District Court New South Wales Medium Neutral Citation: Toth v State of NSW [2021] NSWDC 615 Hearing dates: 03 May 2021 04 May 2021 05 May 2021 06 May 2021 07 May 2021 08 July 2021 29 October 2021 16 November 2021 Date of orders: 16 November 2021 Decision date: 16 November 2021 Jurisdiction: Civil Before: Montgomery DCJ Decision: (1) Judgment for the defendant against the plaintiff (2) Plaintiff to pay the defendant's costs of the proceedings Catchwords: TORTS — Misfeasance in Public Office; Orders – Local Court; S9 Bonds; "Supervision"; Community Corrective Service Department of Justice Power to give Directions Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 63, 68 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 10, 95(a), 95(b), 95(c),96, 97, 98 Cases Cited: A v New South Wales (2007) 230 CLR 500 Jones v Bartlett (2000) 205 CLR 166 Obeid v Lockley (2018) 98 NSWLR 258 NSW v Ibbett (2006) 229 CLR 638 Northern Territory v Mengel (1995) 185 CLR 307 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 Category: Principal judgment Parties: Mr Andrew Toth, Plaintiff State of NSW, Defendant Representation: Counsel: Mr Toth, Self-Represented Mr Bateman, Counsel for the Defendant Solicitors: Ms Koch, Solicitor for the Defendant File Number(s): 2018/00334165 Judgment 1. The plaintiff complains about directions given by Community Corrections Officers Fotofili and Mina during the period of his recognisance pursuant to a s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') bond. PLEADINGS 1. The proceedings are properly brought pursuant to the provisions of the Crown Proceedings Act 1988 (NSW) against the State of New South Wales. The subject public officers, Fotofili and Mina were retained by the Community Corrective Service, NSW, a Division of the Department of Justice (as it then was) at the relevant time. 2. On 15 March 2016, her Honour Viney LCM found the plaintiff guilty of the offence under s 91L(1) Crimes Act 1900 (NSW); in that he, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, filmed a females private parts, in circumstances in which a reasonable person would reasonably expect the females private parts could not be filmed without her consent and knowing that she did not consent to being filmed for that purpose. 3. On 30 May 2016 her Honour, by way of sentence, directed the plaintiff to enter the good behaviour bond pursuant to s 9 CSP Act. 4. The plaintiff alleges that the following directions given were given by the officers in misfeasance of public office: 1. On 3 May 2017, orally by Officer Fotofili: by 7 May 2017 not to possess any recording devices. And 1. On 17 May 2017, in writing by Officer Mina: not to possess a pen camera or other concealable recording device. 1. Officer Mina was the Case Manager. The written direction given on 17 May 2017 was in response to the plaintiff having asked Officer Mina on 10 May 2017 to provide a written direction after review of the 3 May 2017 direction given by Officer Fotofili. At the same interview the plaintiff sought clarification of whether or not he was permitted to possess a mobile phone. 2. There is no dispute that the above directions were given by Officer Fotofili and Officer Mina. 3. As the case was pleaded, the plaintiff referred to the Bond entered on 30 May 2016 and not to the Bond of identical terms which commenced on 22 March 2017, when the stay of the earlier sentence of Viney LCM expired, on the dismissal of the plaintiffs appeal. Pursuant to s 68(1) of the Crimes (Appeal and Review) Act 2001 (NSW), on entry of the result confirming the sentence of Viney LCM, (as it was in JusticeLink) that Order for Bond took effect. For convenience and because the plaintiff raises separate issues concerning the making of Orders on 22 March 2017, in these reasons I refer the Bond of 30 May as the "Third Bond" and the Bond of 22 March 2007 as the "Fourth Bond". 4. The substance of the plaintiff's complaints, each of which is contested, is pleaded at paragraphs 24 to 27 of the Third Further Amended Statement of Claim as follows: In regard to Officer Fotofili's direction on 3 May 2017: "24 Mr Fotofili's verbal direction to the plaintiff requiring to not be in possession of recording devices was: a. unreasonable, and; b. without a proper basis, and; c. outside of his powers as a Community Corrections Officer, and; d. issued in circumstances where no proper case plan had been prepared by Community Corrections; e. issued in circumstances where Mr Fotofili was able to identify that: i. such a condition was placed on the plaintiff's First and Second 2012 bonds, and; ii. was a condition that should have been imposed by the Court." In regard to Officer Mina's Direction on 17 May 2017: "25 Ms Mina's verbal and written directions to the plaintiff in relation to possession of recording devices was: a. unreasonable, and; b. without a proper basis, and; c. outside of her powers as a Community Corrections Officer, and; d. issued in circumstances where Ms Mina was able to identify that: i. such a condition was placed on the plaintiff's First and Second 2012 bonds, and; ii. was a condition that should have been imposed by the Court." In regard to the conduct of both Officers: "26 Mr Fotofili and Ms Mina knew they were acting outside their powers by applying conditions to the plaintiff that were not imposed by the Court. 27 Further, and in the alternative, Mr Fotofili and Ms Mina were otherwise recklessly indifferent as to whether their directions were lawful." 1. At paragraphs 31 to 38 of the Third Further Amended Statement of Claim, the plaintiff alleges a separate basis of cause of action; that in misfeasance of his public office, on 3 May 2017 Officer Fotofili exceeded his powers by interrogating the plaintiff without proper basis for doing so. The defendant admits that Officer Fotofili questioned the plaintiff but denies the allegation of interrogation beyond power. The claim is pleaded as follows: "FURTHER TO THE ABOVE 31 On 3 May, 2017 Mr Fotofili filled in for Ms Mina, who was the plaintiff's Case Manager at the time, and… 32 Without paying any attention to the Court Orders that the plaintiff was to pursue psychological counselling, Mr Fotofili proceeded to aggressively interrogate the plaintiff to determine whether he possessed any recording devices. 33 The interrogation is detailed at [60] in the plaintiff's affidavit, dated February 2021. JURISDICTION 34 In interrogating the plaintiff Mr Fotofili exceeded his powers because a. The Court Orders, including the BOND TO COMPLY WITH CONDITIONS, made no allowance for interrogation and investigation b. The Court Orders, including the BOND TO COMPLY WITH CONDITIONS, made no order vis a vis recording devices (which was the subject of the interrogation) c. The interrogation was without a proper basis because there is no statute that allows CCOs to interrogate and investigate offenders. d. The interrogation contravened CSNSW internal regulations which state succinctly on page 11 of the Community Corrections Officer Handbook that investigative work should be left to the police e. The interrogation was unreasonable because it was unnecessary. The fact of the plaintiff's possession or non-possession of recording devices was irrelevant to the eventual issuing of Mr Fotofili's direction that the plaintiff not-possess any such devices (assuming Mr Fotofili was allowed to issue such a direction – which is denied) KNOWLEDGE 35 Mr Fotofili knew, or ought reasonably to have known, or was recklessly indifferent to the fact… • That he was interrogating the plaintiff. • That it was unnecessary to do so • That the Court Orders did not call for interrogation or investigation • That the Bond to Comply with Conditions did not call for interrogation • That although he was a law enforcement officer, he did not possess the authority to investigate as provided to the police under LEPRA HARM 36 Mr Fotofili's interrogation of the plaintiff resulted in emotional abuse and distress to the plaintiff KNOWLEDGE OF HARM 37 Mr Fotofili knew, or ought reasonably to have known, that his interrogation of the plaintiff resulted in distress and emotional abuse because he knew or ought to reasonably to have known that that is what interrogations do. IN CONCLUSION 38 By reason of the matters above, Mr Fotofili committed a further misfeasance in public office resulting in harm to the plaintiff." 1. On the fourth day of the hearing, 6 May 2021, the plaintiff amended the Third Further Amended Statement of Claim with leave. His principal amendment was to paragraph 23. With that amendment (in bold below) paragraphs 22 and 23 describe a central component of his case: "[22] In directing the plaintiff to enter the 2016 Bond, the Court did not impose a condition that the plaintiff not be in possession of a recording device. [23] The directions given by Mr Fotofili and Ms Mina amount to an additional condition of the 2016 Bond Court Order directing the plaintiff to enter into a section 9 Bond made 30 May 2016." It is common ground that the Bond included the condition that the plaintiff accept Community Corrective Service supervision for as long as considered necessary and obey all reasonable directions (TFASOC [13]; Defence [13(a)(2)]). It is common ground that on 30 May 2016, Viney LCM did not specifically state in her Orders a condition that the plaintiff not be in possession of a recording device. A central issue is whether the impugned directions were beyond power because her Honour did not specifically state that restriction. One way the plaintiff advanced his argument was that the impugned directions amounted to conditions in addition to the Court Order made 30 May 2016 directing him to enter the Bond. The defendant denies that the impugned directions amounted to conditions in addition to the Court Order. In order to give the plaintiff's case full opportunity, he not being legally represented, these reasons address the real issue; that being, whether or not the impugned directions were beyond the power of the Officers to give. ANTECEDENT OFFENDING AND THE FIRST AND SECOND BONDS 1. In the TFASOC pleading the plaintiff refers to "First" and "Second" Bonds. The plaintiff who was born on 12 December 1943 was, at the time of the events that are the subject of his complaints, in May 2017, 73 years of age. At the time of the hearing he was 77 years of age. He impressed as an obviously intelligent person. He had previously represented himself in court hearings and displayed more than a novice level of experience of doing so. His prior experience with courts included 2 earlier occasions on which he was directed to enter good behaviour bonds. 2. On 28 May 2012 the plaintiff was sentenced by Stone LCM to the 'First Bond'. The plaintiff explained of that recognisance, that his offending was pursuant to s 7(1)(b) Surveillance Devices Act 2007 (NSW). He was convicted on 20 September 2012, of using a video recorder to record the conversation between a female medical practitioner and himself while she examined his groin region on the occasion of his making a hernia type complaint. The facts included his surreptitiously recording that examination visually and in audio; but, whereas it was an offence to record the audio without the doctor's consent, it was not an offence to visually record it because an element of the offence of visual recording (s 8) was that he be upon the premises without consent. It being a medical examination, the doctor had consented to him being within her rooms. 3. On sentence, Stone LCM directed the plaintiff to enter a s 9 Bond to be of good behaviour for a period of 18 months and: "To accept the supervision and guidance and comply with all reasonable direction of the Probation and Parole Service for as long as deemed necessary; obey all reasonable direction for counselling, educational development or drug and alcohol rehabilitation and… Not to carry or possess a listening audio device as defined by the Surveillance Devices Act, excluding a mobile telephone." The First Bond was signed as explained by the Registrar/Prescribed Officer and as accepted by the plaintiff. 1. On 20 September 2012, in the result of his all grounds appeal from the Judgement of Stone LCM, the plaintiff was sentenced by Madgwick ADCJ. His Honour found the plaintiff guilty but without proceeding to conviction directed the plaintiff to enter a s 10(1)(b) bond (the 'Second Bond'), to be of good behaviour for 14 months, and directed the plaintiff to accept conditions, including: "(2) … Probation Service to monitor the commencement and completion of any supervision that they deem as necessary for as long as they can consider necessary. (3) To obey all reasonable directions for counselling education development or any other rehabilitation. … not to carry or possess a listening or audio service as defined under the Surveillance Devices Act excluding a mobile telephone or computer for the period of the bond" PROCEDURAL FACTS SURROUNDING THE THIRD AND FOURTH BONDS 1. On 30 May 2016 the plaintiff represented himself before Viney LCM, at his sentencing hearing. Her Honour explained to him that the purpose of the Pre-Sentence Report was "effectively to determine whether you are suitable for community options…also to assist in recommending either supervision or no supervision and to provide some background. Her Honour informed the plaintiff that he clearly was "for supervision": (T 30 May 2016, T2.31). In response to his inquiry, her Honour informed the plaintiff that she would not sentence him on the basis of the police facts but on facts as determined by her to be established during the hearing of the matter: (30 May 2016, T2.50) 2. Thereafter, the plaintiff informed her Honour of his background history including psychiatric and psychological treatment since seeing a psychiatrist in Cairns in about 1995. He reported that on the 31st of January 2011, Ms Mina Candalepas, psychologist at Campsie assessed him to have symptoms of Asperger's syndrome and she referred him to Dr Canaris, psychiatrist. He informed her Honour that Dr Canaris "confirmed the Asperger's diagnosis and said it was hardwired into me" and that Dr Canaris referred him to Dr Janina Szyndler, psychologist, who specialised in the treatment of that syndrome. The plaintiff attended her on four occasions between May and August 2011. The plaintiff informed her Honour of his seeing psychologists, Seidler, Peterson, Qualey, Matthews and Pratt over the intervening years. He stated: "… my inability to get along with the various psychologists is actually one of the symptoms of Asperger's syndrome. That, after all, was my sickness and the reason I was pursuing therapy. On a more positive note, this moving of one psychologist to the next that I was determined to make this work. If one psychologist did not work out I would try another one and another one and so on until I found the right one." The plaintiff submitted that he had been pursuing psychological treatment for three years prior to charges against him and therefore should be viewed as seeking treatment "without any pressure of any kind": (30 May 2016 T7.05). 1. The underlying submission advanced by the plaintiff before her Honour Magistrate Viney, more recently in the NSW Court of Appeal (to which Judgment I will come) and in this hearing; is that the activities which have led to charges and convictions of sexual offences, he committed for reason of researching for his publications and because of his interest in female exhibitionism. He maintains that he was not motivated by sexual gratification either personal or of some other person. As he put it to Viney LCM, and as it was similarly put in this hearing: he personally considers his actions, which have drawn police attention, to be a public service to bring these subjects out into the open: (30 May 2016, T8.20). 2. He frankly conceded to Viney LCM that he personally hated being photographed let alone surreptitiously photographed and had got into arguments with persons who had clicked their camera at him (30 May 2016, T9.20) but that he "felt no remorse for the victim. Probably I should but I don't. I suggest this maybe because of my autism." (30 May 2016, T10.07). However he did feel bad about what he did. He expressed his remorse as follows: "Not so much for the victim, I'm sorry, as for myself. I worry where I'm going, I do not like where I'm going. I'm afraid of telling my friends and family about my books…so there is a remorse of sorts. Remorse is probably not the correct word, self-dislike or even self-hate may be more appropriate and I ask some consideration here, at least for my honesty if nothing else.": ( 30 May 2015, T10.05 – 22)." The plaintiff submitted to Viney LCM "…that I am a good candidate for a supervised bond." 1. After informing her Honour that he no longer took photographs of women in public (30 May 2016, T11.06), he specifically asked that he be dealt with on a no conviction recorded basis under s 10 of the CSP Act by way of 18 month bond (30 May 2016, T11.45). Her Honour refused to proceed under s 10, observed the plaintiff to be "clearly an intelligent man" who identified with the fact that he did not like his privacy invaded through photography and yet lacked "any empathy for the individual" whose privacy he did invade: (30 May 2016, T12.17-20). Her Honour continued "I mean, you do not have to go too far to understand that if you put yourself in the same position, in any way, shape or form, you would be appalled…". The plaintiff responded "Yeah, yeah, I agree": 30 May 2016, T12.19-24. 2. The transcript reads that her Honour explained to the plaintiff that she was making her direction that he enter the Third Bond pursuant to s 9 of the CSP Act: "subject to the supervision by Community Corrections in terms of them offering assistance with regard to your ongoing psychological treatment. They may just may monitor your attendance and the psychologist that you presently clearly get on with, but ultimately it is for them to determine what is the most appropriate course of action" (bold added for emphasis): (30 May 2016,T12.50-T13.04). Her Honour warned the plaintiff that if he failed "to comply with the direction for supervision" he may well find himself back before the Court and that he needed to go to the Registry to sign a document before leaving the court precinct: (30 May 2016, T13.26-34). 1. Later in these reasons I find it necessary to correct the RSB punctuation in the above passage quoted from 30 May 2016, T12.50-T13.04. 2. My summary observation is that at the sentencing hearing before her Honour Magistrate Viney, the Court engaged with the plaintiff through his own detailed account of his mental health and attitude to his use of recording devices. Her Honour plainly: * considered the plaintiff's submission that he did not intend to break the law; * believed that his breach of the law was not trivial; * found that he had difficulty empathising with those whom he had recorded without their consent; and * explained that the condition for supervision under the s 9 bond, to which she directed him, was for supervision ultimately to be determined by Corrective Services. 1. Exhibit 3 is the standard bench Court Orders form completed by Viney LCM on 30 May 2016. Her Honour ticked the boxes for a bond recognisance under s 9 for a term of 18 months. Her Honour also ticked the box under the sub-heading "Bond or Discharge Conditions". In this hearing, the plaintiff focuses on the "Court Orders" bench form document, for his argument that the impugned directions given by Officers Fotofili and Mina in May 2017 were beyond power because they were in addition to her Honour's Orders. The box ticked by her Honour reads: "To accept Community Corrections supervision for as long as considered necessary, obey all reasonable directions for counselling, education development or drug and alcohol rehabilitation and report to [her honour inserted City Corrective Services] Community Corrections Office within…[her Honour inserted 7] days." 1. Exhibit 4 is the Third Bond dated 30 May 2016. A Prescribed Officer has signed the declaration; "I explained the bond conditions and witnessed the offender's signature." It is signed by the plaintiff under the words "I accept". The Conditions in addition to that he be of good behaviour and appear before the Court if required, were: "To accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions. To attend for counselling, educational development, drug or alcohol rehabilitation" 1. The plaintiff lodged an all grounds appeal against his conviction and sentence. Pursuant to s 63 of the Crimes (Review and Appeal) Act 2001 (NSW) the Orders of Viney LCM were stayed pending the determination of that appeal. 2. On 22 March 2017, her Honour Judge Syme dismissed the plaintiff's appeal. Exhibit G is the transcript of her Honour's reasons delivered 22 March 2017. Exhibit L is the Bond to Comply with Conditions, s 9(1) CSP Act signed by the plaintiff as accepted by him on 22 March 2017. It is the 'Fourth Bond'. 3. The Fourth Bond is in identical terms to the Third Bond entered on 30 May 2016 save that whereas the Third Bond commenced on the date it was made, so the Fourth Bond commenced on 22 March 2017. The Fourth Bond does not bear the signature of a Registrar or a Prescribed Officer under the recital that the Bond had been explained to the plaintiff. That is not fatal to the Fourth Bond: s 96 CSP Act. 4. On 22 December 2017 the Court of Appeal quashed Syme DCJ's determination of the conviction appeal. The reasoning of the Court of Appeal has little bearing on the determination of the issues in this hearing which concern the events and the conduct of CCS Officers which preceded it. 5. Because the plaintiff questioned the validity of the making of the Fourth Bond, I note the following: * At [6] the Court of Appeal reported that immediately following the dismissal of the conviction appeal, her Honour, Judge Syme confirmed her Orders by stating: "the offender, Andrew Leslie Toth is convicted and is directed to enter into a good behaviour bond for 18 months pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 22 March 2017 and accept the following conditions: "The offender must be of good behaviour and appear before the Court of the bond term. To accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions. To attend for counselling, educational development, drug and alcohol rehabilitation. To report to Community Corrections Service at City Community Corrections District Office within 7 days." * The Court of Appeal determined that in his appeal before Syme DCJ, the plaintiff had been denied procedural fairness (at [77]) and that her Honour had not addressed his submission that the Crown had not established that his filming of the woman's private parts was deliberate and intentional (at [85]). * Among other orders the Court of Appeal remitted the plaintiff's Notice of Appeal dated 30 May 2016 to this Court differently constituted to be determined according to law. * The plaintiff understood that after his all grounds appeal was dismissed on 22 March 2017, the Orders of Viney LCM made 30 May 2017 were no longer stayed (T101). * A point which troubles the plaintiff is that the transcript of 22 March 2017 does not record that her Honour spoke the passage quoted above from the judgment of the Court of Appeal. His enquiry of the Registry of this Court for any "issued Court Orders document" was answered with "no Court Order was printed." The Registry provided a print out of the Order electronically recorded (Exhibit K). 1. In closing written submissions at [28] the plaintiff argued that in the absence of evidence of the form of her Honour's Orders of 22 March 2017, the Fourth Bond which he entered that day, has no providence. 2. The error of this argument is that any Judgment or Order of the District Court of NSW is taken to be entered when it is recorded in the computerised Court record system: (UCPR 36.11). The Judgment and Orders of Syme DCJ were entered on the Court file and entered into the Court computer record DCR Pt 53 r 12. Pursuant to ss 63 and 68 Crimes (Appeal and Review) Act 2001 (NSW) that Act the Orders of sentence made by Viney LCM on 20 May 2016 took effect from 22 March 2017. FACTS OF ENGAGEMENT WITH COMMUNITY CORRECTIONS 1. On 4 April 2017 the plaintiff attended his first meeting with the appointed CCS Case Manager, Officer Mina, under the Fourth Bond. In each of his affidavits, made 31 October 2018 (the plaintiff's 'first affidavit') and 4 February 2021 (the plaintiff's 'second affidavit') he was complementary of early dealings with Officer Mina. In fact at [212] and [213] of his first affidavit, he said that whereas he experienced conflict with CCS Officers Hurst and Tunbridge during his 2012 First Bond, under the supervision of Officer Mina he could "see that was not the way it had to be". He said that "it felt good" and that he "did not have to fight with her, like I always had to fight with Hurst, Tunbridge…" 2. The CCS case note created by Officer Mina (Exhibit V) recorded that on 4 April 2017 the plaintiff: "did not believe that he would achieve anything through the supervision process. He viewed supervision as a 'mild form of imprisonment', which may assist to rehabilitate offenders and supervision to be a form of deterrence. He saw his role as complying with his order and not reoffending." 1. On 11 April 2017 (Exhibit V), she having not at that stage achieved contact with the plaintiff's treating psychologist, advised him "that he would be required to engage in counselling to address the sex offence". The officer explored with the plaintiff other case management options in terms of social support and networking. She recorded: "He said that he wasn't interested in men's group, but would be OK if there were women however he said that he didn't prefer to socialise with women; just date them." When they discussed his offence the plaintiff spoke with Officer Mina about the book he had published on Amazon: "he said that the book was about changes in women's fashion i.e. trends and fashion becoming more revealing and women owning what they wear. He said he was proud of his work. He spoke about women being OK to have their skirts blow up in the wind. He did demonstrate some remorse in the way his work was portrayed however this was mixed with self-concern. He said he was proud of his work and encouraged [Officer Mina] to read it. He said that his offence had ruined his relationship with his sister and nephew. [Officer Mina] asked if his offence defined him. He struggled to answer the question. [Officer Mina] suggested this might be worthwhile discussing with a psychologist." 1. On 19 April 2017 Officer Mina conducted a home visit at the plaintiff's premises during which he advised that he had a portable camera and was not currently taking pictures or writing. Officer Mina discussed with him his attending a psychologist for counselling addressing the sexual offence. 2. In both affidavits the plaintiff deposed that things turned "for the worse" on 26 April 2017, when, during Officer Mina's absence, Officer Giddins gave him "directions" and then asked if he had any questions. The plaintiff responded by asking Officer Giddins of her tertiary qualifications to which she responded "I am not going to tell you that. How is that relevant?" In his second affidavit he said that he backed off and "I felt almost sick after that. I had visions of her sending me back to Court. These guys had me on edge." 3. The first impugned direction and the "interrogation" by Officer Fotofili upon which the plaintiff sues occurred on 3 May 2017, his next CCS appointment. Officer Fotofili informed the plaintiff that he had just been given the interview and stated "I'll need five minutes to read your file…" (plaintiff's first affidavit 221 and plaintiff's second affidavit 15). A short time later, in what the plaintiff described as "an apologetic manner", Officer Fotofili said; "I'm very sorry for the delay but I've only just been given this interview…I haven't been able to read your file because the psychologist has it. She is doing your assessment…" 4. In this hearing, on 8 July 2021, the plaintiff concedes that it is inferred from Officer Fotofili's inquiry concerning recording devices, in their conversation set out below, that he knew something and may have drawn on his prior experience and knowledge of Mr Toth from when he assisted case managing CCS Officer Hurst on 28 June 2012 (pursuant to CCS supervision under the First Bond - see Exhibit J). Mr Toth bears the onus of proof of his allegation that Officer Fotofili acted without knowledge of the Fourth Bond and of CCS management of supervision. The defendant concedes that there is no direct evidence of what Officer Fotofili did know. 5. The following conversations had on 3 May 2017 are at the focus of the plaintiff's claim concerning Mr Fotofili's oral directions. (It appears in each of his affidavits but for convenience and to focus on what was said, I will quote from the plaintiff's second affidavit): "17 Despite not knowing much about me, he got straight to the point and said… Fotofili: "What were the orders in relation to recording devices?" Toth: "I know what you mean. In my previous good behaviour bond, I was not allowed to have any recording devices at all, but there are no such restrictions with this bond." 18 Fotofili: "Well I'm going to give you a direction. Under the terms of the bond, you must obey any reasonable direction. You know that, don't you?" Toth: "Yes." Fotofili: "So I'm going to ask you to get rid of all your recording devices. Would you say that is a reasonable direction?" Toth: "No. The Court saw fit not to prohibit them. So I don't think it is reasonable, under the circumstances." 19 Fotofili: "Well, I'm going to give you that direction. It's for your own protection." He added something to the effect that he didn't want me to get into trouble if the police pulled me up. He didn't explain why I would get into trouble for having something I was allowed to have. He continued… 20 Fotofili: "Have you photographed anyone since your conviction?" Toth: "No." Fotofili: "Do you have a surveillance device on you now?" Toth: "No." Fotofili: "Do you have a cell phone?" Toth: "No." Fotofili: "Any other recording devices?" Toth: "I do have a Canon Camera. It's fairly large. It is certainly not a surveillance device. I would like to hold onto it. I need it to gather evidence against my neighbour with whom I'm having some problems." Fotofili: "No. My instructions are ALL recording devices." (He emphasised the word ALL) Toth: "But I need it to gather evidence against my neighbour." Fotofili: "But there are other ways." Toth: "Like…?" Fotofili: "Like an AVO." Toth: "But…it's not a violence issue." Fotofili: "It doesn't have to be…" 21 And he trailed off. I wasn't impressed with his AVO suggestion. "It's possible" he said, "that your Case Manager Lara [Officer Mina's first name], may reverse my decision when she gets back" I left then, but phoned him at 4:45pm 22 "How long have I got? I need until Sunday to get rid of my camera. I won't see my friend until then." "Well" he said, "it depends on what's reasonable. If your friend lives next door, I'd say Sunday was not reasonable. Where does your friend live?" "I don't know. We're not close friends. We just meet up in the city every Sunday." "Sunday will be OK", he said. He added. "I spoke to the psychologist. She agrees that I made the right decision in restricting your recording devices but… Lara [Officer Mina's first name] may reverse my decision when she gets back." (note: italics added) 23 He also reiterated that this was for my own good. He gave some reason but I cannot remember what it was, only that I was not at all convinced for my own good. I remember thinking that his explanation was nothing more than self-justification [ruling on evidence: last sentence admitted, limited to state of mind.] While we were on the phone, Mr Fotofili also made the point that I did not have to give the devices away but I could leave them with a friend and then pick them up at the end of the supervision period." 1. The conversations on 3 May 2017 infer that Officer Fotofili was possessed of at least the following knowledge, even without possession of the CCS file: * he knew the nature of the offence because he asked the plaintiff of the orders relating to recording devices; and * from the plaintiff telling him that he had been directed under a previous bond not to possess "recording devices at all", that the plaintiff antecedent history included offending concerning recording devices (if Officer Fotofili was not already aware or reminded by the plaintiff of that history because Officer Fotofili assisted CCS Officer Hurst in 2012, on a visit to the plaintiff's home pursuant to the Second Bond.) 1. Whilst it may be that Officer Fotofili was unable to access the CCS paper file even briefly, because it was with Senior Forensic Psychologist Dr Barton, there is no evidence of whether or not he accessed the online CCS file or Court records. The conversation is equivocal as to that fact, because whether or not Officer Fotofili had read a record of the Court Order or the Fourth Bond (which did not specifically give a direction in relation to recording devices) he might have asked the plaintiff whether or not a direction of that nature had been given, to make sure that he and the plaintiff were of an up to date, common understanding of CCS directions. 2. On 3 May 2017 a CCS Case Plan for management of the plaintiff was not available. It was diarised for 17 May 2017. The plaintiff was yet to undergo expert forensic psychological assessment, which was required for completion of the Case Plan. 3. Exhibit V case notes record the plaintiff made a note of Officer Fotofili's direction, told Officer Fotofili of his use of recording devices when dealing with his problems with his neighbours; and that Officer Fotofili encouraged him to call police and think of other solutions. 4. Exhibit V case notes and the italicised words in the above quoted conversation from [22] of the plaintiff's second affidavit, confirm that Officer Fotofili spoke to Dr Barton, Senior Forensic Clinical Psychologist, CCS, between the face to face interview and the 4:45pm telephone conversation. Dr Barton did have access to the CCS file. 5. On 3 May 2017, Dr Barton told Officer Fotofili: "regardless Mr Toth is a high risk of further sexual offending but his pattern of offending (filming and exposure offences) are low harm." Further that: (the plaintiff) "denies his sex offences and has engaged in elaborate conversation about the legalities of his behaviour across different interview situations. He has been assessed by a psychologist as having Asperger's disorder (Kiely 2012) and a psychiatrist who found him to have the hallmarks of Asperger's disorder including low-grade anxiety/depression (Canaris 2011). Given the plaintiff's level of denial and responsivity factors such as probable Asperger's syndrome he may not be suitable for sex offender programs run by CNSW and available within the community. It is recommended that he be referred to a psychologist who specialises in the treatment of Asperger's." (Exhibit V) 1. In his first affidavit, the plaintiff included his perceptions and emotional reactions during the course of his conversation with Officer Fotofili. Because the plaintiff alleges that the Officer Fotofili intended to cause him harm and claims damages, I set them out below: * regarding [18] when Officer Fotofili said when he was going to give a direction: (at [224]) "Fotofili looked at me and I should have seen it coming, but I didn't…and then I knew"; and * on Officer Fotofili obtaining the plaintiff's acknowledgment that he understood that he had to obey any reasonable direction: (at [225]) "I started to panic. I was very much on edge now." 1. It is appropriate to observe at this point that taking the plaintiff's evidence at its highest for his case; Officer Fotofili spoke courteously and provided explanation to the plaintiff, even inviting the plaintiff to respond as to whether or not he considered the direction to be reasonable. Before the plaintiff took action in compliance with the direction, Officer Fotofili spoke to Dr Barton, who did have the CCS file and extended the courtesy of confirming that to the plaintiff during the 4:45pm telephone call. 2. On 10 May 2017, the plaintiff was interviewed by Officer Mina, she having returned from leave. He informed her that the oral direction given by Officer Fotofili on 3 May 2017 had made him feel "very very bad." He handed Officer Mina a letter, which requested that CCS consider rescinding the direction on the basis that it was unreasonable and that he receive the response of CCS, in writing "for my own protection". He also informed Officer Mina that he required a further direction in regard to his possession of a mobile phone. Officer Mina proposed that the plaintiff acquire a mobile phone without any recording capacity. The plaintiff rejected that proposition, stating that he wanted "a good one with all the extras." (plaintiff's first affidavit at [236]-[239]; plaintiff's second affidavit at [24]-[28]). 3. The plaintiff's evidence in cross-examination confirmed that his purpose for requesting a "cell phone" was not to possess it for voice and text communication. At T148.36-44 he gave the following evidence: Q. You had no mobile phone? A. No, no mobile phone. Q. Did you ever purchase a mobile phone? A. I did watch once, actually. I - I did because I'm always thinking about it and once I did, and I never used the darn thing. It's still sitting in my drawer, actually. 1. Officer Mina's case note of 10 May 2017 (Exhibit V) includes that: * she informed him she would not recommend getting a smart phone with a camera; * the plaintiff said he had an appointment with his psychologist on 12 May 2017 at 11:30am; and * the plaintiff explained that he was having issues with his neighbours and in the past used a pen camera (the same device used in the subject offence) to record his neighbours in order to support his complaints to Housing NSW. Officer Mina's 10 May 2017 case note also records the following: "[Officer Mina] tried to discuss the correlation between the current offence and his actions, and the community's perceptions; however he was not willing to discuss this." The plaintiff informed Officer Mina that he had been diagnosed with Asperger's syndrome. 1. 15 May 2017 and 16 May 2017, case notes written by Officer Mina (Exhibit V) record that in a meeting with her superiors, it was agreed that a written direction be given to the plaintiff in relation to recording devices, and the collection and distribution of intimate photography. 2. Officer Mina continued to pursue the missing page of the plaintiff's antecedent criminal history in order for the LSI-R actuarial recidivism risk assessment to be completed as required for face to face in interview with Dr Barton before a Case Plan would be completed. A Case Plan remained diarised for 17 May 2017. 3. The second impugned direction upon which the plaintiff sues was given on 17 May. The plaintiff attended his appointed interview with Officer Mina. The evidence of this interview is the plaintiff's first affidavit at [241]-[248] and his second affidavit at [31]-[35]; and the case note in Exhibit V. The plaintiff's affidavit evidence is that he complained to Officer Mina "about how her direction was hurting" him. Officer Mina provided the CCS letter, which the plaintiff requested at the prior interview. The CCS letter is reproduced at [247] of the plaintiff's first affidavit and [34] of the plaintiff's second affidavit. Following formal reference to the Fourth Bond, the letter explained the purpose of the direction in the following terms: "Because of the nature of the offence, you understand, when in public areas your risk of offending may increase and you are also likely to be perceived as having an increased risk of offending. In order to assist you to minimise that risk, and in part for your own safeguarding, you are directed by this Service to comply with the following condition of the Bond:" 1. As Officer Mina explained to the plaintiff, that the direction given 3 May 2017 had been modified to permit him use of a camera or recording device which was not a pen camera or a small, concealable device, for the duration of the bond. This was expressed in the direction numbered 1 as follows. "You are not to possess a pen camera or any small, concealable recording device for the duration of the Bond." 1. The other directions prohibited him from taking intimate photographs in places where nudity or semi-nudity may exist, and from uploading intimate photographs to the internet or social media without the written consent of the subject. 2. The plaintiff deposed that in response to his enquiry "What about cell phones?" Officer Mina answered "They're Ok" and that he requested that Officer Mina write a qualification into the letter that larger cameras and a cell phone were okay. After consulting with her superior, Officer Mina declined to make a written amendment. The plaintiff then wrote on the bottom of the letter "conditional that qualifiers be added that I can use cell phone and larger Canon camera." Officer Mina declined his invitation that she sign that qualifying written addition. 3. The plaintiff's request for a qualification to allow him "use of a cell phone" must be understood in the context of the discussion at the previous CCS interview on 10 May 2017, when the plaintiff rejected Officer Mina's proposal that the plaintiff acquire a "cell phone" without any recording device and his insistence on acquiring a cell phone with "all the extras", meaning visual and sound recording functions. 4. On 29 May 2017, as he was permitted to do by the written direction given on 17 May 2017, the plaintiff retrieved his large Canon camera from the friend with whom he had placed it for safeguarding in compliance with the 3 May 2017 direction by Officer Fotofili. He had informed Officer Fotofili that he used it to gather evidence against his problematic neighbour (see conversation quoted above). 5. It is appropriate to observe at this point that taking the plaintiff's affidavit at its highest for his case; Officer Mina spoke to him and wrote to him courteously, provided explanations for the impugned direction and offered alternatives save against the direction not to possess concealable recording devices. Plainly the direction did not prohibit the plaintiff from possessing a mobile telephone with all functions except video, photographic and audio recording. He was permitted his large Canon camera. 6. On 31 May 2017 the plaintiff was informed that he need attend for interviews only once per two months, the next being 26 July 2017. THE PLAINTIFF'S PERSPECTIVE 1. The plaintiff pressed his case not only on the premise that the impugned directions and questions were beyond power; but also factually from his personal perspective derived from matters beyond the Third and Fourth Bonds, the 30 May 2016 Orders of Viney LCM and the 22 March 2017 Orders of Syme DCJ. His affidavit evidence makes this plain. Conduct of the Officers is to be assessed on the objective evidence. The plaintiff's internal thoughts are irrelevant to consideration of misfeasance except so far as the evidence establishes that he communicated them to the officers. 2. His evidence and argument is infected by his grievance that CCS has, since the First Bond treated him as it would a sex offender, when, in his mind, he is not. He maintained that he had never been convicted of a sexual offence. 3. In order to achieve that perspective the plaintiff refers to his 2012 conviction for surreptitiously recording of his medical practitioner's inspection of his groin area in relation to a hernia complaint (the s 7(1)(b) Surveillance Devices Act 2007 (NSW) offence), as having been "quashed". In truth, the plaintiff understands that the offence was found proved and that the Court proceeded to not record a conviction pursuant to s 10 CSP Act when directing him to the Bond. His understanding of that substantial legal point is revealed by his having asked Viney LCM on 30 May 2016 to proceed under that section. He then experienced her Honour refusing his application, convicting him and proceeding under s 9 of that Act: See CCS case notes Exhibit J, T132.10-45; T140.20-40. 4. On 7 June 2012 (Exhibit J - see also 13 June 2012) Officer Hurst recorded of his explanation to the plaintiff and the plaintiff's response: "… That while the offence did not specify any sexual element, the factors relating to the offending behaviour were considered to be of a sexual nature… [And]… That in order to determine whether those factors should be addressed, a sexual offending assessment would be required" which explanation the offender communicated he understood, "but continued to minimise the impact of his flashing behaviour on his offence" 1. The passages of the plaintiff's affidavit evidence quoted in these reasons, describe his state of mind pre-existing his interview with Officer Fotofili on 3 May 2017. He describes his emotional reactions as driven by preconceived fears and concerns arising from his perception of hardship under supervision under the First and Second Bonds by CCS. In turn, that preconceived grievance contributed to him, on 10 May 2017 requesting from Officer Mina a review and written direction, and to his assessment of it on 17 May 2017. 2. In the context of this hearing where his action is for misfeasance in public office, the substantial point is not what he thought the legal consequence of his actions ought to be; but rather; whether or not conduct of Officers Fotofili and Mina under the Fourth Bond was wrong in the context of the tort. 3. The plaintiff was broadly cross-examined on his activism, including his publications which he considers to "push the boundaries". The cross-examination ventured into the plaintiff's views on and promotion of nudity in public places, masturbation including in public places, "flashing" and female exhibitionism. The plaintiff is not to be criticised for lawfully advancing discussion on changing social values. The plaintiff maintained that in all of his activities, including during his appearances at Speakers' Corner, on Sundays at the Domain, Sydney, he did not advocate breaking the law and was careful himself not to "cross the line" to unlawfulness. In his evidence during cross-examination at T153.42 – T156.40, the plaintiff said: * that his filming of the doctor's examination of him for a hernia in 2010 was "an absolute terrible thing to do. I think the legal term is "reprehensible" and it's probably about as reprehensible as it ever gets but that was not an offence…"; * "… While I am a deviant, while I am a pervert, while I am all these terrible things, I'm very, very, very careful not to breach the law. And for that reason, there's been no sex offence, period. Now, right, so, that doesn't make it any the less terrible, but there's been no sex offence, and this is what the whole shemozzle was about with the first good behaviour bond. They were making me out to be our sex offence (sic) – I was not"; * that whilst speaking to a crowd at Speakers' Corner, on a Sunday, when there were families and children and all sorts of people walking in the Domain, he exposed his penis at the invitation of a woman to do so: "…[it] sounds absolutely disgusting and terrible. And probably it is. But I'm just saying that it doesn't breach any law." 1. However, when the plaintiff was required in written submissions [MFI 5] to address the lawfulness of his exposing his penis at Speakers' Corner, he corrected his earlier adamant and rationalised claim of lawfulness and properly conceded that his act: 1. (At [6]) Involved exposing his genitals within the meaning of s 61HC(2)(a) Crimes Act 1900 (NSW) but may or may not in the circumstances of his lecturing/entertaining the audience on exhibitionism, be considered by "a reasonable person" to be an act which was "sexual": s 61HC(1); and 2. (At [14]) Was possibly a wilful and obscene exposure within the meaning of s 5 Summary Offences Act 1968 (NSW). 1. Those appropriate concessions, which are contrary to the plaintiff's repeated denials of sexual offending referred to up to this point in these reasons, should be appreciated as not coming from his evidence, but only belatedly, when he was asked to focus on the issue of the legality of the act of exposing his penis at Speakers' Corner. That event was merely selected as a suitable vehicle to give him the opportunity to elucidate his point of view, within his argument. 2. In my opinion, it is significant that the borderline legality of his chosen behaviours and the offences which have been proved against him have overtime caused CCS Officers to explain to him that their supervision of him under the Bonds including directions issued, was predictive of his risk of recidivism. Indeed, the CCS letter dated 17 May 2017 which contained the second of the impugned directions delivered to him by Officer Mina and the case note by Officer Hurst of 7 June 2012 (Exhibit J) recorded that explanation. I repeat the already quoted passage from the CCS letter of 17 May 2017: "Because of the nature of the offence, you understand, when in public areas your risk of offending may increase and you are also likely to be perceived as having an increased risk of offending. In order to assist you to minimise that risk, and in part for your own safeguarding, you are directed by this Service to comply with the following condition of the Bond:" Officer Hurst's case note reads: "The offender was also informed that a sex offender assessment was required to the extenuating factors related to the offending behaviour and that this would be referred to the internal Forensic Psychologist Jenny Barton. The offender stated that he did not see the purpose of such a test as he believed his offence was not related to any sexual element. The offender was informed that while the offence did not specify any sexual element, the factors related to the offender were considered to be of a sexual nature." [bold added] 1. In this hearing, the plaintiff tendered a Pre-Sentence Report ("PSR") dated 29 April 2016 (Exhibit S) which came before Viney LCM on 30 May 2016. That report usefully provided in regard to an antecedent 2012 Bond: "Mr Toth was convicted of install/use etc. device record conversation party to and other similar "voyeurism" related offences in September 2012, and was issued with a supervised Section 10 Good Behaviour Bond for 14 months. Although Mr Toth reported as directed, he never embraced supervision by Community Corrections and repeatedly challenged his supervising officer and management about his supervision. Mr Toth completed his order and was assessed as suitable for future supervision however, by the completion of his order he had gained no real insight into his offending behaviour and his response to supervision was deemed to be superficial." 1. The PSR provided, under the subheading "FACTORS RELATED TO OFFENDING, observations on the plaintiff's mental health" included the following: "Records indicate that Mr Toth has been assessed psychologically and appears to have several mental health conditions which may reduce his ability to understand social situations such as those, which have occurred during his past and present offending. Mr Toth has been receiving mental health treatment with his current psychologist since 2012 and reports a benefit from his sessions." 1. The author of the PSR reported the following in regard to factors relating to sexual nature of his offending: "Mr Toth was referred for a Pre-Sentence Consultation with a CS NSW psychologist due to the sexual nature of his offence. No face-to-face interview was conducted with Mr Toth and the consultation was based on a file review and liaison only. The recommendation of the assessment indicated the following: "Based on the information from the file review, Mr Toth was assessed in the moderate to low category of risk of sexual re-offending. This assessment, however, is likely to underestimate his actual level of risk. Also, as this assessment was based on file review, there was no comprehensive assessment of dynamic risk factors which would have contributed to his current level of risk. Regardless, key areas of risk appear to be deficits in intimacy, impaired problem-solving and impulsivity. There are few protective factors other than age. Further assessment would aid in a better understanding of these identified factors and whether other factors also played a role in the offence. … While Mr Toth would be eligible for a moderate to low risk sex offender treatment program, his communication and social difficulties may limit his ability to respond to such a program unless it was individually tailored. Also, Mr Toth denies the sex offence and would require a program which catered for his level of denial. If Mr Toth is sentenced for community supervision it is recommended that he is referred to the CSNSW Senior Psychologist for further comprehensive assessment to facilitate more detailed offender treatment and risk management recommendations. This would assist in the determination of the approach to be taken to risk management which caters for his specific needs." The PSR reported: "However, he stated that he felt self hatred for his actions. He indicated that he did not feel any remorse for the victim, only of his own actions and the negative consequences that have happened to him. He claimed that he now understands that his actions were criminal and that he will not attempt to repeat them again." 1. The plaintiff was assessed to be of medium risk of reoffending on application of the Level of Service Inventories-Revised actuarial risk/needs assessment tool ("LSI"). The PSR report recommended that the plaintiff "would benefit from a period of supervision by Community Corrections". 2. In the assessment of community-based sentencing options, the author of the PSR stated that the plaintiff then understood the wrongfulness of his action, the subject of the offending, but maintained "that his actions were not illegal due to a technicality of law". The report repeated that the plaintiff lacked regard for the community or the victim and that he showed no insight into the effect of his offending on the victim. 3. It is through the prism of his selective and rigid focus on only whether or not his act was at law a sexual offence, that he judges CCS supervision and directions as punishment for something for which he was wrongfully convicted. In that way the plaintiff's perspective wrongly narrows the focus by which the impugned directions are to be properly judged. 4. In cross-examination the plaintiff was taken to the Corrective Services policy document, "Case Management in the Community: Part 2 Supervision of Offenders" (Exhibit 8, extracts the section taken to). The plaintiff said he understood that as stated in sub-paragraph 2.4 SUPERVISION, the purpose of supervision in accordance with the department's goals, is to "to protect the community and also within the Service's mission to reduce the impact of crime on the community" through "the effective management of offenders, the enforcing of the orders of the sentencing and releasing authorities, and the discharge of the duty of care to those we are supervising". He agreed that delivery of supervision is appropriately targeted at addressing needs "which are predictive of re-offending" and the application of those techniques which research has shown as effective at reducing offending. He agreed that paragraph 2.19.4 "Reasonable Directions in Sex Offender Management" could be directed to "refraining from high risk leisure/social activities" and "Refraining from offending-specific high risk activities". (T130.04-T131.31) 5. However, the plaintiff's response was that CCS officers could only give directions within the power of the Court Orders. In one part of his cross-examination, at T131.15-31, he explained his argument on application of CCS guidelines and protocols as follows: A. Mr Bateman, yeah. Mr Bateman. Look, if I was a community service officer and I said to a guy under my care, I said, "Listen, I want you to walk around the block every morning before breakfast," now, that would be - especially and if he was overweight, that would be a very reasonable direction, but it would be out of my power. So, I would say that that 2 - that refraining - subclause (f), it's probably very, very, reasonable, but the question is whether it's in their power to do that. Q. If you go down to (h), you see it refers to "Refraining from offender specific high risk activities." A. Yes. Q. Would you agree that that is a reasonable direction for sex offender management? A. Well, yes, provided they have the power to refrain the person. I would say absolutely. 1. Indeed, given those concessions during cross-examination, it is difficult to understand the plaintiff's persistence with his argument that the impugned directions were by nature harsh and unreasonable and delivered by Officers Fotofili and Mina maliciously or in order to cause him harm. 2. Of course, his primary and starting point of argument is that the directions were beyond the power of the bench form Court Orders signed by Viney LCM on 30 May 2016. WERE THE IMPUGNED DIRECTIONS BEYOND POWER? 1. The plaintiff explained to the Court that his complaint is not that the impugned directions were not given under the Fourth Bond; but rather, that the directions were outside of the Orders of Viney LCM made 30 May 2016. 2. Refining that issue, the plaintiff explained on day 3 of the hearing, that the bench form Court Orders (Exhibit 3) include Conditions which were specific and did not include that he not be possessed of recording devices (T120.20-T122.28; T103.05). 3. When addressing his amendment to the Third Further Amended Statement of Claim, the plaintiff agreed this complaint was (T105.10): * [22] In directing the plaintiff to enter into the 2016 bond, the Court did not impose a condition that the plaintiff not be in possession of a recording device. * [23] The directions given by Officer Fotofili and Officer Mina amounted to an additional condition to the Court Order 2016 directing the plaintiff to enter the s 9 bond. 1. The plaintiff explained and expanded (T103-105) that because the Orders of Viney LCM did not include a specific condition of the Bond restricting his possession of recording devices: 1. The Third Bond and Fourth Bond were "null and void" and "rogue document[s]" (T104.46-T105.04) because they were not in words identical to those of the Court Orders; 2. Such a restriction would be required to be a condition of the bond, just as the condition to obey all reasonable directions for counselling, educational development, or drug and alcohol rehabilitation were conditions; 3. The directions given by Officer Fotofili on 3 May 2017 and by Officer Mina on 17 May 2017, were without lawful basis in that they were outside the powers of CCS; 4. Those impugned directions were unreasonable because they were issued without lawful basis and "no proper case plan had been prepared by CCS" at the time the directions were given. (See also TASOC at [24] – [30]) ; 5. Officers Fotofili and Mina were acting outside their powers by imposing conditions upon the plaintiff which were not imposed by the Court; 6. In the alternative, Officers Fotofili and Mina were recklessly indifferent as to whether their directions were lawful. 1. In summary fashion, the plaintiff put that the Officers "[did] not have the power to alter the Court Orders" (T113.18). 2. The defendant submits (written submissions 7 May 2021 MFI 6 at [4]) that the bench form of Court Orders signed by Viney LCM on 30 May 2016 is "not a reflection" of her Honour's description of directions of the Third Bond spoken by her in Court. The passage to which the defendant refers is her Honours explanation, given to the plaintiff, of the Third Bond and consequences which might follow any breach: T 30.05.2016, p 12.48-13.40. 3. The defendant's written submission is unfair to her Honour because it rests on the grammatical imperfection of transcript punctuation. The transcript appears as follows: "[Her Honour] You are to be of good behaviour and attend before this Court if directed to do so. You are to advise the registrar of this Court should there be some change in your residential address. I am making it subject to the supervision by Community Corrections in terms of them offering you assistance with regard to your ongoing psychological treatment. They may just monitor your attendance at the psychologist that you presently clearly get on with but ultimately it is for them to determine what they think is the most appropriate cause of action. You are to report to the – you are still at Waterloo, are you? ACCUSED: Yes. HER HONOUR: The city office would probably be the closest for you? ACCUSED: That would be better but I'm technically – I'm in the Leichardt area but that takes me an hour to get there and – HER HONOUR: Well, we'll send you to the city office first off. ACCUSED: Thank you, I think that would be good, yeah. HER HONOUR: Ultimately it is for them to determine but we will send you to the city office first. You are to report there within seven days, do you understand that, sir? ACCUSED: Yes. HER HONOUR: It is an alternative to a jail term, if you find yourself back before the Court in regard to any matter in the next 18 months or if you fail to comply with the direction for supervision, you may well find yourself back here and then we will resentence you in respect to that mater, do you understand that, sir? ACCUSED: Yes. HER HONOUR: Right, you need to go to the registry and sign a document before you leave Court today, okay? ACCUSED: Yes." 1. Even with the imperfections of punctuation added by RSB the transcript shows that her Honour explained the bond according to the hierarchy of conditions imposed by s 95 CSP Act. The first sentence quoted above addresses s 95(a) and (b); that is, that the plaintiff must appear before the Court if called on to do so and must be of good behaviour. Her Honour next made the fairly regular direction that the plaintiff keep the Court informed of any changes in his residential address, that being ancillary to the purposes of being of good behaviour and attending the Court if called upon to do so. Her Honour then explained that she was making an additional condition of supervision; s 95(c). In so doing her Honour gave primacy to supervision next after the mandatory conditions of appearing in Court and being of good behaviour. 2. I reject the plaintiff's argument at Written Submissions 20 May 2021 (MFI 5) at [10]-[14] which by breaking up a passage spoken by her Honour (at [13] and [14]) suggests her Honour was making the Third Bond subject only to supervision "in terms of" counselling and subordinates her Honour's plainly stated proposition that "ultimately it is for them [CCS] to determine what they think is the most appropriate course of action". Her Honour made plain that ultimately the course of action within supervision was for CCS to determine. When in the later part of the quoted passage her Honour explained consequences of breach of the bond she warned the plaintiff that should he "fail to comply with the direction for supervision" he may be returned for resentence. In response to the plaintiff submission, I observe that her Honour did not warn him that if he failed to attend psychological treatment, he might be returned for resentence. As discussed later in these reasons, the task of counselling, to which the plaintiff points has wide ambit. I also discuss the meaning of "supervision" in this context. 3. When speaking to the plaintiff in Court, her Honour was complying with the procedure under s 96(1) CSP Act. That procedural step is not to be confused with the making of formal Orders. That is why a failure to provide the explanation in Court to an offender does not invalidate the bond: s 96(2). 4. As is apparent from the written submission at [2], the defendant wrongly conflates the procedural step of explaining the offender's obligations under the good behaviour bond, as referred to in s 96 CSP Act, with the substantive step of making Orders which included exercise of her Honour's discretion to make a direction to enter in a good behaviour bond. 5. Simple correction of the punctuation appearing in the transcript, makes it plain that her Honour said: "You are to be of good behaviour and attend before this Court if directed to do so. You are to advise the Registrar of this Court should there be some change in your residential address. I am making it subject to the supervision by Community Corrections[.] [I]n terms of them offering you assistance with regard to your ongoing psychological treatment, [t]hey may just monitor your attendance at the psychologist that you presently clearly get along with[;] but ultimately it is for them to determine what they think is the most appropriate course of action…" Corrected in this way, the record would fairly show her Honour spoke primarily of supervision, not supervision limited to assistance with psychological treatment. 1. The defendant's written submission is also unfair to her Honour in that it omits part of that which she said. Before informing the plaintiff that he go to the registry and sign his acceptance of the bond before leaving the Court precinct, her Honour said at 13.24-29: [punctuation corrected] "HER HONOUR: It is an alternative to a jail term[.][I]f you find yourself back before the Court in regard to any matter in the next 18 months or if you fail to comply with the direction for supervision, you may well find yourself back here and then we will sentence you in respect to the matter[.][D]o you understand that, sir?" 1. When given its deservedly fair reading (after correction of punctuation in the transcript) it is plain that Viney LCM, in accordance with s 96, explained to the plaintiff: * That he must "…attend before this Court if directed to do so" and advise the Registrar of any change of his residential address for that purpose: s 95(a); * Was "…to be of good behaviour…" and that the consequence of breach of bond was that he could be brought before the Court for resentence: s 95(b); and * Her Honour made the bond "…subject to the supervision by Community Corrections"; and "ultimately it is for them to determine what is the most appropriate course of action."; and that if the plaintiff "fail[ed] to comply with the direction for supervision, you may well find yourself back here and then we will resentence you…": in compliance with s 95(c). 1. The defendant's written submission at [3] to [7] contains the following further errors: 1. At [4]: It fails to recognise that, on a fair reading, the transcript records that Viney LCM gave priority to CCS supervision as determined to be appropriate by the Service and that the reference to psychological treatment was simply broader explanation in response to the plaintiff having delivered fairly extensive submissions of his mental health history. 2. At [4(a)]: The premise wrongly assumes that her Honour's (s 96) explanation was required to be "…a reflection" of the substantive Orders made as recorded in the bench form Court Orders document, Exhibit 3. 3. At [4(b)]: It fails to recognise that in the Court Orders there is no expression of the mandatory conditions in ss 95(a) and (b) because the Exhibit 3 bench form Court Orders shows her Honour ticked the boxes "bond/recog (Conditions, if any, set out below)" and "s 9" as well as the term for "18" months and the subsequent box on the page was for entry of "Conditions". Those entries plainly record the Orders for a s 9 bond which by force of s 95 incorporate the mandatory conditions. This error is compounded by the failure to observe that on the bench form Court Orders form, the box for "Conditions" being other conditions (s 95(c)) appears lower down the document. 4. At [5]: In consequence of combining the above errors of conflating the procedural step of explanation (s 96) with the substantive step of making the Court Orders (Exhibit 3 – ss 9 and 95); wrongly categorises the Order for a Condition "to accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions," as "a separate condition" to the explanation given by her Honour in Court (which explanation I have shown to have included CCS supervision in any event). 5. At [6]: Wrongly observes "inconsistencies" between her Honour's explanation on the transcript and her Honour's Orders and the Third Bond (Exhibit 4) when, for the reasons given, there are none. It also appears that the submission overlooks that it was up to the plaintiff to elect whether or not he would accept the terms of the Third Bond (which he did by signature which evidences explanation to him and acceptance by him) and that in the event he chose not to enter the Bond, then her Honour was entitled to proceed by other sentence "…as if the Order had not been made": s 97. 6. At [7]: Because of the errors of (a) to (e) the defendant wrongly makes the concluding submission that: "procedurally, to the extent that Exhibit 3 [the bench form Court Orders] set out Bond conditions, it is not compliant with the relevant statute". 1. The defendant's ultimate two part response to the plaintiff's submission that the impugned directions were not empowered by her Honours Orders is: 1. At [7] "…The substantive thread connecting the Magistrate's directions in Court, [the bench form Court Orders] and [the Third Bond] is that the Plaintiff must submit to supervision – not mere surveillance or monitoring – by Community Corrections Officers"; and at 2. [14]-[15] "If either of the Bonds entered into by the Plaintiff on 30 May 2016 and 22 March 2017 was of limited or no lawful effect, there is no substantive or procedural consequence for these civil proceedings. The issue in these proceedings is the respective mental states of [Officer] Fotofili and [Officer] Mina – that is, when they directed the Plaintiff not to be in possession of a recording device (a not unusual requirement according to Dr Barton – see T57.34) they knew that such a Direction was invalid or beyond their power and they intended to cause harm to the Plaintiff. The onus of proof in this respect is on the Plaintiff and there is no evidence that [Officer] Fotofili had any reason to question his own status as a supervising Community Corrections Service Officer or that he or [Officer] Mina had any reason to question the legal efficacy of the Bonds, both of which were signed by the Plaintiff.…" CONSIDERATION OF POWER TO GIVE THE IMPUGNED DIRECTIONS 1. The Plaintiff's argument for inconsistency between the 30 May 2016 Orders for Conditions of Viney LCM and the terms of the Third and Fourth Bonds and the impugned directions seeks to promote a construction of the Orders which: 1. Ignores the inherent hierarchy and grammatical clause structure of the supervision clause and the other clauses which provided for specific directions; and 2. Inverts the principle of construction - ejusdem generis by arguing the specific second clause following the general first clause confines the first clause; 3. Advances a construction contrary to the statutory purpose of s 9 CSP Act; 1. As does the defendant, the plaintiff's argument refers to the transcript of her Honour's explanation of the Third Bond and its consequences, given to the plaintiff, prior to her making the Orders by completion of the bench form Court Orders document. My response, as made to the defendant's argument (above), is that her Honour's explanation was merely procedural and was given in compliance with the provisions of s 96 CSP Act. Her making the s 9 (and s 95) CSP Act of the Orders was a separate and substantive step. The passage of transcript, with or without correction of punctuation, deserves the fair reading I gave it above. Her Honour explained that "ultimately" CCS's supervision role included the discretion to "determine" what would be the most appropriate "course of action". 2. I return to construction of the Orders. In regard to (a) and (b) above: did the Order of Viney LCM directing the plaintiff to enter into the Third Bond impose a condition that the plaintiff not be in possession of a recording device (TFASOC [22], DTFASOC at [22]): The plaintiff argues (at closing written submission MFI 5 [8]) that the obligation in the Order of Viney LCM (Exhibit 3) "to obey all reasonable directions" is not stand alone "but is linked to the phrase following it which effectively narrows down the scope", to the following specific directions including "for counselling". This submission ignores the principal clause within the Order. The principal clause reads "to Accept Community Corrections supervision for as long as considered necessary…" The principle clause precedes the comma. 3. The plaintiff's closing submission focuses on the second clause (wrongly described to be a phrase in his submission), commencing after the comma and with the words "obey all reasonable directions…" This approach wrongly overlooks the hierarchy of the clause structure. The plaintiff's argument does not deal with the presiding, general provision in the principal clause that the offender accept the supervision of the CCS. 4. By giving primacy to the specific provisions following the word "obey", the plaintiff seeks to invert the principle of construction "ejusdem generis". The rule provides that where particular words are followed by general words, the general words are limited to the same kind as the particular words. In the Court Order the particular words follow the general words which provide for CCS supervision. The construction of the Order proposed by the plaintiff is opposite this principle. 5. The preferred construction of the Order is that the expressed obligation to accept "supervision" in the first clause impliedly excludes from the construction of the first clause the complexity of the particular matters of direction in the second clause. This is an application of the principle of construction expressio unius est exclusio auturius. 6. Further and specifically as to (b) above; there is an implicit hierarchy between the clauses. That is because unless CCS supervision is engaged under the primary clause, the provision for direction under the other clauses is not engaged. The first clause of the Order made by Viney LCM "to accept Community Corrections supervision for as long as considered necessary" has as a subject "supervision" and a predicate of its own, that the offender "accept" that supervision. The first clause expresses the single idea of the offender accepting CCS Supervision. To illustrate this point; if a full stop were substituted for the comma following the word "necessary" that first clause would form a single and complete sentence. The second clause, following the comma reads "obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation". The third clause commencing after the conjunctive "and" reads "report to the City CC…" The second clause is a subordinate 'adverbial' clause of the condition to accept supervision, in that it expresses the obligation to "obey all reasonable directions" within that supervision provided in the first clause. 7. Alternatively, even if the second clause be characterised as not sufficiently dependent on the obligation to accept supervision expressed in the first clause to be a subordinate clause, and if it be characterised as an independent clause; it does not limit the providence of the provision for supervision in the first clause. The correct grammatical interpretation of the Order in the bench form Court Orders; is that it provided for a condition of the bond that the plaintiff accept CCS supervision as reasonably determined by CCS for as long as considered necessary. 8. For the above reasons, in my opinion, the Orders made for Conditions in addition to ss 95(a) and (b) mandatory Conditions, by Viney LCM, when she completed the bench form Court Orders on 30 May 2016, provided for CCS supervision including the making of reasonable directions as determined by CCS for the purposes of s 9 of the CSP Act. So long as the directions limiting or prohibiting the plaintiff's possession of recording devices were otherwise validly made, those directions were within the Condition for supervision ordered. Further exposition of the meaning of "supervision" as used in the Order and the Third and Fourth Bonds, follows. 9. As to (c) above; s 9 of the CSP Act on 30 May 2016, provided as follows: (1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term. (2) [Not relevant] (3) [Not relevant] S 95 of the CSP Act then provided: A good behaviour bond: (a) must contain a condition to the effect that the offender to whom the bond relates (the person under bond) will appear before the court if called on to do so at any time during the term of the bond, and (b) must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and (c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond: (i) [Not relevant] (ii) [Not relevant] 1. S 3A of the CSP Act provided: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. When construing s 9 of the CSP Act, the purposes of the statute should be born in mind. Ordinarily (the legal meaning) will correspond with the grammatical meaning of a statutory provision, but not always. The context of the words, the consequences of the literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of the legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, [1998] HCA 28. 2. S 9 is to be given meaning according to the statutory purposes of sentencing. Of particular present relevance are the protection of the community from the offender, and the promotion of rehabilitation of the offender under the prevailing CCS supervision, in keeping with the principles of adequate punishment, deterrence, making him accountable for his action, denunciation of his conduct of the offending and recognition of the harm done to the victim and the community. In this way "supervision" expressed in the Order of Viney LCM, contemplated the CCS directions to manage the dynamic risks of reoffending. That meant, those dynamic behaviours, considered by CCS to be not unusually associated with the risk of recidivism for offending of this type. At the same time, such restrictions were directed to his rehabilitation by causing him to refrain from such activities for the period of the bond. 3. Naturally, as the plaintiff specified, CCS forensic psychologist assessment and Case Plan were not yet available, directions given by Officer Fotofili and Officer Mina could not be tailored beyond being not unusually predictive of these risks for offending of the type of the plaintiff's conviction. I have included above, in these reasons, the plaintiff's concessions concerning supervision by predictive directions. 4. S 9 does not order a bond. Instead, it directs the offender to enter into a good behaviour bond. That the plaintiff accept CCS supervision was not a compulsory condition of the Third Bond under ss 95(a) and (b). It was a condition directed at the exercise of discretion by Viney LCM pursuant to s 95(c). 5. Ss 96 and 97 prescribe the procedure by which the plaintiff as offender was to elect whether to accept or reject the bond. Those provisions provided as follows: 96 (1) A court that makes a direction that provides for an offender to enter into a good behaviour bond must ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand): (a) the offender's obligations under the good behaviour bond, as referred to in section 95, and (b) the consequences that may follow if the offender fails to comply with those obligations. (2) A good behaviour bond is not invalidated by a failure to comply with this section. 97 If: (a) a court makes an order that provides for an offender to enter into a good behaviour bond, and (b) the offender fails to enter into such a bond in accordance with the order, the court may sentence the offender, or convict and sentence the offender, as if the order had not been made. 1. The Third Bond (Exhibit 4) bears the signature of the Proper Officer of the Court under the declaration that the conditions were explained and the plaintiff's signature, under the declaration of acceptance. In the Fourth Bond (Exhibit L), which was in identical terms to the Third Bond except for the commencement date of 22 March 2017, the plaintiff again signed his acceptance. That the Registrar or Proper Officer had not signed the declaration of explanation in the Fourth Bond, does not invalidate the bond (S 96(2)). This is particularly so in those circumstances of a Proper Officer having explained the terms of the Third Bond on 30 May 2016. 2. The plaintiff therefore brings these proceedings in circumstances of his acceptance of the conditions of the Third Bond and Fourth Bond when it was his right to have refused to accept those terms and to have risked the consequences under s 97 CSP Act. 3. For the above reasons, in my opinion, the bench form Court Order of Viney LCM and the Third and Fourth Bonds are not relevantly disparate. The condition that the plaintiff accept CCS supervision, including by obeying reasonable directions were in fact ordered by the Court and then accepted by the plaintiff when he accepted each bond. 4. The final point that I deal with from the plaintiff's argument is also from his written submission MFI 5 at [16]. His point is that the Court Order and the Third Bond of 30 May 2016 "are identical" in that "in both documents the Orders are the offender undergo counselling, and from a negative point of view neither document restrict[s] the use of recording devices." 5. In my opinion, in addition to my above reasons, nothing turns on the fact, that the wording of neither document specifically expresses those directions. This is because: 1. The verb in the first clause of the bench form Court Orders, was to "accept" CCS "supervision". After the first comma, the operative word was to "obey" in relation to all reasonable directions for counselling, education development or drug and alcohol rehabilitation. Therefore, the direction to enter into the s 9 bond, firstly included that the plaintiff accept CCS supervision and second that he obey reasonable directions. "Supervision" means "the act or function of supervising; oversight; superintendence'; "supervise" means "to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the insight and direction of"; and "superintend" means "to oversee and direct (work, progress, affairs etc.)": Macquarie Dictionary 2021; and 2. the provision to obey all reasonable directions for "counselling" in the Court Order, means to obey all reasonable CCS directions instructing his conduct: Macquarie Dictionary 'counsel': "advice; opinion or instruction given in directing the judgement or conduct of another"; 'counselling': "to urge the doing or adoption of…to give official notice to…of shortcomings in the performance of" 1. In his opening written submissions (MFI 1) at [4] the plaintiff conceded that "directions are the means by which the CCOs supervise" the conditions ordered by the Court. 2. My conclusion is that the plaintiff's argument that the terms of the Third and the Fourth Bonds are so different from the Orders of Viney LCM made 30 May 2016, that the bonds were "rogue" and invalid, is artificial. Properly understood, the identical direction, expressed in the Court Orders and the Third and Fourth Bonds, that the plaintiff obey all reasonable directions for counselling; has the meaning of obeying all reasonable instructions of CCS Officers in regard to his conduct in the performance of his obligation to avoid behaviours of risk of recidivism and to be of good behaviour for the period of the bond and in accordance with the purposes of the CSP Act. 3. The above discussion, particularly regarding use of "supervision" and "counselling" in the Order of Viney LCM made 30 May 2016 and in the Third and Fourth Bonds, means that the directions given by the CCS Officers, were ancillary to and incidental of her Honour's Order. The CCS Officers, directions gave effect to her Honour's Order under the conditions of the Bond, which had been accepted by the plaintiff. 4. In accordance with the purposes of sentencing under the CSP Act, the direction to enter into "a good behaviour bond" made under s 9, meant to obey the law and to accept CCS supervision including obeying all reasonable directions of CCS within the terms of the Court Order and pursuant to the Bond he accepted. CCS had authority by those bonds to give reasonable directions under supervision toward the conduct and behaviour of the plaintiff designed for the purposes of reducing the risk of his recidivism, toward protection of the community, and his rehabilitation. 5. That restrictions, including not to possess recording devices, for the period of the bond might cause inconvenience was in the context that the s 9 Bond composed punishment, denunciation, general and specific deterrence for his offending, protection of the community and removal of risk of recividism. PRINCIPLES OF LAW 1. There is no dispute that the impugned conduct of Officers Fotofili and Mina occurred in the course of their employment as public officers. This proposition is no doubt correct, see Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [114] per Bathurst CJ with whom Beazley P and Leeming JA agreed. 2. In order for the plaintiff to succeed in his causes of action against the Officers, his onus is to prove that, on the balance of probabilities, when the impugned directions were given by Officers Fotofili and Mina or when "interrogated" by Officer Fotofili, their action was unauthorised or invalid, knowingly or maliciously, and that they caused foreseeable harm to him: Northern Territory v Mengel (1995) 185 CLR 307. 3. In the present case, the plaintiff argues that each Officer did not in fact have power and recklessly ignored the means of ascertaining that the Court Orders made by Viney LCM on 30 May 2016, did not empower the making of the directions limiting his possession of the recording devices. If I am wrong in my finding of power in fact; for the plaintiff to succeed, it is not open to him to merely prove that the Officers should have known that their actions were unauthorised. In order to succeed on the element of knowledge, the plaintiff must prove that the state of mind of the Officer at the time was that they: 1. Actually knew that: 1. The Orders did not authorise the making of the directions; or 2. The Fourth Bond (and therefore the Third Bond) did not give that authority; Mengel's case supra per plurality at 348; per Brennan J at 357; per Deane J at 370-1; or 1. Was recklessly indifferent to those things; and 2. That harm to be caused by that impugned act was foreseeable. 1. Constructive knowledge of lack of authority is insufficient as to constitute the tort of misfeasance in public office; Mengel's case supra per plurality at 349; per Brennan J at 358; Deane J at 370-1. Brennan J described the requirement of malice of state of mind of the public officer as follows: (At 356-357) "In this context, the 'injury' intended must be something which the plaintiff would not or might not have suffered if the power available to the public officer had been validly exercised. (It is in that sense that I use the term 'injury' hereafter.) In more recent times, the scope of the tort has not been limited to cases in which a public officer has acted maliciously [case law footnoted]. It has now been accepted that if a public officer engages in conduct in purported exercise of a power but with actual knowledge that there is no power to engage in that conduct, the conduct may amount to an abuse of office [case law footnoted].Thus Mann J said in Bourgoin SA v Minister of Agriculture, Fisheries and Food [citation footnoted]: 'I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actualIy knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v Woollahra Municipal Council in the sense that malice and knowledge are alternatives.' I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. (further at 357) "Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete." 1. Ultimately, if the impugned directions issued by Officers Fotofili and Mina were given in valid exercise of power at the time, there can be no tortious liability because the act or omission was done or was made in the valid exercise of power. Similarly for what the plaintiff calls the "interrogation" by Officer Fotofili. A validly exercised power may have inflicted on the plaintiff a foreseeable loss (unintended or intended); but, if the power was validly exercised, then the plaintiff's loss was authorised by the law creating the Officer's power to supervise under the Bond. In addition, if either one or both of the impugned directions or Officer Fotofili's "interrogation" were ultra vires and caused loss, the Officer is not liable merely by reason of error of appreciating the power available. The defendant will be liable if either Officer's act was performed maliciously. Furthermore, there will be no liability, if it is now determined that the impugned directions and "interrogation" were imposed without valid power, if when Officers Fotofili and Mina did those things, they acted in good faith and without knowledge of the invalidity: Mengel's case supra per Deane J at 370-371. 2. In Obeid's case supra, the Chief Justice at [155] – [156], with whom Beazley P and Leeming JA agreed, explained that the High Court in Mengel's case, particularly the plurality at ([123], (347)) found that there will be liability for an officer's reckless indifference to the harm caused by ignoring or recklessly disregarding the means of ascertaining the extent of his or her power. At [157] the Chief Justice described that as striking a "correct balance, between on the one hand, the inappropriate imposition of liability on public officers which may deter them from exercising powers conferred on them to be exercised in the public interest, and on the other hand, the protection of persons effected by misuse or abuse of public power." Between [155] and [171] the Chief Justice reviewed the case law, explaining that reasonable foreseeability of a risk of harm is not the appropriate test and that misfeasance in public office only imposes liability on public officers for intentional or reckless indifference to the infliction of harm in the way above described. 3. To assist his argument the plaintiff submits that "malice" can be defined as "a purpose other than a proper purpose" and cites A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [92]. The High Court in that case was considering the state of mind of a prosecutor in an action for malicious prosecution in which cause of action malice and reasonable and probable cause are separate elements: at [44]. The High Court said nothing implying that malice is easily imputed. Reading the decision in its entirety dissuades from that proposition. Indeed reading [92] alone would dissuade from that proposition. Without, engaging, (because in my opinion it is not required to do so here) with the special role of a prosecutor considered in that tort, at [56] the Court said: "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." Indeed at [91] the paragraph immediately preceding that to which the plaintiff refers, the Court said that: "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." APPLICATION OF PRINCIPLES 1. The first hurdle for the plaintiff making the factual argument that either of the Officers knew or was recklessly indifferent as to their invalidity or validity of power to so act is the absence of evidence of what was available to them to do and which they failed to do. That said neither Mengel's case nor Obeid's case is authority for the proposition that the officers had a duty to make some inquiry or do more than they did, either as to their power or as to any harm potentially to be caused by their actions. 2. The plaintiff's argument assumes a duty of care owed to him and seeks to incrementally advance the tort in a way in which the High Court in Mengel (at 347) and the Court of Appeal in Obeid, refused to do: in addition to the above references to the Chief Justice's judgment, see Leeming JA at [225] to [233]; Mengel's case per Brennan J at 358. Specifically (at 349), the plurality in Mengel rejected the submission that lack of authority alone was sufficient to constitute the tort of misfeasance in public office. 3. I have concluded that the Court Orders for supervision provided power to make the impugned directions. I have concluded that the terms of the Third Bond and Fourth Bond for supervision included power to make the impugned directions. It follows that I find that the impugned directions were not given beyond power. 4. The first hurdle and those findings mean that the plaintiff's case in relation to those directions, that either Officer acted beyond power or with reckless indifference to power is hopeless. For completeness, I repeat that the evidence does not identify steps that either Officer might have taken and which they did not take toward ascertaining what their power was. 5. Given those findings, unless the directions by the Officers or either of them was invalid, or Officer Fotofili's "interrogation" was invalid; the issue of malice is irrelevant because even had either Officer been motivated by animus toward the plaintiff, the plaintiff's loss was authorised by law. 6. Of course, there is no evidence they did bear animosity toward the plaintiff. I have observed that he was spoken to and dealt with by each officer, courteously. The compelling evidence is (of Dr Barton to which I will come) that neither direction was unusual for offending of the subject type. 7. An additional hurdle for the plaintiff is that he must show that either Officer Fotofili or Officer Mina or both caused him damage and that liability should rest with the defendant on their behalf because of intentional infliction of harm in the sense that it was the actuating motive for the impugned acts they took. 8. Having found against the plaintiff on the question of power and that I am not satisfied that they were reckless as to their power to so act; I move to the issue of whether or not, at the time, they abused their office by taking those acts because they were motivated by malice to do so. WERE THE IMPUGNED DIRECTIONS MALICIOUSLY GIVEN? 1. As already explained, the plaintiff would only succeed if he is able to show that either the impugned directions or Officer Fotofili's "interrogation" were inflicted because of the motivation of malice; that is, if he is also able to show that either direction or the "interrogation" would not have occurred but for malice. Absent that finding, the direction or "Interrogation" was valid and the consequence of harm, if any, according to law and therefore inactionable. 2. It is necessary at this point to bear in mind the preceding observation that the plaintiff's submissions are infected by his grievance that CCS treated him as a sex offender, when in his mind he was not. That he refuses to acknowledge that an offence under s 7(1)(b) Surveillance Devices Act 2007 (NSW) involving him surreptitiously recording a female medical practitioner's inspection of his groin was found proved (but pursuant to s 10 CSP Act a conviction was not recorded) is a fact which displays the perspective of grievance behind much of his approach in the proceedings. 3. Other than CCS case notes Exhibits J to which I referred to above, the plaintiff referred to two forms of objective material in his case on malice. One of those was the case note records of CCS Senior Forensic Psychologist, Dr Barton's opinion and the other was the CCS protocols. 4. A significant point in the plaintiff's case was to challenge Dr Barton's assessment of his risk of recidivism, on the basis that he was not a sex offender. He challenged both her assessment of him made 19 April 2016 as "moderate to low category of risk of sexual reoffending… [which Dr Barton added is] likely to underestimate his actual level of risk" (Exhibit 5) and her case note 3 May 2017 (Exhibit V) that he "is a high risk of further sexual offending but his pattern of offending (filming and exposure offences) are low harm." At points, the plaintiff's cross-examination of Dr Barton was repetitive and harassing, even allowing for his being a self-represented litigant. 5. Dr Barton held the position Senior Forensic Psychologist at CCS. On 19 April 2016 she had reported to CCS on the plaintiff's sexual recidivism risk (Exhibit 5). During cross-examination, the plaintiff challenged her with the allegation that her case note entry on 3 May 2017, following Officer Fotofili's interview with him, was entered in order to protect Officer Fotofili. The very serious proposition put to Dr Barton by the plaintiff was that her entry that the plaintiff presented "a high risk of further sexual offending" was "fudged" in order to cover for the exceeding harshness of Officer Fotofili's oral direction that the plaintiff not have in his possession recording devices. The plaintiff repeatedly pressed Dr Barton with the proposition that she advised Officer Fotofili of what restrictions and directions he should impose. The plaintiff's attack, as I understood it, was that before the interview Dr Barton had advised Officer Fotofili to direct the plaintiff may not have possession of recording devices. She was unshaken in her denial of that. She explained that CCS Officers determined prohibitions to be directed and she provided clinical opinion of risk factors. Dr Barton explained that a direction restricting the plaintiff's possession of recording devices was a direction toward a proximal risk factor to the offence because possession of a recording device was a key part of the offence occurring; (T62.10-15). The evidence of the case notes (Exhibit V) and the sequence of events in the plaintiff's affidavit is wholly supportive of the fact that Officer Fotofili did not speak to Dr Barton until after he had given the oral direction to the plaintiff. 6. Dr Barton explained that it was not unusual for the plaintiff's type of offence, that the CCS Officers, in supervision of the bond, would direct the offender that they were not allowed to possess recording devices. She explained (T57.35): "It wouldn't be unusual for someone who is an average risk of reoffending or above, whose offence involves the use of a recording device, to have that requirement in their supervision, so it would be – it would be unsurprising." 1. Dr Barton explained this was because possession of a recording device for the type of offence for which the plaintiff had been convicted, was an acute risk factor in the dynamic consideration of recidivism. The following exchange is characteristic of this evidence (T64.05 - T65.04): Q. I still have an issue, and that is that you've done the assessment, they do the how, and - so let's say there was this risk factor there, which obviously goes without saying. You know, if somebody has got a gun, they're more likely to fire it than if they don't have a gun. You know, this is sort of self obvious. So there is that risk factor there. Mr Fotofili apparently was aware of the risk factor. He may or may not have been aware of the risk factor. The question I come to is, once again, why he came to you about it, and secondly, why you issued a report immediately afterwards increasing my risk of sexual offending to high, when in your first report you said it was moderate to low, and in your first report you said it was to moderate to low three times. I can point the exact places out to you. And yet somehow, after Mr Fotofili came to you, suddenly my risk factor shot up to high. And I put it to you, doctor, that you were protecting him in some way. A. No. Q. Well, then can you explain why my risk rating shot up to high, when it's always been - if you look at the case span, it's moderate to low. If you look at your first report, it's moderate to low, three times. A. Okay. So this is a case note. This note on 3 May is a case note. So it's not the formal assessment. The result of the formal assessment in 2016 was moderate to low. So you're correct, that was my assessment at that point in time. But I said that I didn't have the full criminal history. Now, given that there was evidence of recurrence of the behaviour, that would have been why I put it in an informal sense, put that word in the first paragraph in that case note, in the first paragraph, last sentence. Q. But Doctor, in this last report on 3 May, you still say straight out that you still don't have the criminal history. A. That's right. Q. So you're no further along and yet, suddenly, my risk rating shot up. A. No, because I'm not giving you a formal risk rating in that sentence at the end of the first paragraph. I'm saying – I'm talking clinically at that point. Q. The term "high risk rating" never anywhere surfaces. There's another report by Raymond somebody or other further along, and it's not a high risk rating. A. No. Q. It never surfaces. So there's something here that made you suddenly increase the risk to high. And I put it to you that you're defending Mr Fotofili. A. No. I wouldn't be doing that at all. It's-- Q. I'm putting it to you that you fudged this report. A. That was not the outcome of the Static 99 assessment. There's community corrections officers go to the Static 99 screen to look up the outcome of the assessment. So the formal risk rating is very clear. That was a word in a sentence I used, but it is not the formal risk rating, and the community corrections officers know how to look for a formal risk rating. 1. Dr Barton conceded that in her 19 April 2016 report, her assessment of his recidivism risk was arrived at after she made the error of assuming that the plaintiff's antecedents included his conviction for filming a person's private parts without consent and the offence of behaving in an offensive manner in a public place, when he had only been convicted of the prior offence. 2. Elsewhere in her evidence, Dr Barton explained that the Static-99 recidivism risk assessment, which she attempted on 19 April 2016, but was unable to complete because the plaintiff's full criminal record wasn't provided to her, was the first step in the overall risk assessment. She explained that that actuarial test, is of "moderate predictability". She identified the next step as the dynamic assessment. 3. The effect of her unshaken evidence of what occurred on 3 May 2017 is that Officer Fotofili would have consulted with her about risk management and all she would done was explain that recording devices increase the dynamic risk for the plaintiff in context of his offence and recidivism risk. It was not her role to tell him to restrict recorders. Dr Barton had no actual recollection of the consultation with Officer Fotofili. Speaking of the process, immediately prior to the above quoted passage of transcript, Dr Barton said that she did the "assessment" and the CCS Officers did the "how": T64.01. 4. The plaintiff's rigid comprehension of expression in Dr Barton's 19 April 2016 report (Exhibit 5) (and generally, the objective evidence in the case) is well exposed in the following extract from the transcript of his cross-examination of Dr Barton. The plaintiff is a highly intelligent man, as he presented in the Courtroom and as he is described in the documentary evidence. Yet, in this following passage, what is seen is his refusal to accept that Dr Barton when reporting within her clinical expertise on his "empathy" was not reporting inaccurately or inconsistently with police use of the word "remorse" in a police record of facts (T84.14-21): " Q. On page 1, under Assessment of Risk, the report states, "He showed no empathy." Yeah. Right. At the end - at the end of the first paragraph, "That he showed no empathy, according to the police facts." Would you agree that that's what the report says? A. Yes. Q. Do you think that's accurate? A. It would have to be in the police facts or I wouldn't have said it." ……………………………………….. Q. Well, the thing is that the real question here behind the question is how accurate is this report? I mean, you're taking things from the police facts, but you're misquoting the police facts. So how accurate is anything at all in your report if you don't even quote the things properly? A. I think it's a reasonable summary, so I disagree with your proposition. Q. Overall, okay, but in specific that is quite incorrect, isn't it? You're saying empathy A. It's not quite incorrect. There's obviously a close relationship between the word remorse and the word empathy. No, I disagree with what - your proposition. Q. Well, that wasn't a question, doctor. The question was that you were saying, according to police facts - it's not about the meaning of remorse or empathy. It's according to the police facts, and yet your quote is not according to police facts, is it? HIS HONOUR: Sir, the doctor is giving you an answer. I'll let you ask that question only this time, but without your demand there's a difference between empathy and remorse. The doctors is entitled in accordance with your question to answer her meaning. Q. Doctor, as I understand it is you have used the word empathy, the police facts said remorse, and your prior answer was they're obviously related. Might you just explain that? Because the question has been asked once more, and this will be the last time. The relationship as you see it between the police saying lack of empathy and you saying - sorry. You saying no empathy and the police saying remorse. A. If people feel sorry for what they've done, that usually extends to the victim. PLAINTIFF: Your Honour, that wasn't my question. HIS HONOUR: Well, it's my question. Q. Yes, go on, doctor. A. If someone feels sorry for a crime they've committed and feels some - has some affect about that, then that usually extends to the victim. That's that feeling of more remorse, sorrow about what they've done. PLAINTIFF: Your Honour, can I ask my question, or do I have to move on? HIS HONOUR: Ask one question. Go on. PLAINTIFF Q. The question is: you're relying on police facts and you're saying the police facts said this, whereas in fact, they did not say that. There might be a connection, but that's not the question. You did not report the police facts accurately, did you? A. I-- HIS HONOUR: I reject that question, no. You don't have to answer. I reject the question, sir. I completely understand that you're locked into your conviction of your understanding of that. All right? It has been answered, in my opinion, which is different to your opinion. The swap between the words empathy and remorse has no obvious significance and the doctor has explained the relationship. PLAINTIFF: But the accuracy HIS HONOUR: No, I'm sorry, sir. Move on. 1. It is plain from his affidavit evidence that the plaintiff's complaints are heavily based in his personal grievance and rigidity of perception of things said to him by CCS Officers. He moves on his subjective interpretation of factual events and to meanings and intentions of Dr Barton, Officer Fotofili and Officer Mina behind events, actions and speech. This is why my earlier explained observation is to be applied when attempting to understand his complaints and evaluate the persuasion of his arguments. 2. The plaintiff's inability to accept that Dr Barton's entry of "high risk" in the case note of 3 May 2017 was a clinical observation in the running case note record and not a formal assessment of his risk of recidivism, in my opinion, displayed rigidity of thinking. I say this because: * Dr Barton explained that the formal assessment, which would be composed of both actuarial and dynamic components of assessment was not complete and could not be completed until after she had received the complete antecedent criminal history, and had conducted a face to face interview in order to assess dynamic risk factors. * The plaintiff was unreasonably unwilling to accept Dr Barton's explanation that CCS Officers were aware that her case note was not a formal recidivism risk assessment; and * The plaintiff without any basis other than suspicion was unwilling to accept of Dr Barton's explanation of CCS practice and procedure, that whilst her clinical observations were discussed with CCS Officers, the making of directions was not within her domain and only within the domain of the officers. 1. The plaintiff's rigidity of thought in the context of the abstract component of comprehension of language, observed by Dr Canaris (Exhibit H and referred to earlier in these reasons) fits with the exposure of his inability to comprehend Dr Barton's use of "empathy" within her clinical setting and the use of "remorse" in police facts. Similarly, it was exposed in his refusal to accept Dr Barton's explanation that her 19 April 2016 report satisfied good practice of accuracy and verification by disclosing its sources of information. 2. The plaintiff's grievance and rigidity of thought, in my opinion, is also observed in the following: * The plaintiff maintained a refusal to accept the relationship as observed in expert forensic psychological assessment of risk of recidivism, between his behaviours which might be considered to be of a sexual nature and the risk of sexual offending even though it was explained to him by CCS Officer Hurst during the First Bond period (Exhibit J case notes). * The plaintiff maintained his refusal to accept the reasonableness of restricting his non-consensual public surveillance recording even though he appreciated that it was "borderline" legally and that he was taking substantial risks legally in that activity. * The plaintiff's opposition at the CCS determined directions was maintained despite her Honour Magistrate Viney at his sentencing hearing on 30 May 2016, having engaged with him regarding his mental health and attitude to use of recording devices and his agreement with her Honour that his past surreptitious recording of members of the public without their consent was viewed as appalling and would be considered to be appalling by him, if he were the victim. * The plaintiff's refusal, given those matters, to accept that the impugned directions were to reduce the proximal dynamic risk engaged by possession of recording devices and, in that way, for his protection as well as to reduce the risk of recidivism, pending full formal specialist clinical psychologist recidivism risk assessment and completion of a Case Plan. 1. His umbrage with the impugned directions given orally by Officer Fotofili and subsequently by Officer Mina including by the Department's letter of 17 May 2017 is a latest step in a history of personal difficulty accepting Community Corrective Services' supervision and direction whilst subject to recognisance (as observed in the Pre-Sentence Report, 29 April 2016 – Exhibit S). 2. The plaintiff's evidence conceded as much. For example at T30.45-31.14. Q. All right, I think I kind of got my voice and Mr Bateman will pull me up if I'm - wandered too far from the straight and narrow. Basically, the whole thing started - this is the second bond I was under. The first thing started in the first bond which was 2012 [the First and Seconds Bonds], which was based on a conviction for recording a private conversation. This was just a private conversation. Anyway, Mr Hurst at that time decided to give me a very difficult time and wanted to put me into a sex offender's programme. When the - and it was a sex offense. Actually, can I withdraw that? Because I know Mr Bateman has objections to that. Anyway, I had a pretty tough time with Mr Hurst, and this is just by way of background more than anything else. And in any event, I was then passed on to Graham Tunbridge, another CCO Officer who for apparently no reason at all did report me to the police for a book that I wrote. Claiming that the book was very similar to my actual offence. And I don't want to go into whether he was correct or not, I'm just saying that I had a tough time that I was reported to the police by them. And so I was in a very susceptible or precarious state of mind as a result of my experience with first good behaviour bond— (Words within brackets inserted) T31.19 – 20 A. I think that's the word. Very sort of, very sensitive state of mind, with regard to my experience with the corrective services during my first bond. 1. Before turning to the plaintiff's arguments of application on CCS protocols, it is to be born in mind that to the extent that the plaintiff submits the protocols established standards, they were not imposed by legislation or regulation. They do not, of themselves, prescribe standards of conduct, breach of which would be actionable at law. The protocols, do "not pre-empt the common law": Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 per Gleeson CJ at [23]. As is plain, from their reading, the protocols do not do more than offer guidance to CCS Officers whilst balancing the competing factors of rehabilitation, recidivism and protection of the community. I do not deal with every protocol to which the plaintiff referred, as I do not find it necessary to do so. 2. The plaintiff agreed that supervision by CCS should properly be predictive of risk of recidivism and protection of the community (see for instance T130-131). It was common ground that his Case Plan was not complete in the time of making of the impugned directions and when, as he put it, he was "interrogated" by Officer Fotofili. It was not due until 17 May 2017. As Dr Barton explained, and there is no submission from the plaintiff to the contrary, the Case Plan could not be completed until after she had provided a formal risk assessment incorporating her opinion following face to face interview with him, which had not occurred. 3. Application of protocols by CCS Officers would ordinary be determined to be required by the dynamics of the individual offender's situation, within the legal parameters of a s 9 good behaviour bond and exercising reasonable judgment toward those purposes of reducing the risk of recidivism, promoting of rehabilitation and protection of the community. 4. With reference to Corrective Services policy documents (Exhibits N, O, P, Q, R, S, T, U) the plaintiff argued support of his claims as follows: 1. (Exhibit N, Offender Assessment Unit, Fact Sheet, Offender Risk Profile) provided that for offenders who like himself were assessed at "Low/moderate risk" only a low-level supervision or intervention was required and was to be "target-specific intervention only" 2. (Exhibit O, Corrective Services-Guide to Conduct and Ethics, 2010 edition p 14) the treatment of offenders should encourage their self-respect and a sense of personal reasonability and Officers must be careful not to overstep boundaries established for the performance of their role. 3. (Exhibit P, Corrective Services-Community Corrections Officer Handbook p 11, October 2015) to put that Officer Fotofili's questioning was investigative, and CCS Officers lack legal authority to conduct investigation - "nor is its primary purpose to catch offenders out on technical breaches which are not relevant to risk. Being too compliance focused can undermine the effectiveness of Community Corrections in reducing future offending. Community Corrections must only work within the parameters of the offence for which the offender has been convicted/or the Order they are on and leave police to investigate further allegations of offending)." [see below consideration] 4. (Exhibit P Corrective Services – Community Corrections Officer Handbook) "It is the role of the Court to determine appropriate sentences. The Community Corrections officer is not to make judgements of the adequacy or inadequacy of that sentence. Decisions on matters such as level of supervision and the commencement of breach action must always be made with regard to the impact on community safety and the long term reduction in offending, not punishment of the offender." 5. (Exhibit P, Corrective Services – Community Corrections Handbook, Risk, Needs, Responsivity and Consequences, using risk assessments, p 31) that thorough assessment is required in order to avoid the wrong level of intervention being provided and actuarial assessment such as Static-99R, are more reliable predictors of risk and professional judgment is better used on how to intervene to manage the risk. 6. (Exhibit Q, at p 6, Offender Classification and Case Management Policy and Procedures Manual - 3.1, CSNSW Case Management Policy v. – 4 January 2016 , paragraph 3.1.12 – Case Planning). "That a Case Plan should specify the programs or interventions that stems from the needs identified in the assessment process with regard to reducing the dynamic risk factors and addressing offending behaviour." [I comment that the Case Plan was not to be ready until at least 17 May 2017 and in the interim supervision would sensibly be considered to require a reasonable approach to what Dr Barton identified as not unusual restrictions for persons of the plaintiff's offending type; that is: restriction from their possession of recorders in order to reduce dynamic risk.] 7. (Exhibit Q, at p 7, Offender Classification and Case Management Policy and Procedures Manual - 3.1, CSNSW Case Management Policy v. - 4 January 2016 at paragraph 3.1.15 Efficient Use of Resources): "That low-risk offenders being made to undertake intensive programs can actually increase their risk of reoffending" [I comment that Plaintiff was not assessed to be low risk and not subject to undertaking intensive programs]. 8. (Exhibit R, Community Corrections – Pre-Assessment Reporting v. 1 – 18.17/December 2015 at 2.4.9.2 Suitability for Supervision): With regard to PSR assessment, that offenders in the low and low-medium risk categories will not generally require supervision. [Comment: The PSR – Exhibit S – recommended supervision] 9. (Exhibit T, Community Corrections – Pre-Assessment Reporting v. 1 – 18.17/December 2015 at 2.4.6.2 Verification): That factual verification must either be verified or identified as unverified in PSR Reports. [Comment: The plaintiff's applied this protocol to the PSR referencing police facts rather than conviction, and to Dr Barton's 19 April 2016 Case Note (Exhibit 5). Viney LCM told him that she would not take that part of the PSR into account. The protocol did not apply to Dr Barton's case notes because they were not PSRs.] 1. In my opinion, neither Officer Fotofili nor Officer Mina, in the circumstances of their exercising predictive directions which were proved by the expert evidence of Dr Barton to be not unusual in the overall circumstances of the offender and his offending, acted unreasonably in directing targeted intervention aimed at risk of recidivism and protection of the community. This is more so because the directions were given pending a formal Case Plan. I repeat my observation that the directions were courteously given. 2. There is not a scintilla of evidence that the directions were, in the circumstances, given maliciously or otherwise in abuse of exercise of the functions of their office. 3. More so, the plaintiff's complaints are outside the realm of tortious misfeasance in public office. As was said by Brennan J in Mengel's case at supra 356: "A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss – or even an intended loss, but if the exercise of the power is valid, the other's loss is authorised by law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects." 1. I find that neither Officer Fotofili nor Officer Mina were motivated by malice to give the directions, respectively on 3 and 17 May 2017. I reject the plaintiff's argument that their directions were not valid on account of the giving of them being motivated by malice. QUESTIONING BY OFFICER FOTOFILI 1. At [60] of his first affidavit, the plaintiff described the manner by which Officer Fotofili asked the questions during the interview on 3 May 2017, earlier set out in these reasons, as in a "point blank, in quick, staccato-like manner". The uncontested evidence is that he felt emotional distress. 2. There is no part of the conversation in which the plaintiff communicated to the Officer his distress. Nor is there any expression by Officer Fotofili of his awareness of that. 3. The plaintiff was given the opportunity to and did in fact express his opinion that the direction was unreasonable. In his written argument (MFI 1) at [129] to [162] the plaintiff does not identify any evidence that Officer Fotofili was in fact aware of the plaintiff's feelings of distress. Indeed, is put his argument on the basis of the spoken questions (at [129] and [159 - 161]). The plaintiff submits that the questioning "crossed over to an interrogation and investigation" from mere questioning. After proposing what he submitted would have been more sensitively and more purposively framed questions, the plaintiff argues that a "cross-examination/interrogation/investigation" style of questioning will "make virtually anyone ill at ease" and that if Officer Fotofili was "that rare individual who was entirely oblivious" to that effect; then it "must be held that he was recklessly indifferent to the likelihood of harm." 4. The plaintiff also submits that "on a more sinister level, it is available on the evidence that the precise and exact reason Fotofili interrogated the plaintiff, was in order to adduce the stress, distress and discomfort. This is based on the fact that the interrogation was entirely unnecessary because Fotofili had predetermined to ban recorders…" 5. In my opinion, the deserved response to those submissions is that whilst they reflect the plaintiff's aggrieved state of mind, there is no evidence proving, on the balance of probabilities, that Officer Fotofili was aware that the plaintiff was distressed, that the officer was oblivious or that he was deliberately inducing the plaintiff's distress. The conversation set out in the plaintiff's affidavit displays the Officer's courteous conduct. 6. No doubt, questioning by a CCS Officer for the purposes of making a direction, may make an offender feel uneasy. In my opinion, the questioning was reasonable regardless of whether Officer Fotofili had formed a preliminary view toward making of the direction, if he had formed a final view to the making of the direction or to whether he was considering whether or not to make the direction. Asking of the plaintiff's recording devices was the practical thing to do. I reject the plaintiff's submission that it was unnecessary. The evidence of Dr Barton was that such directions were not unusual, given the offence. It is inferred from Dr Barton's evidence of CCS practice and from the plaintiff's evidence that Officer Fotofili had been a CCS Officer since at least 2012, that Officer Fotofili had the experience of making those not unusual directions when supervising persons convicted of offences such as the plaintiff had been convicted of. 7. The plaintiff described the questions as "accusatory" (at [137]), clearly beyond jurisdiction because Officer Fotofili had no authority to do so (at [139]), conducted with reckless indifference to ascertaining the limits of his powers (at [143]), malicious because they were "needlessly onerous" (at [144]) and displayed "contumelious disregard for the plaintiff's rights (bad faith)" (at [146]). 8. The submission of that Officer Fotofili did not have power to ask questions of the content and in the manner of which he did is explained at [130] on the basis that CCS Officers are "not responsible for the investigation of criminal offences". The plaintiff relies on a passage from page 302 of the Community Corrections Officer Handbook (Exhibit P). The relevant passage in full reads: "Community Corrections is not responsible for the investigation of criminal offences, and lacks the legal authority to do so. Nor is it its primary purpose to catch offenders on technical breaches which are not relevant to risk. Being too compliance focused can undermine the effectiveness of Community Corrections in reducing future offending. Community Corrections must also only work within the parameters of the offence for which the offender has been convicted and/or the order they are on, and leave police to investigate further allegations of offending. As an example, an offender is given a community order for driving offences. The offender is believed to be part of an organised crime gang, but has never been convicted of any related offences. While significant information relating to apparent offending can be reported to police, and new charges may constitute a breach of the order, intervention strategies with the offender must be determined on the basis of the driving offences only." 1. The evidence shows that Officer Fotofili was not in breach of that protocol. His questions were not directed to investigating other criminal offences. He was not catching the offender out on a technical breach, because a direction restricting recording devices was not then current. He was working within the parameters of the offence for which the plaintiff had been convicted and was not, as illustrated in the example, investigating other offending. 2. In my opinion, the questioning appears to be normal for the purposes of the direction given on 3 May 2017 and entirely within parameters of the level of supervision bearing in mind the impact on community safety and long term reduction of offending. Nothing in the questioning evidences that Officer Fotofili asked questions beyond the power of authorised supervision or that he was motivated by malice to inflict injury on the plaintiff. SUMMARY OF CONCLUSIONS 1. I have made the following findings: 1. The oral direction given by Officer Fotofili on 3 May 2017 was within his power to give; 2. The direction given by Officer Mina on 17 May 2017 was within her power to give; 3. The questioning of the plaintiff by Officer Fotofili on 3 May 2017 was within his power to ask; 4. Neither Officer Fotofili nor Officer Mina knew that they did not have power to do the things (a), (b) and (c) or was recklessly indifferent as to whether they had that power (which power I found they in fact had) 5. Even had I found that Officer Fotofili or Officer Mina lacked power to do (a), (b) or (c); then I have found that neither of them when doing those things did so with malice, knowledge or reckless indifference stamping their action with the character of abuse of or misfeasance in public office. 1. For the reasons given the plaintiff fails in his action and there will be verdict to the defendant. DAMAGES 1. For the reasons given the plaintiff cannot succeed in his cause of action. I am nevertheless required to hypothetically assess damages. 2. The uncontested evidence is that the plaintiff suffered some inconvenience, but without monetary consequence, with the selling of a car because without recording devices he could not post a photograph of the vehicle with his Gumtree sale post (MFI 1 at [115]). The uncontested evidence is that he personally felt stress, distress and deprivation of freedom consequent of restriction of his possession of recording devices. In particular, the plaintiff used his pen camera, not his large camera, when recording his neighbours' behaviours and threats for the purposes of making complaints to the public housing authority. 3. As I understand his argument for actual damages, it is placed in deprivation of freedom of possession of concealable recording devices. The effect of Officer Fotofili's direction that he also dispossess himself of his large camera by delivery to a friend, only prevailed for a few days. With Officer Fotofili's permission he did not deliver it up until Sunday the 6th of May and on 17 May 2017, CCS gave the written direction which permitted the plaintiff possession of the large camera. Indeed, on the 10th of May 2017, when Officer Mina tried to discuss the correlation between his "current offence and his actions, and the community's perception" the plaintiff refused to discuss the direction previously orally given by Officer Fotofili and demanded communication by writing. 4. This was a failure to mitigate his loss. Officer Fotofili had informed the plaintiff that he could seek a review of the direction from Case Manager, Officer Mina on her return. The evidence that Officer Mina was willing to discuss the 3 May 2017 direction given by Officer Fotofili (Exhibit V Case Note 10 May 2017) and that on 17 May 2017, her direction prohibited only possession of concealable recording devices; strongly infers that had the plaintiff accepted Officer Mina's invitation to discuss the parameters of the direction, he would have been permitted return of the large canon camera on 10 May 2017. 5. The plaintiff seeks $20,000 in actual damages. 6. The plaintiff also claims exemplary damages, submitting that not just Officers Fotofili and Mina but they with the support of Dr Barton and the CCS Officers who with Officer Mina, on 15 May 2017, resolved the impugned written direction given 17 May 2017, determined to impose more severe punishment than that ordered by Viney LCM on 30 May 2016 (MFI 1 at [117] to [127]). The plaintiff does not point to evidence supporting this allegation. There is no such evidence. 7. His fundamental submission was: "BREAKDOWN IN THE JUSTICE SYSTEM: It is clear from the sentencing comments from Magistrate Viney…and the Court Orders document (Exhibit 3) that Magistrate Viney INTENDED the sentence to be lenient…it is probably safe to say she intended it to be VERY lenient. It is also clear that many may have regarded the sentence to be TOO lenient. This was especially true of Judge Syme, who made it clear that if she had the power she would have increased the sentence. So it is not a big stretch to presume that Fotofili and Mina thought the sentence should have been more severe." 1. The findings in regard to the legal powers of the officers, the courtesy with which they dealt with the plaintiff, the not unusual content of the impugned directions, my finding as to Officer Fotofili's questioning not crossing the line to prosecutorial investigation, combined with there being no other evidence in support of this submission; means that it is founded in not more than arises from the plaintiff's grievance based perspective which infects his approach and interpretation of the Officers' conduct. 2. It follows that I reject the plaintiff's submissions for exemplary damages on the basis of deprivation of liberty including to the claimed extent that his life was in danger because he was unable to surreptitiously record his interaction with his problematic neighbour. 3. Conduct of Officer Fotofili is alleged to add to the pool of CCS wrongdoing in which Officer Mina is alleged to have played her part. As there is a single defendant, I consider it appropriate to accumulate the allegations of loss caused by the impugned conduct. There is a close relationship between the categories of damages sought. This is because of the close relationship between the award of ordinary compensation damages for the plaintiff's feelings and an award of exemplary damages. Albeit the plaintiff does not make an argument for aggravated damages, his reference to the Officers' contumelious disregard for the responsibilities of their office, is expressed as conduct increasing the hurt which he suffered. That is taking his submission at its highest; but, it is practical to assess, a single sum to be awarded for both aggravated and exemplary damages. As he put his case it is appropriate to contemplate his description of his suffering and reasons for it rather than holding him, to his formal legal categorisation of heads of damage. Applying NSW v Ibbett (2006) 229 CLR 638; (2006) HCA 57 at [35] and noting that the High Court at [31] stated "aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which resulted from the circumstances and the manner of the wrong doing," I think it fairest to so proceed. 4. Aggravated damages fix upon the circumstances and manner of the wrong doing of the defendant, and the function of exemplary damages is punishment and deterrence of the wrong doer: Ibbett case supra at [33]. The plaintiff ascribes his loss in both of those terms. It can be difficult to differentiate between aggravated damages and exemplary damages. 5. Because I consider all of the loss he claims to have arisen from his pre-conceived and silently held from the Officers, grievances, even if the plaintiff had succeeded on liability, I would not award more than a nominal sum of $500.00 in damages. The impugned conduct was not the real cause of his loss. Assuming I am wrong in that and mindful of an excessive overall award where some or all of the factors supporting one head of damage also support the other; I intend to assess a single sum for what I understand from the plaintiff's submissions to be a claim for both aggravated and exemplary damages while being conscious of not double compensating for ordinary damages. 6. In a case considering wrongful imprisonment, Tobias JA said in Coyle v State of NSW [2006] NSWCA 95 at [99]: "It is difficult to imagine for a person who is otherwise a law abiding citizen, a more humiliating experience, or a greater shock to one's equilibrium to be forcefully deprived of one's liberty for a relatively short period in circumstances that were entirely unjustified." Unlike the facts in that case, the plaintiff was not arrested and restrained. The plaintiff concedes that he was pushing boundaries of lawful conduct and was conscious of trying to not offend in his activities of the nature of which the current offending occurred. I am mindful that his rightful want to contribute to debates concerning female exhibitionism, nudity, flashing and public masturbation, are precious to him. The Exhibit J and Exhibit V CCS case notes show his abhorrence to being treated as a sex offender in that context. 1. Approaching damages mindful of the above principals and considerations, I would allow: 1. Damages for distress in the sum of $3,000 2. Damages for exemplary (incorporating aggregated) damages $4,000 Total: $7,000 ORders 1. I make the following Orders: 1. Judgment for the defendant against the plaintiff 2. Plaintiff to pay the defendant's costs of the proceedings [Addendum Note: On 29 November 2019 the subject conviction was quashed on appeal] 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: 24 November 2021