District Court New South Wales Medium Neutral Citation: Melmeth v State of New South Wales [2021] NSWDC 28 Hearing dates: 28-30 September 2020, 15 October 2020 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the defendant against the plaintiff. Catchwords: TORTS — Malicious prosecution — Elements — 3 elements in dispute — Malice — Reasonable and probable cause — Whether OIC still prosecutor after proceedings taken over by DPP — Whether Crown Prosecutor briefed only to conduct trial could be a relevant prosecutor. Legislation Cited: Costs in Criminal Cases Act 1968 Criminal Procedure Act 1986 Crown Prosecutors Act 1986 Director of Public Prosecutions Act 1986 Evidence Act 1995 Law Reform (Vicarious Liability) Act 1983 Small Debts Recovery Act 1912 Cases Cited: A v NSW [2007] HCA 10; (2007) 230 CLR 500 Beckett v NSW [2013] HCA 17 Coleman v Buckingham's Ltd (1963) 63 SR (NSW) 171 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 Davis v Gell (1924) 33 CLR 275 Fred Saad & Ors v State of New South Wales [2016] NSWSC 1247 Gibb-Smith v NSW [2018] NSWDC 204 Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218 Likiardopoulos v The Queen [2010] VSCA 344 Martin v Watson [1996] AC 74 NSW v Abed [2014] NSWCA 419 R v Doorey [1970] 3 NSWR 351 R v Dunn (1930) 30 SR (NSW) 20 R v Murray (1987) 11 NSWLR 12 Sahede v Bischoff [2015] NSWCA 418 Skrijel v Mengler [2003] VSC 270 Wood v NSW [2018] NSWSC 1247 Zreika v NSW [2012] NSWCA 37 Texts Cited: Fleming, The Law of Torts, 9th Ed (1998) Halsbury's Laws of Australia, Vol 26 New South Wales Law Reform Commission, Complicity, Report 129 (2010) Category: Principal judgment Parties: Plaintiff - Carly Jayne Melmeth Defendant - State of New South Wales Representation: Counsel: Plaintiff - A.C. Canceri Defendant - A.N. Williams Solicitors: Plaintiff – Nyman Gibson Miralis (P. Gibson) Defendant – Crown Solicitor's Office (A. Taylor) File Number(s): 2019/00118966 Publication restriction: Nil. Headnote [This headnote is not to be read as part of the judgment] On 30 May 2015, M invited V to visit her at her house. Shortly after V arrived there, M admitted F to the house. F was immediately antagonistic towards V, according to V. V alleged that he was detained in M's house for nearly 3 hours and was repeatedly stabbed by F. According to V, M assisted F. V managed to escape, after being hog-tied, and raised alarm at a service station adjoining M's house. Police and ambulance attended. The detective in charge of the investigation charged both F and M with wounding V with intent to inflict grievous bodily harm and aggravated kidnapping of V. M was arrested and charged and imprisoned for almost 6 months, before being granted bail by the Supreme Court. M committed for trial. Trial in 2016 aborted when V failed to obey a subpoena. Trial by jury in 2017. Trial conducted by Crown Prosecutor C, who had been briefed before trial fixed for 2016, but had not been briefed to find a bill. At end of Crown Case C took no further proceedings against M on wounding charge. Jury found M not guilty of kidnapping charge. Criminal complicity: discussion of applicable principles considered by G and C. HELD: element 1: G was prosecutor until proceedings taken over by DPP; C could be held liable for the tort if he acted maliciously and without reasonable and proper cause; element 2: the proceedings were determined in M's favour; element 3: neither G or C acted maliciously i.e. for an improper purpose; element 4: neither G or C did not honestly believe in the guilt of the accused; both G and C had reasonable and probable cause to prosecute M. Judgment Introduction 1. The plaintiff, Carly Jayne Melmeth, brings an action for damages for the tort of malicious prosecution. The plaintiff relies on a prosecution of her arising out of the interaction between her, Gregory George Fernando ("Fernando") and Steven John Connolly ("Connolly") at her then residence at 38 Miller Street, Mayfield West on Saturday 30 May 2015. Later on that day Detective Senior Constable Jason Richard Green ("DSC Green") charged the plaintiff with two offences: 1. wounding Connolly with intent to cause him grievous bodily harm, an offence against Crimes Act 1900, section 33(1)(a), carrying a maximum penalty of imprisonment for 25 years; and 2. aggravated taking and detaining of Connolly with intent to obtain an advantage, the circumstance of aggravation being occasioning actual bodily harm to Connolly, an offence against Crimes Act 1900, section 86(2), carrying a maximum penalty of imprisonment for 20 years. I shall refer to the first offence as "the wounding offence" and to the second offence as "the kidnapping offence". 1. The plaintiff identified in the Amended Statement of Claim filed on 10 September 2020 ("the SOC") two persons as those who maliciously prosecuted her: 1. DSC Green; and 2. Mr Brian Costello, a Crown Prosecutor appointed under the Crown Prosecutors Act 1986, section 4 ("Mr Costello"). Par 2 of the SOC alleged that both DSC Green and Mr Costello were in the service of the Crown and par 3 alleges that the defendant is vicariously liable for their conduct pursuant to Law Reform (Vicarious Liability) Act 1983. At common law a constable of police is not an employee of the Crown nor, in my view, would a Crown Prosecutor be an employee of the Crown, but par 2 of the SOC is admitted in the Defence to Amended Statement of Claim filed 21 September 2020 ("the Defence"). The defendant almost admits that it would be vicariously liable for either or both of DSC Green and Mr Costello if the tort alleged be proved. 1. The plaintiff was arrested after the interaction which I described above. She was taken before the Newcastle Local Court on Sunday 31 May 2015 but did not apply for bail. She next appeared before that Local Court on Monday 1 June 2015 and, again, she did not apply for bail. Indeed, she never applied for bail in the Local Court. She was granted bail by Schmidt J in the Supreme Court on 24 November 2015. She was eventually committed for trial in this Court at Newcastle on 13 April 2016 by Stone LCM. She was to be jointly tried with Fernando. The trial was first listed for hearing before King DCJ on 12 September 2016 but the trial could not commence, because of a failure by Connolly to attend Court in obedience to a subpoena. The listing for hearing was vacated by King DCJ on 14 September 2016. The trial was then set to commence on 3 April 2017. The trial did commence on that date before Ellis DCJ with a jury of twelve. On day 7 of the trial (Tuesday 11 April 2017) at the close of the Crown case, Mr Costello told the Court, both judge and jury, that the Crown would take no further proceedings on the wounding charge against the plaintiff. On Thursday 13 April 2017, the jury returned a verdict of "Not Guilty" on the kidnapping charge. On 31 August 2017 Ellis DCJ granted a certificate to the plaintiff under the Costs in Criminal Cases Act 1968, section 2(1)(a). Abbreviations 1. In addition to the abbreviations I have already indicated, further abbreviations will be used in this judgment: 1. "CB" means Court Book, which was tendered by consent. The CB comprises 4 lever arch binders containing 1,479 pages and 6 discs. A number following CB is a reference to the page with that number in the CB. The CB contains transcripts of proceedings in this Court at Newcastle. A reference such as CB1253.16 is a reference to line 16 of the transcript found at CB1253 (where Mr Costello commences to tell the Court that no further proceedings were to be taken against the plaintiff on the wounding charge). 2. "T" means the transcript of the present proceedings. A reference such as T146.35 is a reference to page 146 of the transcript, line 35 (where Mr Costello commences to outline his career in the law) 3. Police ranks will be stated with the conventional abbreviations e.g. 'Cons' (Constable) 'SC' (Senior Constable) 'Sgt' (Sergeant) and a preceding 'D' indicates Detective. 4. "OIC" means Officer in Charge. 5. "DPP" Director of Public Prosecutions or one of his officers as the context demands. 6. When a person's full name and title have been provided, I may refer to that person thereafter merely by her or his surname, but I mean no disrespect to any such person. 7. I shall describe the interaction of the plaintiff, Fernando and Connolly described in [1] above as "the event". Background 1. At one time the plaintiff formed a relationship with Mr Luke Wallace ("Wallace"). They lived together from 2003 until either 2008 or 2009 (T21.24). As a result of that relationship, the plaintiff gave birth to her son in 2006. Initially they lived at The Entrance until moving to a property at Abernethy, near Cessnock. Wallace had an earthmoving business, in which the plaintiff worked when they were together (T20.50), for about two years doing the administrative work (T22.48). 2. Connolly was admitted to practice as a solicitor on 16 February 2007. He was the sole principal of a law practice on the Central Coast from 1 August 2009 to 1 October 2013 when he was suspended from practice because of trust account irregularities. He was struck off the Roll on 23 March 2018. I have taken the liberty of taking these biographical details from [2018] NSWCATOD 43. Paragraphs [3] and [4] of Connolly's statement of 31 May 2015 are this: 3. About 2010 I was a practicing solicitor in the Toronto area. My firm dealt with Carly MELMETH due to a criminal inquiry she made for assistance in relation to a matter before Belmont [Court]. I was engaged to act for Luke WALLACE her defacto partner some time later. Luke was in custody and as a proxy for his instruction Carly liased with me in regards to payments and further legal advice. 4. After assisting with this matter I did see Carly from time to time as we had developed an acquaintance. She would occasionally keep in touch. As far as I am concerned the relationship was nothing more than a friendship. I've known her for about four years. It was a result of this friendship that led to Connolly's participation in the event. 1. There had been interaction between DSC Green and the plaintiff prior to the event. DSC Green became a detective in "2013, or shortly thereafter" (T89.35). In 2013 he was doing his detective training at Newcastle. He was called in the course of his duty to investigate an aggravated break and enter at Callen Street, Stockton. Exhibit 1 are notes he made on 23 February 2013 regarding this investigation. Two persons of interest to the police were Michael Christopher Moore and George Pouwhare. DSC Green was led to believe that those persons "may have stopped" at the plaintiff's residence prior to the commission of the crime (T91.10). He called into the plaintiff's residence on the afternoon of 24 February 2013. DSC Green gave this evidence: I did ask her if she would give me a statement in relation to their presence at her premises. She did not wish to give a statement. That's where my enquiries end…[i]nsofar as they related to her." The plaintiff alleges that her interaction with DSC Green on this occasion provided him with an animus to prosecute her maliciously. Connolly visits the plaintiff 1. Paragraph [5] of Connolly's statement of 31 May 2015 commences: "On Saturday the 30 May 2015 about 9:30am I awoke and saw several missed calls from Carly Melmeth. I called her shortly after to see what the call was in relation to." The plaintiff told him she was busy at that time but would call him back. Shortly after that the two exchanged text messages. They were ['P' means plaintiff; 'C' means Connolly]: P: Noone here C: Hey I just woke up C: Do you mean come over at noon P: Nah C: Ahh sleep always fucks me lol if your bored or just wanna anything lol let me know P: Sorry had people pop in feeling so tired grr C: If you want to get rid of that feeling let me know cause I must do so soon C" Put a loud song on Lol P: Are you local? C: Just at my place do want to get away or for me to come to yours P: I don't have any fuel in my car C: I can jump in the car be as yours in 15-20 P: Sounds good C: See you soon C: Passing Glendale do you want anything P: Some alcohol would be awesome P: Or am I pushing it C: You have always pushed it lol no that's my issue to get over. I will grab some cigs & a six pack what do you want. C: I don't want to piss you off & muck up your time either. I am in Jesso [Jesmond]. What drinks? P: Jim Beam zero sugar or vodka udls zero guar C: Ok P: Thanks C: Is mixed berry ok in zero sugar udls P: Yes :) En route to the plaintiff's residence, Connelly stopped at Jesmond, visited an ATM, purchased the alcohol at a BWS outlet and a packet of 40 cigarettes from a supermarket. I have quoted the text messages because they display an air of friendship. 1. Next to the plaintiff's then residence is a Coles Shell Express Service Station. Its carpark abuts the eastern side boundary of the plaintiff's property. That carpark is under camera surveillance. At 12:42pm Connolly arrived at the service station carpark and parked his vehicle. He alighted from the vehicle at 12:44pm carrying a plastic bag and he then walked towards the rear entrance of the plaintiff's residence. The same camera records Fernando walking along the eastern side of the plaintiff's residence just before 1pm on the same day, 30 May 2015 (CB pp 196, 197, 937). The event 1. The principal witness in the prosecution of the plaintiff was Connolly. As I have already said he made a statement on 31 May 2015, the day after the event. It was given to DSC Green. It is a crucial piece of evidence in this case. I shall therefore include its substance in this judgment: 6. I walked into the kitchen and took a seat on a stool at the kitchen bench. I placed the six pack of UDL on the bench and Carly opened one of these. I heard a knock on the front door. I sat there while Carly walked away to answer the front door. She came back into the kitchen and she had a strange grin on her face. The male also was grinning. He was average size with a belly dressed like a lad. He was Aboriginal in appearance. Carly said, "This is Greg." I offered my hand to shake his and he refused. He said, "You putrid cunt." He picked up my cigarettes from the table without my permission and said, "I'll have one of these." I said, 'You can have one but you should ask for it." He said, "Well why don't we go out the back." I said, "I don't want to fight you." 7. Carly looked at Greg and said words to the effect of 'What did you get?' Greg said, "Only about two points." Carly got some water and syringes from what I believe was her diabetes kit. I was still sitting at the kitchen table. Greg put the water in the small resealable bag. Carly and Greg argued about her having a shot or not. He said, "You're not having one." They argued further about this. They both continued to argue and walked towards the rear room of the house. A very short time later they came back in. Greg pushed two needles and the resealable bag to me and I understood that he intended me to draw up the liquid. I did this. I put the caps back on the needles and put them back on the bench. I felt if I did not do this I was under threat. 8. Greg said, "I'm going to have one." Carly said, "I want one." A further argument started between them over this. Greg walked out of the room. Carly passed me the needle and said can you give it to me. I did this in the belief that if I didn't things would escalate. Immediately after she had this she said, "I feel sick." Greg returned and she said, "I feel sick." Greg looked at me and said, "You putrid cunt you've made her feel sick." Greg took a knife from the draw and came over to me and stuck it under my neck. It was a big knife 30-40cm in length. Greg said, "You putrid cunt, fucking have that one there." He was referring to the other syringe. I said, "I don't want to have it." He said, "You're going to have it." He punched me to the head. I felt the knife pressed against my neck when he said this. She said, "I feel sick." Greg became more aggressive and said, "If you don't have it I'll give it to you." He punched me several times to the head again. I picked up the syringe and I stuck it in my left arm while he was right in my face. I didn't pick up a vein. As I pulled it out he said put it in deeper and I said, "I can't do this when you're in my face like that next to me." As I stuck it back in I pressed the syringe to get as much out before it went into my body. I believe I only got about half of what it was. I had no idea what was in the syringe. I didn't feel anything from this. There was no reaction. 9. I was really stressed and my adrenaline was pumping. Greg came at me with the knife. I was sitting on the stool and as he came at me, the knife was in his right hand. He swung it in a sideways action. I stood up to be able to defend myself. Greg said to Carly, "Make sure the doors are deadlocked." Carly left the room and I heard the doors to the house being closed the back door was first. Greg had the knife now in his left hand and swinging it at me. I put my arms up and grabbed his arms to stop the knife. I felt the knife go into the top of my right arm. I felt the knife go in and it felt like it went in really deep. It started to bleed a lot. He was still trying to stab me. We were in a wrestle and as he struck I grabbed at his arm to stop the blows. There were several attempts to stab me. Then he just stopped and stood back. He looked like he was tired of trying to stab me. 10. He looked at me and said, "It's just a little cut." I said, "I think it nearly went through my arm." I remained in front of the stool waiting for him to come again. He had stepped back still holding the knife. Carly said, "It's about time you tell the truth. You've got inside my head, come clean with it." I said, "I don't know what you mean Carly, I don't know what you mean? He's stabbed me and he is still trying to stab me." Carly said, "It's time to tell the truth. Why are you in my head?" I said, "I'll tell you the truth, but I don't know what you mean." Greg said, "How do you know Carly? You have done Carly's head in." 11. I was too afraid to turn my back on him and run. The only way out was to go out the front door as Carly was standing in the kitchen blocking the way to the back door. Greg was pacing back and forth from the kitchen to the stools where I sat. It was only about a metre or two. He took more knives from the draw and put them on the bench. The knives were sitting on a tea towel. I was using the bench as a barrier at my back so I could watch where. they were. I was telling myself not to make a rash decision and tried to remain calm. I was very aware that I could be injured in a worse way if I didn't stay aware. I had no idea of what time was passing. There had been a phone call not long after I had been stabbed. Carly was on the phone and it seemed to be her mother. Greg looked at me, put his finger to his lips and motioned to me. He said softly, You had better shut up, or I'll put this through your skull." 12. After this call Carly returned. She said, "Are you going to tell the truth?" I still didn't understand. This angered Greg, he continued to call me a putrid cunt several times. He attacked me again and had another knife he struck me to the upper right arm and caused another wound. I was still bleeding everywhere on the floor. I was saying, "Just let me leave, I've got some valuables in the car you can have. Just let me go I won't tell anyone about what's happened." Greg said, "Can't you see we're not robbing you we are going to kill you. You're not going we've got your car keys." I was in fear of my life and realised I could not leave even though I was asking. I wanted to get help. I couldn't use my phone, Carly had picked it up and was looking through it. She asked me for the PIN number. 13. Carly remained throughout the whole time in the corridor that led from the kitchen to the rear door. Again she kept asking me to tell her the truth. I had no idea what she was on about and this just seemed to go on and on. Each time Greg would get more infuriated and started to assault me again. He punched me several times over and over. Again he came at me with the knife and again he struck me to the upper right arm. I felt the blade again go in. The whole experience was surreal and all I could think of was how to get out without getting a more serious injury. Carly got a medical kit and brought it to Greg. Because of the amount of blood they decided to wrap my arm. I was handed a bandage to do this myself. This wasn't to aid me it was to stop the blood going on the floor. 14. Greg and Carly were questioning and continually abusing me. He was just calling me a 'dog cunt' or 'putrid dog' over and over. The whole thing just went on and on in this cycle. I didn't know how much time was passing but I knew it had been over hours. Again Greg snapped and came at me with a larger knife. It was the size of a hunting knife. He hit me with the butt of the knife several times to the head. At one point he put the tip of the knife to my skull and said, "You wait till I put these knives through your skull." Greg turned to Carly and said, "Let's go for a drive Carly." Greg turned back to me and said, "We're going to take you out to the bush and we're going to get to the truth." He swung the knife at me again and I put my arms up to protect myself. I felt the end of the knife go deep into my elbow. It felt like it hit my bone. 15. Greg had been using different knives and they were both very erratic in their behaviour. I was bleeding everywhere. Greg said, "I need to knock him out. Get a bat or something." Carly went to the book shelf and I could see there were some old guns on the top. She handed Greg one. There was blood on the floor of the dining area pooling and there was blood on the curtain. Greg said, "Carly, get a towel he's bleeding all over your fucking floor." Carly went and got a towel which he threw at me and said, "Clean it up." 16. I got down on the floor and started to clean up. Greg came at me grabbed my hair and started to hit me with the gun. He hit me several times. And the gun broke in his hand as he struck me. These blows caused a lot more pain. By this time I wasn't really feeling a great deal. I was in real fear for my life. 17. Carly had given Greg the towels to clean up and he threw them at me. I remember there was a brown coloured fitted sheet that they gave me to do this. After I cleaned up he told me to place them into a plastic shopping which he handed me. I was told to put the sheet on the floor. Greg said, "Put that on the floor so I don't make a mess when I slit your throat." I felt he was going to kill me at this stage. I had a real fear that the level of harm he intended was greater now. 18. The physical abuse continued and I remember continually asking for them to let me go. I was too scared to just run because I didn't know if they would both attack me to stop me leaving. I was on the floor still and not allowed to get up. Greg came at me with a knife again and I tried to defend myself but was stabbed in the upper right arm again. This was not as deep. 19. Greg and Carly, had moved about two or three metres away near the fridge and had conversation I could not hear. I was still bleeding a bit and trying to clean up. Greg had been wearing a white T-shirt which had my blood on it. He was angry about this and changed into a red T-shirt. When Greg came back he said, "We are going to take you to the bush, with the guns and knives. You haven't seen anything yet. Where going to cut you up in bits." Carly came back into the room and put some white and blue rope on the bench. Greg came over and holding the gun and knife said, 'You're going to give me a head job before we go. He said, "Put your hands behind your hands together behind your back." I did this and he tied rope around my wrists. I held my wrists slightly apart to to make it loose. He kicked me in the back and I fell onto my stomach. Greg said, "Lie down. Put your feet together. He made me bend my knees and then tied my ankles together. He tried to hog tie my ankles and hands together. 20. I began to think about how I would get away. He was above me facing my feet and I started to try and free my hands. After I was tied up he left the room and went out the back. I could hear him with Carly and there was a tap running from out the back I realised I could get my hand out. I got free of the binds and ran quickly to the front door making no noise. I ran out the front door, through the gate to the Shell Service Station next door. I went to the pumps and said to a male and female, "Can you please let me in your car and drive me away." They told me to go inside the petrol station. I went inside and yelled out to the lady, "Please lock the door." The CCTV shows Connolly running from the house at 3:38pm. As Mr Costello opened to the jury, "he was covered in a fair amount of blood" (CB937.31). Relevant photographs of Connolly taken at hospital are at CB 66, 67 and 68. 1. About 4:30pm Connolly was examined at John Hunter Hospital at New Lambton by Dr Amy Alldis. She summed up Connolly's injuries thus: Head - Multiple haematomas to the forehead/jaw, lacerations penetrating dermis & epidermis… Right upper arm - 3 lacerations (less than 15mm penetrating dermis & epidermis ... Wrist - ligature marks Left elbow - deep lacerations penetrating dermis & epidermis to the left elbow - exposing the joint capsule. Right anterior hip - small abrasion Immediate aftermath 1. The console operator at the service station was Ms Michelle Shone. She made a statement on 1 June 2015. The substance of that is this: 3. I started my shift at 12.30pm on Saturday, 30 May 2015 at the Cole Express Service Station, 63 -69 Maud Street, Mayfield and finished at 10.15pm that evening. 4. About 3.30pm on Saturday, 30 May 2015 a guy came running through the forecourt of the service station. I saw the male stop and speak with another customer, when I saw that I grabbed the phone book so I could call Police. The male came into the shop a short time later, while I was still looking for the number to call Police. When the male was inside I locked the doors as the male kept looking over his shoulder. 5. I managed to get through to Waratah Police Station to get Police to attend. While I was on the telephone the male kept saying 'I've been stabbed and they're going to kill me', he kept saying that over and over. The male rambled they tied me up and they're going to kill me' a couple of times. I had a line-up of customers so I ended up handing the phone to the man to speak with Police. 6. When the male gave me back the phone he paced back and forth near the door to come behind the counter and asked me if I could let him out the back so he could hide. The male appeared anxious and freaked out each time I unlocked the doors to let customers in to pay for their petrol. 7. I asked the male where he had come from and he told me he had come from the house next to the service station. I told the male! know those people and I won't let them in, to try and calm him down. A young female customer stayed inside after paying for her purchases to help me let the other customers out of the shop, once she had checked there was no one waiting outside to come into to get to the male person. 8. I saw the male person had been stabbed in his right upper arm above the elbow. I saw a bandage on his arm and appeared to be covering where the man had been stabbed. The bandage looked like it had been on for a while as there was blood soaking through the bandage. The man's head was a mess, it looked like it was covered in dried blood, and he had a wound of some sort on his left elbow. 9. About 3.50pm on Saturday, 30 May 2015 the Police arrived at the service station and a couple of minutes later the ambulance. The man was treated by the Ambulance officers in the shop, when they took the bandage off his arm they dropped it onto the floor and I cleaned this up when they were finished. 1. According to the Police Incident Log (CB139), the Police commenced to receive the 000 call at 15:40:46. The first broadcast was at 15:45:01. It appears to be this: Informant staff from Coles Express Maud St Mayfield has Steven Connolly 35 old inside shop covered in blood. Has stated he was just stabbed at the Shell Service Station, Mayfield. Connolly is conscious and breathing. Ambulance requested. Informant has shop closed to the public. Informant communicated Connolly advised persons of interest had him tied up house in Miller St, Mayfield. Persons of interest stole his wallet and keys. Person of interest stab wound to arm and head." The first police vehicle to arrive at the scene was NCC 33 at 15:49:54. I am unable to discern which police were within that vehicle. The next vehicle to arrive was NCC12a at 15:50:09. That contained a mobile supervisor, Acting Sgt Michael Smith. Then followed NCC 18 at 15:52:27, DOG 51 at 15:52:57, NCC 37 at 15:56:03, NCC 104 at 16:00:37, NCC 36 at 16:05:06, NCC 35 at 16:06:18 and NCC 32 at 16:08:15. Further police arrived later, but after the arrest of the plaintiff and Fernando. 1. Acting Sgt Smith made a statement on 7 June 2015. That contains this: 3. On the afternoon of Saturday 30 May 2015, I was performing my duties as Mobile Supervisor, working from Waratah Police Station. 4. About 3.45pm, I was in the Mayfield area when a 'priority 2' job was broadcast, requesting assistance at the Shell Coles Express, Maud Street, Mayfield West. I proceeded to the location, arriving on scene at 3.50pm. 5. I saw the victim, Steven CONNOLLY, seated inside the store, being treated by staff for head injuries. Ambulance Officers then arrived on scene. 6. I spoke briefly to CONNOLLY, while he was being treated. During this conversation, I ascertained that there was a male and a female still inside the premises at 38 Miller Street, Mayfield West. CONNOLLY further stated to me that there was a shortened firearm in the premises. 7. I conveyed this information to Detective Senior Constable GREEN, who had just arrived on scene. 8. I instructed other Police crews to form a perimeter around the premises and to put on ballistic vests. 9. I saw no persons leave the dwelling at 38 Miller Street. 10. I spoke with Inspector GALLAGHER, by phone, advising him of the current situation. 11. Sergeant THOMPSON arrived on scene and I spoke with him. I provided him with the names of the persons known to be inside the dwelling. A short time later, I heard Sergeant THOMPSON speaking to someone on the phone. I heard him saying that the house was surrounded by Police and called upon them to exit the premises via the front door. 12. A short time later, I saw one male and one female, exit the front door of the dwelling. Sergeant THOMPSON spoke to them both and they were both separated and detained. I now know these people as being Carly MELMETH and Greg FERNANDO. I saw officers enter the premises and exit a short time later. 13. I saw Detective GREEN speak to both accused persons. I saw officers search FERNANDO and place him in the rear of a caged vehicle, before driving him from the scene. 14. I saw MELMETH placed in the rear of a separate caged vehicle, before being searched and driven from the scene. Because of what Acting Sgt Smith ascertained from Connolly as stated in [6] of that statement, at 15:53:51 a message was broadcast that an offender at the plaintiff's house was "possibly armed with [a] shotgun." Inter alia, that led to the police blocking local streets to prevent vehicular and pedestrian traffic in Miller Street, in case there was a discharge of firearms. 1. The names of the plaintiff and Fernando were broadcast at 16:08:15. I have assumed that they were identified to the Police by Connolly. When Sgt Luke Thompson arrived, he appears to have taken control from Acting Sgt Smith, whose substantive rank was Senior Constable. He then made arrangements to confront the occupants of the plaintiff's house, in particular with SC David Wynne who had arrived on scene in DOG 51 with police dog (PD) Ulrich. SC Wynne made a statement on 9 July 2015. It contains this: 5. From the information provided to me from Acting Sergeant SMITH, I put on my ballistic vest and I removed Police Dog (PD) ULRICH from the rear of my vehicle and placed his K9 vest on him. I then approached the premise of 38 Miller Street, MAYFIELD WEST from the eastern side which was from the car park of the Shell Service Station. I stood behind a vehicle parked in the car park and helped set up a perimeter around the premise. 6. A short time later, Sergeant THOMPSON arrived and I had a short conversation with him. We then approached the premise at 38 Miller Street MAYFIELD WEST with a number of other police including Constable REES and Senior Constable CAREY. I walked towards the front door. I saw Sergeant THOMPSON knock on the house and said, "Hello, its Police. Is anyone in there? We need to talk to you. You need to come to the front door." I then saw the accused, Greg FERNANDO open the front door. I saw that he was wearing a red coloured shirt. I said, "Greg, you need to come out here. Show me your hands. We need to speak to you." The accused FERNANDO walked out onto the veranda and onto the lawn in front of me. FERNANDO said, "What's this about?" I said, "You are under arrest for a stabbing. You do not have to say or do anything unless you wish to do so but anything you say or do will be recorded and we can use this recording at court. Do you understand this?" The accused did not reply. I then saw a number of police take custody of FERNANDO. 7. I then saw the accused Carly MELMETH exit the premise and she was detained by a number of police. I then entered the premise with PD ULRICH and cleared the premise of any other persons. No other persons were located. 1. The plaintiff was escorted from her home to the service station car park where she was made to sit on the ground. There she had interaction with SC Mark Rees. When he had arrived on the scene he was posted to the rear of the plaintiff's house, to keep watch on its rear door. When the plaintiff and Fernando had been arrested, he searched the house's garage in case there was anyone else there. He then returned to the service station car park and was told to stay with the plaintiff. He made a statement on 22 July 2015, which contains this: 7. …I heard Detective Senior Constable Jason GREEN speak with Carly and give her the police caution. While Observing Carly, I could see her to be affected by an unknown substance, she was fidgeting a lot, her conversations at times were not clear and her eyes appears glazed. Carly said to me words of the affect 'I did it; it was me so hurry up and get this over with'. 8. I explained to Carly the reason for the delay was that we were waiting for a Female Police officer to attend so that she could be searched. About 30 minutes later, Constable Alana RISTESKI arrived. By this time I had Carly Seated in the caged area of the Police vehicle with the door open. Carly continually requested that she needed her epee pen for her diabetes. Senior Constable Carey came to the Police vehicle and with the epee pen and I observed Carly inject herself to the leg. She gave the epee pen back to Senior Constable Carey. 9. I was standing to the side of the Police Vehicle was Constable RISTESKI was having a conversation with Carly about her having to be stripped searched. Carly Continued to refused to allow this and I observed Constable RISTESKI climb into the rear of the Police vehicle to attempt to search her. I Could not see inside the police vehicle but could hear what sounded like Carly and Constable RISTESKI struggling with each other. Fearing that Carly was hiding something on her and that Constable RISTESKI was being assaulted I went to the rear of the Police vehicle and aided Constable RISTESKI to remove the Clothing from Carly who was still kicking out and refusing to allow this to occur. 10. We did not find any adverse items on her. Senior Constable CAREY and I conveyed Carly back to Waratah Police Station where she was placed in the charge room. I then returned to other Policing duties. 1. This search of the plaintiff is something of which she complained in her evidence before me (T26.32 to T26.50). Cons Alana Kelley made a statement on 23 July 2015. It is clear that she is the officer described by SC Rees as Cons Alana Risteski (the change of surname may reflect a change of marital status). Cons Kelley arrived in NCC 17 at 17:06:16. Her statement contains this: 5. I alighted from NCC17 and approached Senior Constable Mark REES who was standing at the rear door of NCC32. Senior Constable REES opened the rear cage door and I observed a female, I now know to be Carly MELMETH. MELMETH appeared pale and was moving her mouth as though she was chewing something or moving her jaw. Senior Constable Michael SMITH requested me to search MELMETH. I requested that another female attend to assist me in the search but I received no response. I said, "Hello I am Constable Kelley from Newcastle police, I am going to search you because we have concerns you might have drugs in your possession and evidence connected to this serious incident. Do you understand?". MELMETH did not respond 6. I entered the rear of the police vehicle and conducted a search. No items were found on MELMETH. A short time later I returned to unrelated duties. Cons Kelley makes no mention of any struggle with the plaintiff or of any necessity for SC Rees to intervene. However, it is clear that he did, but it is unclear whether he was required to do so. This evidence is relevant to damages, should the plaintiff succeed. The need for SC Rees to intervene could have been cleared up by the defendant's calling Cons Kelley, but there was no attempt to do so. This weighs in favour of the plaintiff's case on damage. 1. The Incident Log records a broadcast at 16:14:48 by Acting Sgt Smith that there were "Two in custody". The clear inference is that the plaintiff had been arrested at 4:14pm. Yet, Cons Kelley did not arrive to commence her search until 5:06pm, indicating that the plaintiff was detained in the service station car park for at least 45 minutes, probably more like 50 or 55 minutes, before being conveyed to Waratah Police Station. The plaintiff's Custody Management Record (CB 176) indicates that the plaintiff arrived at Waratah Police Station at 5:30pm. 2. There was, at the service station, interaction between DSC Green and the plaintiff. His statement of 30 November 2015 contains this: 8. [near Fernando] I said, "Carly, I'm Detective Green I have spoken to you before." She said, "Yes." I said, "Carly you are under arrest for a stabbing. You do not have to say or do anything. Anything you say or do will be recorded and later used in evidence. Do you understand that?" She said, "Yeah I did it. It was me so hurry up and get this over with." I saw Melmeth was fidgeting, erratic and her eyes blurred. I was of the opinion that she was affected by a substance other than alcohol. 1. There was further interaction between the plaintiff and DSC Green later on this day. After speaking with the plaintiff at the service station, DSC Green made arrangements to obtain a Crime Scene Warrant and for the attendance of Crime Scene Officers. He then inspected the interior of the plaintiff's house, then made arrangements to obtain the CCTV from the Coles Express shop, then visited Connolly in hospital and then went to Waratah Police Station. His statement contains this: 13. A short time later I left the hospital for Mr Connolly to continue treatment. I attended the Charge room of Waratah Police Station where I spoke with the accused, Carly Melmeth. I said, "Carly my name is Detective Green, can you understand what I am saying to you?" There was little to no response. At the time she had slow speech and was visibly falling asleep. I was unable to offer the accused the right to an interview for this reason. That statement is erroneous, because DSC Green did offer the plaintiff an opportunity to participate in an electronically recorded interview ("ERISP") but she declined to do so. In his evidence in chief DSC Green said this: Q. Where in the station did you see her? A. I spoke to her in the custody area of the station. Q. Were you able to make any observations with respect to her? A. At that time she appeared to be not as erratic more sleepy. Q. Did you turn your mind to the question of whether she ought to be interviewed? A. Yes, I did. Q. What view did you form? A. I felt that at that stage given that observations had been made in relation to the custody record and having asked her if she was able to - sorry and having asked her if she was willing to participate in any of those procedures and the fact that she'd signed the paper in the manner in which she had done‑‑ Q. Just with this paper‑‑ A. Sorry. Q. ‑‑are you talking about something that you wrote in a notebook? A. I am. Q. Because I'll have you shown three pages of your notebook, it's over two pages of documents. Detective, I've given you as I said two pages of copied documents but it appears to carry pages 82, 83, and 84 of a notebook, are those pages extracted from your notebook? A. Yes, they are. Q. Is some of the writing on those three pages in your hand? A. All of the writing is in my hand other than the scrawl. Q. Is that a document that records a conversation that you had with Ms Melmeth? A. Yes, it is. Q. Where did that conversation take place? A. Waratah charge room, as I've indicated there. ………………………………………………. Q. Is the scrawl you're referring to the writing sort of below the fifth line to the bottom of page 84? A. Yeah, that's correct. Q. It looks like it might say Carly? A. Yes. Q. That mark was made by Ms Melmeth? A. Yes. EXHIBIT #2 COPY OF PART OF PAGE 82, ALL OF PAGE 83 AND PAGE 84 FROM JASON GREEN'S NOTEBOOK DATED 30/05/15 TENDERED, ADMITTED WITHOUT OBJECTION 1. The relevant part of exhibit 2 is this: "Q. You have been arrested in relation to an allegation of wounding and detention of Steven Connolly. Do you understand that? A. Yes. Q. The custody manager has read your rights in relation to what can happen and what rights you have regards to Part 9 LEPRA 2002. A. Yes. Q. Do you wish to participate in an electronically recorded interview? A. No. Q. I intend to have a qualified officer obtain your DNA by way of DNA Buccal Swab. A. Yeah of course. Q. Do you consent to the taking of this procedure? A. Yeah of course. Q. Will you sign this record as true and correct? A. Yeah." On page 84 of the notebook, there are 21 ruled lines. The penultimate answer, last question and last answer take up 4 of those lines. The "signature" of the plaintiff occupies lines 6 to 21 and extends below the last ruled line to the bottom of the page. It appears to me to be a scrawled "Carly". 1. The inconsistency between DSC Green's statement and the contemporaneous notebook recording was explored in cross-examination, commencing at T118.20. The witness' response is best shown in this passage: Q. You say in the final sentence of that paragraph, "I was unable to offer the accused the right to an interview for this reason, the reason being that her speech was slurred and she was visibly falling asleep." Correct? A. That's correct. Q. But the fact of the matter is that you did offer her an interview and she declined. Correct? A. I consulted the custody records. I had no toxicology experience or an awareness of what someone is doing when they're drug-affected. I had asked those questions, and in asking those questions I felt that I had no right to offer the interview, so I did not proceed. It was unfair. EXHIBIT 2 SHOWN TO WITNESS Q. This is your notebook entry for 30 May 2015, correct? A. It is so, yeah. Q. You can see that by the date. And then underneath it has one line, and then colon and two zeroes. A. Yes. Q. So this notebook entry was made at 7pm, is that right? A. Yeah. Q. You'd consulted the custody management records before then. A. No, I hadn't. Q. Before making this notebook entry. A. No, I hadn't. Q. You hadn't? A. Not at that stage, I hadn't. Q. When did you consult the custody management record? A. When I was speaking to her. Q. But in any event-- A. And when she signed it. Q. In any event, at Mayfield West when you first spoke to the plaintiff you formed the opinion that she was affected by a drug, correct? A. A substance. Q. Yes. Can you see in your notebook entry on page 83 in the middle of the page you record this question being put to the plaintiff, "Do you wish to participate in an electronically recorded interview?" A. That's right. Q. And she answered, "No." A. That's right. Q. So in fact you had offered to interview her, correct? A. Correct. 1. The Custody Manager at the Waratah Police Station on 30 May 2015 appears to have been Ms Kathryn Haines (rank not disclosed). These records show this: Time Observation/Comment Responsible Officer 17:58 Uncooperative HAINES 18:00 Insulin dependent Diabetic. HAINES Insulin self-administered at 17:15 'hrs witnessed by SC Rees and Carey. 18:00 No complaints. Sitting quietly in dock. [Medical Questionnaire] Drugs – Yes. Admits to being on ice Insulin – Yes 18:00 Medication – Yes HAINES Asthma – Yes Diabetes – Yes Is quiet and has started to assist with the custody process by answering health related questions. 18:07 Quiet – indicates she understands the caution but has refused to sign. HAINES 18:24 Prisoner has asked for insulin as she is diabetic. Ambulance contacted. HAINES 18:27 Sitting in dock, starting to become drowsy. 18:40 Sitting in dock, drowsy and appears to be under the influence but has declined to indicate any drug use. Appears to be drug affected. HAINES [Ambulance] Responder 1 attended. 18:43 to 18:57 Insulin administered by prisoner after observations. Has admitted to using ICE and is displaying signs of being drug-affected. Was able to HAINES understand instructions given by Paramedic and Police. Refused further observations [sic]. 18:59 to 19:02 Has requested Responder 1 to take sugar level again. Sugar level taken. HAINES 19:03 Refused to eat meal [Dinner]. Advised by Paramedic Responder 1 to eat the meal in order to regulate her sugar. HAINES 19:05 Sitting in dock… Is more alert since taking insulin. However still appears to be drug affected. Has refused meal. HAINES 19:28 Sitting in dock talking with other prisoner - has been treated by ambulance personnel. Refused to eat dinner. DAVID MITCHELL 20:01 Sitting in dock. Condition has not changed. Has been given juice. Still has not eaten Subway. MITCHELL 20:18 Sitting in dock. Condition has not changed. MITCHELL 20:21 Rang 000 to arrange ambulance attendance to confirm blood sugar levels. MITCHELL 21:02 Has been treated by ambulance personnel – condition has not changed. Has taken further medication. MITCHELL 21:46 Uncooperative taking fingerprints. Now sitting in dock. Again refused to eat dinner. MITCHELL 22:37 [Charged with 2 offences] GREEN 22:49 Asleep sitting in dock. MITCHELL 23:38 Occupier's notice of crime scene warrant included in property bag MITCHELL 23:38 Sitting in dock. MITCHELL The only other relevant entry is a record made at 12:06am on 31 May 2015 that bail was refused and that the plaintiff was transferred to the care of the Department of Corrective Services at Newcastle. The plaintiff's subsequent custodial history 1. The plaintiff was taken to the cells in the Newcastle City Police Station which is next to the old Newcastle Court House. On the morning of Sunday 31 May 2015, the plaintiff was taken before the Newcastle Local Court (whether it be before a Magistrate, Registrar or Justice of the Peace I do not know) and was remanded in custody until Monday 1 June 2015. She was unrepresented on 31 May. On 1 June the plaintiff was represented by Mr Laidler of Ramsland Laidler (see CB 877). The plaintiff said that he advised her "that I wasn't going to make bail with the charges I was facing" (T30.21). As I stated in [3] above, bail was never applied for in the Local Court (see CB 877, 876). The plaintiff was kept at the Newcastle Police Station for "4 or 5 days" (T29.05, T30.45) and then transferred to Silverwater on either Friday 5 June or Saturday 6 June 2015. She was incarcerated at Silverwater for either 3 or 4 months (T31.41). For her first 3 or 4 weeks at Silverwater she was kept in a "detox cell" under constant observation (requiring constant illumination of the cell) because she was "suicidal" (T31.12). She was then transferred to Dillwynia for "maybe 2 months" (T31.42). She was then transferred back to Silverwater for what she thought was a medical reason, but it might also have been because of the application for bail to the Supreme Court. As stated in [3] above, bail was granted by Schmidt J on 24 November 2015. However, the plaintiff said that she appeared before her Honour a week earlier. Her Honour required information (perhaps medical) from Corrective Services and the plaintiff had to wait a week for that to be produced to the Court before bail was granted (T33.47). 2. This was, in effect, the plaintiff's first experience of custody. She had spent "one day" (probably overnight) in police custody at Waratah because of some youthful, drunken indiscretion at the age of 18, but that is a far cry from her experience on this occasion. Part of her evidence was this: Q. And were you able to cope during your remand? A. I had an inmate drag me around by my hair, I got hit with a phone, I had officers keep me in a cell and not give me my diabetes food. They wouldn't give me my insulin. I had comments about made about do I scrunch or fold my toilet paper. I was told to sit in a wheelchair when I went to clinic, not a normal seat. They put me in a wheelchair. There was – yes, I keep hitting the buzz – the knock-up button for help, because I needed food because of my diabetes, and they wouldn't come. They would just laugh at me. I would say "check my medical file, please. Look at my folder. I'm a diabetic. I'm not joking, like, I could end up on the ground." The officers would yell at me. I had to wait for an officer to straighten her hair before she came and gave me my medication. And when they were giving me my medication, it was at the wrong time, so the insulin wasn't working when it was supposed to be working. It's got to work within 10 minutes of food. This, of course, is relevant to damages. 1. It is convenient at this point to observe the plaintiff's bail conditions. Omitting formalities the order made by Schmidt J was this: 1. daily reporting to Newcastle Police Station between 8am and 6pm; 2. to reside with her father at Long Crescent, Shortland; 3. a curfew between 6pm and 8am unless accompanied by her father or mother; 4. to present herself at the front door of her father's house when directed by a police officer to confirm her observation of the curfew; 5. non-association with her co-accused, Fernando, or with Connolly; 6. not to consume alcohol or enter any liquor outlet except in the company of her father or mother; 7. not to ingest any illegal drug or prescribed medication, without a prescription; 8. not to leave her father's home other than to report to police, attend court or attend pre-arranged legal conferences, unless accompanied by her father or mother; 9. to undergo drug or alcohol testing as directed by a police officer who suspected on reasonable grounds that she may have consumed drugs or alcohol in breach of her bail undertaking. This order was varied by Wilson J on 2 February 2016 to permit in (viii) above the plaintiff to attend Centrelink appointments or any employment agency or work provider but only when she had written confirmation of any such appointment. The conditions were so onerous that the plaintiff was unable to live with her son who had to live with her mother, his grandmother, at Lake Cathie near Port Macquarie until the end of the school term following the plaintiff's acquittal. Her bail conditions did not permit her to take her son to or from school or to attend to any other usual movements of a parent for his or her child. This, again, goes to the question of damages. Connolly – further history 1. The initial call to the Ambulance Service was received at 3:47pm. An ambulance was dispatched at 3:50pm and arrived at the service station at 3:57pm. That vehicle was described as Hamilton Ambulance 275 staffed by Paramedics Michael Lachlan O'Connor and Andrew Ridgeway. Paramedic O'Connor was the treating paramedic that day. His statement of 14 November 2015 contains this: 6. On arrival I saw numerous police at the location. I exited the ambulance and was directed to a male patient inside the service station shop. I entered the shop and saw a male approximately 30-40 years old covered in a significant amount of blood. I know this person to Steven Connolly date of birth 20th of February 1980. 7. Mr Connolly said words to the effect of, 'I was in a nearby house and assaulted by another male. The male stabbed me with a kitchen knife and struck me with a gun. I was kicked and punched several times.' I asked if he had lost consciousness to which he said, "No". He stated, 'I left the house and sought help at the service station.' I recall Mr Connolly stating that the male had either tied him up or restrained him at some point during the altercation in the house. 8. I commenced to start attending to his injuries as follows. I determined he had no central stab wounds of immediate concern. He had what appeared to be puncture wounds to both his arms. The most significant being to his right tricep. He had multiple bruises and abrasions to his face. Some of the blood that I noted on his body particularly on his face appeared to have been dry for some time. There was blood soaked onto his clothing. I saw a bandage or similar wrapped around one of his arms. This had been applied prior to my attendance. 9. There were no immediate concerns for the patient and after allowing police to speak with the patient briefly he was conveyed to John Hunter Hospital. The ambulance records (CB 76 to 81) tell me that Connolly was loaded into the Ambulance at 4:22pm. It reached John Hunter Hospital at 4:33pm. Connolly was in triage at 4:48pm and was taken from the Ambulance stretcher at 4:55pm. 1. The hospital records provided (CB 84 to 105) have been poorly photocopied and are incomplete – for example the discharge summary was 2 pages but only the first is in the CB. Some of the documents are illegible. The triage notes are recorded as commencing at either 16:39 or 16:59. The discharge summary converts that to 16:36, but the 9 in the triage notes is clear. There is generally a discrepancy between Ambulance records and hospital records: the latter generally record triage later than do the former. In this Court's experience the Ambulance records are usually more accurate. The presenting problem given in the triage notes is this: "Male aged 35 years, 3 months presents with alleged assault. Patient wheeled into Emergency Department, after being assaulted. Has been stabbed with kitchen knife to R triceps and L elbow. Has been hit with butt of gun to forehead. Multiple haematoma's [sic, scil. haematomata] to forehead. 3cm laceration to L elbow. No loss of consciousness." One of the Trauma Admission Sheets contains this history: "Alleged assault. Sustained and lasted – 3 hours. Punched x 20/kicked/hit by butt of gun to head. No loss of consciousness. Full recollection. Stabbed to right upper arm and left elbow with a knife. Nil stab wounds to torso/abdomen – extremities only. Managed to escape and run away to get help." The notes go on to describe 3 lacerations to the right upper arm with an underlying haematoma and a laceration overlaying the olecranon of the left elbow and exposing the joint capsule as well as facial lacerations. The discharge summary describes multiple haematomata to the face and a 3cm laceration of the left eyebrow. Radiological investigations were a CT scan of the facial bones and Xrays of the chest and right humerus and elbow. They reveal no abnormality. It seems likely to me that what was ordered were not only a chest Xray but an Xray of the right humerus and of the left elbow. However there are 2 copies of a report of the Xray of the chest and right humerus and elbow but each has a different order number: 5001209884 and 5001209885 – perhaps one was on the left side but the reports both state the right side. In any event, there was no bony abnormality detected. The records indicate that Connolly was discharged at 10:30pm (CB93). 1. Connolly was clearly well enough to be interviewed by DSC Green on Sunday 31 May 2015 when he made the statement which I quoted extenso in [10] above. Despite stating that it was recorded at Newcastle Police Station, DSC Green said that the interview was to be at Toronto but actually took place at Waratah Police Station (T107.32). There is no doubt that Connolly completely recovered from his injuries. Physical Evidence 1. The police gathered much physical evidence to support the allegations made against the plaintiff and Fernando: I have already referred to the statements of various witnesses which are not, in my view, physical evidence, and to CCTV films taken from the Coles Express service station which clearly are such evidence. Also obtained were telephone records/cellbrite downloads of the telephones of Connolly, Fernando and the plaintiff. I have also referred to earlier photographs in particular thus far, of Connolly's injuries. 2. SC Blake Dahl of the Newcastle Crime Scene Section took 140 photographs of the plaintiff's house, both exterior and interior, and of its contents. He attended the house at about 7:50pm on 30 May 2015, ie on the day of the event. Significant photographs are, in my view, these: Photograph Caption 36 View south showing the firearm on top of the white bookcase in the dining room. Further view [of above]. 37, 38 Comment: The firearms appear to be antique. 39,40 Views showing the position of markers [1 to 10] on the floor of the dining room. 41 View showing the position of marker 11 on the table of the dining room. 42 Further view showing the position of marker 12 on the floor of the dining room. 43 to 54 Close views of each marker 1 to 12 showing blood stains on the floor or table in the dining room. 55, 56 Views showing red staining on the curtain on the northern wall of the dining room. 59 View north showing the bench top in the kitchen. 60 View north showing the location of items at markers A to E on the bench top. View of the Samsung mobile phone from the bench top at marker A. 61, 62 Comment: Owner unclear. Views of the Sony mobile phone from the bench top at marker B. 63, 64 Comment: Plaintiff's phone. Views of the Apple mobile phone from the bench top at Marker C. 65, 66 Comment: Connolly's phone. Views of the open cigarette packet from the benchtop at marker D ["Choice, Rich Gold"]. 67, 68 Comment: The cigarettes purchased by Connolly at the Woolworths Supermarket at Jesmond on the way to the event – Connolly's statement of 31 May 2015, [5]. Views of Huawei mobile phone from the benchtop at marker E. 69, 70 Comment: Fernando's phone. View showing [3] knives removed from the cutlery basket in the dishwasher in the kitchen. 74 Comment: These appear to be kitchen knives rather than knives to be used at table. 76 View south showing the location of a cupboard at Marker F in the south west corner of the kitchen. 77, 78 Views of the red stain on the top edge of the cupboard door at marker F. 81 View of a plastic bag removed from the cupboard at Marker F. 82 View of the rope, towel, bandage and paper from the plastic bag removed from the cupboard at Marker F. View of the paper from the plastic bag removed from the cupboard at Marker F. 83 Comment: Of the 6 pieces of paper, 4 appear to be blood stained. View of the bandage from the plastic bag removed from the cupboard at marker F. 85 Comment: Appears to have blood stains. 86, 87, 88 Views of the ropes from the plastic bag removed from the cupboard at Marker F. Views of keys at marker G on shelving in a room described as "the utility room". 92, 93, 94 Comment: The keys contained a Toyota motor vehicle key. Connolly had arrived at the service station driving a Toyota vehicle. Parked in the driveway of the plaintiff's residence was a Ford Fiesta [photograph 8]. Fernando had arrived on foot. View of white fabric and 4 knives removed from the timber hall table at the rear entry – Marker H. 101, 102 Comment: These are kitchen knives. Views of a white T-shirt found in the washing machine in the laundry. 106 to 109 Comment: This is a "Badboy" garment, size L with "The Badboy" printed on the front, with what appears to be a blood stain on the lower front of the garment. 118 View of the couch showing the location of Marker I in the third bedroom. 121 View of the couch at Marker I with a cushion removed showing 2 knives located there. View of the 2 knives removed from the couch in the third bedroom. 122 Comment: These are kitchen knives. 125 View of bamboo shading inside the garage showing the location of marker K. Views of a black reel of rope on the shelving at marker K. 126, 127 Comment: This appears to be the same type of rope seen in photographs 86, 87 and 88. 128 to 131 Views of knife 1 from XF000953291 – Marker H. [knives near rear entry door] 132 to 134 Views of knife 2 from XF000953291 – Marker H. 135 to 137 Views of knife 3 from XF000953291 – Marker H. 138 to 140 Views of knife 4 from XF000953291 – Marker H. 1. In SC Dahl's statement of 15 November 2015, he described the firearms depicted in photographs 37 and 38 thus: "Two black powder pistols and a black powder musket on top of the white bookcase." During his examination of the dining room he collected 6 exhibits: 1 x black powder pistol - XF000953293 1 x black powder pistol - XF000953294 1 x black powder muscat (Musket) - XF000953295 1 x swab of blood at marker 4 - XF000953297 1 x swab of blood from marker 10 - XF000953298 1 x swab of blood from marker 11 - XF000953299 1. During the examination of the kitchen, SC Dahl collected 9 exhibits: 1 x mobile phone from Marker A (XF000953281) 1 x mobile phone from Marker B (XF000953282) 1 x iphone mobile phone from Marker C (XF000953283) 1 x opened packet of cigarettes from Marked D (XF000953284) 1 x mobile phone and charger from Marker E (XF000953285) 1 x grey jacket from cupboard at Marker F (XF000953296) Numerous pieces of rope from cupboard at Marker F (XF000953287) 1 x triangle bandage from cupboard at Marker F (XF000953288) 1 x blue towel from cupboard at Marker F (XF000953289) 1. There was a further examination of a number of these items (and others) conducted by Mr Cameron Peno, a Scene of Crime Officer (SOCO) commencing on 5 November 2015. His significant findings, in my view, were: 1. The pieces of rope removed from the plastic bag found in the cupboard at Marker F had a diameter of 3mm. It was mainly white with a green twist and strands of thin metal wire. One piece of the rope was 43cm long and contained a kink within which was an apparent blood stain. Testing proved positive for human blood and the stain was swabbed for DNA analysis. 2. The large triangular bandage removed from the plastic bag found in the cupboard at Marker F also tested positive for human blood and was swabbed for DNA analysis. 3. The Badboy T-shirt found in the washing machine in the laundry had its apparent blood stain tested and was found to be a stain of human blood. That stain was swabbed for DNA analysis and SOCO Peno also tape-lifted the interior neck line of the garment for DNA analysis. 4. The 2 knives found hidden under the cushion of the couch in the third bedroom at Marker I (XF000953292) were measured: one was 24cm (13.5cm blade) and the other was 22cm (11.5cm blade). An apparent blood stain was found on the larger knife's blade and that was confirmed to be human blood. It was swabbed for DNA analysis. 5. The first black powder pistol (XF000953293) was described as a duelling style pistol with a metal firing mechanism and side decorative panels but had no barrel. No apparent blood stains were located but each end of the pistol was swabbed for DNA analysis. 6. A grey jacket from the cupboard at Marker F (XF000953287) was described as a "Tweed River" jacket, size L. There was a 1.5cm cut found in the back of the upper right sleeve of the jacket, approximately 48.5cm from the cuff. There were apparent bloodstains on the front, back, inside and outside of the jacket with the greatest amount of staining around the cut. That staining proved positive for human blood and was swabbed for DNA analysis. 7. The antepenultimate paragraph of SOCO Peno's statement is this: 15. During my examination of the exhibits on 5th November 2015 at the Newcastle Crime Scene Section I collected the following sub-exhibits: Item 1 — Swab of blood from length of rope (XF000953287) (Barcode XF000953595) Item 2 — Tape-lift from knotted sections of rope (XF000953287) (Barcode XF000953596) Item 3 — Swab of blood from bandage (XF000953288) (Barcode XF000953597) Item 4 — Swab of blood from hand towel (XF000953289) (Barcode XF000953598) Item 5 — Swab of blood from front of t-shirt (XF000953290) (Barcode XF000953599) Item 6 — Tape-lift from internal neck line of t-shirt (XF000953290) (Barcode XF000953600) Item 7 — Swab of blood from blade of larger knife (XF000953292) (Barcode XF000953601) Item 8 — Trace swab from handle of larger knife (XF000953292) (Barcode XF000953602) Item 9 — Trace swab from blade of smaller knife (XF000953292) (Barcode XF000953603) Item 10 — Trace swab from handle of smaller knife (XF000953292) (Barcode XF000953604) Item 11 — Trace swab from butt of pistol (XF000953293) (Barcode XF000953605) Item 12 — Trace swab from fore-end of pistol (XF000953293) (Barcode XF000953606) Item 13 — Blood swab from internal right sleeve of jacket (XF000953296) (Barcode XF000953608) 1. A Certificate of Analysis pursuant to the Evidence Act 1995, section 177 was made by Ms Alexandra Nicola Bate, a Forensic Biologist at the Forensic Biology/DNA Laboratory of the NSW Forensic and Analytical Science Service on 30 August 2016. As this is not a criminal matter and as I am not directing a jury, I trust I am permitted to abbreviate the findings of Ms Bate. The findings can be summarised thus: Item Finding Swab of blood at Marker 4 (dining room floor) DNA of Connolly Swab of blood at Marker 10 (dining room floor) DNA of Connolly Swab of blood at Marker 11 (dining room table) DNA of Connolly Swab of blade of knife 1 (near rear entry) Unsuccessful Swab of handle of knife 1 (near rear entry) DNA of Connolly Swab of blade of knife 4 (near rear entry) Mixed DNA Swab of handle of knife 4 (near rear entry) DNA of Connolly Swab of blade of knife 2 (near rear entry) Mixed, Connolly not excluded Swab of handle of knife 2 (near rear entry) Mixed DNA Swab of blade of knife 3 (near rear entry) Unsuccessful Swab of handle of knife 3 (near rear entry) Mixed DNA Swab of blood from length of rope (cupboard, Marker F) Mixed, Connolly not excluded. Tape lift of knotted sections of rope (cupboard, Marker F) Mixed, Connolly and Fernando not excluded Swab of blood from bandage (cupboard, Marker F) DNA of Connolly Swab of blood from front Badboy T-shirt DNA of Connolly Tape lift from internal neck line of T-shirt Mixed. Fernando major contribution Swab of blood from larger knife (Marker I) DNA of Connolly Trace swab from handle of larger knife (Marker I) Mixed DNA Trace swab from blade of smaller knife (Marker I) Mixed. Fernando minor contributor Trace swab from handle of smaller knife (Marker I) Mixed DNA Trace swab from butt of pistol Mixed DNA Trace swab from fore end of pistol Mixed DNA Swab of blood from interior right sleeve of jacket (cupboard, Marker F) DNA of Connolly How physical evidence supported Connolly 1. I now consider how the physical evidence gathered by the police supported the statement made by Connolly on 31 May 2015. 1. The packet of cigarettes found by the police matched the description by Connolly on the following day. 2. The first knife that Fernando used, and the other he removed from the kitchen drawer and put on the kitchen bench may have been knives found in the dishwasher by SC Dahl, which appeared to him to have been "recently operated" and he found "residual moisture present on the inside of the door (CB510 at [20] therein). 3. After he was stabbed a second time Connolly stated he was "bleeding everywhere over the floor", consistent with blood staining on the floor of the dining room. 4. Connolly describes 3 stab wounds in his right upper arm, consistent with the injuries described in the hospital records. 5. At [13] Connolly said that his arm was bandaged, consistent with the blood stained bandage containing his DNA found in the plastic bag in the cupboard at Marker F. 6. At [14] Connolly spoke of protecting himself with his elbow when the knife was swung at him. He felt the knife go deep into his elbow, feeling like it hit a bone. This is consistent with the injury to the left elbow described in the medical evidence, exposing the capsule of the joint. 7. At [15]. Connolly describes the plaintiff as bringing a towel and throwing it at Connolly, telling him to clean up the blood falling on the dining room floor. At [16], Connolly said he got down on the floor and started to do so. In the plastic bag found in the cupboard at Marker F was also a hand towel (which I had not mentioned above. It can be seen in photographs 82 and 84 and is described by SOCO Peno on a "Homemaker" brand cotton hand towel, teal in colour, approximately 60cm x 40cm with apparent blood stains, the largest of which tested positive for human blood and was swabbed for DNA analysis. That was reported by Mr Bate in showing a mixed DNA, from which Connolly could not be excluded. 8. Connolly said that when he was mopping up the blood, Fernando struck him on the head with a gun which "broke in his hand as he struck me". That is consistent with one of the duelling pistols having lost its barrel and with DNA (albeit mixed) being found at each end of the pistol. 9. In [19] Connolly said, "Greg had been wearing a white T-shirt which had my blood on it. He was angry about this and changed into a red T-shirt". That is consistent with the Badboy T-shirt found in the washing machine being stained with Connolly's blood and Fernando's DNA probably being present on the neckline of the garment. SC Wynne described Fernando as wearing a red shirt when he left the plaintiff's house – see [15] above. 10. In [19] Connolly speaks of being tied up with "white and blue rope". That is fairly consistent with the white and green rope found in both of the cupboard at Marker F and in the garage and with the rope from the cupboard containing Connolly's DNA. That is also consistent with the ligature marks in Connolly's wrists observed by Dr Alldis (see [11] above) and by DSC Green at the John Hunter Hospital on the evening of 30 May 2015 (his statement of 30 November 2015, [12] at CB 108) and shown in photographs at CB 64 (left wrist), at CB 65 (right wrist). Connolly was also bound at his ankles, as shown in photographs at CB 62 (left ankle) and CB 63 (right ankle). Those photographs were taken by DSC Green at the hospital on 30 May 2015. A reason for delay in surrendering 1. Connolly is seen running from the plaintiff's house at 3:38pm (see [10] above). Police commenced to receive the 000 call at 3:40pm (see [13] above). The call was broadcast at 3:45pm and the first police to arrive on the scene was at 3:49pm (ibid). The plaintiff and Fernando were arrested at 4:14pm, some 35 minutes after Connolly's escape. It is apparent from considering the physical evidence that during that time the plaintiff and Fernando were cleaning up what the police describe as the crime scene e.g. knives put through dishwasher, knives hidden near backdoor in white linen and in third bedroom, ropes, bandaging, towels secreted in cupboard, items put in washing machine. What DSC Green did 1. DSC Green was attested as a NSW Police officer in 2001. He initially performed general duties at Brisbane Waters, then Maitland and finally at Newcastle. He commenced training to be a detective in 2013 and qualified as a detective in 2014 (T90.16). He was stationed at all material times with the Newcastle City Police. Waratah Police Station in a substation of Newcastle City LAC (T90.19). On Saturday 30 May 2015 he was rostered on a day shift from 7am to 5pm (T93.18). In the course of his rostered duty, he was called to the Coles Express Service very shortly after the event. His recollection was that he arrived there around 3:50pm (T93.30). He was working by himself that day ("a single unit" – T93.47). It is very important to note that DSC Green was assigned to this investigation in the normal course of his duty: he did not seek to become involved in the investigation because it involved the plaintiff, nor did he do anything which might have enticed or exposed the plaintiff to being involved in the event. 2. On arrival he spoke with Acting Sgt Smith (T93.49). Smith told him what Connolly had told Smith and that there was CCTV footage. Smith also told DSC Green that Connolly had come from the premises at 38 Miller Street, the plaintiff's then residence. DSC Green then spoke to Connolly as he was being treated in the Ambulance. He observed Connolly's injuries. He thought Connolly was very distressed. DSC Green then had this conversation with Connolly: Q. Did you ask him anything? A. I asked him who it was he was talking about, and where. Q. What did he say? A. He told me that it was at the premises next to the service station. He indicated that persons there were Greg and Carly. Q. Yes. You'd been told there was a gun involved. A. In relation to a gun, that was part of the message. That's correct. I did ask him if there was a gun present. He described an ornamental gun. Q. When you say "ornamental", what do you mean? How did he describe it? A. Yeah. He described like a musket or a - an older style Q. Did he give you an account of how he'd come to be at that house? A. Yes, he did. Q. What did he say? A. He had known, I believe, Carly Melmeth from about 2009. That involved some dealings in relation to legal dealings, as at that time he was a practicing solicitor. He had befriended her. He had, earlier that day - around about 9.30 - had a conversation with her, and had agreed to attend the premises. In that agreement, he further made another call, where he picked up some UDL cans on the way to the premises. Q. UDL - you're talking about those post mix drinks. A. As in a - a can of drink. I believe so, yeah. He - that's what it would be. Correct. Q. Did he say how he had got to the home? A. Yeah. He drove there in his mother's Toyota, I believe. Toyota Corolla. Q. Was anything said about the keys to that car? A. In relation to the keys, he said that the keys had been taken from him. Q. Was anything said with respect to his telephone? A. Yes, and his telephone. Q. When you say taken did he say by whom? A. He said that they had been taken by Greg and Carly. Q. Did you have any further conversation with Mr Connolly at that time? A. With regards to that he was heading off to hospital. Q. So he was taken away, was he? A. He was taken away by ambulance. 1. After that he was told that the plaintiff and Fernando had left the plaintiff's house, which had been "cleared", and had been taken into custody. DSC Green then spoke to Fernando. He cautioned him. DSC Green then spoke to the plaintiff. He gave this evidence of his interaction with her: Q. Where was she when you had these dealings with her? A. At the time when I spoke to her she was alongside the - one of the police vans with a female officer. Q. And did you say something to her? A. Yes, I did. Q. What did you say to her? A. I firstly said to her, "Do you remember me?" Q. What was that a reference to? A. That was a reference to my previous interaction in 2013, purely based as a rapport. Q. What else was said? A. I explained the purpose why I was there, the allegations that were to her and again cautioned her. Q. Did you make any observations as to her behaviour? A. Yeah, she had blurred eyes, and at that stage I believe she could have been drug affected. Q. Affected by what? A. I wouldn't know. 1. He said in evidence that he then assigned to another detective (either DSC Briggs or DSC Barr) the task of obtaining a Crime Scene Warrant. Then he walked through the house ("the crime scene") where he noticed various things, which were later to be photographed by SC Dahl. He then went to the service station and spoke to Ms Michelle Shone and discussed with her obtaining the CCTV footage and her providing a statement. He arranged a time for the latter to be done. He then went to the John Hunter Hospital to continue his interview with Connolly, where he took some photographs (CB 62 to 68). 2. He then went to Waratah Police Station, where he had the interaction with the plaintiff that I discussed between [20] and [22] above. At 9:32pm that evening DSC Green commenced to type the narrative in COPS Event E57479070, which can be found at CB 836 to 844. According to his evidence, DSC Green then decided to charge the plaintiff. This evidence was then given: "Q. Did you consult with anybody in choosing what charges were appropriate? A. At that stage, the other detectives that were on [duty] with me." Those gentlemen were DSC Briggs and DSC Barr. The offences which he chose were the wounding offence and the kidnapping offence. He also decided to charge Fernando with the same offences. Bearing in mind the narrative contained in the COPS Event it would probably be more accurate to say that DSC Green chose to charge the plaintiff with the same charges that he made against Fernando. The Court Attendance Notice (CAN) was generated at 10:37pm (CB51). That document provides these details: OIC (Prosecutor): Det Jason Green, Newcastle City Created by: Det Jason Green, 10:37pm 30/05/2015 Accepted by: Sgt David Mitchell DSC Green explained in evidence that he was required to submit the charges to a senior officer "to review the Fact Sheet and decide the sufficiency that it goes forward" (T104.45). Sgt Mitchell was the shift supervisor at Waratah Police Station that evening, the senior officer on duty. It ought to be clear from what I have just quoted that as well as generating a draft of the CAN, DSC Green had to provide a "Fact Sheet" to Sgt Mitchell. That can be found at CB 52 to 55. It appears that between 9:32pm and 10:37pm DSC Green generated the original COPS Event, the CAN and the Facts Sheet. 1. DSC Green was rostered for the duty on Sunday 31 May 2015, when he took Connolly's statement of that date. He could not recall attending to any other aspect of this matter on that day (T108.08). 2. It is an agreed fact that no later than 3 June 2015 the proceedings against the plaintiff were being conducted by the Office of the Director of Public Prosecutions (T179.16). DSC Green's recollection as to when the DPP became involved was erroneous (T108.29). He went on to give this evidence: Q. Once the DPP became involved, did you have any role with respect to the conduct of the prosecution thereafter? A. No, I did not. Q. When the matter came on for trial, in September 2016, what did you do, in your capacity as officer in charge, with respect to that trial? A. I assisted with witnesses attending Court. I assisted in making sure that those persons - and any directions that were given me by the DPP. Q. Did you attend Court on the days fixed‑‑ A. I attend Court on the days that the trial began. HIS HONOUR Q. With whom were you liaising at the DPP, Detective Senior Constable? A. Mr - Mr Costello. HIS HONOUR: Mr Costello. WILLIAMS Q. Before him, had you liaised with a solicitor called Mr Fitzhardinge? A. And I had dealt with Mr Fitzhardinge. …………………………………. Q. And he would occasionally give you directions with respect to the matter? A. He would. Q. His Honour has taken you to the statement you made on 30 November 2015. As I understand it, that's the only statement you made with respect to the events of May 2015; is that right? A. Yes. He then gave evidence about his role in the aborted trial of 12 September 2016 (which I shall discuss later in these reasons) and his evidence then continued: Q. Detective Senior Constable, once the matter finally went to trial in April 2017, were you at that stage the decision maker with respect to the charges? A. No. Q. Did you have a say in what charges proceeded? A. No. Q. How the charges would be cast on the indictment? A. No. Q. Did you have a view at that time about whether the charges were proper ones to proceed? A. No. In terms of the charges that were currently before the Court, I believe they should proceed. Q. Who did you rely upon for the conduct of the prosecution at that time? A. The DPP. 1. DSC Green was cross-examined, inter alia, about his role after the DPP assumed the carriage of the prosecution: Q. … when the DPP take over the proceedings, you still have an involvement in the case, do you not? A. I'm contacted by the DPP, yes. Q. You're still known as the officer in charge? A. I am. Q. And the Director of Public Prosecutions or his employee would seek your views in relation to the matter? A. They would consult with me, yes. Q. And they would consult with you about whether the prosecution should remain on foot or whether it should be terminated? A. They'd say things like that. Q. You'd have a discussion about the sufficiency of the evidence, correct? A. At that stage, no, I - I - they would be talking to me about charge differences and things like that. Because they've elected to Q. Just in relation to the - sorry? A. Because they've elected. Q. They've elected to-- A. Take the proceeding. Q. --have it dealt with on indictment. The transcript continues with a new sentence in that last question, which is really a new question. The first part of the question which I have cited is really the end of the previous question. I construe the last question and answer to be: "Q. They've elected to have it dealt with on indictment? A. Take [over] the proceedings." 1. In the CAN the advantage alleged in the kidnapping offence is "to avoid police detection." However, the Indictment dated 3 April 2017 (CB 880) contains this pleading: "with intent to commit a serious indictable offence, namely intimidation" This caused DSC Green some confusion in his evidence, as he recalled the advantage alleged being "intimidation" (T132.30). When the change was drawn to his attention he said that the change had led to the confusion in his evidence. Importantly, he said that he did not make the decision to change the particular alleged. 1. DSC Green was challenged about sitting in Court each day that the trial which commenced on 3 April 2017. He said he did not sit in the Courtroom until he was called to give evidence. He did not recall sitting through Mr Costello's closing address to the jury (T134.50). Proceedings in the Local Court 1. Proceedings in the Local Court may be summarised in this fashion: Date Presiding Officer Result 31/05/15 Unknown Adjourned to 01/06/15. 01/06/15 Jackson LCM Adjourned to 03/06/15 to the DPP list. 03/06/15 Cheetham LCM Adjourned to 29/07/15 Stage 1. 29/07/15 Stone LCM Adjourned to 09/09/15 Stage 2. Brief served. Outstanding (indecipherable) to be served. 09/04/15 C. O'Brien DCM Adjourned to 04/11/15 DNA and Crime Scene [Reports] outstanding. For Reply. 04/11/15 Stone LCM Balance of Brief order [to be served] by 25/11/15 Adjournment to 2/12/15 outstanding (indecipherable) 02/12/15 Cheetham LCM Adjourned to 29/01/16 for Reply 27/01/16 Cheetham LCM Co-accused DNA to be assessed. Adjourned to 13/04/16 for Reply. 13/04/16 Stone LCM Committed for Trial to the District Court (Notice of Committal at CB 878). Stage 1 and Stage 2 refer to steps to be taken in according with Local Court Practice Note COMM 1 re committal hearings in that Court as in force at that time. District Court preliminary proceedings 1. The Notice of Committal discloses that the matter was listed for first mention before this Court at Newcastle on 12 May 2016. Unfortunately, there are not in evidence any file endorsements or result sheets made on or in the file of this Court in its criminal jurisdiction at Newcastle. However, exhibit A contains details of a number of early listings. They are these: 12/05/16 First Mention 20/05/16 Bail Review 04/08/16 Mention 11/08/16 Mention 08/09/16 Call-over 09/09/16 Mention [according to exhibit A there is a transcript of this, but it is not before me] 1. There was a trial due to commence before King DCJ on 12 September 2016. There must have been an indictment by then. The only indictment provided to me is dated 3 April 2017, i.e. on the day the actual trial commenced before Ellis DCJ. When the plaintiff was first arraigned, and on what charges is unknown to me. However the trial scheduled to commence on 12 September 2016 was a joint trial with Fernando. Because the matter could not proceed, no indictment was presented to King DCJ. It seems likely to be the same as or very similar to the Indictment dated 3 April 2017. That Indictment is in these terms: CARLY JAYNE MELMETH GREGORY GEORGE FERNANDO 1. on 30 May 2015, at Mayfield West in the State of New South Wales, while in the company of each other, detained Steven CONNOLLY without consent and with intent to commit a serious indictable offence, namely intimidation, and during the detaining actual bodily harm was occasioned to Steven CONNOLLY. AND the Director of Public Prosecutions FURTHER CHARGES that CARLY JAYNE MELMETH GREGORY GEORGE FERNANDO 2. on 30 May 2015, at Mayfield West in the State of New South Wales, did wound Steven CONNOLLY with intent to cause grievous bodily harm. Semble, the indictment prior to that of 3 April 2017 was changed into that form by the correction of the spelling of Connolly's surname and by inverting the order of the accused so that the plaintiff's name appeared before that of Fernando. That earlier indictment (or even one prior to that) must have inverted the order of the charges from the order in the CAN (Sequence 1 – wounding offence; Sequence 2 – kidnapping offence) as well as changing the particular of the advantage sought in the kidnapping offence. See CB 904.03 to CB905.33 and CB 921.30 to CB 922.39. The aborted trial 1. The matter was listed for trial before King DCJ on Monday 12 September 2016. A jury was never empanelled. Mr Costello appeared for the Crown, Mr P. Massey for the plaintiff and Mr J. Fitzgerald for Fernando. The transcript of 12 September 2016 commences thus: HIS HONOUR: Mr Crown, the matter's ready for trial? CROWN PROSECUTOR: Your Honour— HIS HONOUR: As far as the Crown's concerned? CROWN PROSECUTOR: It is save in one respect, your Honour. The Crown's fairly central witness in the case, Mr Steven Connolly, does not appear to have attended court as yet. He has been somewhat reluctant to respond to phone calls. The Crown did manage to speak to him early last week. A message was left for him again to call back to discuss matters on Thursday. I left my phone number and my name several times. He did apparently call back, I only found out this morning, and spoke to - left a message for another one of the solicitors who'd assisted. All efforts to raise him today, this morning and on Friday, have been unsuccessful. So, your Honour, the Crown will be making an application for an arrest warrant in relation to Mr Connolly and as soon as Mr Connolly's attendance can be secured, then the Crown is in a position to proceed. Alternatively, the Crown could commence the trial in the absence of Mr Connolly being present at court. His Honour issued a warrant for the arrest of Connolly and adjourned the matter to the following day. On Tuesday 13 September, Mr Costello advised his Honour that Connolly had not been located but the Crown's preferred position was to "keep the trial alive" and to commence it the next day, should he be located and arrested. Counsel for each of the accused did not oppose that application, which was granted. No transcript of proceedings on Wednesday 14 September 2016 has been provided to me, merely a ruling made by King DCJ on that day. That ruling concerns a "preliminary issue" as to whether the Crown had taken all reasonable steps to obtain the attendance of Connolly at the trial. The substance of the ruling is this: The evidence before me is that a subpoena was served by mail to an address associated with Mr Connolly, even though it was referred to as a "transient" address, but an address that he had been using up until some months ago at Bolton Point. In the absence of other contact the officer-in-charge of the matter, Detective Senior Constable Green, did manage to make telephone contact with him, as I understand it, by Mr Connolly ringing the officer although my understanding on the evidence may be imperfect; it may have been the other way around. However, Officer Green attended at the witness's address to speak to him and was informed by a neighbour that he was no longer living there, although he had been. Further inquiries were made and eventually the witness contacted the officer and an arrangement was made for the witness to attend at the police station. He attended on 24 August 2016, at which time he was served with a subpoena to attend court for the trial commencing on Monday this week, 12 September 2016. The witness indicated that he would not attend because of fears that he held. He declined to provide any details of his fears and indicated that he did not trust police as they would not be able to guarantee his safety and that "They will get me". To allay his fears, DSC Green inquired as to details of the persons without succeeding in acquiring any useful information. The witness was warned that he was required to attend court and that if he did not an arrest warrant would be issued or at least sought. The witness was provided with contact details for the officer but before departing indicated that he wanted the police to let him know of the outcome of the court proceedings, which in itself indicated that it was not likely that he would be attending. DSC Green has endeavoured to personally contact the witness on a number of occasions by telephone but either the calls were not answered, or the text messages not responded to. He had two numbers he understood to be Mr Connolly's, both of which were contacted. He endeavoured to speak to him during the week prior to the trial without success. He endeavoured to contact him again on the morning of the trial due to commence on the 12th without success, and on each day thereafter, including this morning before court. He has also called on the services of various New South Wales police to attend a number of addresses either associated with Mr Connolly, his parents or other persons apparently indicated as being associated with him in the past according to police records. Although inquiries have been repeated by a number of police officers in that regard no success has been forthcoming in relation to the attendance of the witness. There was some contact between the witness and Mr Henschell, but the details of that however are not before me. At 6.11pm yesterday, 13 September, a text message was received from a mobile phone purporting to be from the witness inquiring as to the status quo of the matter and claiming to have made a number of telephone calls to the DPP last week with none being returned, and making a number of claims, in particular, "I spent much of the day walking up and around the court precinct trying to catch a glimpse of the proceedings and later spoke with my family and friends", and complaining about the police making inquiries, in particular, it would seem, of either his parents and/or his friends. It is clear that the witness is aware of his legal obligation to attend court as he is legally qualified and is or has been a solicitor. It has been argued by Mr Fitzgerald on behalf of the accused Fernando that the inquiries made by police may have been more effective if they had asked the witness for any current address. In addition it has been argued by Mr Massey on behalf of the accused Melmeth that the officer should have made inquiries for the subscriber details in relation to the telephone number associated with the recent text message and that the sending of the subpoena to the Bolton Point address and making of inquiries there was inadequate in that the address was described as being a "transient" address for the witness. In my view it is clear that the witness has indicated that he will not attend the proceedings whether or not he has been served with a subpoena, and whether or not a warrant has been issued for his arrest, or would issue for his arrest, and that the inquiries made by the officer-in-charge of the matter, together with other police officers acting at his direction, constitute all reasonable steps. It is of course always possible to hypothesise about other steps that might have been taken, but in my view, in the circumstances, all reasonable steps have been taken by the prosecution to secure the attendance of Mr Connolly. 1. That ruling appears to be preliminary to an application under s 65 of the Evidence Act 1995. What further occurred on 14 September is succinctly summed up by Mr Costello in remarks he made to Ellis DCJ on 9 February 2017: Your Honour, the matter was previously listed for trial before his Honour Judge King last year. The Crown had difficulty securing the attendance of its principal witness. A warrant had been issued, but could not be executed in time for the trial to proceed. The Crown under the circumstances made an application to adduce the principal witness's evidence by way of hearsay. His Honour Judge King ruled that the Crown had provided reasonable notice given the way matters were unfolding and defence at that point made an application for an adjournment to see if we could successfully secure the attendance of the witness at a future occasion. The trial was vacated and the matter was re-listed. I understand the listing for trial is on 3 April 2017 with a five to six-day estimate. 1. The failure of Connolly to attend Court excited the interest of the press. On Thursday 15 September 2016 the Newcastle Herald published on page 6 an article with a large headline: Solicitor missing from trial AN ARREST warrant has been issued to bring to court a solicitor who was allegedly stabbed, bashed and forced to inject the drug ice while being held captive at Mayfield West last year. Gregory George Fernando, 28, and Carly Jayne Melmeth, 31, were on Monday due to face the first day of a trial in Newcastle District Court into allegations of wounding a person with intent to cause grievous bodily harm and aggravated kidnapping in company with intent. But Crown prosecutor Brian Costello told Judge Michael King the officer in charge of the investigation, Detective Senior Constable Jason Green, had been unable to reach the alleged victim, Lake Macquarie solicitor Steven Connolly, in the days leading up to the trial. "The Crown's fairly essential witness in the case does not appear to have attended court as yet," Mr Costello said. "He has been somewhat reluctant to respond to phone calls. "All efforts to raise him this morning and on Friday have been unsuccessful." Mr Connolly was allegedly bashed, stabbed and forced to inject the drug ice after he went to a house in Miller Street at Mayfield West on May 30 last year. On Monday, Judge King issued an arrest warrant to bring Mr Connolly to court to give evidence. But by Tuesday, when Mr Connolly had not been found, Mr Costello told the court the "inevitable inference" was that he has "gone into hiding". The prosecution's position was to "keep the trial alive" and on Wednesday Mr Costello applied to list Mr Connolly as an unavailable witness and run the trial without him. He admitted Mr Connolly's evidence was "very important" but said they also had CCTV footage from the night, evidence of Mr Connolly's injuries, knives seized from house and DNA tests on blood found in the house. But barrister John Fitzgerald, for Mr Fernando, had earlier told the court he opposed that approach. "He is a linchpin witness in the highest definition of it," Mr Fitzgerald said. Judge King dismissed the application and vacated the trial date. The matter was adjourned to September 29 to set a new trial date. 1. In short, the reasons that Connolly refused to appear at Court for the trial scheduled to commence on 12 September 2016 was because he feared for his personal safety. The evidence concerning this can be found at: 1. Statement of DSC Green made on 14 September 2016 (CB 448, 449) and copies of text messages annexed to that (CB450 to 454); 2. COPS Event E 61573470 (exhibit 3); 3. Evidence of DSC Green T109.33 to T110.10 Police intelligence certainly confirms that there were reasonable grounds for Connolly to have such a fear, although that cannot be attributed in any way to the plaintiff. However, it is possible that Connolly may have had the same fear or a similar fear when he gave evidence at the trial. 1. Eventually, the arrest warrant issued by King DCJ was executed. On 9 February 2017, Mr Costello told Ellis DCJ this: The warrant was executed in relation to the principal witness. He was brought before her Honour Judge Yehia and dealt with under the warrant and released by the Court. There was a suppression order made in relation to the details of what occurred as far as him being bailed. This also excited the interest of the Newcastle Herald. On 1 October 2016 on page 3, that newspaper published this: Solicitor hands himself in after no-show A SOLICITOR who was allegedly based, stabbed and forced to inject the drug ice during a terrifying ordeal at Mayfield West last year has handed himself into police. Steven Connolly appeared in Newcastle District Court in handcuffs on Friday, more than two weeks after he was due to give evidence at the trial of his alleged kidnappers Gregory George Fernando, 28, and Carly Jayne Melmeth, 31. Judge Michael King issued an arrest warrant for Mr Connolly on September 12 – the first day of the trial – after he failed to answer a subpoena and appear in court. On that date, Crown prosecutor Brian Costello told Judge King that Mr Connolly was "reluctant to respond to phone calls" and all efforts to contact him on the morning of the trial had been unsuccessful. Judge King vacated the trial date on September 14 after rejecting an application to run the matter without Mr Connolly. Mr Fernando and Ms Melmeth had their matters mentioned in Newcastle District Court on Thursday, where Judge Roy Ellis set a fresh trial date of April 3, 2017. They have pleaded not guilty to wounding a person with intent to cause grievous bodily harm and aggravated kidnapping in company with intent. A few hours later Mr Connolly handed himself into Newcastle police station and the warrant was executed, the court heard. Mr Connolly, represented by barrister Phil Sharrock on Friday, appeared distressed in the court dock during his bail application before Judge Dina Yehia. "Originally, when he received the subpoena, he went to the officer in charge and told him the reasons why he didn't want to respond to it," Mr Sharrock said. "The main reason is that he is in fear of his life." He was granted strict conditional bail. Mr Costello 1. This is a convenient place in which to review Mr Costello's background and involvement in the matter. Mr Costello was first admitted to practice in 2004. That was in this State. In 2006, after practicing here as a solicitor, he went to the United Kingdom where he practiced as a barrister until "about 2012". I assume he practised in England and Wales, rather than in Scotland or Northern Ireland. Between 2012 and 2015 he practiced as a prosecutor in Western Australia. In September 2015 he accepted a posting as an acting Crown Prosecutor at Newcastle and then assumed a longer-term appointment as a Crown Prosecutor in Newcastle in 2016. 2. Mr Costello gave this evidence about his usual practice with respect to conferring with witness: In England it is considered unethical for a prosecutor to confer with the witness at all about evidence. Subsequently, when I went to Western Australia they had a very different approach. It was expected that you proof each of your witnesses and quite extensively. I leaned more towards the English view; I try to avoid discussing evidence in depth with witnesses. I don't really see it as my role, so I normally wouldn't hold extensive conferences with witnesses about their evidence prior to the trial. 1. He was briefed by the ODPP only after the plaintiff had been committed for trial in this Court and after she had been arraigned (T147.12). He was not briefed to find a bill. He could not recall when he read the brief, but it was clearly prior to the hearing scheduled to take place on 12 September 2016. After reading the brief, he formed a view about the matter. He gave this evidence: Q. Upon reading it, did you form a view as to whether the charges were proper ones to go to trial? A. On the evidence I'd read in the brief, and principally the statement of the alleged victim Mr Connolly, yes, I did. I accept that Mr Costello did not have an opportunity to confer with Connolly before 12 September 2016. That was Mr Costello's evidence at T147.38 and T148.10 and is consistent with the statement made by DSC Green on 14 September 2016 found at CB 448. No conference could be held by Mr Costello because Connolly had made himself unavailable. 1. Mr Costello's evidence confirmed what I recorded at [52] and [53] above: "I believe a determination was made that [Mr Connolly] was unavailable and the Crown looked like succeeding on the application to adduce the evidence of Mr Connolly's witness statement before the jury for that trial, but when the Crown had overcome… the threshold for establishing that Mr Connolly was unavailable, the defence intervened and themselves applied for an adjournment of the trial, … I think Mr Massey on behalf of Ms Melmeth indicated to the Court that they would also take steps to try to assist in securing the attendance of Mr Connolly, and [that] it was premature to admit his evidence by way of hearsay at that trial." 1. There was some interaction between Mr Costello and Connolly when Connolly appeared before Yehia DCJ after his arrest on the warrant issued by King DCJ. Mr Costello gave this evidence about that: A. … Mr Connolly was granted bail on some conditions by Judge Yehia. I don't believe I conferred with Mr Connolly at that stage, although I did seek to impress upon him whilst he was present in court the importance of attending at the future trial. I know I spoke at one stage to his family as well. His father and his sister, who is also a lawyer, came to the DPP office at one stage to discuss Mr Connolly's wellbeing, but I think the only time I spoke directly to Mr Connolly was in the lead up to the second trial, where there was a conference held with Mr Connolly. 1. The matter came before Ellis DCJ on 9 February 2017. Learned Counsel for the defendant referred to this as a "directions hearing" although exhibit A refers to it as a "mention". The purpose of the listing was to ascertain its readiness to proceed. It is clear that, at that time, Mr Costello had not conferred with Connolly. Mr Costello told his Honour this: The Crown is going to use its best endeavours to secure the attendance of the principal witness at trial, however, given his past performance in terms of attending court we're not in a position to guarantee that he will attend. We will use our best endeavours to secure his attendance. So subject to that issue arising again, the matter is as ready for trial as it can be. I can indicate that if the steps the Crown have taken to try and secure the attendance of the principal witness are unsuccessful, the Crown put the defence on notice on the last occasion that the application to adduce his evidence as maker unavailable hearsay will proceed again. His Honour then enquired as to the significance of Connolly as a witness at the trial. Mr Costello told his Honour that Connolly was the complainant but there was other evidence to corroborate much of what he said as to what happened to him. His Honour then remarked that there might be a significant issue as to whether both the accused were involved in the relevant action, which issue could not be advanced by the "circumstantial" evidence; a proposition with which Mr Costello agreed. His Honour wanted to list the matter prior to the trial date to see whether Connolly would be attending the trial, a proposal to which Mr Costello was happy to agree. Later this interchange between his Honour and Mr Costello occurred; HIS HONOUR: Well, your chances of getting the evidence in under 65 if he's deliberately not attending and he's the complainant are less than, for instance, if you simply don't know, you can't serve a witness or, you know, I mean the reality is his credit is going to be on the line one assumes and it's important that he be here because even with the circumstantial evidence that you've provided, that would provide proof that someone did something to him, but you need to prove who the someone was or that the someone's acting in concert. Bearing in mind that he got bail last time I'm not particularly sympathetic if he's going to be unco-operative for a second time around. Stuffing my list up twice is not the best way to win my favour. So I understand, I mean this is not a reflection on the Crown or the police. It's a reflection on the witness. COSTELLO: And they are very serious charges and the Crown does intend to pursue this matter until, if I can use perhaps an inapt term, the bitter end. There won't be any— HIS HONOUR: I'm used to the Crown being at the bitter end, Mr Costello. COSTELLO: If the witness proves to be unco-operative, your Honour, the Crown wouldn't regard that, I anticipate, as sufficient grounds to consider taking no further proceedings in this matter. The Crown intends to use every available opportunity to bring this matter to trial. His Honour's reference to "stuffing my list up twice" is an allusion to his Honour's role as the Senior Resident Judge and the Criminal List Judge at Newcastle. 1. The exchange which I just quoted was the subject of cross-examination of Mr Costello. Counsel for the plaintiff suggested that in prosecuting the plaintiff, Mr Costello was trying to get a result (a conviction) as opposed to bringing the plaintiff to justice. Mr Costello disagreed with that proposition. This evidence was then given: Q. Well, what did you mean by pursuing the charges until the bitter end? A. So what I meant by that was during the first trial, we'd had tremendous difficulty obviously securing the attendance of Mr Connolly. The information we had received through Detective Green principally was that Mr Connolly was in fear for his life. He believed that a contract had been taken out on his life if he attended court, and he was in fear for his life if he attended court. ……………… Q. Okay, I'll let you finish. Apologies. A. So that's what happened during the first trial. Now, my understanding was that Mr Connolly had come to know Ms Melmeth through representing her former partner, or perhaps existing partner of hers, on a criminal matter, and my recollection is that that former partner was a member of an outlaw motorcycle group. They are notorious organisations known for intimidating witnesses and discouraging people from attending court. So the fact that Mr Connolly was apparently in fear for his life and believed that if he attended court some harm may come to him, seemed to have potentially a legitimate foundation because apparently that's how he came to know Ms Melmeth in the first place, by being the criminal solicitor involved in representing her partner. Now, if threats had been made to Mr Connolly not to attend the court, then the position I took as the Crown prosecutor was that the justice system was required to make sure that threats of that nature weren't rewarded by the Crown simply discontinuing proceedings if it looked difficult to carry them out. And the message I was trying to convey in my discussion with his Honour Judge Ellis in the presence of, from recollection, Ms Melmeth was that if there were endeavours made to interfere with Mr Connolly's attendance at court, then the Crown was not simply going to roll over and discontinue proceedings and let people who choose to interfere with the justice system secure their objectives by the Crown simply giving up, because it looked a bit too hard. That's why I chose or used that term, and as I said at the time, I didn't think it was a particularly eloquent way of expressing it, but that was the message I was endeavouring to convey, that every step was going to be taken to ensure that this prosecution continued until some final judicial determination in circumstances where there had apparently been threats put on the principal Crown witness' life. Q. Did you inform Judge Ellis of the alleged threats that had been made? A. I'm not sure if I did, but I believe that this would have been raised before his Honour Judge King, although, I can't specifically recall precisely what was said. Q. See, because at about point 15 on page 899, you mentioned to Judge Ellis, if the witness proves to be uncooperative, the Crown wouldn't regard that as sufficient grounds to consider taking no further proceedings in the matter. Correct? A. Yes. Mr Connolly ran from a house with blood coming out of his head, ligature marks on his wrists, and a number of wounds. That was captured on closed circuit television, as was his arrival at that house. He provided a witness statement the following day to the police that disclosed incredibly serious offending, including suggestions that his life, if he didn't escape there, may have been brought to an end. Under the circumstances, with such serious offending being disclosed, my view is the Crown needs to take a fairly robust approach in relation to prosecuting matters of that nature, because we have a responsibility to the community at large to ensure that serious criminal offences are prosecuted. The factual background to Connolly's position to which Mr Costello's evidence adverted, is consistent with the evidence I referred to in [54] above. I have no hesitation whatever in accepting the evidence of Mr Costello which I have just quoted. It is wholly consistent with his vocation as a Crown Prosecutor. 1. According to exhibit A there were further mentions of this matter before, I infer, Ellis DCJ on 11, 23 and 30 March 2017 but the listing on 3 April 2017 was not vacated. Mr Costello confers with Connolly 1. Mr Costello had a conference with Connolly prior to 3 April 2017 but the evidence does not disclose exactly when. Connolly took to that conference as a support person another lawyer who was a member of the Australian Lawyers Surfing Association. In chief, Mr Costello gave this evidence about that conference: During that conference, I impressed upon Mr Connolly that the Crown was not to simply discontinue proceedings if he didn't want to attend court. There were serious criminal offences disclosed in his statement and we intended to proceed with prosecuting those criminal offences, because the community interest in prosecuting those serious matters justified the matter continuing irrespective of his views about wanting to give evidence or not. He understood that and was prepared to attend court to give evidence. I think I may have asked him one detail in relation to his statement, just to confirm that he looked likely to give evidence in a Court to his statement, which was in relation to just the commencement of the matter. I believe I may have asked him about locking of the doors, and he told me in that conference it was Ms Melmeth who locked the doors, and that's from recollection the extent of what I asked him about during that conference as far as his evidence. That evidence was supplemented by some evidence he gave in cross-examination: …in relation to the conference I did have with Mr Connolly, having not turned up at the first trial I was concerned when he came to the second trial whether or not, for whatever reason, his evidence may not be in accordance with his statement, and in particular may not be accordance with his statement in relation to Ms Melmeth. I do recall asking Mr Connolly to try to determine whether or not we should expect his evidence was going to depart significantly from his statement. The question about who locked the doors, because I thought that would be an indication if he was going to give evidence in accordance with his statement or not, and my recollection - which if Mr Henschel who was with me in the conference took notes - is that I asked that question and his answer to that question was that it was Carly who locked the doors. I didn't take it beyond that because, as I said, my approach to speaking to witnesses about their evidence is to avoid doing it as much as possible, but I thought it was important we determined at the outset whether or not we could expect Mr Connolly to give evidence in accordance with his statement, and when he was asked about that aspect my clear recollection was that he indicated Ms Melmeth was the one who locked the doors. I didn't take it beyond that because that to me was an indication that the rest of his evidence would substantially concur with his statement. 1. This conference was also the subject of cross-examination. The initial cross-examination is this: Q. Do you accept that it would have been a good idea to confer with Mr Costello? A. I'm sorry, Mr Connolly. Q. Sorry, I apologise, Mr Connolly. A. Look, reasonable minds might differ about this but having practised in both jurisdictions, and I know historically crown prosecutors were reluctant to confer with witnesses. My view is that it is not really the prosecution - a crown prosecutor's role to start making assessments about evidence and they'd be making further enquiries during witness conferences with the witness about their evidence and it creates problems such as disclosure issues, providing letters to defence about what was said at the conference. It's much more a role for the police to confer with witnesses about evidence and taking sworn police statements in part so defence have a sworn police statement in the witness's words with the witness's signature to cross-examine, if their evidence changes, rather than the unsatisfactory situation where that's happened in a conference, and it has to be done by way of a disclosure. So my general view is that if something significant about the evidence needs to be discussed with a witness, it is much better if the police do that than if the Crown does that. Q. But if you conferred with Mr Connolly, you could work out whether he'd come up to proof or not, correct? A. If I had conferred with Mr Connolly extensively about his evidence, and I saw that as a proper role for the Crown, then potentially yes. The further cross-examination concerned the ODPP Guidelines: Q. Mr Costello, you're familiar with the prosecution guidelines? A. I am, yes. Q. In particular, guideline 19 about conferences? A. I know there's a guideline about conferences, yes. The precise terms of it - is that the one that sets out details about prosecution disclosure when conferences have occurred? Q. Yes. Can I just read it out to you and you can just tell us if you agree or disagree that this is the present guideline 19? Under the heading Conferences, guideline 19, "Due to the requirements of pre-trial disclosure, and especially where complainants are not required for committal hearings, there is an obligation upon prosecutors to confer with witnesses at the earliest available opportunity before all court hearings." A. Yes, I accept that that's present. Q. Was that the guideline that was present at the time that the brief was delivered to you in this particular matter? A. I expect it would have been. Q. So, do you accept that, whilst the norm in the UK was not to conference witnesses, here the expectation is that conferences shall occur? A. Well, I think it probably depends on the interpretation you place on that guideline. My understanding of that guideline is that one of the expectations, particularly in circumstances where the witnesses may not have met the prosecution team because committal proceedings for example have not taken place, is that there is an opportunity to call witnesses, particularly complainants, to meet the people who will be running their case; to become familiar with those people so that it doesn't come as a surprise when we first stand up and begin asking them questions. I'm not sure the guideline extends to placing an obligation on us as prosecutors to discuss in detail the evidence of the witness with them… 1. Whilst minds may differ as to whether the English and Welsh approach or the New South Wales approach to conferences in criminal prosecutions is the better one, Mr Costello's approach was based on an acceptable principle, based on ethics: the approach of the Crown is to bring an accused to justice, not to obtain a conviction. Conferring at length with a witness might be seen as "coaching" or "schooling" or reinforcing in a witness' mind what are thought to be (by the interviewer) the more significant aspects of the witness' evidence. I see nothing wrong in Mr Costello's approach to the subject of conferring with Connolly. Furthermore, Mr Costello was entitled to consider these matters: 1. Connolly had been trained as a lawyer, and admitted to practice. His practicing certificate may have been suspended (see [6] above) but he was still on the Roll of the Supreme Court of this State; 2. Connolly had practiced criminal law; 3. Connolly would have been provided with a copy of the Statement of 31 May 2015 and was capable of reading it and refreshing his memory; 4. Connolly successfully answered the question put to him by Mr Costello to test his reliability. How the plaintiff was alleged to be involved in the event 1. It is clear from Connolly's statement of 31 May 2015 that the actual wounding of Connolly and the principal promoter of the kidnapping was Fernando. However, the plaintiff had been charged by DSC Green on 30 May 2015, prior to the taking of Connolly's statement. Furthermore, DSC Green had interviews with Connolly both at the service station and at John Hunter Hospital before completing the COPS Event and compiling the Facts Sheet and generating the CAN. When one reads the COPS Event and the Facts Sheet it is clear that what is contained in the statement is consistent with what Connolly told DSC Green in the interviews on 30 May. 2. The Facts Sheet at CB 55 says this: "Police will rely on the fact that the Accused was complicit to the offence, present, willing and able to assist the Co-Accused. The Accused did not offer assistance to the victim and was present for the offence. The items used and present in the offence were secreted in the premise of the Accused immediately after the offence with the Accused and the Co-Accused being the only persons present." That is consistent with this evidence given by DSC Green in cross-examination at T125.10. DSC Green was then cross-examined about both a joint criminal enterprise and an extended joint criminal enterprise, but, as I understand his evidence, he relied principally on the concept of principal in the second degree. 1. In December 2010, the Law Reform Commission published Report 129 concerning "Complicity". An Executive summary on p. xi commences thus: This Report reviews the principles relating to complicity by which a person (a secondary offender) may be found liable for offences committed by another (the primary offender). In NSW, these principles are currently governed by the common law. The principles considered include those that attach secondary or derivative liability to accessories before the fact, principals in the second degree, parties to a joint criminal enterprise, and parties to an extended joint criminal enterprise. Also included in this review are the related inchoate offences of conspiracy and incitement which can fix primary liability on people for actions which, if carried to completion, would potentially involve them in some of the forms of secondary liability. The offence of being an accessory after the fact is also considered, as it involves assistance offered to the primary offender after the commission of a crime. Finally, constructive (or felony) murder under the Crimes Act 1900 (NSW) is also considered, in so far as it can attach secondary liability to a person for a killing committed by another. The inconsistent doctrinal bases for these various heads of liability, and the gaps or uncertainties in the common law, have left the law in an unsatisfactory state. On p. xii the Report says this: In relation to the liability of accessories before the fact and principals in the second degree, we have replaced the archaic terms "aiding", "abetting", "counselling" and "procuring" with the plain English terms "encouraging" and "assisting". A person will, therefore, be liable for committing an offence where he or she assists or encourages another person to commit that offence and the person commits it. I endeavoured to have Counsel in this matter eschew using the words "aider and abettor" to describe a principal in the second degree, but with little success. The concepts of aiding and abetting also apply to an accessory before the fact, and that can lead to confusion. 1. The Report provides an overview of the current law. At [2.6] on p 14, this definition is provided: Principal in the second degree 2.6 A principal in the second degree (sometimes referred to as an aider or abettor or as an accessory at the fact) is one who is present, aiding and abetting the person who commits the offence, that is one who intentionally aids or gives encouragement to that person, but who does not commit the physical acts constituting the actus reus of the offence (Osland v The Queen (1998) 197 CLR 316 [71]; R v Phan (2001) 53 NSWLR 480 [69]; Giorgianni v The Queen (1985) 156 CLR 473, 493). Mere presence at the scene of the offence will not be enough, although the requirement of presence is met when the principal in the second degree is within the sight and sound of the commission of the offence or in the near vicinity, and when it is shown that he or she was ready and able to come to the assistance of the principal in the first degree, if and when required (R v Dunn (1930) 30 SR (NSW) 210, 211-212; R v Doorey [1970] 3 NSWR 351, 354. The elasticity of the concept of presence was noted in Likiardopoulos v The Queen [2010] VSCA 344 [73]). 1. Mr Costello approached the matter somewhat differently. In chief he said: Q. You've referred to I think the basis of liability, can you just identify the basis on which you opened the case in terms of complicity? A. So I relied on two legal formulations for Ms Melmeth's liability. The first of those was a joint criminal enterprise basis requiring an agreement effectively between Ms Melmeth and Mr Fernando to engage in criminal activity as far as Mr Connolly. And also the Crown relied on an extended joint criminal enterprise basis such that Ms Melmeth could be liable for acts of Mr Fernando if she contemplated that those acts may occur rather than actually agreed. But in addition I opened and the Crown relied on an alternative legal formulation which was a principal in the second degree an aider and abetter case, in that even if she hadn't reached the specific agreement with Mr Fernando in relation to criminal activity then she nevertheless would be guilty as an aider and abetter based on Mr Fernando being the principal having committed the offence, Ms Melmeth being present at the scene, Ms Melmeth having acknowledge of the essential facts that made up the offending and with that knowledge Ms Melmeth encouraging or assisting Mr Fernando in carrying out the offences. Q. And you considered those different bases of availability to be available on the face of the brief? A. Most definitely, yes. He was cross-examined at some length about the issue of complicity, but that was principally based on how he addressed the jury in his closing submission, which was after all the evidence had been called, and after the Crown had decided not to take any further proceedings against the plaintiff on the wounding charge. The Trial 1. The trial did commence on Monday 3 April 2017. A number of pre-trial matters were raised, which it is unnecessary to consider. The jury was empanelled at 1:11pm. The luncheon adjournment was between 1:15pm and 2:15pm. However, the resumption was delayed because his Honour had to hear a bail application in another matter. His Honour's opening remarks are recorded between CB 927 and CB 936. At the foot of that last page commences the transcript of Mr Costello's opening address. That transcript ends at CB 945. Mr Fitzgerald (for Fernando) then opened his client's case to the jury. The gist of that was this: My client, Mr Fernando, says that the visit started quite congenially, quite friendly, but in the course of the afternoon and after some partying that included drug taking by Mr Connolly, Mr Connolly became hostile. Steven Connolly was argumentative, turning his hostility against Gregory Fernando. Perhaps, you may find from the evidence, in some sort of jealousy. That's a matter for you in the course of the evidence. Connolly became violent and physically attacked my client in a fight with him. In the altercation, in the fist fight, Mr Fernando got the better of Mr Connolly. Mr Connolly was injured but he seemed to calm down. But that wasn't to be the end of it. Following on this earlier drug taking, if that's the cause of it, the evidence may point you to it, Mr Connolly became inflamed again against my client. My learned friend talked to you about the cycle of events of that day. The cycle of events of that day is the agitation of Mr Connolly, the calmness, the agitation again. Look to it in the evidence. Shortly, inexplicably, Connolly again attacked my client, this time threatening Mr Fernando with a kitchen knife. The wrestled violently. Mr Connolly was disarmed but not until he had suffered injuries in that wrestling by the knife. Mr Connolly's attack upon Mr Fernando was out of all proportion to that afternoon. Gregory Fernando restrained Steven Connolly and tied him up. He admits that. He said he'll tell you or you'll hear in the evidence he was tied up to put an end to Connolly's rampage. The evidence will point to that. My client bound a wound on Mr Connolly's arm with a bandage that was from the kitchen cupboard. My client then feigned, pretended, to call the police and it's at that time, perhaps the evidence may show you, Mr Connolly hearing that, that Mr Connolly untied himself from what was a clumsy tying, obviously and made his way from the premises. He immediately made what we say was a wild accusation against Ms Melmeth and against Mr Fernando, an accusation of violent attacks, of death threats, of threatened sexual assault and later of forced drug taking, of forced drug taking. We expect the evidence will show Steven Connolly tried to cover his own erratic and violent behaviour by a bizarre and false accusations against these two accused. Mr Massey (for the plaintiff) then spoke very briefly, pointing out that the Crown had to prove more than that she was merely present at the scene and exhorted the jury to scrutinise Connolly's evidence very carefully. No doubt, Mr Massey anticipated that his Honour would eventually give a "Murray direction", a direction flowing from the dictum of Lee J in R v Murray (1987) 11 NSWLR 12 at 19E. It was then 3:50pm and the jury was sent home until the following day. 1. I have not been provided with a full transcript of the trial. What I have been provided with can be tabulated thus: Day Date Provided 2 04/04/15 Extract of evidence of Connolly, commencing 12:41pm - Only 10 pages of actual evidence. 3 05/04/15 Extract of evidence of Connolly commencing 10:13am – semble, a full day. 4 06/04/15 Extract of evidence of Connolly, commencing 2:29pm. His Honour's morning until 1:15pm was occupied by his Honour's list management duty (see CB 1075.18 and CB 1095.03) and by other matters after 2:00pm. 5 07/04/15 Extract of evidence by Connolly, commencing 9:45am concluding with re-examination (17 pages only). 6 10/04/15 Semble full transcript. Evidence of: Ms Alexander Bate, forensic biologist – Paramedic O'Connor – SC Wynne (Dog Squad) – SC Rees – DSC Green (evidence in chief only) 7 11/04/15 DSC Green (further evidence in chief and cross-examination) – Close of Crown Case – Accused Fernando – Crown Closing Submissions 8 12/04/15 Summing up – Jury retired at 3:10pm – Jury returned at 4:32pm to obtain further direction re detention and then sent home. 9 13/04/15 Submissions in absence of jury – Jury returned at 11:33am for further direction re detention – Jury returns with verdicts at 12:49pm. It is clear that I have not been provided with the evidence of a medical practitioner who gave evidence by AVL from Queensland (? Dr Alldis) and from SC Dahl and SOCO Peno ("the forensic science people attached to the police") (CB 1389) nor the addresses of Counsel for each of the plaintiff and Fernando. I have also not been provided with all the exhibits. Evidence of Connolly – Day 2 of Trial 1. For the purposes of this case, however, it is the evidence of Connolly which is crucial, because it is the non-acceptance of that evidence by the jury which appears to have led to the plaintiff's acquittal. It is, accordingly necessary to consider that evidence to show that Connolly did not stand to proof of his statement of 31 May 2015. 2. Connolly's evidence on day 2 was affected by the physical presentation. In the afternoon, his recollection of the sequence of events became very vague. Mr Costello sought and obtained a direction under the Evidence Act 1995, section 32 for Connolly to refresh his memory from pars [6] to [8] of his statement. Connolly's evidence then continued but very soon he said: I'm very tired and I did read 6, 7 and 8, I can't easily recall, I fell asleep during the break when we were on mute and I'm just, I'm feeling quite tired at the moment." A little later he said, "I'm very tired". There was then a further application to his Honour which led to Connolly's further evidence being adjourned to day 3 and the jury being sent home for the rest of the day. On that day this evidence was adduced by Mr Fitzgerald: "Q. Do you have a clear memory of yesterday, of this courthouse? A. Yes. …………………….. Q. You were unwell yesterday, were you? A. I was very tired. Q. Had you been using drugs prior to attending court yesterday? A. No." 1. On this issue, Mr Costello gave this evidence: Q. Were there any issues with respect to how Mr Connolly gave his evidence that impacted on your view? A. … Mr Connolly on the first day he attended court to give evidence was in an unsatisfactory state to give evidence. He was plainly unable to maintain focus and attention. He was - he seemed to have nodded off during one point when we'd taken a court break in the afternoon. I believe he had a support person on that day which was the gentleman from the Australian Lawyers Surfing Association but it became apparent that Mr Connolly was not really in a fit state on the first afternoon to continue with his evidence and we took an adjournment. Overnight, or the following morning, Mr Connolly had indicated to me that he had taken some I think drugs on the weekend and that he had been suffering the after-affects on that afternoon. And in accordance with the Crown's duty of disclosure I disclosed that to both of the defence counsel who were representing each of Ms Melmeth and Mr Fernando because it seemed to me that that was an area of cross-examination that they may wish to pursue with Mr Connolly. They didn't in the end but that was disclosed and it was raised in open court but not before the jury. The disclosure made by Mr Costello to Counsel for the accused is, in my view, inconsistent with the allegation of the plaintiff of his having an animus against her. 1. The evidence given by Connolly on day 2 was quite unhelpful. He was unable to remember whether he entered the plaintiff's house by the backdoor or the front door. He initially could not recall what he did with the UDL cans but then said he would have either placed them on the (kitchen) bench or given them to the plaintiff. He could not remember exactly when he arrived and said "around lunch time" and "about midday". The CCTV footage from the service station was then played to him. He recognised the car he arrived in, and said he believed it belonged to a family member, but did not identify his mother as its owner. 2. The luncheon adjournment then intervened. After lunch, he recalled a male arriving, but he could not recall how long after he arrived, but shortly after said: I thought 10 to 15 minutes, it wasn't long, it was some – only a very short time." When asked whether he saw or heard anything he said, "I don't recall whether it was a door opening, or someone saying something, I don't recall, but I remember someone coming into the house." When asked where the plaintiff was at this time, he said, "…I'm not sure if she went and answered the door, or if the guy just walked in, I can't remember, but he, I'm not sure how he entered." The statement says, "I heard a knock on the front door. I sat there while Carly walked away to answer the front door." 1. When asked what the man did when he came into the kitchen/dining area where Connolly was, Connolly said, "I remember he just stole one of my cigarettes." He denied that the man said anything to him, or he to the man. When asked about his facial expression, he said the man "looked angry". The plaintiff's facial expression was "surprised". The man then took his cigarette lighter, lit up and placed the lighter "on the table". When asked about what he said, Connolly replied, "I'm not sure if I said, "you can have one", or if he said "I'm having one." Something along those lines, or some exchange about the cigarette." The statement says, "she [the plaintiff] came back into the kitchen and she had a strange grin on her face. The male also was grinning…Carly said, "This is Greg". I offered my hand to shake his and he refused. He said, "You putrid cunt." He picked up my cigarettes from the table without my permission and said, "I'll have one of these." I said, "You can have one but you should ask for it." He said, "Well, why don't we go out the back." I said, "I don't want to fight you." 1. The next question asked after the answer I last quoted implies that the conversation about "why don't we go out the back" was only after Fernando had smoked the cigarette. The statement which I just quoted implies greater immediacy, but if there be any mistake it is in the question, rather than the answer. When asked about his response to the implied invitation to fight, Connolly said, initially, "I just looked at him." but a little later said, "I just ignored it, because I didn't even know who he was." However, two answers earlier he said that the man was "Greg" but he could not recall whether he introduced himself or the plaintiff did. 2. It was then that Connolly's evidence went quite awry. His last answer continued thus, and his further evidence was this: And then, I think - I can't really recall - I think he might have just taken, might have taken a swing at me and punched me, I think, maybe. I can't recall the sequence of events precisely. Q. Okay, well as best as you can do it— A. I recall that he punched me a couple of times, I think. And then I think I realised that he'd locked the front door when he came in, and I think he may have gone and locked the back door, and then I realised all the doors were locked, so, sort of, the fight that he sort of invited me to was going to happen inside rather than outside. I didn't know, didn't even know who he was, and what was his anger at.. Q. Just in relation to the doors, you mentioned the doors being locked. A. Yes. Q. Can you remember how that happened? A. I don't - well, by one of those, by one of the two others there locking them, I can't recall who that was. I certainly didn't lock them. Q. Do you remember what point - you mentioned being punched. Do you remember what point that happened? A. I think, I really don't know, I think he, the sequence of events was that I was sort of assaulted in a number of ways over a period of time, but I remember it started off with punches, and then a gun was there, that I think was, I was belted over the head with that, until it broke, and I was stabbed at various times, I'm not sure if it, I know that, I think it was punches come before the stab, and I can't, and I know that essentially the gun was broken on my head. Q. How clear is your recollection of this incident? A. It's not very - it's not the best. It's not something that I like to recall. But what did occur, I remember that it did occur, but I just, I find it difficult to 50 describe precisely. It was then that Mr Costello made his application under section 32. The significant inconsistency is "about how the doors came to be locked. It was about the locking of the doors of the plaintiff's house that Mr Costello put his "test" question to Connolly in conference (see [64] above). This evidence is inconsistent with both Connolly's statement and what he told Mr Costello in conference and strikes at a substantial plank of the Crown case against the plaintiff. Evidence of Connolly – Day 3 1. On this day Connolly recalled ("I think") that the plaintiff introduced Fernando to him as "Greg" when he walked into the room (kitchen/dining room) where Connolly was. He could remember offering to shake Fernando's hand and Fernando's body language was "angry". In response to Fernando's taking a cigarette, Connolly repeated what he said on Day 2, "you can have one". There was then the invitation to go outside, which Connolly inferred was an invitation to fight. He said that he responded "I don't want to fight you." When shown a photograph he could recall entering the house by the back door, something he could not remember doing on Day 2. When shown another photograph he recalled that he was sitting on or standing near one of the two stools on the dining room side of the kitchen bench. When asked what was Fernando's response to his not wishing to fight he said: "I think he called me… a putrid dog, I think he may have… punched me in the face." He interrupted the next question to say: "It may not have been, I think what he might have asked first is he's asked Carly to make sure the doors are locked." That was immediately followed by this exchange: "Q. So after the conversation about going out the back… what's your best recollection of the next thing that happened?" A. I think he may have – Carly may have asked him "what did you get?" Fernando's response to the plaintiff's question was answered: "I think he said 'two-points', or something like that, words of that effect." 1. His evidence then commenced to describe the process that led to the administration of the drugs. However, when Mr Costello asked a question designed to elicit for Connolly the fact that the plaintiff and Fernando, who were arguing about the plaintiff's taking the drug and, according to the statement "they walked towards the rear room of the house" Connolly said: "I think Greg may have said to Carly, "Make sure the doors are locked" and Carly may have gone and locked the doors." The jury would understand the direction to lock the doors as being to prevent anybody observing or interrupting the administration of the drug, rather than being a part of the kidnapping process. The evidence then continued: Q. Did everyone remain there or did anyone go anywhere else? A. I think Greg may have said to Carly "Make sure the doors are locked" and Carly may have gone and locked the doors. Q. You say you think that may have happened, how clear is your recollection of that? A. My recollection wasn't clear who told who to lock the doors, but I know that one of them said to make sure the doors were locked, and one of them went and locked the doors. I believe that Greg told Carly to go and lock the doors, and I think Carly did so. Q. Could you hear, what could you hear when that happened? A. I heard the door, I heard one door close and being locked. Q. And did you see where in the house that that person went? A. Well the person went to the front door, which was the door that I didn't enter, but Greg had entered, and I think that that door was deadlocked, and then they came back, and there was another door that was to the right of the kitchen bench, which was the side door of the house, and I think that that was locked as well, so they were the two entry and exit points in the house and they were both then, as I understood, locked. Photograph 11 is a "view west showing the internal locks on the front door" of the plaintiff's house. There is a safety chain but no deadlock. Ellis DCJ pointed this out to the jury in the summing up but it is highly likely that that was also a topic in an address by at least one Counsel for the accused (see CB 1428 and 1429). 1. Connolly's evidence then reverted to the topic of the administration of drugs. He recalled the argument between the plaintiff and Fernando about whether the plaintiff was to have any of the drug. He also remembered his being required by Fernando to administer the drug to himself. He was then asked if anyone had one of the needles and he said that Fernando had one and that the plaintiff had one, which he administered to her because he was told to. Fernando self-administered the drug. This evidence was then given: Q. How did Carly respond after you'd injected her with the needle? A. She said she felt sick. Q. What happened after she said she felt sick? A. Greg punched me to the face, once or twice, and said words to the effect You putrid dog, you made her feel sick". Q. Can you remember, how clearly can you remember what happened at that point? A. Reasonably clear, because I recall Greg saying to me "You're going to have one", and I then, I think I, I believe, I was punched to the face then, from, I believe, I remember Greg punching me to the face a couple of times, in a way trying to blame me for Carly feeling sick. Q. Now, you mentioned Greg having one. What's your recollection in relation to that, one of the needles? A. I can't recall whether he had one or not actually. I didn't - I know that Carly did have one and I know that I was made to have one. Q. How were you made to have one? If you can describe that? A. I remember Greg, after punching me, telling me, "You're going to have it," and I picked up the needle and put it into my arm but I didn't find a vein, and Greg got more angry and I think punched me and may have punched me to the face and said, "You're going to have it or, if you don't, I'm going to give it to you." Q. What happened after that? A. I then realised that I had no option but to have what was in the contents of the needle. So I proceeded to use that needle. When I did so, I secretly secreted much of what was in the needle and spilt that while I took the needle to my arm, and then I put the needle in my vein and drew back and put a small amount of whatever the liquid was into my vein. Q. After you'd done that, did you feel any effect from that? A. I didn't really feel any effect, no. Q. Up until this point, you've described punching and you've described some verbal discussions with Greg. Was there anything else that had happened of a physical nature up until this point? A. Nothing that I can remember, no. 1. Connolly was then permitted to refresh his memory from [8] of his statement. He then gave evidence about Fernando's taking a knife from the kitchen drawer and placing that knife under his neck and telling Connolly that he was going to have "one" (a needle). When asked what happened after he had injected himself, Connolly said: "I believe Carly said that she felt sick and Greg… picked up the knife… and said to me that I've made her feel sick and he may have come at me with the knife." He went on to give evidence of Fernando's holding the knife in his hand and making "haymaker sort of" punches at him, Connolly was able to block many of them but he missed a "few", leading to stabbing of the musculature of his right upper arm. Fernando's punches had been directed towards his torso. This evidence was then given: Q. Do you know where Ms Melmeth was at that point when this was occurring? A. I think she was - she may have been - I don't think she - I think she may have walked out of the room, the kitchen area to the dining room area, or maybe to the room just adjacent to the kitchen area. She sort of was wandering around, but I had more focus was on the person with the knife 5 coming at me than what Carly was doing at the time. It appears to me to be likely that Mr Costello asked the question I have just quoted to try to make Connolly recall that, according to his statement, she was, whilst he was being stabbed initially, off locking the doors at Fernando's request/direction. He did so to no avail. Photographs were then marked to indicate where the stabbing occurred in the house, and there were further questions about the injuries caused by the stabbings. 1. At CB 990.30, Mr Costello made a further application under section 32, which his Honour allowed. Connolly was directed to [10] of his statement. He gave evidence consistent with the exchange with Fernando recorded in the first two sentences of his statement. This evidence was then given: Q. Was anyone else present at that point in the room? A. Carly Melmeth was in the vicinity not immediate vicinity but in the - while this was happening I think Carly had been walking around in the, near the, in the photo she moved around the house into the room next door to the room where it was happening and out into another room umm and I believe it, just was moving around but as I said I was keeping my eyes more on the attack with the knife but I recall, I recall that Greg had told me that it was only a little cut In short, his evidence is that she was "wandering around the house", she was elsewhere. However, he was then asked if he could recall any further conversation and he recalled the plaintiff saying, "It's time to tell the truth" and "What are you doing to my head." He then gave evidence consistent with the rest of [10] of his statement. He also explained why he believed that he was unable to flee safely from the house. 1. Connolly could recall a gap before a further attack upon him. He could remember the phone ringing and the plaintiff's taking the call. He also recalled Fernando's telling him and gesturing to him to keep quiet, but not the threat recorded at the end of [11] of his statement. That led to a further application under section 32 which, like the earlier one, was opposed, but allowed. Having refreshed his memory, Connolly recalled the threat. From CB994 to CB996, Connolly gave evidence substantially to the effect of, albeit not in the same order as [12] to [14] of his statement. At the foot of CB 996 Connolly said this: "I think Greg told Carly… to go and empty the boot, and he told me, he said words to the effect of, 'we're going to take you to the wetlands and cut you to pieces.'" That appears to be a conflation of "we're going to take you out to the bush" in [14] of the statement and "[We're] going to cut you up in bits" in [19] of the statement. Mr Costello asked Connolly where the plaintiff was when Fernando said that and he replied: "I think she sort if walked out of the room. She was never really in the room when I was getting stabbed, she was never really in the room, she was walking between rooms, away from what was happening." That appears to be a rather unresponsive attempt to minimise the plaintiff's role, if his statement be correct. 1. After another question, Mr Costello asked what happened next, after the mention of going to the wetlands. Part of the response to that was: "And I remember Greg pulling some rope, or Carly handing him some rope, I can't recall, but Greg started to tie… me up." In [19] of the statement, there is no equivocation as to who brought the rope – it was the plaintiff. However, Connolly had strayed from the order of events contained in his statement. Seeking to direct him back to that sequence, Mr Costello asked Connolly whether any object, other than a knife, was used. That led to his remembering the use of "a gun" being used like a bat to strike his head, "a number of times". That was referred to in [16] of the statement. When asked how Fernando came to have the gun, he said: "I can't recall whether he picked it up or if Carly handed it to him, I can't recall". That is completely inconsistent with what Connolly said in [15] of his statement, that Fernando needed something like a bat to knock Connolly out and that the plaintiff went to the bookshelf and obtained one of the old guns and handed it to Fernando. This appears to be another attempt to minimise the plaintiff's role, if the statement be accurate. 1. This led to a further application of the Crown under section 32 and his Honour granted leave to refresh Connolly's memory by having regard to [15]. That led to this rather unconvincing evidence: Q. So having refreshed your memory from your statement, what's your best recollection of what happened with this other object? A. There was a comment made by Greg that I have to knock him out and he grabbed the gun sort of thing and proceeded to belt me over the head with it. Q. How did he come to have the gun? A. It was - I think it was - I think - he said, "I need a bat or something to knock him out", and I think Carly may have handed him whatever it was, but it wasn't, it was a gun that he then used to belt me with sort of like a baseball bat on the head. Q. You say, "I think", can you actually remember? A. Yeah, I do remember that the look on Greg's face because his punches didn't knock me out, was that he was frustrated and he called out that he 30 needs a bat or something to knock me out. Q. So how did he end up having the item he used to hit you with at that point? A. I think he was handed - I think Carly handed it to him from the book shelf. Q. What was it? A. It was a gun. It was an old looking gun. I wasn't - it was an old gun, a wooden type thing with a metal - there was, some part of it was metal and some part was wood. Q. Now you've said, "I think Carly handed it to him", can you remember exactly what happened in relation to that old gun? A. I know that Greg made a - Greg said that he needed something to knock me out with and I can't recall if he grabbed it from the - if he picked it up there or if Carly handed it to him, I can't recall. That led to a further application under section 32, but on this occasion it was argued in the absence of the jury. The only earlier application so considered was the first. After repeated exchanges his Honour suggested a certain approach to adducing Connolly's evidence, which Mr Costello was happy to adopt and to which defence Counsel agreed. Eventually this evidence was given: Q. Now, in relation to that gun, how did it get from the top of the book case into Greg's hand? A. I think Greg called out that, "I need a bat to knock him out", and I recall, I think Carly might have handed him the, Carly handed him the Pirates of Penzance baseball bat gun. Q. Now, you've used the term "might" in that answer. A. Did. Did so, hand that to him. That was reinforced by the question and answer that commence at CB 1012.04 1. When asked what happened next, Connolly volunteered information not in the order contained in the statement: Q. What happened next? A. I remember Greg saying something, words to the effect that, to Carly, "Can you get a sheet," or, "Can you get a towel, because I'm going to slit his throat". He recalled the plaintiff providing a sheet which was thrown to him and which he placed on the ground, being told to clean up the blood on the kitchen floor. When asked what happened after that he said that Fernando "got some rope and started to tie me up." A little later he recalled Fernando throwing him a towel, telling him to clean up the blood on the floor. According to [17] of his statement it was at this point that reference was made to slitting his throat. He then indicated that at this point he was stabbed in his left elbow, but [18] of the statement refers to the upper right arm. Connolly was then asked when it was in the sequence of events that his left elbow was injured and he said that he thought it was the "last stab", but that does not accord with his statement. 1. Mr Costello then sought to adduce in evidence, what is contained in [19] of the statement. This evidence was given: Q. What was Greg wearing during the course of this incident, do you recall? A. I recall him wearing a white t-shirt and he was angry I think because he got my blood on his t-shirt during the incident and I think he may have changed his t-shirt or something around that time, but I think it might have been, I can't remember, but I think it said "Nike just to it", 'cause I remember reading the "Just do it" and I just thought, "You cunt", when it said, "Just do it", so I think it was a Nike t-shirt that said "Just do it" or it might have said, "Bad boy" or something of the like, but I remember reading that, it was a white t-shirt. Q. That was on the white t-shirt? A. Yes. Q. You mentioned him changing t-shirts at some point? A. Changed t-shirts I think yeah. Q. Why did he change t-shirts? Did you know why that happened? A. He changed shirts because he had my blood all over his shirt. Q. After he changed t-shirts, do you remember what he changed into? A. I don't recall. Another shirt I suppose. Q. Do you remember what colour the other shirt was? A. It may have been dark. I don't think it was white, maybe it was red, I don't know. I think it might have been red or it might have been black, I'm not - I can't recall. I wasn't trying to remember the colour of his shirts at the time. Q. After he changed shirts, do you remember if anything was said around that point? A. I recall him at one point saying to me, and this really sort of infuriated me, he goes, "Before I slit your throat you're going to suck me off'. Q. Do you remember where that happened in the sequence of events? A. That happened when I was sort of seated on the floor, when I was on the ground on top of the towel, I think when he - it might have happened when he was tying me up or just before he tied me up and I thought, "I'd fucking rather die than do that to you". He recalled that when being tied up the threat was made to take him to the wetlands and chop him into pieces. Mr Costello then returned to the issue of how Fernando came to have the rope used to bind Connolly's hands and feet: Q. Now in relation to the rope, where did the rope come from? A. From the book shelf area I think, or, I don't know. I can't recall specifically where the rope come from. I can't recall whether he grabbed it or if he asked Carly for it and she threw it to him, I can't recall but there was, I remember Q. Okay, just stop there for a moment, now this is quite important. I want you to think back and tell the Court what your best recollection is of where that rope came from? A. Somewhere in the house the rope came from. Q. Who first had the rope? A. I think, I believe Greg may have called out, "I need some rope to tie him up" and Carly may have thrown him the rope. HIS HONOUR Q. When you say 'may', which you just said twice, what do you mean? A. She may have thrown it to him or he might have gone and grabbed it out of her hands, I can't recall. That led to a further application under section 32, which was successful. Eventually, Connolly said that the plaintiff put the rope on the kitchen bench. 1. A little later this evidence was given: Q. After you were tied up what happened - who was in the room at that point after you were tied up? A. Both Greg and Carly I think were in the room or were - but they said words to the effect - they said they needed to empty the boot and they walked out of the room soon after. Q. So was it one or both of them that walked out of the room? A. I think they both walked out of the room, I'm not sure of where they walked to. I could hear running - a tap running so one of them may have gone into the laundry and I don't know where they went but as soon as they left the room, I then proceeded to pull my hand out of my - the tie and undo the tie and undo my leg tie and I ran to the front door which was in the other direction in the house from where they were and fortunately found a key. I think on the - I can't remember I think there was a key above the door that I used to open the door because it was deadlocked and run through the door out of the house. The front door was not deadlocked, so it was unnecessary to find a key to open it. The jury could have concluded that this was an untruth told to try to keep his story consistent with his being involuntarily detailed in the plaintiff's house. The balance of Connolly's evidence in chief is not controversial – he was merely identifying or commenting on real evidence, the CCTV from the service station and photographs, or discussing his injuries and their treatment. 1. Cross-examination by Mr Fitzgerald (for Fernando) commenced shortly after lunch on Day 3. Connolly admitted that as of 30 May 2015 he was an illicit drug user (CB1034.08). An early issue which arose was whether Fernando administered drugs to himself. There is no averment by Connolly in his statement that he did. His Honour intervened: Q. Mr Connolly, isn't it also correct that you were… given two needles and asked to fill them, and you filled two needles and your evidence appears to be that one of them was used by Ms Melmeth and that you used the other. Does that not suggest then that Mr Fernando did not use – A. Well, it does, I don't recall whether he – I remember Carly using it, but it don't remember Mr Fernando using it necessarily. Mr Fitzgerald resumed the questioning. Q. Well, you have no memory at all of Mr Fernando using drugs on May 2015, is that correct? A. I think he may have been smoking a pipe there at the time. Q. Well, do you have any memory, before we go on to that— A. I don't really - sorry? Q. Any memory of Mr Fernando injecting himself or being injected with any drugs on 30 May 2015? A. No. Q. Now, what memory do you have of him smoking a pipe on this day? A. I think I saw him smoke a pipe on that day and put the pipe down. Q. Have you ever said that to anyone else prior to this day? A. I haven't, no. Mr Fitzgerald followed that line of questioning, with this line: Connolly did not know what the substance was; nevertheless, he injected the plaintiff with it at her request, in the absence of Fernando; the plaintiff claimed that it made her feel sick; nevertheless, Connolly injected himself with the syringe when told to do so by Fernando, without wishing to see if Fernando would carry out the alleged threat, to inject him forcibly. Mr Fitzgerald suggested to Connolly that he willingly injected the drug, because he knew what it was, because he had bought it to the plaintiff's house. 1. Connolly could not recall whether he was punched by Fernando prior to self-administering the drug. However, in [8] of his statement he said he was. Mr Fitzgerald then put the substance of Fernando's defence to Connolly, which Connolly denied. However he did maintain his position of having to use a key to unlock the front door in his escape from the plaintiff's house: Q. By the way, those ropes weren't tightly binding you, were they? A. They were tightly bind. Q. How did you leave the house? What exit did you use? A. The front door. Q. Was it deadlocked? A. Yes, and I unlocked it. There was the key above the door. Q. So definitely out the front door? A. Yes, definitely out the front door. Q. I put it to you that the front door does not have a deadlock. You say it does? A. Well, I remember opening the door with the key. I don't know if it's a deadlock— Q. I put it— A. I don't know if it's a deadlock as such or what sort of lock, but I opened it with a key. Q. I put it to you that that's a detail that you've included to suggest that the doors were locked, were deadlocked. Is that the case? A. That's not the case. Q. Because nobody asked Ms Melmeth or Mr Fernando to lock the doors at any time during the course of this excursion on 30 May, did they? A. Nobody asked Ms - because - well, I certainly didn't ask them to lock them so who— Q. I put it to you, you went out the front door, it was not locked, not secured in any way? A. It was locked. I had to unlock it. 1. One of the points made in cross-examination by Mr Fitzgerald is that Connolly made no complaint initially to either the console operator, the police or the ambulance officer of being forced to inject himself with a drug, but did admit it at John Hunter Hospital which records that he had been forced to inject "ice" (methylamphetamine) one of the forms of which, when not crystallised, is a clear liquid. However earlier in his evidence he denied knowing what the drug was. He sought to maintain that position: Q. You see, the only way you could've known what was in that substance is if you'd supplied it, is that not the case? A. Say that again, sorry? Q. The only way you could've known what was in the substance that you were forced to self-inject, is if you had supplied it, is that the case? A. If I'd made it, I guess would be the case, if I supplied it, I'd be making assumptions, if I took someone's word on it, it'd be making assumptions too, but I didn't know what was in it. Q. Well, there was no-one's word to rely upon because you said to the jury that you didn't know what was in the substance? A. I didn't know what the substance was— Q. So no-one had told you what was in the substance? A. No. Q. And so, if you did say to the hospital that it was ice, would that be, are you able to explain that to the jury? A. I don't recall ever saying that at the hospital. 1. I turn now to the cross-examination of Connolly by Mr Massey, for the plaintiff. Early on, Connolly confirmed that the import of his earlier evidence about his relationship with the plaintiff is that they were not friends, only acquaintances and that up until the event that it was a friendly acquaintanceship (CB1070). Previously Connolly had been at her house two or three times, which was narrowed down to a day prior to the event, "roughly a few days earlier" and once before then some 18 months earlier. Evidence of Connolly – Day 4 1. The more recent occasion may have been the day before, or two days before, "very close to this day" i.e. 30 May 2015. Connolly was a little later taken to exchanges on Facebook that Connolly had had with the plaintiff, commencing on 21 April 2015 when Connolly sent a message saying: "Hey Carly, pleased to see you're not blocking me." He then sent her a message complaining about an adverse vicissitude in his life. There was a minor message sent to the plaintiff on 22 April. There was then a chain of messages between the two, commencing on 29 May 215 at 00:48, i.e. early in the morning of the day before the event. Those messages commence with each complaining of an adverse vicissitude in life but go on to provide biographical information which could come only from Connolly. At 03:23 the plaintiff invited Connolly to visit her. At 03:53 Connolly sent to her this message: "I'm just about on the freeway at Tuggerah. Just picked up some CDs, so I'll step on it up [the] freeway." Connolly could not remember any of this, but denied that the reference to 'CDs' was a reference to illicit drugs. 1. Further messages indicate that Connolly arrived at the plaintiff's house at shortly before 5am (CB1112.19). Before he arrived these messages were exchanged: Sender Time Message Connolly 04:11 "Do you want me to grab you anything on the way?" "You would have heaps of what I need, you always do, so I don't need to stop at Jezzo, do I?" Plaintiff 04:25 "Smokes, lol" Connolly denied knowing what 'Jezzo' meant, which, in light of what he did on 30 May 2015, is incredible (see [8] above), and which anyone with any knowledge of Newcastle knows is a reference to the suburb of Jesmond, and a Novocastrian jury would definitely know. The messages seem to indicate that Connolly was still at the plaintiff's house around 4pm (CB1119). They also appear to indicate that Connolly made a gift of a lampshade to the plaintiff. Connolly's answers to various questions produce this intervention by his Honour, in the presence of the jury: HIS HONOUR Q. Mr Connolly, this is all said to have taken place on the day prior to the day that you told us you were detained and assaulted and stabbed? A. Yes. Q. And you say you have no recollection of being at the very same house dealing with Ms Melmeth the day before? A. I don't really recall it, the day of the 30th was a significant sort of event to me, I can remember quite clearly that that was a different sort of a day in my life. The day before and the days leading up to it and the days afterwards are not something that I've been - that I've had on my mind necessarily and I just don't really recall. Q. But this is not a date picked out of the blue as it were? A. No it the day before, I understand that and I don't deny that I may have been but I just can't recall it. Q. I mean the incident you say of 30th sticks in your mind but that incident involved Carly Melmeth, it involved her home and you're visiting the home, you hadn't from what you've said had much to do with her for some time prior to the date of the 30th, yet you say you have no recollection of what was contact with Carly Melmeth including visits to her house within the 24 hours of you being assaulted you say? A. I don't recall it but I do confirm, I remember going there two or three times but I just don't recall whether it was a week earlier, two days earlier, the day earlier. I know I had some contact with her just prior to the event where I was injured and I can remember speaking or an exchange with her or seeing her you know 18 months earlier or something like that and maybe speaking to her two or three years earlier than that but I just don't recall specifics. A little later, Mr Massey identified the lampshade on being the one on the right hand side of the Police photograph 113. Connolly denied that it had anything to do with him. 1. Further messages suggest that Connolly left his laptop computer at the plaintiff's house. A message was sent by Connolly at 20:07 on 29 May: "Hey I hope your evening is going well. I'm sure you're looking good J I just got home to ask you this I hope you don't mind, do you want to hang out again tonight, do you want to make it another day or like in the early hours, can I get my laptop from you so I can use it in the interim lol forgive me if you are troubled by the unwanted attention it is beyond my control, I meant the assistance with breast augmentation and clothing/outfits et cetera 'cos I see a fine canvas was ever join. I just didn't think you believe me." This certainly reveals a level of friendship, even intimacy, which Connolly had firmly earlier denied. At 22:31 the plaintiff sent this message to Connolly: "I'm just trying to get my head around a few things, I'm just watching a movie with [her son, see [5] above], feeling pretty drained, I'll call you when [he] is asleep, your laptop is under pillows in the backroom." 1. A little after 21:11, the plaintiff sent this message to Connolly: "I'm going to get some sleep. [My son] is getting picked up at 8am then I can let my hair down." That received this reply from Connolly: "Well you should do that and no doubt, hehe [scil. a chuckle]. Do you mind if I pick up a laptop now?" By relying on further messages, Connolly agreed that he appeared to return to the plaintiff's home before midnight and collected his laptop. He agreed under further questioning that the messages indicated that on 29 May 2015, Connolly visited the plaintiff's home on two, possibly 3 occasions, although he said he had no memory of doing so. Evidence of Connolly – Day 5 1. Mr Massey then commenced to ask Connolly questions about the messages passing between him and the plaintiff on 30 May 2015. I have set those out in [8] above. Connolly dealt with those questions poorly, saying he had no actual memory of them and contradicting on Day 5 what he had said in chief on Day 2. This can be seen in epitome in this exchange: "Q. You don't remember Carly Melmeth's phone number, but you might have on Tuesday, is that right? Have I been unfair putting that to you like that? A. Well, I think you are, but in any event." Mr Massey closed his questioning by formally putting to Connolly a number of propositions, which received sometimes a denial and sometimes an "I don't recall" and sometimes both. The substance of some questioning was that the plaintiff and Connolly had discussed in the 24 hours before the event the difficulties the plaintiff was having in her relationship with Fernando and her thinking of breaking off that relationship: of significance to the Crown's case based on Connolly's evidence is this exchange: Q. What I'm suggesting to you is she wasn't in the room at any stage when any altercation occurred between you and Mr Fernando, if it in fact occurred at all. What do you say about that? A. When an altercation occurred with Mr Fernando my eyes were focused on 40 Mr Fernando and they certainly weren't around to see who was in the room, but during when there was lulls in the altercation or when I was - when there was breaks in the assault I do recall Carly being in the room, but I don't recall when - the precise moment when I was getting assaulted with the knife whether Carly was the room - in the room or not. I'm not sure because she wasn't the one wielding the knife. Mr Fernando was. The final exchange was about the front door of the plaintiff's house and a key to a door there: Q. Now, just to make absolutely sure, when you left the premises when you say all this happened, you definitely remember getting a key to get out the front door? A. I believe there was - I - I definitely remember opening the door up with a key, whether it was the screen door or whether it was the - the main door, I can't recall, but I opened - needed a key to open the door and - and - and leave the property and the key was located there near the door. Q. On the inside? A. On the inside, yes. Q. And did you leave that key in the lock? A. Well, I don't recall. I was - my mind was getting out of the property. 1. Re-examination was brief. It ended thus: Q. And just turning to a different topic, you've answered in relation to the events of the, sort of 29 May, the day before and going back a little bit earlier than that, that you don't recall a lot of information? A. Yeah, yeah, no. Q. Is there anything that affects your memory of events around this period in time in your life? A. Well there was a traumatic event that occurred on the 30th that I've been doing my best to try to get my mind not to be remembering and my recollections of events that led up to it and after that are quite poor, I've been medicated with Valium and Xanax and been trying to, trying to get over what was a very difficult event in my life which I never expected and didn't think that I'd have to ever try to reconcile in my mind why it occurred. Evidence of Connolly – An overview 1. In his evidence before me, Mr Costello was questioned about his view of Connolly's evidence (this being given two years later, from memory): Q. Just in terms of the evidence of Connolly, what about it caused you to change your view? A. So there were four principal aspects of Mr Connolly's evidence that implicated Ms Melmeth. There was a conversation that occurred in Mr Connolly's presence about locking the door – where Mr Fernando said to Ms Melmeth, 'Lock the doors', and Ms Melmeth then went and locked the doors and Mr Connolly heard door lock operating. The second thing was that Mr Fernando asked Ms Melmeth to obtain an item for him. I think having read his statement I thought it was a sheet and in fact I thought it was a towel and a sheet having read his statement this morning and Ms Melmeth did so for the purposes of mopping up blood. The hard thing was… Mr Fernando requesting Ms Melmeth to obtain an item, a bat, or something of that nature to knock Mr Connolly out and Ms Melmeth providing an antique pistol for Mr Fernando which he then used and broke – he used it to hit Mr Connolly in the head and it broke. And the fourth thing was Ms Melmeth being the one who obtained the rope that was used to tie up Mr… Connolly. Q. That's the thing you though were they areas, what about Mr Connolly's evidence? A. In relation to each of those four things Mr Connolly's evidence departed significantly from his witness statement. His evidence on those four points all -it all differed and it differed to implicate Mr Fernando but effectively exculpate Ms Melmeth. From memory his first evidence about the door locking he indicated that he thought Mr Fernando had been the one who locked the doors. I think he indicated Mr Fernando was the one that got the items to wipe up the blood. That it was Mr Fernando who reached up and got the antique pistol. ………………….. Q. Is there anything else about the manner in which he gave evidence that concerned you? A. He was generally quite forgetful and in particular he was quite forgetful or departed from his statement on all of the areas that served to implicate Ms Melmeth and I had to apply for him to have access to his statement to refresh his memory in relation to each of those topics. I don't believe I made an application to specifically cross-examine him but I certainly made several applications for him to refresh his memory from his statement to see if it would - if he would give evidence in accordance with that statement having refreshed his memory. Q. What impact in your judgement did that have on the impression his evidence created? A. It was fairly evident that Mr Connolly's evidence was not going to be highly regarded by the Court and the jury in part because of the condition he presented in on the first afternoon but also because of his general forgetfulness. It's not a convincing strategy for the Crown to have to keep referring a witness to their witness statement in relation to a significant event to try and get them to refresh their memory about important details. And so my impression was that Mr Connolly's evidence was not going to be implicitly well received by the jury. 1. It appears to me that the inconsistency about the locking of the doors was the point at which it was done. Connolly's evidence before the jury is that of was before the administration of the drugs, which would be taken by the jury as an attempt to ensure that that was not observed or interrupted, rather than as part of the confinement of Connolly. Related to this issue is the question of the "deadlock" which did not exist on the front door, on the evidence of Connolly of which the jury could be sceptical. As far as who produced the sheet/towel, the antique pistol and the rope, according to Connolly's evidence it was either the plaintiff or Fernando. Another aspect to be considered is that there was no evidence from Connolly that the plaintiff was ever present when he was stabbed or otherwise assaulted. I totally agree with Mr Costello's evidence that the jury would hardly be impressed by Connolly's forgetfulness and the need for the Crown to continually refresh Connolly's memory from his statement. 2. At [6] above I quoted two paragraphs from Connolly's statement giving his "story" of his "friendship" with the plaintiff, which, when he gave evidence was only a "friendly acquaintanceship" rather than a friendship, which, in light of what happened on 29 May 2015, was probably a grave understatement. The messages sent by Connolly to the plaintiff on 29 May 2015 paint a romantic or sexual interest of Connolly in the plaintiff, who may have appeared to the jury as a frustrated suitor. That may have provided him with an animus against the plaintiff. 3. Put simply, could any reasonable jury, accept the evidence of Connolly given in the criminal trial as proof beyond reasonable doubt of the plaintiff's guilt of the kidnapping charge, the only matter which the jury had to consider against the plaintiff at the end of the Crown case? The simple answer, proved by the event, is no. The jury's thinking about the kidnapping charge can be gleaned from a note sent to Ellis DCJ by the jury late on the afternoon of Day 8, after they had retired to consider their verdicts. The note was this: "Does tying with the rope constitute detaining under [count] 1?" His Honour commenced his direction to the jury thus: "The answer is that it is a continuation of the detaining. The Crown case in relation to [count] 1 is that the detaining commenced when the words were spoken, "Lock the doors"… that is when the Crown says the detention started and it remained the case until Mr Connolly freed himself from the rope…" His Honour gave a further direction to the jury about "detention" on Day 9. Part of this direction was this: So, your question, essentially, is if the Crown had not established that he was detained, because the evidence did not establish, in your mind, that he knew that he could not leave, you are asking, "Well, what, if we are not satisfied with that from the point of view of the conversation on, what if we were satisfied that he was detained but only from the time that his hands were tied?" That is as I understand the major thrust of the questions being asked. The answer is that the Crown case has been put to you on the basis that he was detained from around the time of any reference to doors being locked. If you are not satisfied about that, if you do not accept that, then it is not good enough to say, "Oh well, but then he was tied up and therefore that is good enough", because the Crown could have run its case on that basis, the Crown could have run its case on a number of different bases, but the thing with these trials is that the defence have to know what the allegations are, they have to know what the Crown case is and we have got, in fact, rules in relation to pre-trial disclosure, so, as a matter of fairness, the defence know what it is that is alleged against them and what it is that they have to answer and have to meet. In short, the jury does not appear to have accepted that a detention commenced when Fernando said "Lock the doors" and either Fernando or the plaintiff locked the doors. 1. It is important to note the verdicts returned by the jury: JURY RETURNED WITH THE FOLLOWING VERDICTS AT 12.49PM NOT GUILTY TO THE FIRST CHARGE AGAINST CARLY JAYNE MELMETH NOT GUILTY TO THE FIRST CHARGE AGAINST GREGORY GEORGE FERNANDO NOT GUILTY TO THE STATUTORY ALTERNATE TO THE FIRST CHARGE AGAINST GREGORY GEORGE FERNANDO NOT GUILTY TO THE SECOND CHARGE AGAINST GREGORY GEORGE FERNANDO GUILTY TO THE STATUTORY ALTERNATE TO THE SECOND CHARGE AGAINST GREGORY GEORGE FERNANDO JURY DISCHARGED AT 12.52PM The jury was not satisfied of the detention alleged by the Crown against either of the accused. The charge which the jury found against Fernando was "reckless wounding", an offence contrary to the Crimes Act 1900, section 35(4) carrying a maximum penalty of 7 years imprisonment. Other evidence 1. On any view of the evidence in the criminal trial, there were three persons present in the plaintiff's house during the event: the plaintiff, Connolly and Fernando. As recorded in [20] to [22] above, no interview was conducted by DSC Green (or any other member of NSW Police) and the plaintiff. I understand that, on legal advice, Fernando declined to participate in an interview. There was, accordingly, no ERISP of either accused to be played to the jury in the Crown case. The only information available to Mr Costello about a defence case was Mr Fitzgerald's opening to the jury to which I referred in [72] above. At the close of the Crown case, Mr Fitzgerald called Fernando to give evidence. At the end of Fernando's evidence, Mr Fitzgerald closed his client's case. His Honour then called upon Mr Massey, but he offered no evidence on behalf of the plaintiff. There was no evidence in reply. Accordingly the plaintiff gave no evidence about or any explanation for the event. Nor did she do so before me. Her evidence in chief jumped from her interaction with DSC Green in 2013 to her interaction with him after the event. For present purposes, some notice should be made about the evidence given by Fernando, in so far as it touches the plaintiff. 2. Fernando said that he had known the plaintiff for about six months prior to the event. They were "friends and like sometimes a little bit more" (CB 1256.24). Fernando agreed that that meant that there was occasionally a "casual intimate basis" to the relationship. He visited the plaintiff "lots of times" and on his visits they might use alcohol and or illicit drugs provided by either one of the couple. During the week that ended on Saturday 30 May 2015, he had been to the plaintiff's house "a fair few times" (CB1257.26). He thought they were "on good terms" (CB1257.33). He attended the plaintiff's house "a few times" on 29 May 2015 (CB1257.50, CB1258.02). These were "social" calls, "calling in, seeing how she was going" (CB1258.41). On the evening of 29 May he "went out with the boys" (CB1259.15), "for a drink" (CB1259.29). He visited the plaintiff in the morning of 30 May, about 5am and "stayed for a little while and… left" (CB1260.39). 3. On 30 May, later, he arrived at the plaintiff's house "around 1pm". He did not expect anyone else to be there. He knocked on her front door and the plaintiff invited him in. She introduced Connolly to him as "Greg" in the kitchen area. He then went into "the back room", bedroom 3 which had the blue couch, and sat there for a while listening to music. Connolly stayed in the kitchen area. Fernando sat in the back room by himself, and after a while dozed off. He was in the back room for about an hour (CB1264.41). When asked what the plaintiff was doing, he said: "On probably two [occasions] she came out and went back… into where she was sitting with… Connolly." On an occasion, the plaintiff joined Fernando and stayed for "five, ten minutes" during which time they were "cuddling". 1. As they were cuddling, Connolly walked into the backroom from the kitchen and "got angry" (CB1267.10) and said: "I knew something was going on between the two of you." The plaintiff then "walked out and started talking to him", just outside the backroom, further into the house. The plaintiff asked him to leave, but Connolly refused to do so. Fernando's evidence continued: "After that, I thought I should've stepped in. So I've stepped in and told him, 'I think you should leave'." Shortly this followed: Q. Now, if I might just interrupt your thinking there. When Ms Melmeth came to you in the back room and you were cuddling, did you notice anything about her sobriety, about her presentation? A. What, that she was— Q. Was she apparently, to your observation, affected by anything? A. Yeah. She seemed like she was affected by drugs. Q. Had anyone mentioned to you on that day, Saturday 30 May 2015, anything about drugs while you were there? A. No, not on this occasion. Returning to the narrative, Fernando said that after telling Connolly he should leave, he tried to push him out of the house (CB1268.47). Connolly had walked back into the kitchen area, and this is where the pushing commenced and then Connolly "started to swing at" Fernando, leading to a fist fight, for a "couple of minutes" (CB1269.49 and CB1270.22). According to Fernando, when he was getting the better of Connolly, Connolly calmed down a little bit. They then sat down at the kitchen bench and each had a cigarette and they had "a few cans". During all this time the plaintiff was in the back room (CB1271.44). The "cans" were those that Connolly had brought to the house (CB1273.07). 1. After another period of five or ten minutes, Connolly became angry again. After Fernando explained to Connolly that he had to leave, the pair started to wrestle and Connolly grabbed a knife from the kitchen bench. As they were wrestling, Fernando was trying to keep the knife away from him, lest he be stabbed. He described Connolly's behaviour as "just off his head", and "uncontrollable" (CB1274), and "going crazy" (CB1275.17). Fernando was able to pin Connolly to the ground. Fernando had "flicked his hand", dislodging the knife from Connolly's grasp, and the knife "went flying across the room" (CB1275.33). When asked what happened next, Fernando gave this evidence: And I was trying to think of a way to - so I could hold him down, like, and try to calm him down. So I remembered that we had a bit of rope there from that we had used the day before. So - and it was only in the bottom cupboard, just near where I had him pinned down. So I reached into the cupboard and grabbed the rope, pulled it out and tied him. The rope had been used the day before to "tie the gate up, I think" (CB1276.23). When Fernando reached for the rope, the plaintiff was not "anywhere to [his] sight". After "hogtying" Connolly, he noticed blood on his Badboy T-shirt, on Connolly's grey jacket and "a couple of little cuts up there" i.e. on Connolly's right upper arm. Fernando then bandaged Connolly's right arm to stop the bleeding (CB1278.39). He obtained the bandage from "the cupboard near where the rope was" (CB1279.25). 1. After bandaging Connolly's arm, Fernando went to the backroom to check the plaintiff "to see if she was all right" (CB1279.05). He had not seen her "come into the kitchen or dining area at all during the course of any of this" (CB1279.06). He saw the plaintiff in the backroom, "laying there and she was like she was half asleep at this time, like she didn't really know like…" (CB1279.38). The non-responsive part of the answer to that question was interrupted by Mr Fitzgerald. The plaintiff appeared to Fernando to be "drug-affected", a condition in which he had seen her before. Fernando maintained that he had not taken any illicit drug. The plaintiff was not "really talking" to Fernando. He then spoke to her in a loud voice, after he heard noises from within the house. His evidence was this A. I yelled out to Carly, just pretending, but I said, "Did you call the police, Carly? Are you still on the phone with the police?" just to try to - so he could hear it so he could calm down so hopefully he'd think the police were on their way so he'd calm down. The noises which Fernando could hear suggested to him that Connolly was leaving the house. In short, Fernando's evidence in chief, not only failed to inculpate the plaintiff but, if believed, completely exculpated her. 1. Mr Costello's initial questioning of Fernando was about the nature of his relationship with the plaintiff at the end of May 2015, and was largely based on recorded communications between the plaintiff and Fernando. The records suggested that Fernando took drugs to the plaintiff's house on 28 May and Fernando agreed he could have done so, as he had on other occasions, sharing the drugs with the plaintiff. The cross-examination then turned to an issue as to whether there had been a "major falling out" in the relationship on the morning of 29 May. The messages are revealing, but tedious. They can be summed up with these extracts: Q. She said you had gone to see another woman that previous evening and you thought she'd seen another man. That's what the messages show; do you accept that? A. Yep. That evidence was followed by Mr Costello's quoting to Fernando this interchange of messages: Plaintiff: "You deleted me on FB [Facebook]. You're always making a cunt out of me. I'm over it. You did wrong not me. I don't care anymore." Fernando: "I didn't fuck anyone. I thought you wanted Old Bud not me." "Old Bud" is a reference to the male who visited the plaintiff overnight on 28/29 May i.e. Connolly. 1. The next extract concerns events on 29 May: Q. You're saying you'll come to her house, she's telling you not to come there? A. Yep. Fernando then denied that he saw Connolly at the plaintiff's house on 29 May around 3:45pm even though Fernando's messages to the plaintiff indicated that he was nearby at 3:42pm. The extracts continue: Q. Things were in difficulty between you and Ms Melmeth on 29 and 30 May, weren't they? A. Well like I said, we had heaps of little arguments. We argued, we made up, we argued again, we made up. We just - just our relationship at the time, our friendship. …………………………. Q. Ms Melmeth had sent you messages accusing you of going off to fuck sluts on that 29th, evening of the 28th going to the early morning of 29 May. Do you accept you received messages of that type from Ms Melmeth? A. Yeah. Q. You'd earlier sent messages to Ms Melmeth, accusing her of sending you away so she could see Old Bud, do accept you sent those messages to Ms Melmeth? A. Yeah, I sent her that message. 1. Telephone records indicate that Fernando telephoned the plaintiff at 12:39pm on 30 May and spoke with her for 4 minutes 23 seconds. One will recall that Connolly arrived and alighted from his car to walk to the plaintiff's house at 12:44pm on that day – see [9] above. Fernando had no memory of that telephone call. This evidence was then given: Q. Did she invite you over to her place that day, the 30th? A. Not as far as I can remember. Q. Was anything said about it about you coming over in that call of the 12.39? A. In the call— Q. During the call did she say anything about you coming over? A. I can't remember the call, but maybe. Maybe she, yeah. Q. Did she say anything about anybody else coming over? A. Not as far as I can remember. Q. So are you saying that when you, having spoken to her for about four minutes, you arrive at the house about 15 minutes later, are you saying that you expected or did not expect there to be somebody else in the house? A. I can't remember if I expected someone to be here, but yeah, probably not. Inconsistently with the position that his relationship with the plaintiff was "on good terms", Fernando gave this evidence about seeing Connolly in the plaintiff's house: Q. Didn't bother you that another male was present? A. Didn't bother me. Q. Did you see Ms Melmeth as your girlfriend at that point? A. Not really. Q. Not really? A. No. Q. If you just go back to exhibit P, message 168. Start with 164. You sent a message, "I don't blame you for giving up on me". And then 165, you sent a message to Ms Melmeth and this is at 12pm the day before, so about 24 hours before you first encountered Mr Connolly at her house, sitting in the kitchen. You sent a message, "I don't blame you for giving up on me", and then 2, "I know you don't believe me but I really do love you and I want you to be happy". Ms Melmeth responded, "Blah blah". Then she responded, "Hayden is my number one. He's not happy so I'm not. I wasn't loyal". You sent, "Yeah, I know and it's all my fault. I really want youse both to be happy and it's obvious it won't happen with me in your life, so I'll leave you alone. I can tell you don't want to talk to me. I don't blame you for not wanting to. I really am so sorry for the hurt I caused you both. I'll always love you. Goodbye Carly". Up until 29 May, you saw Ms Melmeth as your girlfriend, didn't you? A. Not as my girlfriend, but as a friend, yeah-- 1. Mr Costello put to Fernando that the rope was provided to him on 30 May by the plaintiff, but Fernando denied that (CB 1317.07). That was despite the fact that Fernando had to resile from his evidence in chief that he used the rope on 29 May, to say that it could have been on 28 May (CB 1316.27 to 1316.36). Later Fernando said that he tied Connolly up in the kitchen, rather than the dining room, but no blood was found on the kitchen floor, albeit there was blood found in the dining area. Fernando was unable to resile from his statement as to the situs of the binding as the cupboard from which he said the rope was obtained was in the kitchen. 2. The cross-examination of Fernando raised a question of implausibility in his evidence: Q. At all? A. No not that - yeah. Q. So in the fist fight with him as part of the first incident you described, you got no injuries as part of that? A. No. …………………………… Q. Can you just describe for us how it is that you were able to tie up Mr Connolly while you had him pinned down and he was thrashing around and still not calmed down at all? A. Cause we was right there near the cupboard so I could still hold him and open up the cupboard and grab the rope and tie him— Q. So you were able to— A. --and he's still trying to - yeah, still trying to. Q. Well was he trying to land blows on you? A. I had him, yeah I had my legs on him so I was holding him, holding, I put my weight down on him. Q. And you managed to reach over, whilst you were holding him down— A. Yeah. Q. --and get some rope. How were you able to apply that rope to his hands? A. Because I grabbed it back and grabbed him round and yeah. Q. And did he just present his hands so you could tie him up? A. No I wrestled him back to that way and tied him up and then wrestled him, yeah. Q. And at no point during that did he manage to land a single blow on you? A. No. Q. Never caused you an injury? A. No. Q. Didn't submit to having his hands tied up but you were able to do it? A. No. There was further questioning about how Fernando managed to tie up Connolly who was resisting him. At CB 1329.44, Mr Costello put to Fernando that what he was trying to explain was an impossibility. On my reading it is, at least, an implausibility. 1. There was cross-examination directed to the cleaning up of the house prior to the arrival of the police, both the placing of the knives, the bagging of the blood stained items and or their being concealed in a cupboard, and the mopping up of the blood. Initially, Fernando denied any attempt to mop up the blood with either a sheet or a towel, but had denied making Connolly do so. This evidence was given, leading not merely to the plaintiff's inculpating but to Fernando's implicating himself: Q. See that shopping bag, who put the items in the shopping bag? A. I can't, I can't remember doing it. Q. You can't remember doing that? Is that because it was Ms Melmeth who did that? A. I can't recall. I might have done it, she— Q. She? A. I can't say if I done it or, I can't remember. Q. So could Ms Melmeth have done that? A. Oh, she could have, but, yeah. Q. How could she— A. Could have been - what? Q. How could she have? You said she was not in a good way and had gone downhill. A. Yeah, but she could have, she had to at some point get up to come out, like to, for the police to walk her out. She was up— Q. Was she helping you clean up the crime scene? A. No. Q. Who put the bandage, the bloody items, the blue towel and the rope in that bag? Can you help with that? A. I think I might have done it, yeah. Q. Now you think you might have done it. Who did it? A. Well, yeah, it was me. The elements of the tort 1. The tort of malicious prosecution has four elements, each of which must be proved by the plaintiff on the civil standard of proof: 1. proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; 2. the proceedings were terminated in favour of the plaintiff; 3. the defendant, in initiating or maintaining the proceedings acted maliciously; and 4. the defendant acted without reasonable and probably cause: A v NSW [2007] HCA 10; (2007) 230 CLR 500 [1] 1. The defendant's Schedule of Issues and Damages (MFI 7) says that the only element of the tort is not in dispute is that the proceedings were terminated in favour of the plaintiff. Since the decision of the High Court of Australia in Beckett v NSW [2013] HCA 17, that cannot be doubted. At [6] the plurality (French CJ, Hayne, Crennan, Kiefel, Bell JJ) said: The requirement that the prosecution has terminated avoids the possibility of conflict in the decisions of the court trying the criminal charge and the court trying the civil action. Any termination that does not result in conviction is favourable to the plaintiff for the purposes of the civil action. Prosecutions may terminate in a number of ways without verdict: the magistrate may not commit for trial; the Director may not find a bill of indictment; the Director may direct that no further proceedings be taken after a bill has been found; or the Attorney-General may enter a nolle prosequi. The plaintiff has no control over the termination of the proceedings in any of these ways and in those circumstances it would be unjust to deprive him or her of the ability to recover for the tort. As Professor Salmond explained it: "What the plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt." Their Honours went on to overrule what was known as "the Davis exception", an exception allowed in Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 on the authority of Davis v Gell (1924) 33 CLR 275, requiring a plaintiff to prove her or his innocence at the trial of the civil action for malicious prosecution, where that prosecution was terminated by the entry of a nolle prosequi. The decision of the Crown to take no further proceedings against the plaintiff on count 2, alleging wounding, in the indictment is an outcome favourable to the plaintiff. 1. I shall consider elements (1) and (3) against DSC Green and Mr Costello separately, but I shall consider element (4) jointly. Element 1 – DSC Green 1. According to MFI7, one of the issues in dispute is "where and during what period, was DSC Jason Green a prosecutor for the purposes of the tort of malicious prosecution." However, as I understand the submissions put to me by Mr Williams, for the defendant, it is not disputed that DSC Green initiated the proceedings by preparing and sending for filing the initiating CAN. The essential dispute is for how long he was the prosecutor of the proceedings. That DSC Green initiated the proceedings is clear from what I set out at [42] above. However, no later than 3 June 2015, the proceedings against the plaintiff were being conducted by the DPP – see [44] to [47] above. 2. Both the charges made were strictly indictable: neither is mentioned in either Table 1 or Table 2 in Schedule 1 of the Criminal Procedure Act 1986. Certain provisions of the Director of Public Prosecutions Act 1986 need to be considered: 7 Principal functions (1) The principal functions and responsibilities of the Director are: (a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court, (b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and (c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution. (2) The Director has the same functions as the Attorney General in relation to: (a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and (c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial. 9 Taking over prosecutions or proceedings (1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and: (a) carry on the prosecution or proceeding, (b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence, (c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and (d) conduct, as respondent, an appeal in any court in respect of the offence. (2) The Director may not take over a matter under this section involving a summary offence, unless: (a) the offence is a prescribed summary offence, or (b) a person otherwise responsible for the matter has consented in writing. (3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents. (4) If the Director takes over a matter under this section: (a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and (b) the Director may decline to proceed further in the prosecution or to carry the proceeding further. (5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989. 10 Director to inform court etc when taking over, or handing back, proceedings (1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable: (a) by notice in writing, inform the person otherwise responsible for the matter, and (b) if the matter is pending before a court: (i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or (ii) if the prosecution or proceeding is being heard by a Judge or Magistrate—in such manner as the Director thinks fit, inform the Judge or Magistrate, that the Director has taken over the matter. (1A) If the Director hands a matter back in accordance with section 9A, the Director shall, as soon as practicable: (a) by notice in writing, inform the original prosecutor (or the original prosecutor's successor) referred to in section 9A, and (b) by notice in writing, inform the registrar or other proper officer of the Local Court in which the prosecution or proceeding concerned is to be heard, that the Director has handed the matter back to the original prosecutor (or the original prosecutor's successor). (2) Failure by the Director to notify or inform does not affect any of the Director's functions in relation to the matter. It is clear from the endorsement made by Jackson LCM in the Local Court mastersheet on 1 June 2015 that the matter either was or was to be taken over by the DPP, when the matter was adjourned to the DPP List on 3 June 2015 – see [48] above. It is an agreed fact that the DPP had the conduct of the proceedings from 3 June 2015 at the latest. I wholly accept that, thereafter, DSC Green was the contact person between the DPP and the NSW Police, that anything that needed to be done was done by him as a matter of course, having initiated the proceedings, or was done by him at the request/direction of the DPP but that does not mean that he continued to be the moving party. Director of Public Prosecutions Act 1986 section 9(4) deemed the DPP to be the prosecutor and it was he who could decline to proceed further with the prosecution or who could carry the proceedings further. It is clear from what actually occurred that the DPP was free to change or amend a charge or the charges without consulting DSC Green. As Mr Williams submitted, there is no evidence that after 3 June 2015, DSC Green had any role, in the executive sense, in maintaining the proceedings. They were kept on foot by the DPP who, in due course, retained Mr Costello, a Crown Prosecutor appointed pursuant to Statute, to appear as "Mr Crown" at the trial. Mr Canceri, for the plaintiff, in his written submissions (MFI 3) merely referred to the evidence I quoted in [45] above to support the allegation that DSC Green continued to be "a prosecutor" after 3 June 2015. However, I am not so persuaded. I find that DSC Green ceased to be the effective prosecutor on 3 June 2015. Element 3 – Malice – DSC Green 1. In A v NSW (supra) at [2], the plurality said of the third element of the tort that "malice is a broader concept than ill-will or spite, and means an improper purpose". At [40] the plurality points out that "an improper purpose" was "not for the purpose of carrying the law into effect". After reviewing the history of the tort, their Honours said: 55. For immediate purposes it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word "malice". It also suffices to refer for the moment to what the prosecutor "made" or "should have made" of the available material without pausing to explore what is meant by those expressions. It will be necessary to return to these topics. 56. Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. Later they said: 91. What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. 92. Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution – a purpose other than a proper purpose. 93. Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law. 1. The plaintiff submitted that DSC Green had a personal animus against the plaintiff arising out of the plaintiff's unwillingness to assist him with his investigation of the aggravated break and enter at Stockton on 23 February 2013: see [7] above. The plaintiff also alleged that that animus was further demonstrated by DSC Green's recording on the Facts Sheet that the plaintiff had a "related drug history and issues of use" (CB53). The relevant written submissions are contained in MFI 3 [55] to [65]. The plaintiff called at the hearing before me her mother and her mother's then partner to tell me of their interaction with DSC Green on the evening of Sunday 31 May 2015. In his submissions, Mr Canceri used this evidence merely to attack DSC Green's credit (see MFI 3 [36]) but Mr Williams appears to accept that it may have been directed to animus, so I shall raise this matter at this time in these reasons. 2. The plaintiff thought that her interaction with DSC Green in 2013 happened "maybe" in August (T25.16) but it is clear from exhibit 1 that it was on 24 February 2-13. The plaintiff gave this evidence on this topic: Q. What happened, you were at home? A. I was at home, he knocked on the door, I answered the door. He asked could he come in and have a chat. I invited him in - like let him - like he came in, sat at my kitchen table. He asked me a couple of questions. Q. What did he ask you? A. He asked me some questions about a Michael Moore and I basically - I'd only known Michael Moore for three months so I couldn't give him any - I couldn't tell him - I didn't know much about Michael Moore. And what - Michael Moore was a very - I couldn't - I didn't want to talk to him about Michael Moore because Michael Moore was a violent man and a scary man. Q. How did you know Michael Moore? A. Through my ex-partner Luke Wallace. Q. Was Detective Green in the company of anyone else when he attended your residence? A. Detective Barr. ………………………… Q. Did Detective Barr come into your place as well with Detective Green? A. He did, yes. Q. Did Detective Green ask you for any information in relation to something he was investigating? A. I can't really remember if he meant - it was more in regards to Michael Moore and a crime that he committed but‑‑ Q. Tell us to the best of your recollection what Detective Green said to you? A. Detective - it's a long time ago but Detective Green asked me did I know - I said that I couldn't help him in regards - I couldn't help him in regards to a Michael Moore and I told him I couldn't help him. I didn't - I'd only known Michael Moore for about three months. There was Detective Green and Detective Barr were sitting at my kitchen table. I had nothing to say to Detective Green. Q. Did he say anything after that? A. As him and Detective Barr were walking out Detective Green told me to be careful and said that I would end up like the rest. Q. How did you feel at that moment in time? A. At that moment I didn't know what to think. I was still very shocked about the Michael Moore where he was going - like why he was at my house. I didn't know how to take it. I was scared. I - I - I - by some of the people that I knew - what was - like, I didn't know what was going on. This topic was raised in cross-examination of DSC Green: Q. So she said she wasn't going to provide a statement. A. Yeah. Q. Do you recall if anything further was said after that? A. I don't recall. Q. So you simply left her premises. Is that right? A. Yeah. We left the premises. Q. I suggest to you that, upon leaving her premises, you said words to the effect of, "Be careful, or you'll end up like the rest." A. Not at all. Q. Nothing like that? A. Not at all. I would‑‑ Q. So she says, "I'm not giving a statement," and you walk outside of the residence. A. I was there as a peripheral inquiry. Q. Detective Barr was there as well. A. We were there as a peripheral inquiry. Q. When you say "peripheral inquiry", what do you mean about that? A. There was sufficient evidence. I was just merely making sure whether there was anything else to obtain. Q. Did you want to see if Ms Melmeth was involved in the crime? A. No. I merely wanted to see if Ms Melmeth knew of these persons, and whether or not she'd give me a statement if she had - had interaction before the offence, as I've said. Q. Then you didn't have any interaction with the plaintiff between February 2013 and then 30 May 2015. Is that right? A. That's correct. One will note a slight, but significant difference between what the plaintiff said "be careful and… I would end up like the rest" and what was put on her behalf "Be care, or you'll end up like the rest". The latter is more plausible than the former, the latter being advice to take care as to the company she kept, lest she find herself in trouble. The latter is the sort of advice one might expect a police officer to give, and so is easily postulated and easily parroted. Nevertheless, DSC Green denied saying that, although it is plausible that a police officer might say it. 1. However, there are a number of other considerations. The plaintiff said "I was scared". However, she did not say why she was scared. She had earlier described Michael Moore as "a violent man and a scary man". Now, a Detective was visiting her, asking her about any contact she had had with Moore. That in itself ought not have engendered fear but a fear of Moore might have lead her to believe that if she told the Detective anything about Moore, she had more to fear from Moore. Nothing done by DSC Green ought to have caused fear, nor would the giving of the advice, if she knew Moore was a violent man, one to be feared. If the advice were given, it ought not to have caused the plaintiff any concern about DSC Green. 2. Another consideration is the plausibility of the plaintiff's recollection of what was said on 24 February 2015 when giving evidence before me on 28 September 2020, five and a half years later. It is implausible, because (a) the plaintiff can point to nothing at the time to fix this alleged Parthian shot in her memory, eg. an unusual event at the time; because (b) all that has happened to her in the interim especially the event, her incarceration and the legal proceedings which did not terminate until 13 April 2017; because (c) her memory of many things was not particularly good, especially when trying to establish her own work history prior to the event; and because (d) she appeared to have no fear of DSC Green having an animus against her when she was in prison. She said in cross-examination that when she was in gaol she wanted to talk to DSC Green and told Corrective Service Officers about that. She gave these reasons for wishing to do so: Q. What did you have to talk to him about? A. I wanted to ask him, was I going to go home to my son. Was I - why was I in gaol. Q. You were legally represented at that time, weren't you? A. Yeah. My Q. Did you expect Detective Green to respond to you even though you were legally represented at that time? A. Well, I thought maybe he'd let me do an interview, and my legal team said if I wanted to do an interview I could. However, it is common ground that neither through Corrective Services nor through her lawyers did the plaintiff ever speak to DSC Green. Her willingness to speak to DSC Green indicates that she perceived at that time no animus of him towards her. 1. Although certain submissions have been put to me by Mr Canceri impugning DSC Green's credit, I have formed the view that he was doing his best to tell me the truth. Bearing in mind his denial of giving the "advice" I am not persuaded on the balance of probabilities that it was given by him to the plaintiff either at all or in the manner in which the plaintiff asks me to take it. 2. At [40] above I quoted some of DSC Green's evidence before me as to his initial interaction with the plaintiff on 30 May 2015. He clearly remembered her from his earlier interaction, on 24 February 2013. In his statement of 30 November 2015, DSC Green said that his initial statement to the plaintiff on 30 May 2015 was "Carly, I'm Detective Green. I have spoken to you before", to which the plaintiff replied, "Yes" (CB107). MFI3 contains this submission: The point is that just over two years after he spoke to the plaintiff at her residence, DSC Green clearly remembered the plaintiff. DSC Green remembered the plaintiff who, according to him, was on the periphery of an investigation he was conducting concerning an aggravated break and enter offence at Stockton. Mr Canceri asks me, implicitly, to infer that because DSC Green remembered the plaintiff from interaction two years and three months earlier, he must still have harboured the alleged animus. With the utmost respect to learned Counsel I can not draw such an inference. Some people are good at remembering faces, some people are good at remembering names, some lucky people are good at remembering both, but some can remember neither. DSC Green had already been informed of the plaintiff's identity. The only inference which can be drawn is that DSC Green remembered her face. 1. It is correct that DSC Green recorded on the Facts Sheet, under the heading "ANTECEDENTS" that the plaintiff "has related drug history and issues of use". It is to be remembered that in [7] of Connolly's statement of 31 May 2015 which I quoted in [10] above Connolly said that the plaintiff asked Fernando, "What did you get?" and he replied, "Only about two points" or something to that effect. The answer indicates a quantity of a drug and infers that the plaintiff's question was a question about what drug(s) was/were Fernando able to obtain. There was then an argument about whether the plaintiff was to have one syringe of the drug administered to her. According to Connolly, she went on to insist that he administer the drug to her. The plaintiff admitted, as recorded in her Custody Management Record that she had taken "Ice" – methylamphetamine on 30 May 2015. That could be described as "a related drug use" or "a related drug history", but the connotation contained in the Antecedents suggests something greater. The question is – is this animus or error? When cross-examined about that, DSC Green said: Q. What did you mean by that? A. I meant from my observations on the day. Q. So from your observations of that day you concluded that she had a drug history? A. I'll admit that's a particular error. I didn't look at the antecedent. Q. It's a pretty important error, isn't it, because this is a document that's given to the local court which amongst other things is used to decide whether or not the person gets bail, correct? A. I'm not to talk about procedures as to whether they do or don't get bail, so what I can say is that it was the seriousness of the offence. Q. Yes, it was the seriousness of the offence, Detective, but you're also conveying to the court that the plaintiff had a history of drug use. That's the case, isn't it? A. That would suggest that and the criminal history would be produced to court. Q. And you agree that that representation made by you was inaccurate. A. It was based on what I saw there. Q. Based on your brief observation of the plaintiff, is that right, on 30 May 2015? A. The only allegation of drug use at the premises that morning. Q. So from that you concluded that she had a history of drug use and "issues of use", is that right? A. I believe so. That is a frank concession of error by DSC Green, albeit that he could have sought to justify it by inference drawn from the alleged question to Fernando as stated by Connolly in [7] of his statement. DSC Green was being frank in his evidence. I do not accept that his error suggests the alleged animus. 1. On the evening of Sunday 31 May 2015, the plaintiff's parents and their then partners attended Waratah Police Station and spoke with DSC Green. The plaintiff's mother is Erica Johnston and her present husband is James Johnston. At material times they were living at Lake Cathie near Port Macquarie. The plaintiff's father is Steven Melmeth and his partner at the time was Margaret. They lived near Waratah. On the morning of Saturday 30 May 2015, Mr and Mrs Johnston went to the plaintiff's house and picked up her son and then drove to a "family function" at the residence of the plaintiff's brother, Joel, at Merriwa. Both the boy and his grandmother and her then husband stayed over at Merriwa on the Saturday night, driving back to the plaintiff's house on the Sunday afternoon, arriving there at 5pm to 5:15pm (Mrs Johnston) or between 3pm and 5pm (Mr Johnston). After stating her arrival time, Mrs Johnston gave this evidence: Q. And did you speak to Carly at that time? A. Well, I had tried to ring her on the way home - no, I sent her a text on the way home saying, we'd - we're nearly there and I didn't get a reply. When we pulled up the house was - there were no lights on and it was just starting to get dark and as we pulled up a neighbour from across the road came over and said that Carly had been arrested - that something had happened at the house the day before and Carly had been arrested. Q. What did you do next? A. Well, she actually told us that it was Carly and Greg Fernando and a tall, skinny guy with red hair who was called Steve and she offered to mind Hayden for us while we - and we decided that we would go to the police station to find out what was happening. After arriving at the Waratah Police Station, they spoke to the Constable on duty, who asked them to take a seat and said that he would get someone to come out and speak with them. After waiting about a quarter of an hour, DSC Green came out and invited the four into his office. Mrs Johnston went on to give this evidence: Q. Adjacent to a service station? A. Around the corner from the service station. Q. Sorry what time was it when you got there? A. I think around 5.00 to 5.15, it was just starting to get dark. Q. And did you speak to Carly at that time? A. Well, I had tried to ring her on the way home - no, I sent her a text on the way home saying, we'd - we're nearly there and I didn't get a reply. When we pulled up the house was - there were no lights on and it was just starting to get dark and as we pulled up a neighbour from across the road came over and said that Carly had been arrested - that something had happened at the house the day before and Carly had been arrested. Q. What did you do next? A. Well, she actually told us that it was Carly and Greg Fernando and a tall, skinny guy with red hair who was called Steve and she offered to mind Hayden for us while we - and we decided that we would go to the police station to find out what was happening. The allegation that Connolly was "the lawyer who has been brining drugs to Carly" is hearsay – it is only what the plaintiff has told her mother (T72.01). It cannot reflect on Connolly, since the plaintiff has never given evidence anywhere to that effect, but it does indicate that the plaintiff had told her mother that she was using illicit drugs. As submitted by Mr Williams, it reflects poorly on the plaintiff, not upon Connolly. The statement that "None of the three are talking to me at the moment" is not only incorrect, but highly unlikely to have been said by DSC Green. He had spoken to Connolly at the service station, when he was with the ambulance officers, and at the Hospital and had taken a statement from Connolly earlier that day. He had sufficient information from Connolly to have already charged the plaintiff and to have made the Facts Sheet and the COPS Event. This piece of evidence can not be correct. The last answer given by Mrs Johnston is so far away from the truth that it must be rejected as being little more than wild reconstruction of what might have been said. This was an aggravated break and enter, not a "drug rip", Luke Wallace was never a suspect (see exhibit 1 and T114.41, and T115.11) and it was never alleged that the plaintiff was the driver of a get-away car. 1. Mr Johnston gave this evidence of what happened after the four entered DSC Green's office: Q. What happened next? A. We - I think probably asked, "What - what's happened?" And we were - I don't have complete clarity or recall. My wife reminds me of that quite regularly. The - overall, we were told by the detective that Carly was in a lot of trouble, because this was a major crime. She'd been involved in other crime, and she was using ice. And that the chances were that she could be put in gaol for 25 years, which was an absolute - it was a real shock. Yeah. Q. Was anything said by anyone in response to that, to your recollection? A. I - I think about the drugs - drug use, I think my wife would have - yes, I think she did - she did mention that - that the drugs were probably brought to Carly's house by Mr Connolly, the chap who was - ended up being attacked, or whatever that the claim was made. Q. Was anything else said after that? A. No. Not - I - I - I couldn't say anything definitive, no. Q. How long were you in Detective Green's office for, approximately? A. 15, 20 minutes. In cross-examination Mr Johnston said that DSC Green spoke of the plaintiff's being liable to be imprisoned for "up to 25 years" (T76.08), clearly the maximum penalty for the wounding offence. What little he could remember appears to be based on that of which his wife had reminded him. 1. DSC Green could not recall any of his interaction with the plaintiff's parents and their partners (T139). As I earlier stated, the plaintiff submits that this is a credit issue, ie it somehow detracts from either the truth or reliability of his evidence, or both. I cannot accept that. A detective's job is to investigate and solve crimes and to assist to the prosecution of the alleged criminals. No doubt many police officers have to deal with distressed relatives of those who have been arrested, to explain to them what is happening to their family member. Sometimes that job will fall upon a solicitor acting for the person arrested. However that is not the primary role of any police officer, either a general duties (uniformed) officer or a detective. Records are made of what is said by a witness and by a suspect, but not by a concerned family member or friend, unless material to the crime alleged. The interaction with the family members is peripheral. As DSC Green pointed out to his evidence, that, as at 29 September 2020 he was OIC for 26 investigation, no doubt as well as participating in a much larger-number of cases, and was unable to remember peripheral things about a case "from… five years ago" (T139.36). 2. In any event, nothing that I can accept that was said by DSC Green to the plaintiff's parents or their partners is capable of proving malice. Nothing that I can accept he said was untrue, unkind or indicative of a willingness to invoke the criminal law for an improper purpose. 3. I do not accept that DSC Green had any animus against the plaintiff. This "job", the investigation of the crimes alleged by Connolly, came to him in the normal course of his duty as a detective stationed at Newcastle, just as did the "job", the investigation of the aggravated break and enter at Stockton on 23 February 2013. There is no suggestion that DSC Green went out of his way to involve the plaintiff in this "job". Without wishing to intrude - consideration the fourth element of the tort, these fundamental facts need to be considered: 1. the alleged crimes occurred in the plaintiff's house, her residence, when she was present, 2. over a period from about 12:45pm to 3:38pm, i.e. nearly 3 hours, 3. after she admitted to her house Fernando 4. who was ultimately found by the jury to have recklessly wounded Connolly, 5. without the plaintiff's having raised any alarm or any telephone call seeking assistance, 6. when she had a mobile phone which she used in that period to speak to her mother, 7. and Connolly's first complaint, as recorded by Ms Shone in her statement (see [12] above), was "I've been stabbed and they're going to kill me… they tied me up and they're going to kill me." 1. I do not accept that the plaintiff has established "malice" on the part of DSC Green, that he instituted the proceedings for an improper purpose. Element 1 – Mr Costello 1. Mr Costello did not initiate the criminal proceedings against the plaintiff. There are many dicta in the case law, and in academic articles supporting the proposition that it is sufficient that a defendant be "actively instrumental in the setting the law in motion". However statements of such a nature are usually made in cases brought against an informant. In A v NSW (supra) at [34] the plurality said: "The identification of the appropriate defendant in a case of malicious prosecution is not always straight forward. To incur liability, the defendant must play an active role in the conduct of the proceedings as by 'instigating' or setting them in motion." The authority which their Honours cited was Fleming, The Law of Torts, 9th Ed (1998), p 676. Their Honours went on to refer to the well-known case of Martin v Watson [1996] AC 74: 35. In Martin v Watson, a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had "in substance procured the prosecution". The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation. Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand, that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge. Cases where the informant was a defendant include Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218; NSW v Abed [2014] NSWCA 419; Sahade v Bischoff [2015] NSWCA 418. 1. In Skrijel v Mengler [2003] VSC 270, Nettle J (as his Honour then was) dealt with another case in which proceedings in malicious prosecution were brought against an informant. However, his Honour stated the law more widely than was done in A v NSW: The Law 198. To found a claim for malicious prosecution, a plaintiff must plead and prove: (1) That the defendant(s) were actively instrumental in instituting or continuing the proceedings complained of; (2) That the defendant(s) so acted maliciously; (3) That the proceedings were so instituted or continued without reasonable and probable cause; and (4) That the proceedings were terminated in the plaintiff's favour. (i) Actively instrumental 199. The many authorities which bear upon the question of what it means to be "actively instrumental" in the institution or continuation of a proceeding are compendiously summarised in Fleming, as follows: "The defendant must have been 'actively instrumental' in setting the law in motion. Merely supplying information, however incriminating, to the police on which they eventually decide to prosecute is not the equivalent of launching a prosecution; the critical decision not being his, '[the stone set rolling] is simply a stone of suspicion.' These days one should hesitate to credit an informant with having overcome the scepticism of a police trained to test the reliability of complaints. On the other hand, and informant may be regarded as a prosecutor if his information virtually compels the police to prosecute, even more where he deliberately deceives the police by supplying false information without which they would not have proceeded." 200. According to the same authorities, being "actively instrumental" means either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking that action through them. 201.Thus as Lord Keith explained in Martin v Watson: "Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant." 202. But as Richardson J cautioned in Commercial Union Assurance Co of New Zealand Ltd v Lamont: "The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution." His Honour cited as authority for his categorisation of the elements of the tort a 1990 Victorian case and Fleming, Law of Torts, 9th Ed at p 973, albeit that they appear at p 674 as: "(1) Institution of criminal proceedings by the defendant. (2) Termination of the proceedings in favour of the plaintiff, if from their nature they were capable of so terminating. (3) Absence of reasonable and probable cause. (4) Malice, or a primary purpose other than that of carrying the law into effect." His Honour also cited Halsbury's Laws of Australia, Vol 26 [415-1695]. His Honour's quote from Fleming in [199] is a quotation from p 676 – 677. 1. Since Fleming was cited with approval by the plurality of the High Court in A v NSW and by Nettle J in Skrijel v Mengler, I trust I shall not fall into error by quoting further from the same edition of Fleming at p 677: A defendant may be liable not only for initiating, but also for adopting or continuing proceedings. Thus a prosecution, commenced under a bona fide belief in the guilt of the accused, may become actionable, if at a later stage the prosecutor acquires positive knowledge of his innocence, yet perseveres bent on procuring a conviction. One of the cases cited by the learned author as authority for that proposition is Coleman v Buckingham's Ltd (1963) 63 SR (NSW) 171 which is directly on point for the current matter and is binding. There was a joint judgment of Herron CJ and Walsh J. Wallace J (as he then was) dissented. 1. This case concerned a demurrer to the plaintiff's pleading, "that the defendant commenced an action against the plaintiff in the Court of Petty Sessions [now the Local Court] … under the Small Debts Recovery Act 1912… and maliciously and without probable cause procured… an order… for leave to proceed pursuant to s 26 of the aforesaid Act by falsely and maliciously representing… by a false affidavit that the summons in said action was… [served]… and maliciously and without reasonable and probable cause procured a judgment of the said Court… by falsely and maliciously representing to the said Court by a false affidavit that… the plaintiff was indebted to the … defendant and… the… plaintiff obtained final judgment… against the… defendant… by reason whereof the plaintiff [suffered damage]." The majority held that an action for malicious prosecution would lie against the defendant for this civil action by reason of the fact that the plaintiff could not recover its costs against the defendant in an action brought by the defendant under the Small Debts Recovery Act 1912. However, their Honours went on to consider what I have called the first element of the tort. At p 178 their Honours said: Our conclusion in favour of the plaintiff on the general question to which we have referred makes it necessary to consider some other problems which are not without difficulty. The declaration is framed in a form which suggests that the action which the plaintiff brings is one for the malicious prosecution of legal proceedings. But the first allegation is that the defendant commenced an action and at this stage there is no allegation that this was done maliciously and without reasonable and probable cause. Then it is alleged that subsequently certain steps were taken maliciously and without reasonable and probable cause, namely, the procuring of an order for leave to proceed and the procuring of a judgment. As to each of those steps it is alleged that the procuring was done by falsely and maliciously representing to the court by a false affidavit certain facts. One question which then arises is whether an action of this kind lies when it is not alleged that the earlier action was instituted maliciously, but it is alleged that it was afterwards prosecuted or pursued maliciously and without reasonable and probable cause. We think that this question should be answered as a matter of principle by saying that an action of this kind will lie if active steps are taken in furtherance of the proceedings by a defendant who is, at the time when he takes them, acting maliciously and without reasonable and probable cause within the meaning of these expressions as understood in this form of action. See Daniels v Telfer (1933) 34 SR (NSW) 99; Fitzjohn v Mackinder (1861) 9 CB NS 505; 142 ER 199. 1. Accordingly, if the present plaintiff be able to establish that Mr Costello acted maliciously (in the relevant sense) and without reasonable and probable cause from the time that he was retained, then the plaintiff can obtain damages for the consequences of what Mr Costello did. Element 3 – Malice – Mr Costello 1. The plaintiff's written submissions (MFI 3) say this on this issue: 103. It was suggested to Mr Costello in cross-examination that in prosecuting the plaintiff he was trying to get a result as opposed to bringing her to justice. He disagreed with the suggestion. Mr Costello said that it was a poor choice of words on his part to say to Ellis DCJ that the Crown intended to pursue the matter "until the bitter end". 104. Mr Costello explained what he meant by "until the bitter end". He was referring to information received through DSC Green that Mr Connolly was in fear for his life and believed that a contract had been taken out on his life if he attended Court. 105. Importantly, in cross-examination Mr Costello gave evidence that he was not sure if he informed Ellis DCJ of the alleged threats that had been made to Mr Connolly. This would have been an important matter to bring to the attention of Ellis DCJ, especially in circumstances where it was apparently raised before King DCJ. 106. It is submitted that Mr Costello's attitude to conferring with Crown witnesses underpins the argument that he was simply out to get a result as opposed to bringing the plaintiff to justice. Mr Costello follows the English rule of not conferring with witnesses about their evidence. He agreed in cross-examination that Guideline 19 in the DPP Guidelines states there is an obligation upon prosecutors to confer with witnesses at the earliest available opportunity before all court hearings. It appears that Mr Costello took a relaxed approach to his obligation under Guideline 19. The first two of those paragraphs refer to the matter I canvassed at [61] to [62] above. As I stated at the end of [62] I had no hesitation whatsoever in accepting the evidence of Mr Costello which I had then canvassed. What was said by Mr Costello was that the matter would be pursued usque ad finem, not because he was determined to pursue the plaintiff, but because the Crown would not be intimidated by the third parties seeking to manipulate a witness to determine the outcome of proceedings. 1. Mr Costello did tell Ellis DCJ about Connolly's concerns, but not on 9 February 2017, but on Day 1 of the trial, early, before the jury was empanelled. These portions of the transcript of that day should be noted: CROWN PROSECUTOR: Your Honour, the Crown will be in a position to commence the trial today. In relation to the evidence of Mr Connolly, he is currently proposed to be the third witness. The Crown's going to deal with some preliminary matters and put some photographs in to assist the jury in understanding Mr Connolly's evidence. I don't expect his evidence will therefore start until some time this afternoon and will definitely go into tomorrow. Mr Connolly is concerned about giving evidence in an environment where the court is not closed and, your Honour, there is going to be an application relation to Mr Connolly's evidence in that respect. The application is on two bases. One is a discretionary basis and your Honour it's effectively based on the case of Ngo number 2, which is a New South Wales Supreme Court decision of Justice Dunford, where witnesses who genuinely held fears for their lives, even if those fears were not justified, were permitted to give evidence by way of CCTV in circumstances where the accused could not in fact even see their appearances. The other basis is, your Honour, it's come to my attention - and it was only quite recently - that in fact the offence that's count 1 on the indictment is a section 86 offence and your Honour, perhaps before this proceeds any further, it might be desirable to have— ………………. CROWN PROSECUTOR: Well, your Honour, the second matter I was going to get to is that in fact section 86 is a prescribed sexual offence under the Criminal Procedure Act and that dictates that a court ordinarily would be a closed court and I wouldn't, under those circumstances, expect that people who sat in to support the accused would generally be allowed to be present whilst a complainant in a prescribed sexual offence gave evidence. Attention was then turned to the Indictment. This then was said: CROWN PROSECUTOR: Closed court for the evidence of the complainant and in fact one of Mr Connolly's concerns has been the ongoing publication of his name and it would seem that through inadvertence the Crown did not alert the court to the fact that under section 3 of the Criminal Procedure Act, which lists prescribed sexual offences, those offences include section 86 and so, in fact, count 1 on the current indictment, which ought to remain count 1, they may have been switched on the 7.2 version, but count 1 on the indictment is a section 86 offence. That is a prescribed sexual offence. There is, in fact, a brief reference to some sexual conduct in the statement of Mr Connolly because, at one stage, the accused Mr Fernando is alleged to have said, "I'm going to make you give me a blow job before you go" or "we go" or words of that nature. So, your Honour, the Crown position is that as it's a prescribed sexual offence, all the usual things ought to apply, including no publication of Mr Connolly's name, evidence in a closed court, Mr Connolly giving evidence via CCTV, if that is the course that he wishes to adopt. An issue then arose at the presence in the courtroom of the plaintiff's father and three ladies who were supporting Fernando, which Mr Costello said he needed to discuss with his instructing solicitor and this exchange then occurred: "Mr Connolly does have concerns about his safety. Those concerns partly arise from what happened to him on this course of events. HIS HONOUR: If he's in a separate room somewhere in the building, what's the concern? CROWN PROSECUTOR: Your Honour, one of Mr Connolly's concerns is that there is apparently a contract taken out to terminate his life." Mr Fitzgerald then interrupted. There was then further discussion about getting the case started and then matters proceeded. Mr Connolly did give evidence by AVL from a remote witness location and there was a Non-Publication Order in relation to Connolly's name and any material that might lead to his identification. I can see no substance in MFI3 [105]. 1. As to conferring with Crown witnesses, in particular Connolly, I considered this issue under the heading "Mr Costello confers with Connolly" between [64] and [66] above. The relevant section of the ODPP Prosecution Guidelines is this: Conferences Due to the requirements of pre-trial disclosure, and especially where complainants are not required for committal hearings, there is an obligation upon prosecutors to confer with witnesses at the earliest available opportunity before all court hearings. Conferences serve the dual purposes of obtaining information from and about witnesses on evidentiary issues and providing relevant information about the proceedings to witnesses and to families of victims in matters involving death. In sexual assault matters complainants should be informed of the requirement, for the purpose of establishing the elements of the offence, to recount in precise detail the sexual assault, including explicit and detailed acts of sexual intercourse and sexual penetration. Conferences should also be conducted for the purpose of informing victims of charge negotiations and to discuss any agreed statement of facts. Victims may wish to have the presence of a support person during a conference and it may be useful to consider the presence of a WAS officer for some types of conferences (see ODPP Conferencing Guidelines). Early conferences enable compliance with the Charter of Victims' Rights (Appendix D), more effective screening of cases and more accurate disclosure of relevant material (see Guideline 18) and enhance the professionalism of the ODPP and the effectiveness of the criminal justice process. I have been unable to find the ODPP Conferencing Guidelines. More reliably, nor has my Associate. Only the first paragraph of the publication just quoted, and the first clause of the first sentence of the second paragraph appear to be relevant. Whether this is a positive requirement to confer is a moot point: it can be argued that the relevant part of the first paragraph should be construed as "an obligation upon prosecutors to confer with witnesses (if necessary)…". If I be wrong about that, then I must point out that matters such as mistake, oversight, indolence, lassitude, slackness, rule-breaking, role-ignoring and the like do not amount to malice. See, for example, Wood v NSW [2018] NSWSC 1247 where Fullerton J did not accept any of the following as amounting to malice: * failing to make an informed assessment of a witness' credibility and reliability, * failing to adduce evidence from a witness in a professional manner, * changing the Crown case to accommodate flaws (which he did not perceive) in the Crown case theory, based on an unreliable witness' evidence, * proven professional misconduct, * incompetence, * gross carelessness, * honestly but wrongly believing that he could make submissions about motive, without any evidential foundation, * an unerring but erroneous belief about the probative value of a body of circumstantial evidence, * being blind to his failings of judgment, * failing to appreciate that he was acting contrary to his ethical obligations, * lack of insight into his own errors, * stubborn refusal to acknowledge professional failings. If Mr Costello were obliged to confer with Connolly, then (a) he did, but (b) if the conference were inadequate, it could amount to no more than negligence, but again (c) Connolly might have still stood to proof in conference, but have done otherwise in the witness box. 1. Having read all the transcript provided to me, I can find nothing which even suggests at Mr Costello's doing other than what any competent Crown Prosecutor would do. There is nothing to suggest any improper purpose being pursued by Mr Costello. Indeed, Mr Costello's withdrawal of the wounding charge, count 2 in the indictment, is quite inconsistent with the plaintiff's allegation against him. After the jury was sent home on Day 6 of the trial, this exchange occurred between Mr Costello and his Honour: CROWN PROSECUTOR: Your Honour, I can indicate as well that prior to the close of the Crown case the Crown will be taking no further proceedings against Ms Melmeth on count 2, that's the wound with intent to cause grievous bodily harm. Given the evidence, the way the evidence has fallen, the Crown would not, it concedes, have a reasonable prospect of conviction of Ms Melmeth being a party to an offence that involves a wounding with an intent. HIS HONOUR: Yes. CROWN PROSECUTOR: It would, potentially, the Crown maintain, be open for the jury to convict on an alternative count, but given the complexity of the issues and the limited utility of a finding on that, if they convict on count 1 which involves the infliction of actual bodily harm as part of the incident-- HIS HONOUR: It's covered all ready. CROWN PROSECUTOR: It is covered already and it wouldn't add anything to the sentencing outcome. HIS HONOUR: So it will be an NFP? CROWN PROSECUTOR: It will be but it's in the hands of the jury now, your Honour and I wasn't quite sure exactly what should happen and the Crown also is conscious of the fact that it might convey to the jury a message that the Crown effectively is saying Ms Melmeth could not be found guilty of any of the alternatives. HIS HONOUR: We haven't really gone— CROWN PROSECUTOR: So I'm not sure precisely how we ought to handle that. I think it will need to be a directed verdict, effectively, once— MASSEY: I think that would be so, your Honour. I don't think - you can have no further proceedings for a whole of an indictment but I don't think you can do that for part of an indictment. That might have to be done as a directed verdict, your Honour. HIS HONOUR: Well, in this particular case, it's not really problematic to deal with it as a directed verdict. CROWN PROSECUTOR: No, your Honour. HIS HONOUR: And it would need to be a directed verdict on the alternate as well. CROWN PROSECUTOR: That's the difficulty. HIS HONOUR: I guess, did we open— CROWN PROSECUTOR: I opened in relation to alternatives in a general sense. HIS HONOUR: I believe that the Director can direct no further proceedings at any time up until a conviction. MASSEY: I'm in your Honour's hands. HIS HONOUR: I'll think about that but, if that's the case, once it's directed, I don't have to get any verdicts from the jury; it's been taken from the jury, effectively, by the Director directing no further proceedings. CROWN PROSECUTOR: That may be correct if the Director retains the power to take no further proceedings at any point up until the jury have returned a verdict, then it would remove the need for the jury to deliberate further on that count, without them being required to effectively— HIS HONOUR: Give a verdict on it. CROWN PROSECUTOR: --give a verdict on it. Your Honour, the Crown will look into that. I have some more pressing matters, so hopefully I can - I seem to have the benefit of two instructing solicitors at the moment. I may be mistaking Mr Henschell's presence for something else but we'll certainly have a look into that issue. HIS HONOUR: The other way would be for you to indicate that the Director has directed no further proceedings and then, as a result of that, I could direct the jury to return verdicts of not guilty. A verdict of not guilty on that count, with the alternate not being put to them. CROWN PROSECUTOR: Yes, effectively, if the Director took no further proceedings, then the need for the jury to consider alternatives would fall away when they gave a directed verdict on count 1, may be the other issue. HIS HONOUR: Well, that's one possible way but you can have a look at it. I'll just see which is the neatest way to deal with it. 1. On the following day, after DSC Green completed his evidence, this occurred: CROWN PROSECUTOR: Your Honour, that concludes the evidence in the Crown case. Before I close the Crown case, there is one matter which needs to be dealt with in so far as the indictment and I'm not sure if we completed our discussions as to how that should occur. HIS HONOUR: I think I concluded what I said yesterday, that the Director does have the— CROWN PROSECUTOR: And, your Honour, that is consistent with the research that has been done overnight. HIS HONOUR: So that's what I propose to do, once you've announced it all. CROWN PROSECUTOR: Your Honour, in relation to count 2, the Crown, therefore, acknowledges that there is insufficient evidence to establish Ms Melmeth was a party to a grievous bodily harm with an intent - sorry, a party to a wounding with intent to cause grievous bodily harm offence and, accordingly, the Director will take no further proceedings on count 2 in relation to Ms Melmeth alone. It will still remain on foot in relation to Mr Fernando. HIS HONOUR: All right. Ladies and gentlemen, if you've got a copy of your indictment there, the first thing to point out of course is down the bottom, where Mr Crown has signed it, as the Crown Prosecutor on behalf of the Director of Public Prosecutions. The Director of Public Prosecutions is responsible for all prosecutions in New South Wales and it is for the Director to determine whether someone will or in fact will not be prosecuted. So, initially, this prosecution commences with, in relation to Ms Melmeth, the two counts and, as you I think heard in the opening and probably have gathered during the course of the evidence, there's no suggestion that Ms Melmeth every physically wounded Mr Connolly. The Crown case is that that physicality was conducted by Mr Fernando. It would be necessary then for the Crown to establish that there was a joint criminal enterprise, meaning that she was in agreement with Mr Fernando wounding and, more particularly, wounding with an intent to cause grievous bodily harm and the Crown has accepted, by the direction that's just been made, that there is insufficient evidence to establish that she had, in fact, entered into any such agreement with Mr Fernando. So, the Director has directed that there be no further proceedings in relation to count 2. So, as far as you are concerned then, the easiest way to deal with this on the indictment is to draw a line through the name Carly Jayne Melmeth on count 2. Just to remind you, what you are now left with is, in relation to count 1, the charge that reads as it appears on your document, for both Carly Melmeth and Gregory Fernando and, for Mr Fernando only, an alternative count which doesn't involve the allegation of "while in the company of", but is otherwise the same. 1. In his evidence before me, Mr Costello was asked whether his view changed about the plaintiff's complicity. He said this: Q. And your view about that changed after the evidence of Mr Connolly? A. In relation to the section 33 wording with intent offence it did - I thought we had some argument that she could be guilty of the alternative offence, a section 35 offence but my view was that her principal criminality in any event related to the detention offence and there was already going to be a complexity of directions and adding a section 35 offence into the mix for Ms Melmeth when we were still proceeding on the section 33 against Mr Fernando as the principal seemed to unduly complicate the directions and the issues for the jury and in particular in relation to an aspect of the offending that I didn't see criminality as being the highest it seemed it was logical that criminality was much more significant as far as the detention offence and hence I took no further proceedings. And that was in accordance with a direction that had already been given by the director's chambers. Q. So that was your view even after the evidence of Mr Connolly, that is, that the alternatives were theoretically available? A. Yes. I think I might have expressed to the court when I took no further proceedings that the Crown may have had an available case under section - or alterative section 35 offence, but to avoid overly complicating the matter, the Crown wasn't going to pursue that against Ms Melmeth. In cross examination, Mr Costello said this: Q. Mr Connolly gave evidence that the plaintiff had walked out of the room and she was never really in the room when he was being stabbed. Can you see that evidence? A. I can see that evidence, yes. If I can just add that‑‑ Q. Sorry, I'll let you finish. A. Evidence like this which departed in essence from what Mr Connolly's statement said was the reason the Crown ultimately took no further proceedings in relation to the section 33 offence. I'd taken the view there was an existing direction which is privileged. I can't really go into the details of that without the director waving privilege. But by the close of the Crown case, I'd taken the view - well, at the outset, I'd taken the view that Mr Connolly's evidence to substantiate the section 33 offence needed to be in accordance with his statement or more persuasive to have a solid foundation for Ms Melmeth to be guilty as a participant in a joint criminal enterprise as a secondary party to the section 33 offence. The reality of what I was confronted with at the trial is that Mr Connolly's evidence departed from his statement, and in all material respects involving Ms Melmeth, curiously, his evidence departed from his statement to exculpate Ms Melmeth. And that obviously caused the Crown some difficulty in relation to the section 33 offence, which is what led to the decision to act on the existing direction to take no further proceedings in relation to the section 33 offence. In fine, Mr Costello's approach to the wounding charge was based upon a standing direction of the DPP, which informed him about how he was to proceed. This, and what occurred at the end of Day 6 of the trial and then on Day 7 not only indicates a lack of malice but also indicates that the effective prosecutor was the DPP, in otherwords, Mr Costello was acting as a barrister should, taking instructions from his solicitor/client on a significant aspect of the case. 1. Accordingly, I am not persuaded on the balance of probabilities that Mr Costello was actuated by malice, by any improper motive. I am satisfied that he was acting as a professional Crown Prosecutor, although the Crown does not bear any onus of proof of that. It follows from that finding that Mr Costello was not a relevant prosecutor, so the plaintiff has failed to prove the first element of the tort, as against Mr Costello. Element 4 – Reasonable and probable cause 1. The judges of the High Court of Australia had much to say about reasonable and probable cause in A v NSW (supra). At [38] the plurality said: "In so far as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely subjective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for the charge to be laid. The question involves both an objective and a subjective aspect." Later, the plurality said this: 56. Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. 57. There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted49. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor. 58. Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. 59. Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light. 1. Their Honours then commenced their detailed analysis of this element of the tort. They went on to say: 77. There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion? 78. As noted earlier in these reasons, the jury questions formulated by Cave J in Abrath v North Eastern Railway Co asked whether the prosecutor "honestly believe[d] the case ... laid before the magistrates". But the content of the question – "did the prosecutor believe the case which [he or she] laid before the magistrates?" – is not altered if the word "honestly" is added before "believe". The word "honestly" may therefore be thought to have no substantive function to perform. Nonetheless, the qualitative element of the contention that the defendant prosecutor acted without reasonable and probable cause may often be captured best by the word "honesty". In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed, or concluded, about some aspect of the material. If the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry. But it will not always be necessary or appropriate to look only at what the prosecutor knew or believed. Not least will that be so where the prosecutor's knowledge or belief is confined to knowledge or belief of what others have said or done. ……………………….. 80. In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. (There may also be a real and lively question about the objective sufficiency of the material, but that may be left to one side for the moment.) In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established. 81. The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. For the reasons given earlier, it will require examination of the prosecutor's state of persuasion about the material considered by the prosecutor. That should not be done by treating the five conditions stated by Jordan CJ in Mitchell v John Heine as a complete and exhaustive catalogue of what will constitute reasonable and probable cause. First, to focus upon what is reasonable and probable cause distracts attention from what it is that the plaintiff must establish – the absence of reasonable and probable cause. And secondly, because those conditions are framed in terms of belief about probable guilt, they are conditions that, for the reasons already given, do not sufficiently encompass cases where the prosecutor acts upon information provided by others. 1. At [83] their Honours said this about the objective aspect of this element of the tort: "The objective element of the absence of reasonable and probable cause is thus sometimes couched in terms of the "ordinarily prudent and cautious man, placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". Or, as Griffith CJ put it in Crowley v Glissan, the question can be said to be "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty". The objective aspect concerns the sufficiency of the available evidence which is relied up for the initiation or maintenance of the prosecution. This is a question of fact (ibid at [85]). At [86], their Honours adopted what was said by Lord Atkin in Herniman v Smith [1938] AC 305 at 319: It is not required of any prosecutor that he must have tested every possible fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution." At [87] their Honours pointed out that the "objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case." 1. The principle that where an indictment contains several counts, proof that some of them lacked reasonable cause, and were laid maliciously, warrants a verdict for the plaintiff, applies to malicious prosecution: A v NSW (supra) at [96]. Accordingly each count or each charge against the plaintiff needs to be separately considered. 2. I turn to consider the subjective element as far as DSC Green is concerned. I have carefully read the cross-examination of DSC Green a number of times and it seems to me that it was never put to him that he did not honestly believe that the plaintiff was guilty of either of the charges which he laid against the plaintiff. Rather, the attack on this aspect of the Detective's evidence was on the sufficiency of the evidence, i.e. the objective basis. Mr Canceri cross-examined DSC Green on the statement made by Connolly on 31 May 2015. This evidence was given: Q. Do you agree with the proposition that at least up to paragraph 9, this is simply an attack by Mr Fernando upon Mr Connolly which really has nothing to do with the plaintiff? A. I don't agree because I don't know the entirety of what was said or done beforehand by either party other than what Mr Connolly is saying. Q. But Mr Connolly is the complainant in this particular case. A. Mm-hmm. Q. He is the pivotal witness A. Yep. Q. in the prosecution's case. A. Yes. Q. Upon him pretty much everything relies. A. It does. Q. Correct? A. It does, yeah. Q. And this man is telling you that Mr Fernando was angry with him, correct? He didn't tell you that the plaintiff was angry with him, did he? A. He didn't say that. Q. Or had any animosity towards him? A. He didn't say that; it's not in the statement. Q. At least at that point in time, in the statement. A. Yeah, it's not in the statement. Q. Yes. So did that affect your assessment of the strength of the case against the plaintiff in terms of the two charges that you laid? A. The charges that I laid - I will go back to I think it's paragraph 4 in my statement, and he refers to "they." He refers to "they." And that would be both persons. "They stabbed me and tied me up." So, there was an initial statement made by the victim in relation to what his belief was. And more, that was directly after the incident. Q. Yes. And this is in your statement dated 30 November 2015. A. That's correct. Q. Where you say in paragraph 4 that Mr Connolly said, "They stabbed me and tied me up." Or he said that to - sorry I withdraw that. He said to you, "I was next door and they stabbed me and tied me up." A. That's what that says there on that paragraph, yes. Mr Canceri then pointed out that that was not recited in the Facts Sheet, to which DSC Green rejoined that it was also recorded in Ms Shone's Statement (see [12] above). This was then given: Q. So I understand that you charged the plaintiff on 30 May 2015 with certain offences based on information you had on that time, detective. But that information changed the following day in certain respects, did it not, when you took the statement of Mr Connolly? A. No, I still maintained that there was involvement by Ms Melmeth. Attention was then again turned to the Facts Sheet and to Connolly's statement [9] thereof, and DSC Green made a concession: Q. So, do you agree that up to that point in time in the statement, that evidence militates against any suggestion of the plaintiff reaching an agreement to commit at least the wound with intent to cause grievous bodily harm? A. I agree with that. 1. Mr Canceri returned to this issue a little later: Q. So you weren't aware of any jealousy. But you certainly were aware of, in taking Mr Connolly's statement, that Mr Fernando just became enraged upon entering the premises. And even angrier when the plaintiff said that she felt sick after taking drugs. A. That's his statement to that point. Yeah. Q. Do you accept as a proposition that that evidence from Mr Connolly - the pivotal witness in the prosecution case - goes against the suggestion that the plaintiff and Mr Fernando had reached an agreement to commit the wound with intent to cause grievous bodily harm? A. I maintained my belief on the continuing actions. I don't know what happened before. I don't know what happened at the door. Mr Connolly doesn't know what happened at the door. He doesn't know what conversations took place before. I don't know that information. Mr Canceri then continued to question DSC Green about Connolly's statement [10] and [11] and this was said: Q. Paragraph 11. Mr Connolly says that he was too afraid to turn his back on Mr Fernando and run. Correct? A. He does. Q. He's concerned about Mr Fernando at that time. Correct? A. No. I believe if you go to the next sentence, you'll see that he's also concerned about the plaintiff. Q. Correct. Then paragraph 12, Mr Connolly says, "The plaintiff said, 'Are you going to tell the truth?'" He still didn't understand what the plaintiff was referring to. "Mr Fernando became angry, and attacked again." A. Whereabouts are we now? Q. Paragraph 12. Page 59. A. Yep. So we're moving from the call straight to that. Q. Yes. A. So after this HIS HONOUR Q. So Carly is making statements. And when they're not responded to by Connolly, that angers Fernando. A. Correct. Q. Then he attacked again. Right? Then there's an offer made by Connolly to give Fernando valuables that were in his car. You see that? "I've got some valuables in the car you can have. Just let me go, and I won't tell anybody what's happened." That's in the middle of paragraph 12. A. That's right. Q. Then Fernando said, "Can't you see? We're not robbing you. We are going to kill you. You're not going. We've got your car keys." A. That's correct. Q. He didn't tell you that Carly said words to the effect of, "You're not talking for me," or, "Leave me out of this," or anything of that nature. A. He didn't say anything about - not at all. Mr Canceri then moved on to different topics. 1. On this evidence, and bearing in mind my view that DSC Green was endeavouring to tell me the truth, I am not persuaded on the balance of probabilities that DSC Green did not honestly believe the guilt of the plaintiff of the charges which he laid against the plaintiff. 2. I shall now consider the subjective element as far as Mr Costello is concerned. Again, it was never suggested to Mr Costello that, prior to commencing the trial, he did not honestly believe in the guilt of the accused on each charge contained in the indictment. In chief, Mr Costello gave this evidence: Q. Did you form a view about the charges after the evidence of Mr Connolly? A. I did. Mr Connolly's evidence was not as I had expected and at the conclusion of his evidence I formed the view that the Crown's argument in relation to the wounding with intent to cause grievous bodily harm offence is a joint offence of Mr Fernando was not a very compelling one. We may have had some residual prospect of securing a conviction on Mr Connolly's evidence but it didn't look a very compelling case, and so I took no further proceedings in relation to that charge. Q. Just in terms of the evidence of Mr Connolly, what about it caused you to change your view? A. So there were four principle aspects of Mr Connolly's evidence that implicated Ms Melmeth. They were a conversation that occurred in Mr Connolly's presence about locking the door where Mr Fernando said to Ms Melmeth, "Lock the doors," and Ms Melmeth then went and locked the doors and Mr Connolly heard door locks operating. The second thing was that Mr Fernando asked Ms Melmeth to obtain an item for him. I think having read his statement I thought it was a sheet and in fact I think it was a towel and a sheet having read his statement this morning and Ms Melmeth did so for the purposes of mopping up blood. The third thing was that when Mr Fernando… requesting Ms Melmeth to obtain an item, a bat, or something of that nature to knock Mr Connolly out and Ms Melmeth providing an antique pistol for Mr Fernando which he then used and broke - he used it to hit Mr Connolly in the head and it broke. And the fourth thing was Ms Melmeth being the one who obtained the rope that was used to tie up Mr [Connolly]. ………………………… Q. That's the things he thought were the key areas, what about Mr Connolly's evidence? A. In relation to each of those four things Mr Connolly's evidence departed significantly from his witness statement. His evidence on those four points all -it all differed and it differed to implicate Mr Fernando but effectively exculpate Ms Melmeth. From memory his first evidence about the door locking he indicated that he thought Mr Fernando had been the one who locked the doors. I think he indicated Mr Fernando was the one that got the items to wipe up the blood. That it was Mr Fernando who reached up and got the antique pistol. Implicit in that is Mr Costello's acceptance of what Connolly said in his statement was truthful. There is nothing in Mr Costello's evidence which even remotely hints, in my assessment, of his not believing Connolly initially. In answer to one of Mr Canceri's questions, Mr Costello said this: So Mr Connolly's account as provided by to the police was significantly borne out by what they had discovered when they'd done the crime scene investigation. And so there was a body of evidence plainly indicating that a very serious episode of criminal offending had occurred within the house, directed towards Mr Connolly. 1. Again, I am not persuaded on the balance of probabilities that Mr Costello did not honestly believe the guilt of the plaintiff on the charges contained in the indictment when he commenced the trial. 2. Since there was more evidence available to Mr Costello when he was briefed, there was available to DSC Green between 30 May and 3 June 2015. I shall consider the objective element as far as DSC Green and Mr Costello separately, and the evidence on each charge separately. (a) Objective element: DSC Green: wounding charge 1. There is no dispute that the only person who physically wounded Connolly was Fernando. It is clear from what I said at [67] to [71] above that DSC Green based his assessment of the plaintiff's guilt on the wounding charge as her being a principal in the second degree. What had Connolly communicated to DSC Green that enabled him to make that assessment. The first document he prepared was COPS Event E57479070 (CB 836). That contains these allegations: * Connolly attended the plaintiff's house at her invitation. * Five minutes later, the plaintiff admitted Fernando to her house and introduced Fernando to Connolly. * After Connolly declined to go outside to fight Fernando, the plaintiff was agitated and spoke to Fernando. * Fernando took several knives from the kitchen of the plaintiff and placed them on the benchtop. * Fernando used one of those knives, attacking Connolly in a stabbing motion. * Connolly was wounded and was bleeding. He was made to sit on the dining room floor. * Connolly was told the doors were deadlocked and he could not leave. * Fernando had a syringe containing "ice". Connolly was made to self-inject the drug. * Fernando again attacked Connolly with knives, causing the left elbow wound. * The plaintiff remained nearby and offered no assistance to Connolly. * Fernando said, inter alia, "we've got your car". * There were ongoing bouts of physical abuse between conversations between Fernando and the plaintiff. * Fernando said to the plaintiff, "let's go for a drive Carly" and then said to Connolly, "we're going to take you out to the bush and we're going to get the truth". * Connolly was made to clean the dining room floor, which had his blood on it, with towels which he placed into a bag. * Fernando tied up Connolly. * Connolly managed to free himself and ran from the house by the front door. The allegations in bold are those which might possibly implicate the plaintiff. 1. The next document generated by DSC Green was generated by DSC Green was the Facts Sheet (CB52). Unsurprisingly, that is in (probably) identical terms to the COPS Event narrative. I set out in [10] above Connolly's statement of 31 May 2015. Allegations expressed differently or further allegations (again those implicating the plaintiff are in bold) are these: * When the plaintiff returned from admitting Fernando, she had a strange grin on her face. Fernando was also grinning. * The plaintiff said to Fernando words to the effect of "what did you get?" to which he replied, "Only about two points". * The plaintiff obtained materials which were used to administer a substance. * The plaintiff and Fernando argued about whether the plaintiff was going to have a shot of a syringe with the substance. The plaintiff and Fernando continued their argument about that and went towards the back room of the house. * When they returned there was a further argument between them on this issue. * When Fernando left the room, Connolly injected the plaintiff at her request. * After Fernando "came at" Connolly with a knife, Fernando said to the plaintiff "Make sure the doors are deadlocked". The plaintiff left the room and Connolly heard the doors of the house being closed, the back door first. * After Connolly was initially stabbed, the plaintiff said to him "It's about time you tell the truth. You've got inside my head, come clean with it". * Similar things were said to Connolly, about the plaintiff, by the plaintiff and Fernando. * Connolly wanted to escape but he was afraid of turning his back on Fernando to escape by the front door. He could not escape by the back door as the plaintiff was standing in the kitchen "blocking the way to the back door". * After speaking to her mother on the telephone, the plaintiff said to Connolly "Are you going to tell the truth?" * Connolly offered valuables from his car to extricate himself from his predicament. Fernando said, "Can't you see we're not robbing you we are going to kill you. You're not going we've got your car keys." * Connolly could not use his phone. The plaintiff had picked it up and was looking through it. She asked Connolly for his PIN. * The plaintiff stayed in the corridor between the kitchen and the back room/rear door. She kept asking Connolly to tell her the truth. * Fernando stabbed Connolly again in the right upper arm. The plaintiff obtained a "medical kit" and gave it to Fernando. They decided to bandage Connolly's arm because of the amount of blood he was losing. Connolly was handed the bandage and told to bandage himself. Connolly believed this to be to stop his blood being spilt on the floor. * Both Fernando and the plaintiff were erratic in their behaviour. * Fernando asked the plaintiff for an implement to knock Connolly out. The plaintiff went to the book shelf and handed one of the antique pistols to Fernando. * Fernando asked the plaintiff to get a towel because Connolly was bleeding all over the floor. The plaintiff did so and threw the towel to Connolly and said, "clean it up". * The towels included a brown fitted sheet. * The plaintiff and Fernando moved three metres away near the fridge and had a conversation Connolly could not hear. * After Fernando changed his T-shirt, he said to Connolly, "we are going to take you to the bush, with the guns and knives. You haven't seen anything yet. [We're] going to cut you up in bits". * The plaintiff came back into the dining room and placed rope on the bench. Fernando used the rope to bind the plaintiff. * Connolly could hear Fernando and the plaintiff [? talking] out the back as he untied himself and escaped by the front door. 1. A large number of these allegations suggest concert, collusion, concord between the plaintiff and Fernando, or at least acquiesce by the plaintiff in what Fernando was doing. There was never any protest by the plaintiff to anything Fernando did, except his opposition to her having the drug which is identified passim as "ice". There was never any assistance offered to Connolly except the bandage, which he thought was motivated by an ulterior purpose. She did not complain to her mother on the phone. There is no evidence she phoned anybody (else). The plaintiff made no attempt to alert anybody in authority to what was being done. There is no evidence that she herself, attempted to escape. On Connolly's version she assisted Fernando by locking the doors, back door first, providing Fernando with an antique pistol to club Connolly and towels and a sheet to mop the floor, and the first aid kit with the bandage, and the rope with which Connolly was bound. When Fernando made statements of their intention (as distinct to his intention) in the plaintiff's presence, she made no protest or in any way sought to divorce herself from the stated joint intention. Some of the language used is also significant. At [10] of his statement Connolly said that the plaintiff said, "It's time to tell the truth. Why are you in my head?" That was mimicked by Fernando, "You have done Carly's head in." The demand that Connolly tell the truth is repeated in [12] of the statement, and [13]. Those statements suggest that the plaintiff had a personal interest in making demands on Connolly which may have motivated the actions taken by Fernando. Whilst the statement does not say that the plaintiff was physically present in the dining room when each wound caused by stabbing was inflicted, it is only necessary for the Crown to prove that she was ready and able to come to the assistance of the principal in the first degree, if and when required. She need only be in the near vicinity – see [70] above and R v Dunn (1930) 30 SR (NSW) 20; R v Doorey [1970] 2 NSWR 351; Likiardopoulos v The Queen [2010] VSCA 344. 2. The plaintiff's submissions on this aspect of the matter are these: 39. Further, according to Mr Connolly's statement made the day after the plaintiff was charged, Mr Fernando was immediately hostile towards him and shortly after became enraged when the plaintiff became sick upon injecting drugs. It was in this context that Mr Fernando attacked Mr Connolly with a knife. Critically, at this point in time the plaintiff was not in the room. 40. According to the statement of Mr Connolly, the initial attack upon him by Mr Fernando seems to have been motivated by Mr Fernando becoming angry when the plaintiff felt sick. This was the genesis for the initial and subsequent attacks. 41. DSC Green needed to establish the existence of an agreement to commit the offence and the participation in it by the plaintiff. There was no direct evidence of an agreement being reached and the evidence was not capable of giving rise to an inference of an agreement in circumstances where the attack by Mr Fernando appears to have been a spur of the moment decision which he took alone. 42. DSC Green conceded that up to the point where the plaintiff injected drugs and felt sick, resulting in Mr Fernando becoming further enraged, the evidence militated against the suggestion that the plaintiff had reached an agreement with Mr Fernando to commit the offence of wounding with intent to cause grievous bodily harm. 43. Further, there was no evidence that the plaintiff had participated in a joint criminal enterprise to commit the offence in the sense of intentionally assisting or encouraging Mr Fernando to commit the offence: see R v Chishimba [201] NSWCCA 228 at [29]. The plaintiff was not in the same room as Mr Connolly and Mr Fernando when the initial wounding occurred. 44. As for extended joint criminal enterprise, some of the wounds had been inflicted before the doors were allegedly deadlocked. In other words, the detention allegedly occurred after the initial wounding. Unless there was evidence establishing before the wounding that the plaintiff and Mr Fernando had reached an agreement to detain Mr Connolly, it could not be proven that the plaintiff contemplated a wounding with intention to cause grievous bodily harm. 45. The case for the plaintiff being a principal in the second degree was also hopeless. In order to establish that the plaintiff was a principal in the second degree, DSC Green needed to prove: (a) The presence of the plaintiff at the time the wounding was committed; (b) That the plaintiff knew all the essential facts or circumstances necessary to show the crime was committed by Mr Fernando (including that Mr Fernando intended to wound Mr Connolly with the intention of causing him grievous bodily harm); and (c) With that knowledge, the plaintiff intentionally assisted or encouraged Mr Fernando to commit the crime. 46. The evidence before DSC Green was that the plaintiff was not present when Mr Connolly was first wounded. There was no direct evidence that the plaintiff knew that Mr Fernando intended to cause Mr Connolly grievous bodily harm. Further, there was no evidence that armed with the knowledge of the essential facts or circumstances, the plaintiff intentionally assisted or encouraged Mr Fernando to commit the crime. 1. The question of "genesis" is an interesting one. There is no suggestion that Connolly had ever previously met Fernando. Indeed, the plaintiff had to introduce them to each other by their first names. Fernando's initial reaction to Connolly was hostile. In [6] of his statement Connolly said this: "I offered my hand to shake his and he refused. He said, "You putrid cunt". This is hardly how any person reacts to being introduced to another. Why was this so? The only thing that each man appeared to have in common was some form of relationship (in the broadest sense) with the plaintiff. A rational inference to draw is that Fernando resented Connolly's presence with the plaintiff in her home. Of course, Fernando may have been a psychopath, but that is hardly consistent with the plaintiff's knowing him and inviting him into her house. The allegation of Connolly that Fernando took up a knife (an escalation of the hostility) after the plaintiff complained of feeling nauseous, links his hostility to his relationship with the plaintiff. If there were any pre-existing agreement between the plaintiff and Fernando, Connolly would not know of it, and its existence can only be inferred from all that occurred, then and later. 2. Fernando threatened Connolly with the knife and assaulted him with his fist to make Connolly self-inject with the substance. He swung the knife at Connolly, after he injected himself, but before Fernando stabbed Connolly Fernando directed the plaintiff to "make sure the doors are deadlocked," and she did so, according to Connolly's statement. That the plaintiff knew that Fernando had stabbed Connolly is clear from [10] of Connolly's statement. According to [12] of the statement, the plaintiff had "returned" after speaking to her mother on the telephone and appears to have been present during the second stabbing event after which Fernando made his statement as to their joint intention, which the plaintiff did nothing to rebut. It appears from [13] to [18] that the plaintiff was present throughout until she left to get the rope (see [19]). However, she does not appear to have been present when Connolly was bound, and certainly not when he managed to free himself. 3. The police and Crown case on detention was that the detention commenced when Fernando directed the plaintiff to deadlock the doors and she attended to that task. That was before any wounding. Yet, prior to any wounding, Fernando had taken up a knife and had threatened Connolly with it, holding it "under" his neck, presumably at his throat. The use of the knife prior to the detention makes an allegation of joint criminal enterprise plausible. 4. I would not describe the allegation of the plaintiff's being a principal in the second degree as "hopeless". This was the thrust of DSC Green's attribution of criminal liability for the wounding to the plaintiff. Mr Canceri's view of the requesting of the "presence" of the plaintiff is an unduly narrow one, as the authorities I have cited show, and as Mr Costello pointed out at T174.8. There is evidence from Connolly that after the initial stabbing of Connolly by Fernando, assistance was given by the plaintiff to him and the evidence suggests that the more serious stabbing injury, that to the left elbow, occurred in her presence and she still aided Fernando by going to retrieve the rope. 5. Mr Canceri's submissions on this aspect of the case with his raising intoxication as a relevant issue. It was raised at the trial, because of the evidence given by Fernando. Mr Costello gave this evidence: Q. Now, intoxication of the plaintiff was a live issue at the trial, correct? A. Look, it was an issue that was open on the evidence, and the judge is required to give intoxication directions if the issue arises on the evidence. Now, Ms Melmeth never gave evidence herself, but the evidence that established that intoxication was an issue, Mr Connolly alluded to it but without, I think, at any point suggesting that Ms Melmeth's actions were so affected by drugs or other substances that intoxication would arise. There was a reference to taking drugs, her feeling sick, but Mr Connolly's description of her conduct didn't really raise intoxication as a live issue. However, Mr Fernando's evidence plainly did, and therefore, irrespective of the case that was really being run by Ms Melmeth, intoxication was an issue that had arisen in the trial. There was a foundation for it, and his Honour was therefore going to have to give a direction in relation to it. HIS HONOUR: It also arose in the police evidence, didn't it? I mean, immediately after they were arrested, the plaintiff was found to be drug affected. WITNESS: Yes. So when the police arrested the occupants of the house, they did form the view that Ms Melmeth was affected by something, and by the time they got her back to the station before they did an interview, it was lower concern, but there was also call, I think, to the hospital about her diabetes, and we never had medical evidence in relation to that. But I know that a diabetic who is being affected by concentrations can also present with symptoms of intoxication. So there was evidence that immediately after when she was arrested that she was affected by something, but there had been an intervening period, there had been drugs in that house, and there was no real way of knowing what had happened after Mr Connolly left until the police arrived, unless you relied on the evidence of Mr Fernando, which the Crown obviously didn't accept, and the jury obviously didn't accept in its entirety. Independently of Mr Costello, it appears to me that intoxication did not arise in the material available to DSC Green. That material is this: 1. the plaintiff's repeated complaints of feeling sick. Nausea does not indicate intoxication. Of course, there are many ways in which one can be sick, but the common human experience of "feeling sick" is a feeling of being about to vomit or retch, which is nausea; 2. the plaintiff, like Fernando, was erratic in her behaviour (Connolly's statement at [15]), but being erratic can be caused by a number of different things and some people are idiosyncratically erratic; 3. police officers, including DSC Green, believed that for the plaintiff, after being arrested, was affected by a substance other than alcohol, but that was at least an half hour after Connolly left the plaintiff's house (3:38pm, arrest at 4:14pm – above at [10] and [18]); 4. to the contrary, the plaintiff did things requested of her by Fernando, or of her own accord e.g. locks the doors, getting the medical kit with the bandage, getting the towel and sheet to mop up the blood, retrieving the antique pistol from the bookshelf and handing it to Fernando to club Connolly and, tellingly, conducting a telephone conversation with her mother. If the plaintiff were then intoxicated, the mother was available as a witness. 1. In so far as the charges laid by DSC required specific intent, the rational inference to draw from the plaintiff's complying with Fernando's direction or request to deadlock the doors was that she shared the intention to detain Connolly in her home. As far as the wounding was concerned, she was present when Fernando initially threatened Connolly with a knife, she must have been aware of the initial stabbing(s) and she appears to have been present at the other stabbings. She was well aware that Fernando was wielding a knife and that he had an animus against Connolly. A tribunal of fact could draw the inference that she shared an intention of causing a really severe injury. 2. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable case for the wounding charge. (b) Objective element: DSC Green: kidnapping charge 1. The plaintiff's submissions on this aspect of the case were: 51. There was no evidence that the plaintiff detained Mr Connolly with the intention of obtaining an advantage, namely to avoid police detection. 52. As for the element of detention, on 31 May 2015 Mr Connolly had provided a statement in which he said that Mr Fernando had said to the plaintiff "Make sure the doors are deadlocked", after which the plaintiff left the room and Mr Connolly heard the doors to the house being closed, the backdoor being closed first. Mr Connolly also said in his statement that the plaintiff provided Mr Fernando with some white and blue rope which Mr Fernando used to tie Mr Connolly's ankles and hands together. 53. The point is that there was simply no evidence of the plaintiff detaining Mr Connolly with the intention of obtaining an advantage. 54. Later on, when the Director of Public Prosecutions took over the carriage of the matter, the allegation morphed into an offence of detaining with the intention to commit a serious indictable offence, namely intimidation, and during the detention actual bodily harm was occasioned. 1. The change of the particulars of the advantage sought has already been noted and discussed. However, "avoiding police detection" could be justified as an advantage of the detention as it allowed the assaults on Connolly to be protracted over a period of some 3 hours, without anyone being able to ascertain what was going on in the plaintiff's house. Most human actions have a purpose – most things are done deliberately, even if routinely. Accidental human actions are, fortunately, not common. There is a lot more walking, running and jogging than slipping, tripping or losing balance. There obviously was a purpose to detaining Connolly in the plaintiff's house, a purpose which she shared. From what the plaintiff herself is said to have said, she was trying to make Connolly tell her the truth, to tell her of his interest in her, if I have correctly divined the meaning of the Delphic "You've got inside my head, come clean with it." To suggest, as Mr Canceri does, that there was no intention in detaining Connolly (a fact that he does not dispute, on the evidence available to DSC Green) is a nonsense: some advantage must have been sought. There is no suggestion that Connolly was detained for some disadvantageous reason i.e. like a hospital keeping a patient to treat him or her, or a charity keeping a person to protect her or him from the elements or other potential danger. A common particular alleged in many "kidnapping" cases is "to discuss personal issues" where a young man detains a young woman in his car, to sort out a disagreement about their (faltering) relationship. This detention may have been of such a nature. The particulars of the advantage contained in the CAN can be changed, and were, when the indictment was presented and the plaintiff first arraigned. 2. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable cause for the detention charge. (c) Objective element: Mr Costello: wounding charge 1. Of course, the evidence or material available to DSC Green was also available to Mr Costello. Mr Costello also had available to him the telephone records, text message records, Facebook messages, DNA evidence and the results of other forensic enquiries. There are some significant additions to the material available to DSC Green. 2. There were the earlier messages passing between Connolly and the plaintiff. There are those I set out at [8] above, exchanged on 30 May 2015. They also included the messages in which Mr Massey cross-examined Connolly – see above [98] to [101]. There were also the electronic records relating to the plaintiff and Fernando, upon which Mr Costello cross-examined Fernando. Those records have not been provided to me. All I know of them is what is contained in Mr Costello's cross-examination of Fernando: see [115] to [120]. This evidence suggests: 1. on the evening of 28/29 May 2015, there was a falling out between the plaintiff and Fernando; 2. that may have been because Fernando was with a girl ("Jess") whose text messages sent or received Fernando had deleted from his phone, or someone the plaintiff described as a "slut"; 3. on the other hand Fernando was alleging that the plaintiff was being unfaithful to him by seeing "old bud" i.e. Connolly; 4. tentative arrangements were made for a relative of Fernando to go to the plaintiff's house to collect his clothing; 5. Fernando sought to make arrangements later on 29 May to visit the plaintiff, perhaps seeking to reconcile; 6. Connolly was attending the plaintiff's house on and off during the day, and it was possible that Fernando was aware of that; 7. at 12:39pm on 30 May 2015, very shortly before Connolly arrived at the plaintiff's house there was a telephone call lasting 4 minutes and 23 seconds between Fernando and the plaintiff, which Fernando denied being able to recall, even though he turned up at the plaintiff's house some 20 minutes later and was admitted by the plaintiff, leading to the event. 1. Whilst the messages passing between the plaintiff and Connolly suggest that his interest in the plaintiff was greater than he admitted (to his obvious detriment: miscredit), the messages and telephone calls suggest a falling out between the plaintiff and Fernando, an attempt by him at reconciliation which may have occurred in the telephone call between him and the plaintiff, shortly prior to the event. This "electronic" evidence in my view strengthened the Crown case. As Mr Canceri pointed out in his submissions, Mr Costello's opening to the jury was predictably based on the contents of Connolly's statement of 31 May 2015, as Mr Costello said in his evidence (T160.14). There is no issue that Connolly was an essential Crown witness. There is no contest to the proposition that the Crown case against the plaintiff was based on the evidence that the Crown wanted to call from Connolly. The "real" or circumstantial evidence did not make out the Crown case against the plaintiff, but did greatly assist the case against Fernando. 2. The plaintiff's submissions on this issue are based mainly on the same matters that were relied upon in the case against DSC Green and on the way the evidence fell out from Connolly both in chief and in cross-examination, and on remarks made by Ellis DCJ as the evidence was unfolding. In so far as the plaintiff relied on what was alleged, objectively, about the material available to DSC Green, I shall not repeat myself. As I have said the further evidence, in my view, strengthens the Crown case. The further matters are, in my view, irrelevant. In Fred Saad & Ors v State of New South Wales [2016] NSWSC 1247, RS Hulme AJ at [392] said this: The police or the DPP do not choose the persons who witness offences or admissions and many of whom do have personal deficiencies and attributes of unreliability. Whether their accounts should be accepted in a particular case is primarily for a court or jury. Accordingly, the mere fact that a prosecution, depending for its success on witnesses easily discredited or not able to be corroborated, is continued, while obviously relevant to the issue of reasonable and probable cause, says little or nothing otherwise on whether the prosecution was motivated by malice. The prosecution of the plaintiff failed because Connolly did not stand to proof of his statement. The testing of his evidence that Mr Costello made did not suggest to Mr Costello that Connolly would not stand to proof: see [64] to [66] above. True it is that he did not attend at the aborted trial because of his fear of possible repercussions, but he did appear for the actual trial, and had a conference with Mr Costello prior to it – and that conference suggested to Mr Costello that he would stand to proof. The only things which might have suggested a problem with Connolly's evidence are these: 1. There was no deadlock on the front door of the plaintiff's house, evident from the photographic evidence. Whilst Fernando directed the plaintiff to "deadlock" the doors, he may not have known the type of lock on the front door. Nevertheless the plaintiff may have locked the front door; in so far as it could be locked. In his statement, Connolly merely referred to running "out the front door", without any mention of having to obtain a key, something added in his oral evidence. 2. Connolly's description of his relationship with the plaintiff prior to 30 May 2015 appears understated. That is a credit issue, not an issue of substance, however. However, it did provide the Crown with material which could suggest a motive for Fernando – jealously of Connolly's relationship with the plaintiff, referred to by trial Counsel as "mowing his grass". These deficiencies were, in my view, of no moment in objectively determining reasonable and probable cause. 1. Another matter that must be considered on the issue is that neither the plaintiff nor Fernando gave an interview to the police. There was no ERISP to be played to the jury, nothing which indicated to the Crown what the defence case might be, nothing to suggest what the Crown might have to rebut in its evidence, before any defence evidence was called. Sometimes an interview given by an accused person can raise issues which, if properly investigated, might lead to a charge or charges being withdrawn or no-billed. Nothing like this occurred in the current matter. 2. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable cause for the wounding charge available to Mr Costello. (d) Objective element: Mr Costello: kidnapping charge 1. The plaintiff's submissions on this aspect are these: 100. The issue of intoxication was relevant to the kidnapping charge. The plaintiff therefore relies on the submissions put in relation to the s 33 charge. 101. The evidence as to intoxication before Mr Costello, that evidence being in his brief, cast significant doubt upon the plaintiff being able to form the requisite intent. 102. Further, what happened to Mr Connolly was at the instigation of Mr Fernando who was hostile towards Mr Connolly from the outset. In other words, the kidnapping arose from Mr Fernando's hostility towards Mr Connolly. This fact was apparent from Mr Connolly's statement dated 31 May 2015. 1. When Mr Costello was delivered a brief and when he opened to the jury, intoxication was not an issue. As I said at [160] above it arose only during the trial, from the evidence given by Fernando. At the end of Day 3 of the trial, in the absence of the jury, his Honour was asking questions of Counsel, seeking to ascertain what directions he might be required to give. This exchange occurred: HIS HONOUR: And then we'll wait and see whether they give evidence. Intoxication, is it likely, do you anticipate that there will be evidence - at this stage there is no evidence of intoxication, there's only evidence of a needle— MASSEY: There will be evidence of intoxication, your Honour. FITZGERALD: Not for my part. MASSEY: Whether or not that amounts - and it depends on what happens with, which offence goes to the jury, as to— HIS HONOUR: Well, it mightn't actually be as relevant to your client, because she's not actually said to be the person doing any of these things. MASSEY: All I can say at the moment, your Honour, is there will be evidence of intoxication. That will come in the Crown case, and— HIS HONOUR: As to Ms Melmeth. MASSEY: As to Ms Melmeth. What use can be put to that, I haven't— HIS HONOUR: Well, intoxication would be relevant to her in terms of - it will be complicated, because it will be in terms of whether she's part of a joint criminal enterprise that included an intent. But I won't be giving a direction on intoxication re intent for Mr Fernando. Then arguably, I'll have to give a direction on intoxication re intent as part of her having a joint criminal enterprise to commit this particularised offence, which would include that she's got a joint criminal enterprise involving an acceptance that, if there is an intent to commit - it is because it says "with intent to commit". MASSEY: Of course, yes. HIS HONOUR: So that's a complication where the intoxication - if there's no evidence of intoxication for Mr Fernando, then there's not a problem, but for your client it would be an issue, but then it's complicated because she's not the person said to have done the act, but she is the person, in order to be guilty of this offence, who must have had a joint criminal enterprise, meaning an agreement that in fact there was an intent to intimidate. And so as part of her reaching the agreement, or being in an agreement with an intent, intoxication would be relevant. FITZGERALD: The jury will understand that. HIS HONOUR: Oh, yes. Well, I don't make the law. Of course, evidence of intoxication was given by Fernando, called by Mr Fitzgerald, and Mr Massey called no evidence! This issue was revisited at the end of Day 6 after DSC Green had given evidence of what he perceived her state was when he spoke to her at the service station at her arrest: Q. Just in relation to Ms Melmeth's behaviour at that point, what was her behaviour like? A. I refer in my statement to her as fidgeting, erratic and her eyes blurred. I formed the opinion that she was affected by some kind of substance, other than alcohol. However the discussion concerning intoxication only occurred after Mr Costello discussed the issue of taking no further proceedings against the plaintiff on the wounding charge. The discussion was this: HIS HONOUR: I still need to give those directions in relation to Ms Melmeth on the issue of intoxication. CROWN PROSECUTOR: I did have a look at that. I can print something out that I prepared as a working copy of ideas for myself if it assists. HIS HONOUR: All right. CROWN PROSECUTOR: It was effectively a slightly modified version of the intoxication direction in the benchbook. It would appear that— HIS HONOUR: Yes, I've sort of done that a bit myself. CROWN PROSECUTOR: It's a curious situation because the specific result is not as clear cut as some results, in terms of intoxication offences and Ms Melmeth's participation is not directly, it's— HIS HONOUR: No and you've got an intent to commit an indictable offence which, of itself, involves a state of mind, namely intimidation. CROWN PROSECUTOR: Yes, your Honour. HIS HONOUR: So specific intent, to have a specific state of mind, yes, all right. And then so for Ms Melmeth it will be no evidence and no ERISP? MASSEY: That's so, your Honour. Mr Fitzgerald then indicated that he would call Fernando to give evidence. Of course, DSC Green was the final witness in the Crown case, and although DSC Green's evidence in chief was not complete, defence Counsel had clearly decided what he wanted to do and were prepared to advise his Honour accordingly. This premature raising of "intoxication" does not cause me to resile from what I have earlier found. To take into account what DSC Green observed over half an hour after the event, as being the fact during the event, required expert evidence. 1. Whilst the instigation of the detention of Connolly was initiated by Fernando, the plaintiff acquiesced in the plan by complying with Fernando's direction or request, and was furthered by her providing the pistol and the rope to Fernando. It can not be disputed that at the time Mr Costello opened to the jury there was evidence to support a joint criminal enterprise on the charge of kidnapping. 2. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable cause for the kidnapping charge available to Mr Costello. Damages 1. On my findings thus far, the plaintiff's action fails. However, in case the matter go further, I am required by the Court of Appeal to make findings about damages. The plaintiff's Schedule of Damages (filed 28 September 2020) contains this table: Head of Damage Amount General damages $125,000.00 Aggravated damages $50,000.00 Exemplary damages $25,000.00 TOTAL $200,000.00 The plaintiff makes no claim for: 1. Loss of income or earning capacity; 2. Out of pocket expenses; 3. Personal injury damages; 4. Legal costs (these are covered by the order made by Ellis DCJ on 31 August 2017). The defendant submitted that general damages up to $100,000 might be thought to be appropriate, but only if the proceedings were found to have been malicious from the outset. The defendant also submitted that were aggravated damages to be awarded, the total compensatory damages ought not exceed $100,000. In respect of exemplary damages, the defendant conceded that a sum up to $25,000 might be thought to be appropriate, if awarded at all (see MFI 7). 1. In Gibb-Smith v NSW [2018] NSWDC 204 I said at [129]: Malicious prosecution is an action in case rather than in trespass and so the plaintiff must prove damage. It is not actionable per se. The types of damage that may be recovered include economic loss, e.g. legal costs incurred in defending the prosecution; lost income from the need to take time off work to attend upon one's lawyers or the courts; necessary travelling expenses for those purposes. The damages include: (a) loss of or damage to reputation: see State of New South Wales v Landini [2010] NSWCA 157 at [40], [102]; (b) the conditional loss of liberty by reason of one's liberty being curtailed by being on bail: ibid at [42], [104]; (c) "mental distress and agitation" which includes anxiety and depression: ibid at [43], [105]-[110]; and which would also include "the stress and uncertainty" experienced while proceedings were pending, whilst awaiting the court's decision. Of course, the damages do include those for actual loss of liberty. In Gibbs-Smith the plaintiff brought a separate action for the false imprisonment by the police for "a few minutes short of 4 hours" after his arrest, mainly at a police station. 1. In the present case the plaintiff was arrested at 4:14pm on 30 May 2015 and was not released from custody until 24 November 2015, a period of almost six months. She was initially taken to Waratah Police Station, thence Newcastle Police Station for 4 or 5 days, thence Silverwater Gaol, thence Dillwynia Correctional Centre and thence Silverwater Gaol prior to the release on bail. I discussed her incarceration at [24] to [25] above. Thereafter she was on very onerous bail conditions which I outlined at [26] above, noting, in particular, her inability to care for her son who would have been 9 years old at the commencement of her bail. 2. Other matters to be taken into consideration include her being strip-searched by a male police officer – see [16] to [17] above. Another matter is completely understandable: that was concerned about the progress of the prosecution, anxious about it, vexed by the adjournment of the trial in 2016, and feeling "scared" during the trial, scared that she might be found guilty and go back to gaol [T39.21]. I was not, however, particularly impressed by her reaction to the articles which appeared in the Newcastle Herald, which really focussed on Connolly, rather than the plaintiff. She said she felt "Humiliated. Just… disgusted with how they could write stuff [like] what was in the articles" (T36.62). That smacked to me of hyperbole, but I accept that the plaintiff would have felt concerned and disappointed that the allegations against her were published in the press, which publication could make its way onto the internet. Another matter to take into account is her age: she was 30 years old at the time of the event, Fernando was 27 years old and Connolly was 35 years old. 3. Quite frankly, I would be quite prepared to award the plaintiff $125,000 compensatory damages, if the whole of what happened to her was malicious ab initio. However, I should indicate other findings. If the plaintiff had established her case against DSC Green, for the period he was the prosecutor, a lesser sum would be called for. That should reflect her initial arrest, charging and incarceration. Although the decision to refuse her bail was initially made by the OIC at Waratah Police Station, rather than DSC Green, it was because of the gravity of the charges that she was bailed refused. That remained the case until she appeared for and was granted bail by Schmidt J. I would allow $70,000 for such damages. If the plaintiff had made out her case against Mr Costello, I would allow $35,000 for the damages for what could be attributed to him. 4. The principles of the awarding of exemplary damages are well known: see Zreika v NSW [2012] NSWCA 37 at [60] to [64]; Gibb-Smith v NSW [2018] NSWDC 204 at [122]. On my findings, the plaintiff is not entitled to any such damages but, considering the parties submissions, if the whole prosecution was malicious ab initio it would be reasonable to award $25,000 under this head. Orders 1. Verdict and judgment for the defendant against the plaintiff. 2. Unless an application be made by a party at the time of publication of these reasons, I order the plaintiff to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2021