New South Wales Court of Appeal CITATION: Coyle v State of New South Wales [2006] NSWCA 95 HEARING DATE(S): 4 April 2006 JUDGMENT DATE: 28 April 2006 JUDGMENT OF: Mason P at 1; Handley JA at 2; Tobias JA at 3 DECISION: (a) Leave to appeal granted subject to a Notice of Appeal setting out the grounds of appeal being filed within 7 days of the date of these orders; (b) Appeal allowed; (c) Vary the verdict and judgment for the claimant entered by Delaney DCJ on 20 April 2005 by substituting the sum of $81,000 for the sum of $61,000; (d) The opponent to pay the claimant's costs of the summons for leave to appeal and of the appeal CATCHWORDS: TORTS – assault – wrongful arrest – false imprisonment – malicious prosecution – onus of proof – standard of proof - DAMAGES – assessment – compensatory damages – exemplary damages - WITNESSES – reliability – distinction between unreliable and intentionally dishonest evidence Civil Liability Act 2002 LEGISLATION CITED: Crimes Act 1900, s58, s352 Rail Safety Regulation 1999, s13(b) Summary Offences Act 1988, s4A(1) O'Reilly v Law Society of New South Wales (1998) 24 NSWLR 204 Smith v New South Wales Bar Association (1992) 176 CLR 256 Director of Public Prosecutions (NSW) v Gribble (2004) 151 A Crim R 256 CASES CITED: Glinski v McIver [1962] AC 726 Sharp v Biggs (1932) 48 CLR 81 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 PARTIES: James Coyle State of New South Wales FILE NUMBER(S): CA 40397/05 COUNSEL: Cl: T. Molomby SC / J Watts Opp: J E Maconachie QC SOLICITORS: Cl: Champion Legal Opp: I V Knight, Crown Solicitor's Office LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC214/03 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 04/20/2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40397/05 DC 214/03 MASON P HANDLEY JA TOBIAS JA Friday 28 April 2006 JAMES COYLE v STATE OF NEW SOUTH WALES Judgment 1 MASON P: I agree with Tobias JA. 2 HANDLEY JA: I agree with Tobias JA. 3 TOBIAS JA: On 31 January 2001, Mr James Coyle (the claimant) accompanied his wife to Westfield Shopping Centre at Blacktown and, in the afternoon and early evening, met some friends at the Blacktown Workers Club (the Club). He then went to catch the 8.36pm train at Blacktown Railway Station for the purpose of returning to his home at Riverstone. 4 As he stepped aboard the train he was confronted by a police officer, Senior Constable Howard Smith (Smith) who, in the company of then Senior Constable Crispian Jelley (Jelley), was seeking to exit the train. 5 An altercation then occurred and, as a consequence, the claimant was forcibly detained by the two police officers at 8:31 pm, handcuffed and transported to Bankstown Police Station in a paddy wagon. He was placed in a holding cell and was later fingerprinted, photographed and questioned by another police officer. At approximately 10pm he was charged with four offences (the charges) and, at approximately 11pm, released without bail. He was thus detained against his will for a period of approximately two and a half hours. 6 The charges were heard in Blacktown Local Court over two days in July and October 2001. The claimant was acquitted of all charges in February 2002. 7 On 17 June 2003, the claimant instituted proceedings against the State of New South Wales (the opponent) in the Parramatta Registry of the District Court of New South Wales. He alleged that, on 31 January 2001, when lawfully attempting to board a train at Blacktown Railway Station and thereafter, he was assaulted, wrongfully arrested, falsely imprisoned and maliciously prosecuted by Smith and Jelley. 8 The proceedings were heard by his Honour Judge Delaney (the primary judge) in September and October 2004 and his Honour delivered judgment on 20 April 2005. 9 The primary judge found, contrary to Smith's evidence, that Smith had assaulted the claimant rather than that the claimant had assaulted Smith and that Smith and Jelley had wrongfully arrested and falsely imprisoned him. However, his Honour was not satisfied on the balance of probabilities that the claimant had established an absence of reasonable and probable cause or actual malice with respect to the laying and prosecution of the charges, as a consequence whereof he dismissed the claim for malicious prosecution. 10 As to damages, the primary judge determined the claimant's non-economic loss in respect of the injuries and disabilities sustained by him as a consequence of the assault in accordance with the provisions of the Civil Liability Act 2002. He assessed that loss as 25% of a most extreme case, equating to the sum of $26,000. 11 Although his Honour recognised that in respect of the torts of wrongful arrest and false imprisonment the claimant's damages might include both compensatory and exemplary damages, he determined that the facts only warranted an award of exemplary damages. He assessed those damages in the sum of $35,000, and thus entered a verdict and judgment for the claimant in the sum of $61,000. 12 The claimant seeks this Court's leave to appeal against the primary judge's finding that his claim for malicious prosecution had not been established and for his Honour's failure to award compensatory damages in favour of the claimant with respect to the torts of false imprisonment and wrongful arrest. The claimant also submits that, in the event that this Court determines that his claim for malicious prosecution has been established, it should itself assess both compensatory and exemplary damages in respect of that tort. The substantive appeal was heard concurrently with the application for leave to appeal with respect to these issues. 13 The opponent filed a summons for leave to cross-appeal which was supported by extensive written submissions to which the claimant duly responded. However, at the commencement of the hearing of the appeal the opponent abandoned its application for leave to cross-appeal, and accepted that its summons should be dismissed with costs. It was so ordered. The background facts 14 As I have already observed, on 31 January 2001 the claimant and his wife went to Westfield Shopping Centre at Blacktown. After concluding their shopping activities, the claimant's wife returned home and the claimant proceeded to the Club for a game of snooker and a few drinks with some friends. The claimant's evidence, which was not in dispute, was that he met his friends at the Club, played snooker and drank approximately five schooners of beer over a period of four hours. 15 Although Smith and Jelley alleged that the claimant was intoxicated at the time they encountered him, the primary judge found (at [84]) that he was not drunk while at the railway station or in the police station, notwithstanding that he had drunk five schooners of beer over a period of approximately four hours. 16 The claimant left the Club to catch the 8.36pm train to his home at Riverstone. On departing the Club, he purchased 2 litres of milk, half a loaf of bread and some OXO cubes, which he carried in a plastic bag. He also had an umbrella with a wooden handle. When he boarded the train, he was holding the umbrella in one hand and the bag of groceries in the other. 17 The train stopped at the platform with a carriage door directly in front of the point where the claimant was waiting to board. When the carriage doors opened the claimant stepped onto the left hand side of the entry platform to the carriage. 18 Smith and Jelley were on the train and, when the doors opened, were proposing to exit the carriage onto the platform. When the claimant stepped onto the carriage's entry platform, Smith was standing in front of him with his left arm extended and his left hand holding a vertical post located just within and in the centre of the entry platform. The primary judge set out the claimant's evidence as to what then happened in these terms: "The Plaintiff identified the type of carriage and the configuration of the doorway. The plaintiff described the officer's arm as holding the pole with his arm across the plaintiff's middle chest. The plaintiff said that the officer said 'Excuse me', and then he said, 'Excuse me' for a second time, and then 'Get off the train'. At that point the plaintiff had said nothing to him. However, when the officer said 'Get off the train' the plaintiff said 'I've just got on the train, my wife is expecting me home. What do you want me to get off the train for?'. The plaintiff said that the officer told him to get off the train again, and again he said 'My wife's expecting me home'." 19 According to the claimant he was then pulled from the train by Jelley who, in the meantime, had stepped out of the carriage to the claimant's right. His evidence was that Jelley grabbed him by his right arm and Smith pushed him from the front so that he exited the carriage with some force. The officers then removed the claimant some metres away from the edge of the platform to an area underneath a stairwell when they yelled at him to get down on the ground. In 1987 the claimant had suffered a fracture of his lower back in the course of his employment and he had great difficulty in bending over. Because of this he declined to get down on the ground, informing Smith that he had serious spinal injuries which prevented him from doing so. However, according to the claimant he was pulled to the ground, face downwards, striking his head on the platform. One of the officers then put his hand on the back of his head whereupon his hands were cuffed behind his back. He was pulled to his feet and marched up the stairs of the platform to the concourse area. By this time there were a large number of people looking at him which caused him a deal of embarrassment. 20 The claimant was then taken to a taxi rank where, according to his evidence, he was again directed to get down on the ground. He declined to do so because it was raining and the ground was wet. There was a seat at the taxi rank but he was not permitted to sit on it. His legs were taken out from under him by Jelley and he found himself on his back on the ground in the rain. The officers then threw him onto the seat until the police wagon arrived when, according to his evidence, he was thrown into the back, hitting his head on the side of the wagon. He was then taken to Bankstown Police Station where he was placed in a holding cell. 21 Although the claimant maintained that he remained handcuffed until he was fingerprinted, there may be some doubt as to this. In any event, he was ultimately fingerprinted and photographed and, after being charged with the four offences to which I refer below, he was eventually released without bail. He maintained that his groceries were returned to him except for the carton of milk. 22 The evidence of the police officers was entirely at odds with that of the claimant. They maintained that he was drunk and aggressive and that it was the claimant who assaulted Smith, rather than the reverse. Their evidence was that the claimant was swearing and using extremely offensive language. They asserted that he resisted getting off the train and that he tried to head butt the police officers, or at least one of them. 23 Smith's evidence was that he had politely requested the claimant to move so he could exit the carriage (Jelley already having exited to the claimant's right). He accepted that he had put his hand out to hold the claimant back so as to draw attention to the fact that he wished to move forward out of the carriage. He maintained that he had said to the claimant, "Excuse me, wait until I get off" but conceded that he expected the claimant to move out of his way. This was so notwithstanding that he accepted that he could have easily moved to his left and exited past the claimant while the latter was stepping onto the entry platform of the carriage. 24 Nevertheless, Smith maintained that the claimant had struck or shoved him in the chest with both his hands, that he had sworn at him using offensive language and that he had resisted being removed from the station to the taxi rank. There was thus a clear conflict between Smith and Jelley's evidence and that of the claimant. It is clear to me, as it was to his Honour, that either the claimant or Smith and Jelley were lying: there was no room in the version of events proffered by the claimant on the one hand, and Smith and Jelley on the other, for any of the participants to have been merely mistaken as to what occurred or to have had faulty recollections. The primary judge's findings 25 As the primary judge makes clear, the claimant and police officers were extensively cross-examined, especially as to credit issues. In determining those issues, his Honour cited a number of passages from the cross-examination of both the claimant and Smith. Although the claimant agreed that he had consumed five schooners of beer while he was at the Club between approximately 4.30pm and 8pm on the day in question, he denied that he was intoxicated or drunk although he accepted that he was in a good mood. He further denied that he was in an aggressive mood when he first came into contact with the police officers. The primary judge accepted (at [44]) that evidence and found that he was not intoxicated for the purposes of the Civil Liability Act. If the matter was required to be assessed pursuant to that statute, a finding that the claimant had been intoxicated would have disentitled him to damages. 26 Furthermore, his Honour accepted (at [50]) the claimant's evidence that he did not swear at the police officers either on the train or on the platform. He further found (at [53]) that, contrary to the evidence of those officers, the claimant did not try to head butt either of them and that this allegation "was a fabrication by the police". His Honour continued in these terms (at [54]): "As I indicated, I find that [the claimant] did not indeed do what the police said he did, and that where there is a difference between his evidence and that of the police officers. I accept the [claimant]." 27 With respect to the claimant's evidence, the primary judge concluded his assessment of his credibility in these terms (at [61]): "I have summarised the evidence of the [claimant] about the incident on 31 January. I accept the [claimant] as a truthful and generally accurate witness, although he accepted that his recollection of some events was somewhat hazy." 28 The primary judge then turned to Smith's evidence, observing (at [62]) that he did not always answer the question he was asked and that he "declined to accept propositions put to him which one might have expected he would as matters of common sense, for fear that in agreeing to any proposition put to him by counsel he was making some admission, even when it may have been appropriate to do so." 29 His Honour then supported that finding by extracting in his judgment a number of exchanges in Smith's cross-examination. His Honour then concluded (at [71]) that he did " not accept that the evidence of Constable Smith was either accurate or truthful and where his evidence conflicts with the [claimant] I accept the [claimant]." (Emphasis added.) 30 The primary judge then turned to Jelley's evidence, finding (at [76]) that he could not be accepted as an accurate witness in relation to the events of the day. 31 Two other police officers gave evidence who were present at Bankstown Police Station at the time that the claimant was detained. The first was Constable McKey. His Honour took the view (at [77]) that little weight could be accorded to her recollection of the events of the day and that where there was a difference between her recollection and that of the claimant, the latter should be accepted. 32 The other police officer was a Constable Williams, in respect of whom (at [80]) his Honour formed the impression that he had no specific recall of the evening's events absent a statement that he had made at the time. Again, where there were differences between his recall (unless corroborated by documentation) and that of the claimant, his Honour preferred the account given by the latter. 33 The primary judge then summarised his credit findings in respect of the witnesses in the following terms (at [81]): "81. A summary of the credit findings in respect of the witnesses: (a) The plaintiff: the plaintiff is accepted as a credible witness on most issues. He endeavoured to give the court a straightforward account of the incident and the interaction between himself and Constables Smith and Jelley. Whilst he was not always accurate in his recollection I concluded that he made a real effort to assist the court as to the facts of the event, rather than merely put his own case. At the same time I consider that he has overstated the extent to which the events caused him injury. (b) Constable Smith: I found Constable Smith to be an unsatisfactory witness. He was evasive, he would prevaricate, take considerable time to answer a question and then give an answer which was not in accordance with the question. He continually made self-serving statements and in my opinion ought not to be accepted as an accurate or honest witness . (Emphasis added.) (c) Constable Jelley: Former Constable Jelley supported Constable Smith to a degree. His recollection was not always accurate or acceptable. (d) Constable McKey. Her evidence was not always accepted as an accurate recollection of the events of the day. (e) Officer Williams. His evidence was not always accepted as an accurate recollection of the events of the day." 34 The primary judge then made the following findings with respect to what occurred on the platform: "82. I find that Constable Smith in his endeavour to leave the train and as a result of his belief that he had the right of way assaulted the plaintiff who had already entered the carriage, as he endeavoured to push past him to leave the train. In my opinion, Constable Smith assaulted the plaintiff. The plaintiff did not assault Constable Smith. In those circumstances there was no justification for the police to take him from the train or to detain him. In my opinion the detention was unlawful. 83. I find that the plaintiff was not told by either police officer at the railway station or at any other time that he was under arrest for assault or any other offence. I find that he did not use offensive language or attempt to assault Constable Smith or Constable Jelley either on the train, on the platform, as he was being taken to the taxi rank or at the taxi rank." 35 In [84] of his judgment, his Honour set forth some 14 factual findings. He then concluded (at [85]) that Smith and Jelley assaulted the claimant, who had also made out the torts of false imprisonment and wrongful arrest. With respect to those torts, his Honour referred to the discussion by Hodgson JA in State of New South Wales v Riley [2003] 57 NSWLR 496 at 514 [76]. In that case, his Honour cited the speech of Viscount Simon in Christie v Leachinsky [1947] AC 573, where his Lordship laid down five propositions of which the following two are presently relevant: (1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment." 36 As the primary judge had found (at [83]) that the claimant had not been told by either police officer at the railway station or any other time that he was under arrest for assault or any other offence, his Honour was able to conclude (at [87]) that he was: "satisfied that the [claimant] was not arrested by either Constable Smith or Constable Jelley, and on the findings I have made the police could not have had any reasonable suspicion that he had committed an offence ." (Emphasis added.) 37 Notwithstanding this finding, Smith, as the informant, charged the claimant with the following four offences: (a) Crimes Act 1900, s58 That James COYLE on the 31st day of January 2001, at BLACKTOWN, in the State of New South Wales, did assault S/Cst SMITH being a Constable of Police in the execution of his duty (b) Crimes Act 1900, s58 That James COYLE on the 31st day of January 2001, at BLACKTOWN, in the State of New South Wales, did resist S/Cst SMITH being a Constable of Police executing his duty (c) Rail Safety Regulation 1999, s13(b) That James COYLE on the 31st day of January 2001, at BLACKTOWN, in the State of New South Wales, did on railway land, to wit, Blacktown Railway Station, wilfully interfere with the comfort of other persons by the use of behaving in an offensive manner to wit, using offensive language and behaving in a manner to alarm and create fear amongst rail commuters in the vicinity. (d) Summary Offences Act 1988, s4A(1) That James COYLE on the 31st day of January 2001 at BLACKTOWN, in the State of New South Wales, did use offensive language, in of a public place, to wit, Blacktown Railway Station." These were the offences which his Honour had found (at [87]) that neither Smith nor Jelley could have had any reasonable suspicion that the claimant had committed. I shall return to this point later in these reasons when dealing with the issue of malicious prosecution. 38 The primary judge then turned to the legal effect of his findings of fact. At [88] he said this: "The wrongful arrest and forceful imprisonment and malicious prosecution all involve an abuse of power. Wrongful arrest and false imprisonment involve a deprivation of liberty. Malicious prosecution may or may not involve deprivation of liberty but exposes the person the subject of the prosecution to the possibility of injury to reputation and conviction for a criminal offence. As a result these consequences are regarded as serious." 39 The primary judge accepted that the onus of proving each of the elements of the torts of wrongful arrest, false imprisonment and malicious prosecution lay upon the claimant, and that the standard of proof was the civil standard on the balance of probabilities. With respect to the tort of malicious prosecution, his Honour found that of the four elements which comprised that tort, two had been satisfied. These were the institution and continuation of criminal proceedings by a defendant against a plaintiff and the termination of those proceedings in favour of the plaintiff. 40 As to the third element, the absence of reasonable probable cause in instituting or continuing the proceedings and the fourth element, actual malice which, his Honour said at [90], may "comprehend a primary purpose other than carrying the law into effect", his Honour's finding (at [91]) was in these terms: "After a consideration of the above evidence I have reached the conclusion that malicious prosecution has not been made out, as actual malice has not been established and I cannot decide on the balance of probabilities whether or not in instituting, adopting or continuing the proceedings there was an absence of reasonable and probable cause, although the evidence would tend to suggest that that was absent ." (Emphasis added.) 41 Because his Honour found (at [92]) that the police officers did not intend to injure the claimant when they detained him and that the injuries that he sustained as a consequence of his detention were "a negligent coincidence of the manner in which the police detained him", he assessed the claimant's damages for the assault in accordance with the Civil Liability Act . On the other hand, his Honour concluded (at [106]) that the claimant's causes of action with respect to wrongful arrest, false imprisonment and malicious prosecution were not subject to the Civil Liability Act so that the claimant was entitled to have damages assessed at common law in relation to each of those intentional torts which, as his Honour observed at [106], "are actionable without personal injury having been caused". 42 The primary judge then proceeded to discuss the medical evidence with respect to the injuries allegedly sustained by the claimant as a consequence of his assault and detention in these terms (at [127]): "I find that the plaintiff suffered soft tissue injuries to the body and bruising together with a mild temporary aggravation of pre-existing back and neck pain. I find that the physical effects of the aggravation of the plaintiff's pre-existing condition and the injuries that he had sustained directly from the assault substantially recovered within 12 months from the date of the incident, apart from some problems referred to by Dr Dowla. I am satisfied the plaintiff did suffer psychological symptoms as a result of this incident and that he continues to have emotional reaction therefrom." 43 However, although he had found that Smith intended to push past the claimant and, if necessary, push him out of the way, he also found that he did not intend to injure him. Thus the injuries the claimant suffered were, his Honour found (at [128]), an "unintentional consequence of the wrongful arrest". It followed from these findings that the Civil Liability Act applied to the assessment of damages with respect to the assault upon the claimant. The primary judge thus assessed the damages to which the claimant was entitled in respect of his injuries and disabilities in accordance with the Civil Liability Act in the sum of $26,000. 44 With respect to the torts of wrongful arrest and false imprisonment, the primary judge found that damages for those torts should be assessed in accordance with common law principles. He then found (at [131]) that "the [claimant] is entitled to damages and I consider that the damages that should be awarded for these two torts should be exemplary damages." 45 His Honour was of this view notwithstanding that he had recognised that in respect of those torts (as well as in relation to malicious prosecution, if that tort had it been made out), the claimant was also entitled to compensatory damages. In this respect he observed (at [138] omitting citations): "Compensatory damages are intended to provide for any financial losses including loss of earnings both actual and potential future losses of such a kind, and are likely to include a money value for physical hurt, curtailment of liberty , injury to reputation (if appropriate) and any inconvenience or disturbance of the life of the plaintiff ." (Emphasis added.) 46 His Honour then found (at [143]) that the facts warranted an award of exemplary damages to indicate what he described (at [140]) as the "highhanded action of the police". As I have indicated, he assessed those damages in the sum of $35,000 "to mark the disapproval of the conduct of Constables Smith and Jelley." The issues for determination on the appeal 47 As a consequence of the opponent's abandonment of its cross-appeal, it was common ground between the parties that the issues on the appeal were as follows: (1) Malicious prosecution: (a) Should the claimant have succeeded on the malicious prosecution count? (b) If so, what additional award of damages should be made? (2) Compensatory damages: (a) Should there be a separate additional amount awarded to the claimant for compensatory damages for wrongful arrest and false imprisonment? (b) If so, what amount should be so awarded? 48 Although the opponent raised the question of whether any further assessment of damages should be remitted, the point was not really pressed, the parties being content for this Court to make any such assessment. The malicious prosecution issue 49 The claimant submitted that once the primary judge had found that Smith had assaulted the claimant, and that the latter had not used offensive language or assaulted the police as the latter had testified, the inescapable conclusion was that the prosecution of the charges in respect of which Smith was the informant was based on evidence which he knew to be false. Accordingly, it was contended that, just as Smith knew that there was no reasonable or probable cause for the claimant's arrest and detention, he must have known that there was no reasonable or probable cause for the prosecution of the charges. Further, it was submitted that as the evidence upon which the charges were laid and maintained was known by Smith to be false it followed that the prosecution of the charges was therefore inherently malicious. 50 The opponent submitted that his Honour had not found that either Smith or Jelley had deliberately fabricated or falsified their version of events underlying the charges in respect of which the claimant was prosecuted in the Local Court. It was contended that it was not sufficient for the claimant to merely establish that the primary judge had accepted his evidence where it conflicted with that of the police officers. Rather, it was necessary for the claimant to prove that the version of events advanced by Smith as the informant was, relevantly, false to his knowledge and maliciously motivated. The opponent maintained that the claimant had failed in this endeavour. 51 Accordingly, the opponent contended that the error in the process of reasoning employed by the claimant on the appeal was that he was seeking to equate the findings made by his Honour in the civil action relating to assault, wrongful arrest and false imprisonment to findings which on their own and without more, would establish lack of reasonable and probable cause and the presence of actual malice. 52 Furthermore, it was the evidence given by the police officers in the Local Court proceedings that was critical, and not the evidence of the police officers given in the proceedings before his Honour. The mere preference by his Honour for one version of events over another in the present proceedings was insufficient, in itself, to establish two of the essential ingredients of the tort of malicious prosecution. It was clear, so it was contended, that this was the approach of the primary judge and was clearly correct. 53 Although the transcript of the evidence in the Local Court was not tendered before the primary judge, a number of documents were tendered which made it clear that the evidence in chief given by Smith in the Local Court proceedings was identical to the evidence in chief that he gave before the primary judge. Thus Exhibit 3, which was tendered before his Honour by the opponent, was the New South Wales Police Service Facts Sheet together with a copy of Smith's statement in the matter of Police Vs Coyle, dated 2 February 2001. According to the Facts Sheet, it was created by Smith and it accords with his statement. 54 It is apparent, and there was no suggestion to the contrary, that the evidence in chief given by Smith before the primary judge accorded with his statement of 2 February 2001 and that his evidence before the Local Court also accorded with that statement. It logically follows in my opinion that a finding by his Honour that Smith was not telling the truth before him when he gave his evidence in chief as to what occurred is equally applicable to the evidence Smith gave before the Local Court and was also applicable to the statement upon which Smith's sworn evidence in both proceedings was based. 55 With respect to the issue of absence of reasonable and probable cause, his Honour found (at [91]) that he could not decide on the balance of probabilities whether in instituting or continuing the proceedings there was such an absence, although he was of the view that the evidence tended to suggest that such a cause was absent. 56 In my opinion there is a clear inconsistency between the inability of his Honour to find positively on the balance of probabilities that there was an absence of reasonable and probable cause and his positive finding (in [87]) that "the police could not have had any reasonable suspicion that he [the claimant] had committed an offence." 57 Furthermore, his Honour found, contrary to Smith's evidence, that Smith had assaulted the claimant and that there was no justification for the police to have taken the claimant from the train or to have detained him. His Honour also found, contrary to Smith's sworn evidence, that the claimant had not used offensive language. Of themselves, these findings would not be sufficient to establish absence of reasonable and probable cause or actual malice on the part of Smith if his Honour merely preferred the evidence of the claimant over the evidence of Smith and Jelley upon the basis that the evidence of one was more reliable than that of the others. 58 But his Honour went further. Although he found that Jelley's recollection was not always accurate or acceptable, he also found (at [81(c)]) that his evidence only supported Smith "to a degree". Critically, however, his Honour found that Smith was not only an unsatisfactory witness in that he was evasive and would prevaricate, but that he was neither an honest nor a truthful witness: see [71] and [81(b)]. 59 Furthermore, at [53] his Honour made a specific finding that the claimant had not attempted to head butt either Smith or Jelley and that the allegation that he had was a fabrication by the police, a finding totally at odds with paragraph 8 of Smith's statement that at one stage the claimant turned "and tried to lunge with his head at Senior Constable Jelley saying 'I'll fucking head butt you smiley'. " 60 As I have observed, the opponent submitted that it did not and could not follow that because the primary judge accepted one version of events in preference to another version, the person giving the second version must either be deliberately lying or had perjured him or herself in prior proceedings. It was submitted that the findings of the primary judge in [85] and [91] to which I have referred, indicated that he was not prepared to take the additional step of making a finding that Smith and/or Jelley's versions, which he had rejected, were deliberately false and had been fabricated. 61 In support of the proposition that the claimant was required to prove that the police version of events was deliberately false, the opponent relied on the following. Firstly, it was submitted that the need to distinguish between cases in which the evidence of a party is not accepted and those in which there is an affirmative finding that the party has deliberately lied is well established. There is no question that this is so: see O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230G; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. 62 In Smith, Brennan, Dawson, Toohey and Gaudron JJ in a joint judgment said this (at 268, omitting citations): "It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assumes special significance, that the distinction between the rejection of a person's evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account … A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on 'the single oath of another man, without any confirmatory evidence'. " 63 Secondly, it was submitted that nowhere in the cross-examination of Smith was it directly put to him that he was lying when he swore that the claimant assaulted him. Furthermore, it was never directly put to him that he did not believe that he had probable and reasonable cause to charge the claimant with each of the four offences. 64 Thirdly, it was submitted that the claimant had pleaded that the prosecution of the charges against the claimant was a collective exercise by both Smith and Jelley and that their action could not be severed. As the primary judge did not find that Jelley's evidence was untruthful or that he was not an honest witness but only that his recollection was "not always accurate or acceptable", then the appeal with respect to the issue of malicious prosecution must fail. 65 As far as the last-mentioned submission is concerned, it is true that there were two witnesses for the prosecution, Smith and Jelley, and that Jelley's statement, apparently prepared at the same time as Smith's, was not tendered before the primary judge. However, it would be reasonable to infer that the evidence in chief given by Jelley before the primary judge in 2004 would have been consistent with the statement that he made in February 2001. This is particularly so as Jelley had left the Police Service by the time of the trial. 66 In any event, it is clear that the critical statement upon which the prosecution was launched was that of Smith. He was the informant and the primary witness for the prosecution before the Local Court as well as the primary witness in defence of the claimant's action before the primary judge. 67 As I have observed in [53] above, no suggestion was made by the opponent that Smith's evidence in chief before the primary judge did not mirror the contents of his February 2001 statement. It can be logically inferred that his evidence in chief before the Local Court also mirrored the contents of that statement. When one gathers together the findings of the primary judge in [53], [71], [81(b)], [82], [83] and [87] of his judgment, it is difficult, if not impossible, to avoid the following conclusions. First, the primary judge found that Smith was not at any time a truthful witness. It must follow from this finding that his statement, upon which the prosecution was launched, and upon which his evidence was based, was also untrue. Second, that Smith was aware that his statement contained false accusations and that his evidence founded on the contents of that statement was false. This is particularly so given that his version of events on the one hand, and that of the claimant on the other, were so diametrically opposed that either one or the other was falsifying his evidence, and there was no room to accommodate a mere mistaken or even a negligently mistaken recollection by one as to the nature and quality of the conduct of the other. 68 It is true that when Smith was cross-examined it was never directly put to him that he was lying or that he had deliberately fabricated the contents of his statement which formed the factual underpinning of his sworn evidence before the Local Court and the primary judge. Nevertheless, there is no doubt from a reading of Smith's cross-examination that his version of events was directly challenged and that, at least inferentially, it was being put to him that he was not telling the truth as to what occurred. Furthermore, because Jelley had to Smith's knowledge dragged the claimant from the carriage, across the platform and under the stairs, it was put to him that he was aware that Jelley should not have touched the claimant and would be in trouble for doing so unless there was some fault on the claimant's part that constituted a breach of the law. Accordingly, the following exchange took place: "Q. So you know when you got back to the police station that the account you wrote in your notebook and in your statement would need to be one which supplied a justification for what you and Mr Jelley had done to Mr Coyle, didn't you? A. I only wrote in my notebook what had actually occurred. I didn't have an opportunity to use my notebook until I got back to the station and that was when I started making notes." 69 The primary judge expressly found (at [87]) that the police officers could not have had any reasonable suspicion that the claimant had committed an offence. It was submitted that that finding was one based on an objective test and was not intended by his Honour to reflect the subjective belief of either of the two police officers. I find this submission difficult to accept. His Honour's conclusion was based on his previous findings, such as those in [82] and [83] of his judgment. In this respect it is noteworthy that his Honour found (and this finding was unchallenged) that neither police officer, at the railway station or at any other time, informed the claimant that he was under arrest for assault or any other offence: cf Crimes Act 1900, s352. 70 Given that each of the police officers was a senior constable, this finding is of significance in terms of their belief, and particularly Smith's belief, as to whether they had any basis for detaining the claimant and whether Jelley had any justification for removing him from the train, dragging him across the platform, pushing him onto the ground and handcuffing him. 71 Given that two of the charges alleged that the claimant assaulted and resisted Smith in the execution of his duties, one asks rhetorically what duty was Smith executing at the time he was allegedly assaulted, and what duties the claimant resisted. It is significant, firstly that the claimant was not charged by Smith with resisting arrest and, secondly, that no relevant duty was identified in the evidence. 72 Of course, the duty of a police officer not only includes the prevention of crime but also the performance of any actions reasonably necessary for the protection of persons from injury or death, and property from damage: see Director of Public Prosecutions (NSW) v Gribble (2004) 151 A Crim R 256 at 262 [23] and 263 [31]. However, neither of these duties seems to have been applicable even on Smith and Jelley's version of events. 73 Furthermore, in paragraph 3 of his statement of 2 February 2001 Smith stated that when he was about to step from the carriage he observed the claimant standing directly in front of him. The statement continued in these terms: "I paused and waited for him to step aside to allow me to alight from the train. I could not manoeuvre left or right as I had a partition on one side and a pole to my left." 74 A photograph of the entry door and platform to the carriage makes it clear, and his Honour so found (at [67]), that although Smith initially said he had no room to manoeuvre around the claimant, he agreed in cross-examination that he could quite easily have stepped back and then around the post or pole in the centre of the carriage entry platform and thus exited past the claimant on his right hand side, as Jelley had done before him. Accordingly, the second sentence of that part of his statement extracted in the preceding paragraph was false. Further, Smith's evidence was that he believed that he should not have had to step around the claimant but that, rather, the claimant should have given way to him. As his Honour found, Smith made it plain that he wanted the claimant to step aside for him. 75 In these circumstances, it is not difficult to understand why his Honour found that Smith could not have had any reasonable suspicion that the claimant had committed an offence. In light of Smith's evidence, to which I have referred, I would understand his Honour's finding in [87] as being to the effect that Smith knew that he could not have had any reasonable suspicion that the claimant had committed an offence. It must logically follow that Smith knew that he had no justification for preferring the charges against the claimant. 76 It is true, as the High Court in a joint judgment of seven justices held in Kuligowski v Metrobus (2004) 220 CLR 363 at 385 [60], that in general, disbelief in a witness' evidence does not establish the contrary. Equally, disbelief of the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. Where, in particular cases, it may not be possible for the judge to reach a conclusion either way, he or she is not bound to do so but may take the third course of finding that the party on whom the burden of proof lies has failed to discharge it. 77 The opponent relied upon the foregoing as supporting his Honour's finding in [91] that he could not decide on the balance of probabilities whether or not there was an absence of reasonable and probable cause. However, the statement of principle to which I have referred is, as the High Court pointed out, a general proposition and, therefore, must give way to the particular facts of the case as found. 78 In the present case, his Honour's primary findings of fact are such that there was clear proof that on the balance of probabilities there was an absence of reasonable and probable cause on the part of Smith in charging the claimant with the four offences. 79 The absence of reasonable and probable cause with respect to the tort of malicious prosecution was the subject of detailed consideration by this Court in A v State of New South Wales [2005] NSWCA 292. Although the prosecutor in that case was not the informant, Beazley JA, with whom Mason P and Pearlman AJA agreed, referred (at [87]) with approval to the following passage from the speech of Lord Denning in Glinski v McIver [1962] AC 726 where, at 760-761, his Lordship said: "The issue then appears simple. If [the prosecutor who based the charge on his own evidence] was speaking the truth, there was good cause for the prosecution. If he was lying, there was no cause for it. … If he honestly believed that the facts were as he stated, then, even though it turned out to be a mistaken belief, he would have reasonable and probable cause to prosecute: but if he had no such honest belief and was consciously putting forward a false case, he would, of course, have no cause to prosecute. In such cases the judge may properly put to the jury the question: Did he honestly believe in the guilt of the accused? Or, as I would prefer: Did he honestly believe in the case he put forward? For that is the core of the matter." (Emphasis added by Beazley JA.) 80 Her Honour (at [108]) then adopted the formulation of Dixon J in Sharp v Biggs (1932) 48 CLR 81 at 106 and in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382 that the material available to the prosecutor must be such as to at least lead to a belief "that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted." 81 Her Honour also noted that the prosecutor did not have to believe in the guilt of the accused although that statement was subject to the qualification referred to by Lord Denning in Glinski v McIver, which her Honour formulated as being "that in a case where the prosecution is based upon the prosecutor's own evidence, an absence of honest belief in the case being advanced would be evidence of absence of reasonable and probable cause." 82 In the present case the primary judge found that Smith was neither a truthful nor honest witness as a consequence whereof he must have rejected as untruthful and false his evidence in chief as to what occurred when the claimant was detained. Logically and inevitably, such a finding must lead to the conclusion that Smith's evidence in chief in the Local Court, based as it clearly was upon his statement of 2 February 2001, and the statement itself, was also false and, it must follow, false to Smith's knowledge. In these circumstances, his Honour erred in failing to find on the balance of probabilities that there was an absence of reasonable and probable cause. 83 Given the basis upon which, in my opinion, there was an absence of reasonable and probable cause, it must equally follow that Smith, in pressing the charges against the claimant, was motivated by malice. There could be no doubt that the prosecution was brought maliciously if there was a finding, as in my opinion there was, that Smith positively knew that the contents of his statement, which he repeated on oath before the Local Court and the primary judge, asserted facts which were not true. Such a finding inevitably leads to the further finding that Smith lacked an honest belief in the justification for preferring the charges against the claimant. 84 The foregoing notwithstanding, in a supplementary written submission of 11 April 2006 the opponent pointed to examples in the claimant's evidence which, so it contended, established that in fact the claimant was an unreliable witness and that that fact "gives greater understanding as to why the [primary] judge would not find malice on behalf of the police". 85 It is true that his Honour did not accept the evidence of the claimant in its entirety. The examples of unreliability referred to by the opponent led the primary judge to make the finding with respect to the claimant's credit which I have recorded in [33] above. However, in my opinion, those findings do not detract from, or reflect adversely upon, his Honour's findings with respect to the credit of Smith. Nor can they be logically relevant to any findings with respect to the issue of actual malice on Smith's part. Certainly, there is nothing in the primary judge's reasoning which is capable of supporting the proposition now advanced that any misgivings which his Honour expressed with respect to the accuracy of the recollection of the claimant played any part in his findings in [91] with respect to the absence of reasonable and probable cause on the one hand and the presence of actual malice on the other. I would therefore reject the opponent's submission based on the alleged unreliability of the claimant as a witness. 86 Accordingly, in my opinion the primary judge erred in failing to find the tort of malicious prosecution had been established and there should therefore be a finding that it was. The issue of compensatory damages 87 Two questions arise under this heading. The first is the compensatory and/or exemplary damages to which the claimant is entitled as a consequence of the finding that his claim for malicious prosecution was established. The second is whether the claimant was entitled to compensatory damages with respect to the primary judge's findings of unlawful arrest and false imprisonment. It will be recalled that it was with respect to the latter that his Honour found that the claimant's damages should be confined to exemplary damages. 88 The only compensatory damages which the primary judge awarded to the claimant was the sum of $26,000 in respect of the injuries and disabilities he had sustained as a consequence of being assaulted. The assault in respect of which those damages were assessed seems to have included not only the original assault of the claimant by Smith when exiting the train but also the subsequent assault and battery which occurred between the time he was detained and the time he was "thrown into" the police paddy wagon. 89 Furthermore, the injuries and disabilities to which his Honour referred in [136] of his judgment and in respect of which he awarded $26,000, was clearly intended to cover the particulars of injuries and disabilities, to the extent to which his Honour accepted them, set forth in the claimant's statement pursuant to Part 9 rule 27 of the District Court Rules. Relevantly for present purposes, those particulars included depression and anxiety, loss of confidence, irritability continuing feelings of humiliation. 90 As I have noted in [45] above, his Honour recognised (in [137]) that each of the torts of malicious prosecution, wrongful arrest and false imprisonment might include compensatory as well as exemplary damages. 91 In [138] his Honour referred to compensatory damages being intended to include a money value for, inter alia, curtailment of liberty, injury to reputation (if appropriate) and any inconvenience or disturbance of the life of the plaintiff. 92 In the present case, the claimant's evidence was that apart from being humiliated he was, as a consequence of the prosecution of the charges, subjected to the inconvenience of having to attend court on a number of occasions and was fearful that he might end up with a criminal record and possibly a gaol sentence because of the alleged assault. In my opinion, the inconvenience and disturbance to the claimant's life, as well as the stress constituted by the fear of conviction to which I have referred was, firstly, not encompassed in the award by his Honour of non-economic loss in the sum of $26,000 but secondly, was such as to justify an award of compensatory damages which I would assess in the sum of $5000. 93 Furthermore, it was not suggested by the opponent that the claimant was not also entitled to exemplary damages in respect of Smith's malicious conduct in instituting and proceeding with the prosecution of the charges in circumstances which, in my view, warrant this Court's disapproval of conduct by uniformed police officers in positions of authority, which was clearly reprehensible. I would therefore assess the amount of such damages in the sum of $5000. 94 Finally, I turn to the question of whether the claimant was entitled to compensatory damages for wrongful arrest and false imprisonment as well as exemplary damages. It was submitted by the opponent that the latter could not be awarded in the absence of the former. Reliance for that proposition was placed upon the decision of this Court in Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678. 95 In that case at 686 [41], Handley JA, with whom McColl JA agreed, concurred with Giles JA that "exemplary damages cannot be awarded where a cause of action is not established because compensatory damages have not been proved." However, as the foregoing statement of principle makes clear, exemplary damages can be awarded where the plaintiff has a complete cause of action without proof of pecuniary loss: see per Giles JA at 690 [71]. 96 In other words, where proof of loss is an ingredient in the plaintiff's cause of action, exemplary damages cannot be awarded if no such loss is proven, but this is because the cause of action, which requires proof of loss to be complete, has not been established. 97 In the present case neither of the torts of wrongful arrest nor false imprisonment required as part of the cause of action proof of pecuniary loss. Nevertheless, as his Honour properly recognised (at [88] and [138]), those torts involved an abuse of power and a deprivation or curtailment of liberty which was capable of being assigned a monetary value. 98 In the present case, the opponent submitted that the claimant was only deprived of his liberty for a mere two and a half hours: that is, from the time he was detained at 8.30pm until the time of his release without bail at just after 11pm. Accordingly, any compensatory damages for such a short period should be little more than nominal. 99 It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one's equilibrium than being forcefully deprived of one's liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing. 100 Accordingly, and notwithstanding the relatively short period of time that the claimant was forced to undergo deprivation of his liberty in the circumstances referred to, he is entitled to be properly compensated in respect of what must otherwise have been a most terrifying and unforgettable experience. I would therefore assess compensatory damages in respect of the causes of action of wrongful arrest and false imprisonment in the sum of $10,000. 101 It follows that the claimant is entitled to the sum of $20,000 in addition to sum of $61,000 which his Honour awarded him. Conclusion 102 In my opinion the claimant has succeeded on each of the issues which were agitated on the appeal. I would therefore propose the following orders: (a) Leave to appeal granted subject to a Notice of Appeal setting out the grounds of appeal being filed within 7 days of the date of these orders. (b) Appeal allowed. (c) Vary the verdict and judgment for the claimant entered by Delaney DCJ on 20 April 2005 by substituting the sum of $81,000 for the sum of $61,000. (d) The opponent to pay the claimant's costs of the summons for leave to appeal and of the 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. 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