to the plaintiff by such abuse. 2. As to abuse of office, this is not a case where Acting Inspector Southgate knowingly exceeded his powers of police investigation. Rather, he was alleged to have acted with the malicious purpose of contriving to have Mr Dyers' bail revoked so he would be put into custody. The means alleged by which he sought to achieve this was to inform Mr Dyers through the letter of 24 July 2007 that PLA's allegations related to the period between 1999 and 2006, with him affirmatively not believing the 2006 allegation (the Bundeena allegation) to be true. 3. However there is no causal connection between the intent behind the letter and a prospective bail revocation. The issue of bail revocation could only have arisen if Mr Dyers had been charged with an offence arising out of PLA's 2006 Bundeena allegation. This neither happened, nor was it threatened in the letter. Having regard to the finding of unfitness to stand trial and the determination of the Tribunal, revocation of bail was an extremely unlikely possibility. 4. Both factual and legal causation must be proved. There is an established line of authority that, at common law, causation is essentially a question of fact, not susceptible of reduction to any one philosophical or scientific formula such as the "but for" test but rather to be resolved as a matter of common sense and experience; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 per Callinan J at [149]. In March v Stramare (1991) 171 CLR 506; [1991] HCA 12, Mason CJ at [23] (with whom Deane, Toohey and Gaudron JJ agreed), did not accept that the "but for" test was ever or now should become the exclusive test of causation in negligence cases. There is no reason, in principle, for a different approach to be taken in cases of intentional torts. 5. In Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253, Basten JA, at [28], held that wherever possible reasons on causation should be identified because the question of causation in cases where science fails to provide a satisfactory answer "must ultimately be seen as involving a question of satisfaction of the burden of proof." The defendant submitted that the evidence in this case does not establish factual causation because there is no causal link between the intent behind the letter of 24 July 2007 and either Mr Dyers' suicide on learning that content, or the psychiatric injury sustained by the plaintiff in consequence of the suicide. 6. If the plaintiff established factual causation in respect of her psychiatric injury, she must then establish that this harm was not too remote a consequence for it to be compensable (legal causation). Further, the obstacle of remoteness must be overcome at two levels. The first is that Mr Dyers' suicide was caused by the content of the letter. The defendant's case is that the suicide was caused by Mr Dyers' misinterpretation of both the content of the letter and Acting Inspector Southgate's purpose in sending it. The letter was also not in the necessary sense causative of the psychiatric harm sustained by the plaintiff in consequence of Mr Dyers' suicide. 7. While proof of either intention to cause harm or reckless indifference to the fact that harm was likely to be suffered is essential, the plaintiff's case, as pleaded, opened and submitted, was one of actual intention to cause harm. The plaintiff alleged that the harm intended was psychological harm. This raised the issue as to the nature and extent of the psychological harm the plaintiff must prove was intended (Obeid v Lockley (2018) 355 ALR; [2018] NSWCA 71 per Bathurst CJ at [153], Beazley P at [206] and Leeming JA at [242]). 8. In the 4FASOC at [110], the plaintiff pleaded that Mr Dyers' suicide was caused or actuated by the malicious and unlawful actions of Acting Inspector Southgate as pleaded in [97]-[109] thereof. The particulars alleged, inter alia, that Mr Dyers committed suicide because he felt he was being maliciously pursued by Acting Inspector Southgate and Detective Sergeant Frame and was anxious at the serious prospect of having his bail revoked, being incarcerated and dying due to ill health, or being harmed, or killed while in detention. Reliance was placed on what was said to be the temporal connection between Mr Dyers' suicide, the matters pleaded (see at [37], [39] and [70]-[73]) and the notification of the allegation by PLA that he had assaulted her in 2006, following the determination of the Tribunal (referred to at [80]). 9. The plaintiff pleaded at [112] that, by reason of the misfeasance of Acting Inspector Southgate "as pleaded above", she has suffered, inter alia, psychological injury and harm, chronic post-traumatic stress disorder and chronic major depressive disorder in association with generalised anxiety. 10. The plaintiff's submission that it was not necessary that the intentional infliction of harm should result in any particular manifestation of harm (the law prescribed that no particular type of loss or damage must be suffered, only that some material loss or "material damage" must be proved as an ingredient of the cause of action: see Nyoni at [97]). This misunderstood what is needed to satisfy the intent to cause harm element of the misfeasance tort where the harm was physical or mental injury. In Watkins, Lord Bingham of Cornhill accepted, at [7], that physical or mental injury was "material damage", an expression understood to include recognised psychiatric illness but not mere distress, injured feelings, indignation or annoyance. At [27] his Lordship held that the misfeasance tort is never actionable without material damage. The malevolent intention the plaintiff must prove against Acting Inspector Southgate was an intention to cause her at least recognised psychiatric illness. This is in conformity with the law, the way the plaintiff pleaded her case and the medical evidence she had tendered on the issue of the harm she suffered. 11. If it was open to the plaintiff to prove her case on the basis that Acting Inspector Southgate intended to cause material damage to Mr Dyers in the nature of recognised psychiatric injury (which the defendant dispute: see the earlier summary of the defendant's submissions on law and principle) the defendant submitted this would require proof that Mr Dyers, by being informed of the terms of the letter (as distinct from his or the plaintiff's interpretation of the letter) suffered recognised psychiatric injury; that by sending the letter Acting Inspector Southgate intended him to suffer such an injury; and, that the injury caused him to take his own life. Proof that Mr Dyers sustained a recognised psychiatric injury is absent. It is a matter of expert medical opinion; it cannot be inferred from the events that occurred. The plaintiff relied on the "temporal connection" between the events but that required the court to find, without evidence, that all intentional acts of taking one's own life are caused by psychiatric illness. Plaintiff's Submissions 1. In reply, the plaintiff contended as follows: 1. The plaintiff did not accept the defendant's submission as amended at 242(1) above, on the Nyoni principles regarding an invalid and unauthorised act. I have earlier accepted those submissions. 2. It is sufficient for the plaintiff to establish that the letter was not sent as part of a bona fide investigation, but rather, was sent maliciously and with the intent to inflict harm upon Mr Dyers, including by psychological harm arising from the fear of having his bail revoked. The letter itself, of course, did not revoke bail. The letter sent a clear message to Mr Dyers that police were moving towards the revocation of bail. 3. The defendant's submission that having regard to the finding of unfitness to stand trial and the determination of the Tribunal, "revocation of bail was an extremely unlikely possibility" should be rejected. It overlooks what the Tribunal itself observed, as earlier set out in this judgement. 4. Mr Dyers correctly understood the reference to his conduct in 2006 as conduct committed while he was on bail (as too must have Acting Inspector Southgate). Because of this, Mr Dyers understood the letter as threatening revocation of bail. That revocation had to be a very strong likelihood. Offences committed on bail would have meant that Mr Dyers was a person who was a continuing threat of committing sexual offences. 5. The defendant's submission, as summarised at sub paras (4)-(11) of the immediately preceding paragraph, is misconceived. It was only necessary that a plaintiff demonstrate that "material damage" has been suffered. It is only necessary that a plaintiff establish that the public officer intended to cause harm to the plaintiff, in this case, through the malicious exercise of a power. It is unnecessary, in the case of material damage with a mental element, that the plaintiff be required to prove that the tortfeasor sought to inflict a recognised psychiatric illness. That confuses the need to establish material damage (and what the law considers to constitute material damage) with the need to establish an intention to injure on the part of the tortfeasor. If the defendant's submission about the need to prove the tortfeasor sought to inflict a recognised psychiatric illness were correct (which it is not), the burden of proof would be set at an impossibly high level. 6. As with novus actus interveniens, it is unnecessary to establish that Mr Dyers suffered a psychiatric injury. The focus is the injury to the plaintiff. There is evidence of the plaintiff's psychiatric injury. Further, the defendant's submissions conflate an intention to cause harm with the harm actually suffered. As to the reference to Watkins, that matter does not concern injured feelings or distress. The relevant question raised by the tort is an intention to cause harm. If the intention is established then the question is, did it cause manifest damage? 7. At that stage of inquiry, it is open to consider whether there has been a "mere distress" or "mere injured feelings", which brings focus upon the plaintiff, not Mr Dyers. 8. Thus, the relevant question is, did the plaintiff suffer harm, in the sense of material damage? Consideration 1. It is clear that the misfeasance must have caused the damage (see Farrington; Three Rivers at 1233 per Lord Steyn, at 1268 per Lord Hobhouse). 2. Therefore, a causal link must be established between the defendant's alleged misfeasance and the damage suffered by the plaintiff. 3. I accept that the observation made by Mason CJ in March v Stramare (1991) 171 CLR 506, at 508 (with whom Deane, Toohey and Gaudron JJ agreed) regarding causation in negligence cases is similarly applicable in the present dispute. Chief Justice Mason stated: I do not accept that the "but for" (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases. 1. It follows that the plaintiff must establish factual causation in respect of her psychiatric injury, as well as then establishing legal causation (that the harm suffered was not too remote a consequence for it to be compensable). 2. However, the defendant's contention that it is necessary for the plaintiff to prove it was the intention of Acting Inspector Southgate that the infliction of harm would result in a particular manifestation of harm, namely, a recognised psychiatric injury, is erroneous. Rather, I accept the plaintiff's submissions and counsel's reliance on Nyoni at [97]. 3. I also reject the defendant's submission that establishing a causal link between the act of Acting Inspector Southgate and the plaintiff's psychiatric injury is contingent upon the plaintiff first establishing that that same act caused Mr Dyers to sustain a psychiatric injury, which is unable to be proved given that there is no medical evidence. I accept the plaintiff's submission as correct. That is, the focus is upon the injury to the plaintiff. It is indeed unnecessary for the plaintiff to prove that Mr Dyers suffered a psychiatric injury in order to make out her claim. Once the intention element has been made out, the question turns to whether the manifest damage was caused as a result. 4. I consider that it is completely untenable, given the multiplicity of factors and uncertainties that Acting Inspector Southgate, in sending the 24 July 2007 letter, was aware of the significance of the Bundeena allegation occurring whilst Mr Dyers was on bail and that the prospect of being charged and subsequently refused bail was a certain outcome. Therefore, the plaintiff has not established a causal connection between the sending of the 24 July 2007 letter by Acting Inspector Southgate and the precipitation of Ms Hamilton's psychiatric illness following the suicide of Mr Dyers. QUESTION 3: Does Mr Dyers' suicide constitute a novus actus interveniens? The Defendant's Submissions 1. The plaintiff submitted that it was not necessary that the intentional infliction of harm should result in any particular manifestation of harm; the law prescribed that no particular type of loss or damage must be suffered, only that some material loss or "material damage" must be proved as an ingredient of the cause of action. In support, the plaintiff relied on Nyoni at [97]. That theory was substantially based upon the conversation the plaintiff had with Mr Dyers, set out earlier in this judgment, following her phone discussion with Mr Koops about the letter, her initial discussion with Mr Dyers about it and the three-way phone discussion between Mr Koops, Mr Dyers and herself. 2. The last discussion ended with Mr Koops saying they would talk later in the day once he had considered the issues; a suggestion inferentially acquiesced in by both Mr Dyers and the plaintiff. 3. Mr Dyers, as he had earlier suggested in the three-way conversation, appeared to be prepared to discuss the matter with the police. 4. Notwithstanding that willingness to discuss the allegations with police, Mr Dyers was reminded that the plaintiff's allegation incorporated allegations of sexual offending in 2006 whilst he was on bail. As earlier mentioned, his response was: I didn't realise that. Now I do, and what it means. They want to revoke bail. They want to kill me. If I go to gaol I'll be murdered. I need some space, can you get me a cup of tea? 1. The defendant submitted in that respect: 1. Mr Dyers, therefore, irrationally imputed to the police that they wanted to revoke his bail and they wanted to kill him. He also irrationally assumed that, if his bail was revoked, he would be murdered in gaol. Nothing in the letter was calculated to evoke such dramatic misconceptions in Mr Dyers' mind. The defendant submitted that inferences adverse to Acting Inspector Southgate, arising from the sending of the letter to Mr Koops, are not open from its terms or the evidence of the circumstances in which it was sent. Most significantly, an inference of intent to cause psychiatric, or indeed any, injury to Mr Dyers and the plaintiff was not open. 2. After the plaintiff made tea and returned to the bedroom she saw Mr Dyers seated on the side of the bed with a shotgun across his lap. Understandably, the plaintiff was shocked but she did not think Mr Dyers would kill himself. Even after she heard the sound of the shot, she did not, at first, think he had done so, saying "Come on Ken. Cut it out". 3. In the history the plaintiff gave Dr Dore, a consultant psychiatrist, in January 2012, she said, at (p 4 para 6), that she believes she misread Mr Dyers' intentions to shoot himself. 4. The evidence established that there is no causation at law between Acting Inspector Southgate's act in sending the letter to Mr Koops and Mr Dyers' act in taking his own life. There was no intention on the part of Acting Inspector Southgate that the letter should have that effect on Mr Dyers. The content of the letter was not remotely calculated to cause harm of the kind sustained by Mr Dyers or, either derivatively through him or independently, harm to the plaintiff. 5. It was submitted that, so far as concerns the plaintiff's claim resulting from her psychiatric injury, Mr Dyers' suicide was a novus actus interveniens, which broke the chain of causation and that this was fatal to the plaintiff's action. 1. In reply, the plaintiff submitted: 1. The submission by the defendant that Mr Dyers' suicide constituted a novus actus interveniens, which broke the chain of causation, is erroneous. 2. Contrary to the defendant's submission, there is nothing irrational in the imputation attributed to Mr Dyers that the police wanted to revoke his bail. Mr Dyers' increasingly frail state of health, and the implications that incarceration would have had for that state of health, rendered the imputation a plausible one. In any event, the plaintiff was not cross-examined about her conversation with Mr Dyers. The submission is unavailable to the defendant. 3. It is unnecessary (nor does the law require her to do so) that the plaintiff should establish that Acting Inspector Southgate intended Mr Dyers to commit suicide on receipt of the letter; all that it was necessary to establish was that it was intended to harm him, which it certainly did. 4. Moreover, the operation of the passage from Deane J's judgment in Mengel (at 370) makes it tolerably clear that the novus actus interveniens doctrine has little, if no role to play in the facts under consideration. Consideration 1. The defendant submitted that Mr Dyers' suicide constitutes a novus actus interveniens, which broke the chain of causation. I reject this contention. I consider that had the plaintiff's claim proved successful, the act of suicide by Mr Dyers would have been the key link in the causal chain (as this event is what the medical evidence concluded to have caused Ms Hamilton's psychiatric injury) and not, as the defendant contended, an act that breaks that chain. Nonetheless, as I have found in answer to question 2, the plaintiff did not establish causation. QUESTION 4: What is the entitlement to damages? Plaintiff's Submissions 1. As to damages, the plaintiff relied on her written submissions. The primary submissions, with respect to damages, was as follows: 1. The plaintiff claimed an entitlement to damages (general, aggravated and exemplary) by reason of the loss and damage pleaded in the third further amended statement of claim, including psychological injury and harm (consisting of post-traumatic stress disorder and major depressive disorder, in association with generalised anxiety). 2. The plaintiff's entitlement to damages in these proceedings was not governed by the principles set out in the Civil Liability Act. Subsection 3B(1)(a) of that Act excludes an "intentional act that is done by the person with intent to cause injury…". It follows, also, that the limitation in s 21 of the Civil Liability Act on exemplary, punitive and aggravated damages in actions for the award of personal injury damages (where the act or omission that caused the injury or death was negligence), does not apply. 3. Accordingly, in these proceedings, damages should be assessed pursuant to common law principles. 1. General damages "are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant's wrongful conduct that are not too remote": State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 ("Riley") at [127]. 2. Aggravated damages are also available in cases where general damages may be awarded: Riley at [129]. In that case, Hodgson JA observed (at [131]) that: [131] However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified. 1. In New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31], Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ observed that: [31] Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing. 1. On the question of exemplary damages, in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at [26]-[27]; [89], it was expressly decided that the tort of misfeasance in public office is an appropriate vehicle for the award of exemplary damages. The contumeliousness of the conduct that is the gravamen of such cases is what makes an award of exemplary damages appropriate. 2. In Riley, Hodgson JA made the following observations (at [138]) concerning exemplary damages: [138] In my opinion, as made clear in Gray, while "conscious wrong-doing in contumelious disregard of another's rights" describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v Cotogno. Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer. [Footnotes omitted.] 1. The conduct relied upon by the plaintiff demonstrates that the plaintiff's is such a case. 1. As to the assessment of damages, it was submitted: 1. The plaintiff does not make a claim for: 1. domestic assistance or attendant care; 2. loss of income; and, 3. loss of earning capacity and future economic loss. 1. The Joint Expert Report of Dr Anthony Samuels and Dr Selwyn Smith (dated 20 April 2018) contained these conclusions: 1. the plaintiff suffered from Chronic Post Traumatic Stress Disorder and Chronic Major Depressive Disorder; 2. these conditions did not emerge until "after" Mr Dyers' death (Dr Samuels and Dr Smith did not state when); 3. the plaintiff did not suffer from any diagnosable psychiatric disorder before Mr Dyers' death; 4. it was definitely the case that the plaintiff suffered psychiatric injury/harm as a result of experiencing and witnessing Mr Dyers' suicide; 5. the plaintiff's prognosis is "guarded", and that: things will get significantly worse [for the Plaintiff] when the litigation is finally resolved because these matters are allowing her to channel and focus her energies but once the matters are resolved, it is likely that she will have less distraction and less purpose and her symptoms will become more prominent. 1. There is a dearth of authority giving a sure guide to the assessment of damages in misfeasance in public office cases. In McGregor on Damages (Harvey McGregor QC, McGregor on Damages (19th ed 2014, Thomas Reuters)) ("McGregor") the point is made at [43-005] in the context of misfeasance cases that: "as to appropriate amounts to award [for nonpecuniary loss] there is so far no authority…". 2. In all these circumstances, however, and in consideration of the plaintiff's clearly guarded prognosis, the plaintiff contends that an appropriate award of general damages would be $300,000.00. 3. Aggravated damages should be assessed at $200,000.00, in accordance with the general principles stated by Hodgson JA in Riley at [131]; namely, that the Court should − as a result of the serious misconduct alleged against the defendant – avoid the risk of under-compensating the plaintiff. 4. Exemplary damages should be assessed at $100,000.00, to reflect the seriousness of the conduct alleged against the defendant, and considerations of the deterrence and disapprobation of such conduct. In a case of misfeasance in public office, involving targeted malice, the consideration adverted to by Hodgson JA in Riley at [138] is of particular relevance; namely that the "conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval." 5. In this case, the conduct alleged by the plaintiff meets that criterion. Defendant's Submissions 1. The defendant's submissions as to damages and assessment were as follows: 1. The claim asserted against the defendant was based upon the intentional conduct of Acting Inspector Southgate, done with the intention to cause harm. In those circumstances, the defendant accepts that common law principles of damages apply and by reason s 3B(1)(a) of the Civil Liability Act that Act does not apply. 2. Although damages are compensatory, there is no claim made for economic loss or out of- pocket expenses, and so, if damages are payable at all, they are damages for non-economic loss. 3. The plaintiff claimed the extravagant amount of $300,000. In arriving at an assessment of damages, the Court must have regard to the fact of the plaintiff's pre-existing state absent the tortious conduct for which the defendant is liable. It is clear from the plaintiff's own evidence, the expert reports from each of the parties and from the joint expert report that independently of the alleged wrongful conduct (ie the sending of the letter which resulted in Mr Dyers' suicide) the plaintiff was experiencing severe and chronic psychological symptoms which had a debilitating effect upon her functional capacity. While the defendant accepts that they will have worsened to a degree as a result of Mr Dyers' suicide, the award of damages cannot be made in respect of the whole of the plaintiff's symptomatology. 4. Having regard to the severity of the pre-existing and underlying impairment of the plaintiff's mental condition, the appropriate award of general damages is in the vicinity of $50-75,000. 5. The plaintiff also makes a claim for aggravated damages. Aggravated damages are generally awarded to compensate a plaintiff for increased mental suffering due to the manner in which the defendant behaved in committing the wrong: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 149 per Windeyer J. The plaintiff's reliance upon McGregor is misplaced, as the law in England and Australia with respect to aggravated damages and the circumstances in which they may be awarded have diverged. 6. More fundamentally, the very basis of an award for aggravated damages (ie mental suffering from the manner in which the defendant behaved in committing the wrong) has already been compensated by the award of general damages. It is for that reason that Dowsett J in O'Reilly v Hausler (1987) 6 MVR 344 and Abadee J in Bergman v Haertsch [2000] NSWSC 528 doubted that aggravated damages could be awarded in a claim for negligently-inflicted personal injury without double compensation, and in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268; [2000] NSWCA 294 ("Marchlewski"), the NSW Court of Appeal held that aggravated damages cannot be awarded in a claim for negligently inflicted pure psychiatric injury. In that matter, it was found that there should be no doubling up between general damages and aggravated damages. Whilst this is not a case of negligently inflicted pure psychiatric injury, the principle in Marchlewski is applicable. As the claim here is for psychiatric damage, any circumstance of aggravation will be built into the compensation for the psychological consequence of the misfeasance. 7. The plaintiff also makes a claim for exemplary damages. Again, the principles for such an award have diverged between England and Australia. It is not disputed that exemplary damages are awarded for the tort of misfeasance in public office. They are an exceptional remedy which are rarely awarded, and may only be given where the conduct is "high­handed, insolent, vindictive or malicious conduct" amounting to or exhibiting "a conscious wrongdoing in contumelious disregard of' the plaintiff: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70. Because malice is an essential element of the tort itself, something over and above mere malice must be demonstrated in order to warrant such an award, otherwise exemplary damages would be awarded as a matter of course in cases of misfeasance. There is no such additional quality in the conduct of Acting Inspector Southgate. The Issues of Principle and Fact What should be assessed as general damages? 1. The plaintiff correctly identified that, in Riley, the Court (at [127]) held: Ordinarily compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant's wrongful conduct that are not too remote… 1. While, as the defendant submitted, the Court must have regard to the plaintiff's psychological state prior to the tortious conduct for which the defendant is liable. In that regard, I accept that there were signs and symptoms of the plaintiff suffering mental strain or mental ill health before the 24 July 2007 letter, as indicated in the evidence of the plaintiff, the expert reports from each of the parties and from the joint expert report. Ultimately however, the medical evidence makes it clear that the plaintiff suffered from recognised psychiatric illnesses, namely PTSD and Major Depressive Disorder, as a direct result of her having witnessed the suicide of Mr Dyers – it is that distinction that need be crucially made. Are aggravated damages available and, if so, what should be assessed for such damages? 1. In Uren v john Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Taylor J (at 129-130) and Windeyer J (at 149) recognised a distinction between aggravated and exemplary damages. Justice Windeyer (at 149) stated: [A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment-moral retribution or deterrence. 1. I accept the defendant's submission that double compensation needs to be avoided, as the basis for aggravated damages would be compensated by an award for general damages. Is the test that, something more than "mere malice is required"? If so, has the plaintiff passed that threshold? On that test or not, what is the assessment for exemplary damages? 1. I wholly accept the defendant's submission regarding exemplary damages. '[T]he principles for such an award have diverged between England and Australia. It is not disputed that exemplary damages are awarded for the tort of misfeasance in public office. They are an exceptional remedy which are rarely awarded, and may only be given where the conduct is "high­handed, insolent, vindictive or malicious conduct" amounting to or exhibiting "a conscious wrongdoing in contumelious disregard of' the plaintiff: Gray v Motor Accident Commission (1998) 196 CLR 1. Because malice is an essential element of the tort itself, something over and above mere malice must be demonstrated in order to warrant such an award, otherwise exemplary damages would be awarded as a matter of course in cases of misfeasance. There is no such additional quality in the conduct of Southgate.' 1. In XL Petroleum (NSW) Pty ltd v Caltex Oil Pty Ltd (1985) 155 CLR 448, Brennan J (at 472) (citing Uren v John Fairfax & Sons Pty Ltd) opined that it was "now beyond argument that, by the law of this country, it is proper to award exemplary damages by way of punishment of the tortfeasor." Consideration 1. As mentioned earlier, I have not assessed damages as the plaintiff has not succeeded in crossing the causation threshold. CHAPTER XII: CONCLUSION AND ORDERS Conclusion 1. The sending of a letter by a police officer carrying out an investigation into alleged criminal activity is ordinarily an exercise of existing public power that falls within its scope. The relevant actions of Acting Inspector Southgate were an exercise of that public power. Therefore, to be successful in proving misfeasance in public office as pleaded, the plaintiff must show that the exercise of public power was beyond its scope as a result of the defendant acting maliciously (with an intention to harm) in the use of his power which then did cause harm to the plaintiff. 2. The plaintiff's claim has failed because the Court is not, on the evidence, satisfied to the requisite standard that the defendant's act of sending the letter (whether viewed alone or with any preceding or associated actions) was conducted with an intention to cause harm. By virtue of this conclusion a determination as to whether it was the sending of the letter by the defendant that caused the psychological injury of the plaintiff is not necessary. Notwithstanding that, and without the need to decide the question, the present claim has also failed to, on the evidence, satisfy the causation element to the requisite standard. That is, the plaintiff did not show that the defendant's act caused harm. Orders 1. The Court makes the following orders: 1. The fourth further amended statement of claim is dismissed. 2. Judgment for the defendant. 3. Costs for the defendant as agreed or, in default of agreement, as assessed. Amendments 10 June 2020 - Slip rule adjustment at [923] and [1114]; typographical error at [613(18)]; pseudonyms per suppression and non-publication order made on 25 October 2018 by Walton J. 22 June 2020 - Anonymisation of names at [740] and [746]. 08 July 2020 - Further redactions to prevent identification of HLA, OLR and PLA. 11 January 2021 - Typographical error in heading removed. 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: 11 January 2021