New South Wales Supreme Court CITATION : Hamod v State of New South Wales (No 12) [2009] NSWSC 242 HEARING DATE(S) : 2 - 20 June 2008; 8 - 10 and 15 - 17 September 2008; final submissions 21 October 2008 JUDGMENT DATE : 3 April 2009 JUDGMENT OF : Harrison J DECISION : 1. Verdict for the first defendant. 2. Verdict for the second defendant. CATCHWORDS : TORTS – wrongful arrest and false imprisonment - malicious prosecution - absence of reasonable and probable cause for prosecution – whether reasonable basis for prosecutor's belief - injurious falsehood – conspiracy to injure by lawful means – conspiracy to injure by unlawful means – where first plaintiff arrested following investigation by police into allegations that he was in possession of a bogus certificate of guarantee for 4590 tonnes of platinum – where first plaintiff attempting to sell the certificate – where first plaintiff charged under Crimes Act 1900 s 178BB that he made a statement about the legitimate title to the certificate which he knew to be false or misleading in a material particular – where first plaintiff imprisoned for seven months – subsequently acquitted by magistrate – whether plaintiffs established malice and absence of reasonable and probable cause for prosecution LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 CATEGORY : Principal judgment A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Attorney-General for New South Wales v Perpetual Trustee Company Limited (1954) 92 CLR 113 Australian Wool Innovation Ltd v Newkirk [2005] FCA 290; (2005) ATPR 42-053 Browne v Dunn (1893) 6 R 67 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Christie v Leachinsky [1947] AC 573 Collins v Wilcock [1984] 1 WLR 1172 Commonwealth v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 Crofter Hand Woven Harris Tweed Company Limited v Veitch [1942] AC 435 Director of Public Prosecutions v Puskar (Supreme Court of New South Wales, Newman J, 9 July 1992, unreported) Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 Enever v R [1906] HCA 3; (1906) 3 CLR 969 Fatimi Pty Ltd v Bryant [2004] NSWCA 140; (2004) 59 NSWLR 678 Fleet v District Court of NSW [1999] NSWCA 363 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 CASES CITED : Lonrho Plc v Al-Fayed [1992] 1 AC 448 Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 Marrinan v Vibart [1963] 1 QB 234 McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 New South Wales v Tyszyk [2008] NSWCA 107 Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 Palmer-Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 R v Beydoun (1990) 22 NSWLR 256 R v Commissioner of Police of the Metropolis; Ex Parte Blackburn [1968] 2 QB 118 R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 Spencer v Australian Capital Territory [2007] NSWSC 303 State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 The Mentone Racing Club v The Victorian Railways Commissioner (1902) 28 VLR 77 Thomas v State of New South Wales [2008] NSWCA 316; White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441 Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 Womboin Pty Ltd v Reichelt (Supreme Court of New South Wales, Windeyer J, 25 August 1995, unreported) Zavarinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58 Anthony Hamod (First Plaintiff) PARTIES : Hamock Investments Pty Ltd (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant) FILE NUMBER(S) : SC 20147 of 2003 COUNSEL : J E Maconachie QC with M T Hutchings (First Defendant) M R Speakman SC (Second Defendant) In person (First Plaintiff) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 3 April 2009 20147/2003 Anthony Hamod and Hamock Investments Pty Ltd v State of New South Wales and UBS Australia Limited (No 12) JUDGMENT 1 HIS HONOUR: These proceedings were commenced in this Court in 2003 and arise out of events that occurred in 1994 and 1995. The proceedings were originally started in the Federal Court of Australia on 15 June 2000 and some reference to events in that Court will be necessary from time to time. Despite several attempts by the plaintiffs to amend the pleadings further in the period leading up to the commencement of the hearing and even after it had started, the relevant document remained the sixth amended statement of claim filed on 1 June 2004. It is convenient and instructive to examine it before proceeding further. 2 The first plaintiff ("Mr Hamod") was the managing director of the second plaintiff from about 1980 until June 1994 when he became employed by it as a business consultant and projects manager. According to the plaintiffs' case, an entity described as PT Galaxy Trust ("Galaxy") was the true owner as the last holder of a Platinum Certificate said to have been issued by the Union Bank of Switzerland on or about 27 October 1978 ("the certificate"). The plaintiffs pleaded that the certificate in the hands of the bearer constituted evidence of the ownership of the commodity to which it related as against all but the true owner. The plaintiffs also pleaded that on or about 27 June 1994 Mr Hamod entered into an agreement with Galaxy to sell the certificate in return for a commission. Then in about November 1994 Mr Hamod entered into an agreement with the second plaintiff to negotiate the sale of the certificate "subject to the approval of" Mr Hamod. In or about July 1994 the plaintiffs began negotiations to sell the certificate to third parties. It is critical to observe that it was and remained at all times a central plank of the plaintiffs' case against each of the defendants that the certificate was authentic and genuine. The defendants disputed that contention and it will be necessary to return to the issue in some detail later in these reasons. 3 The plaintiffs plead further that between July 1994 and about January 1995 they negotiated the sale of the certificate with various purchasers. In about mid-October 1994 the second defendant is said to have offered the plaintiffs what is described as the right to deposit the certificate with the second defendant's organisation "and withdraw funds against it". Mr Hamod is said to have declined that offer. Then on or about 17 October 1994 the second defendant is alleged to have negotiated with Mr Hamod to purchase the certificate. The plaintiffs allege that by 2 January 1995 the second defendant was ready to purchase the certificate for $66 billion. 4 On 20 January 1995 Mr Hamod was arrested by Detective Senior Constable Day of the New South Wales Police Force and charged with one offence under s 300 (2) and two offences under s 178BB of the Crimes Act 1900. The charge sheet contains the following charges: Section 300(2) "That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, at SYDNEY in the State of New South Wales, did use an instrument, to wit, a forged certificate of guarantee for 4,590 tonnes of platinum issued by the Union Bank of Switzerland which was, and which the said ANTHONY HAMOD knew to be false, with the intention of inducing another person to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that other person's or to another person's prejudice." Section 178BB "That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, between SYDNEY and NOWRA in the State of New South Wales, with intent to obtain for himself a financial advantage to wit, $60 Billion concurred in making a statement, to wit, the legitimate title of a certificate of guarantee for 4,590 tonnes of platinum issued by the Union, Bank of Switzerland, which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular." Section 178BB "That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, between SYDNEY and NOWRA in the State of New South Wales, with intent to obtain for himself a financial advantage to wit, $250 million dollars, concurred in making a statement, to wit, the legitimate title of a certificate of guarantee for 4,590 tonnes of platinum issued by The Union Bank of Switzerland which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular." 5 Mr Hamod was taken into custody where he remained for over seven months until released on bail on 24 August 1995. On 5 March 1997 the first of the two s 178BB charges was withdrawn. On 17 March 1997 committal proceedings commenced before Magistrate Horler. The remaining s 178BB charge was amended and particularised on 24 March 1997. Mr Hamod was discharged on the s 300(2) charge on 3 June 1997. Magistrate Horler found a prima facie case on the remaining s 178BB case on the same day and Mr Hamod accepted an offer of summary jurisdiction under s 476. On 3 April 1998 Magistrate Horler acquitted Mr Hamod on the remaining charge. The form of the charge that was ultimately dealt with by Magistrate Horler on that day was in the following relevant terms: "That between 13 October 1994 and 20 January 1995 the defendant with intent to obtain for himself and others a financial advantage . . . made a statement to wit that a certificate of guarantee for 4590 tonnes of platinum issued by the Union Bank of Switzerland was genuine and that he had authenticated that certificate with UBS bank officers in Geneva, which statements he knew to be false or misleading in a material particular and which were made with reckless disregard as to whether they were true or false or misleading in a material particular." 6 Upon the basis of these essential facts, and bearing in mind that the proceedings by the second plaintiff against the second defendant were dismissed by consent on 14 November 2005 by Harrison AsJ, the plaintiffs put their cases against the defendants in the following ways. The case against the first defendant False arrest and false imprisonment 7 The plaintiffs plead against the first defendant that at all material times prior to 20 January 1995 members of the police force had been made aware of false allegations made by Galaxy that the certificate held by the plaintiffs was stolen and that they knew that the certificate was in fact authentic and further that they had no reasonable or probable cause to believe otherwise. Notwithstanding these matters Mr Hamod was arrested at the premises of the National Australia Bank, corner Pitt and Hunter Streets, Sydney and subsequently detained at the Strawberry Hills Police Station. Mr Hamod was thereafter incarcerated at Parramatta, Goulburn and Long Bay gaols until 24 August 1995 in circumstances in which the police are alleged to have known that the certificate was genuine. In those circumstances there was allegedly no justification for Mr Hamod's arrest or for the deprivation of his liberty. Mr Hamod is said to have suffered loss and damage as a result. Malicious prosecution 8 From approximately 20 January 1995 until 2 April 1998 the Commissioner of Police and the New South Wales Director of Public Prosecutions initiated and maintained a prosecution against Mr Hamod on charges described earlier. The plaintiffs plead that as early as 20 January 1995 the police were in possession of information that the certificate was valid and authentic and "a legitimate title" to 4590 tonnes of platinum issued by the Union Bank of Switzerland. Despite these matters the police charged Mr Hamod when there was allegedly an absence of reasonable or probable cause to believe in his guilt. Alternatively, the plaintiffs allege that there were significant doubts as to the validity of the prosecution in that it had no possibility of success and was groundless. Mr Hamod pleads in those circumstances that his prosecution was in law malicious. Mr Hamod alleges that he sustained serious loss and damage as a result. Injurious falsehood by members of the New South Wales Police 9 The plaintiffs next allege that on or about 20 January 1995 members of the police force made a series of statements to the media. These were that the police believed that what Mr Hamod was alleged to have done could be the world's largest fraud attempt or at least the biggest in Australia. Police allegedly said that they believed the certificate to have been forged and that they had seized documents involving sums larger than $60 billion. It was also alleged that the police had said that Mr Hamod had been the managing director of a small south coast engineering company that had gone bankrupt [sic] and that he had "slashed the $78 billion price of the certificate to just $250M". 10 The plaintiffs allege that at the time of making these statements the officers in question knew that the matters were false and that publication was likely to damage Mr Hamod. It was therefore improper for these statements to be published when the police had sufficient information to know that the certificate was genuine. The publications were therefore said to have been "actuated by malice in law". Loss and damage resulted. The natural and probable result of the publication was that Mr Hamod lost the ability to trade either internationally or anywhere in order to sell the certificate. The case against the second defendant Conspiracy to injure by unlawful means 11 Mr Hamod alleges that at unspecified times the second defendant entered into an agreement, arrangement or understanding with the Union Bank of Switzerland knowingly to make false statements to the New South Wales Police Force that the certificate held by the plaintiffs was "fake, a forgery and invalid" in order to prevent them from selling it to a third party. He pleads that those who did so were John McMurtrie, Phillip Ludowici, Phillip Muhlbauer, Nicholas Wall and Michael Teh for and on behalf of the second defendant with unnamed representatives of the Union Bank of Switzerland. 12 Mr Hamod alleges that the second defendant laid an information with the New South Wales Police Force as an overt manifestation of that arrangement, agreement or understanding in which it was alleged that the plaintiffs were in possession of the certificate, which they were passing off as genuine when it was a fake or a forgery. Particulars of this allegation were said to include the making of statements to the police by Messrs Muhlbauer, Ludowici, Wall, Teh and Schicker as well as the evidence given by them before Magistrate Horler. Mr Hamod alleges that in doing these things it was the intention of the second defendant to injure him by causing him to suffer financial harm consisting in preventing him from negotiating, selling or otherwise dealing with the certificate and that he in fact suffered such loss. Conspiracy to injure by lawful means 13 Alternatively Mr Hamod pleads that in making the statements and in giving the evidence just referred to, the second defendant had no basis for asserting that the certificate was a fake or a forgery but that it did so once again for the sole purpose of stopping him from selling the certificate on the open market so as financially to injure him. Mr Hamod asserts that he suffered loss and damage in that he was charged with offences under s 178BB and was thereby "unable to trade the . . . certificate". Injurious falsehood by the second defendant 14 Mr Hamod alleges that somewhere between December 1994 and 20 January 1995 the second defendant made representations to the police that they were in possession of the certificate and that it was a fake or a forgery and that they were negotiating its sale. He pleads that the representations were false and that their falsity concerned the plaintiffs or their property. Mr Hamod alleges that the second defendant made the representations that the certificate was a forgery with the knowledge that such a statement was likely to damage him by depriving him of the ability to trade on the open market. This is said to have been actuated by malice. 15 The proceedings before me were limited to the issue of liability. However I note in passing that the plaintiffs claim damages that are said to exceed $8 billion. 16 The first defendant's response to the allegations against it was as follows. The first defendant denied that the Union Bank of Switzerland ever issued the certificate or that it constituted evidence of the ownership of any commodity. The first defendant pleaded that the second defendant informed the New South Wales Police that the certificate that Mr Hamod was passing off as a genuine document issued by the Union Bank of Switzerland was in fact a fake or a forgery. It denied that the police either knew or were in possession of information sufficient for them to have known that the certificate was genuine. 17 The first defendant denied that Mr Hamod was falsely arrested or imprisoned. It pleaded that at the time of Mr Hamod's arrest the police officers effecting the arrest suspected him of having committed an offence and had reasonable cause to have that suspicion and were accordingly legally justified in effecting the arrest. The first defendant denied that any prosecution of Mr Hamod was instituted or maintained maliciously or without reasonable or probable cause. 18 The second defendant denied that the certificate was issued by UBS Switzerland and asserted that it was a forged, bogus and invalid document. After becoming aware of its existence and internally verifying that it was a forgery, the second defendant informed the first defendant of that fact. This culminated on 12 December 1994 in Mr Ludowici, the second defendant's Executive Director, Logistics, sending a facsimile to Mark Henderson of the Fraud Enforcement Agency in which he informed Mr Henderson that the certificate was bogus. Miscellaneous 19 The principal statement of evidence in the plaintiffs' case is that dated 26 July 2007 given by Mr Hamod. As I have felt constrained elsewhere to observe, that statement is some 342 pages and 1256 paragraphs long. It is dense with detail about all manner of extravagant and curious events. It reads like a spy thriller or an international best selling crime novel. The extent to which any part of the statement bears relevantly or even remotely upon any of the disputed issues called up for determination by me is often difficult, and sometimes even impossible, to discern. 20 It is important in this context to note at the outset that Mr Hamod represented himself and the second plaintiff throughout the hearing, with the exception of a brief period when he was represented by a solicitor and experienced senior counsel. Mr Hamod has otherwise had legal representation in these proceedings from time to time over the many years that they have been on foot in this Court and in the Federal Court. Mr Hamod also admits to receiving legally trained assistance with the preparation of at least some of his principal statement of evidence. It is regrettable that the plaintiffs did not continue to be represented at all times and for all purposes. The presentation of the plaintiffs' case by Mr Hamod has substantially disadvantaged both plaintiffs and has also made a proper understanding of the case they seek to make out much more difficult. Not the least manifestation of this problem is the form and content of Mr Hamod's statement. It is evident that Mr Hamod is passionate about the circumstances that give rise to these proceedings. That passion would appear significantly to have influenced the preparation of his statement. Much of what it contains is completely irrelevant to any single issue and would seem to be the result of some unrestrained and misdirected editorial influence exerted by Mr Hamod in the face of or in the absence of advice to the contrary. Possibly for the same reasons the final submissions of the plaintiffs also fail to deal adequately if at all with what the case is, or should be, about. These matters need to be borne in mind at all times. 21 With some minor exceptions, the significant events for the purposes of the present proceedings commenced on and occurred after 20 January 1995 and it is to those events that I propose to direct attention. Even though I have included it as background material I do not consider that many of the matters that occurred before then are important for the resolution of the issues in these proceedings, despite Mr Hamod's patent views to the contrary. However, these matters were clearly thought by Mr Hamod to have an importance and his view must be given appropriate recognition in the overall scheme of things. 22 It will be apparent that one of the important planks in the plaintiffs' case is the contention that the certificate is a genuine document. It will be equally apparent that there is total disagreement about that from both defendants. The plaintiffs led no direct evidence in support of the issue and ultimately failed to cross-examine witnesses called by the defendants who did give direct evidence about it. Instead, the plaintiffs preferred to construct what might very loosely be described as a case based on inference that the extraordinary events that seemed to befall Mr Hamod when in possession of the certificate somehow bespeak its authenticity. It is unlikely that plaintiffs who had the benefit of trained legal advice would have propounded such a case. In the circumstances, however, for better or worse, that is part of the plaintiffs' case and the so-called evidence upon which it appears to rely needs to be addressed to some extent even if in different circumstances its peremptory despatch might otherwise have seemed appropriate. Mr Hamod's evidence 23 Mr Hamod was 57 years of age when he made his statement. In 1975 he established an engineering and consulting business and traded as Hamod Engineering in New South Wales and Victoria. In 1979 he incorporated Hamock Engineering Pty Ltd. He incorporated the second plaintiff in 1980. In 1982, due to expansion of the business, Mr Hamod incorporated Hamock Constructions Pty Ltd. Between 1980 and 1990 these enterprises employed over 100 personnel and earned an average gross income of $7M per annum. However, due to the recession in 1992 the directors of the second plaintiff and of Hamock Constructions Pty Ltd closed their manufacturing plants and diversified their businesses. 24 Mr Hamod was severely injured in an industrial accident in about March 1993. He was able to resume work in about October that year following his recovery. 25 In late 1993 Mr Hamod travelled to Jordan and the Middle East. He met numerous apparently influential and important people. Mr Hamod gives considerable detail of his activities and dealings with these people at this time. This includes the entering into of a joint venture agreement for the export of agricultural products from Australia to Iran and for the importation of dried fruit and nuts from Iran for processing and distribution in Australia, Japan and South East Asia. In November 1994 Hamock Constructions Pty Ltd entered into contracts for the export of engineering and construction services and industrial plants and equipment for dredging and construction of a port in southern Iran and for construction of food processing plants in Iran and neighbouring countries. Mr Hamod said that between November 1994 and early January 1995 the second plaintiff, Hamock Constructions Pty Ltd and he entered into joint venture contracts with the Aron Group of Iran valued at approximately US$900M in trade per annum. 26 The plaintiffs' involvement with bullion certificates commenced in January 1994 when Mr Hamod was in Jordan. Whilst there he was told by Mr Mohamed Abdul Aziz, who he described as the general manager of Haya Trading, that the Indonesian authorities were selling their bullion at a large discount and had appointed a representative from Melbourne to do so. Mr Hamod was asked if he could assist in locating the representative and in expressing interest on behalf of Mr Abdul Aziz in the purchase of 500 tonnes of gold. Mr Hamod agreed that he would and also agreed to act as an agent for Haya Trading for the purchase of bullion. 27 In February 1994 Mr Hamod had discussions with a Mr Ivan Clarke who told him that a Mr Michael Brendon O'Dowd was the "sellers' signatory" for the sale of several bullion certificates for gold and platinum. At that time Mr Abdul Aziz expressed an interest in the purchase of a bullion certificate for 2980 tonnes of gold and directed Mr Hamod to obtain the offer from the seller and forward it directly to a Mr Antonio Enini who was a merchant banker from Italy "and the mandate of a trust in Switzerland". 28 On 8 March 1994 Mr Hamod met Mr O'Dowd at Tullamarine airport in Melbourne. Mr O'Dowd said that he was "the seller's signatory" for the sale of "the bullion certificates" and that the seller was Tone Chi Investments Pty Ltd from Hong Kong as a trustee for the Chinese government. On that day Mr O'Dowd issued a letter of offer for the sale of 2980 tonnes of gold issued by the Union Bank of Switzerland and on the following day Mr O'Dowd issued a second letter for payment of a one per cent commission to Mr Hamod on successful completion of the sale. Mr Hamod sent the offer from Mr O'Dowd by facsimile to Mr Enini in Italy. He was subsequently instructed by Mr O'Dowd to forward the offer to a Mr Mukhaimer who is described as "the mandate for Khater Group" and to other potential (but unnamed) buyers as well. 29 On or about 11 March 1994 Mr Enini called Mr Hamod and confirmed that he had received the letters. Mr Hamod described Mr O'Dowd and was informed that he was dealing with the right person. Mr Enini then said words to the following effect: "You are dealing with the right person. I am the mandate for Alfima Trust from Switzerland. Alfima Trust is a buyer of bullions [sic] Gold for the Union Bank of Switzerland. This is a real deal. There are number of bullion certificates for sale. We are interested in the purchase of all of the bullion certificates for Gold. Stay in contact with O'Dowd and see if you can obtain the mandate for the sale of the bullions [sic] certificates…You do not have to know anything about bullion trading, just follow our directions and you could make millions in commissions. This is a real deal. Just follow our directions." 30 Mr Hamod's statement proceeds to detail a series of meetings and dealings concerning the same or similar activities in the months that followed. They include dealings with certificates said to relate to as much as a remarkable 9270 tonnes of platinum and 6200 tonnes of gold. This took Mr Hamod to many countries including Switzerland, Italy and Germany. The story that he relates is complex and intriguing but not one that can efficiently be entirely recounted here. The relevance of most of it is shrouded behind immense and unnecessary detail. Indeed, it is not until par 144 of Mr Hamod's statement that the first mention of the certificate in these proceedings appears. 31 On the afternoon of 5 June 1994, whilst in his hotel room in a little village on the outskirts of Senden in Germany, Mr Hamod met Mr O'Dowd who told him of an offer to Mr Hamod to deposit the certificate for 4590 tonnes of platinum issued by the Union Bank of Switzerland with him. Mr Hamod said that he accepted the offer, whereupon Mr O'Dowd "produced and deposited the original of the bullion certificate with me". Mr O'Dowd wrote a letter authorising Mr Hamod to hold and negotiate the sale of the certificate. That certificate is exhibited at par 145 of Mr Hamod's statement. The exhibit is described as "a notarised copy of the original of the bullion certificate for 4,590 metric tonnes platinum issued by the UBS that was copied and notarised by Sean Cahill, a Public Notary on 4 May 2006 and a copy of the letter and documents that I received from Mr O'Dowd to hold and negotiate the sale of the bullion certificates." 32 From this point on, the story becomes even more involved and convoluted. It is replete with references to "due diligence" and to advice given to Mr Hamod that the certificate is valid or genuine and authentic. For example, on 6 June 1994 Mr Hamod travelled to Geneva where a Dr Khater advised him from his suite at the Manotel Hotel of his credentials and expertise in the trading of bullion certificates. He had apparently graduated from Cairo University with a masters degree and a Ph D "in authentication and he was an expert in the authentication of bullion certificates, currencies, bonds and security documents." Dr Khater examined the certificate and informed Mr Hamod after "completion of his due diligence on the platinum certificate with the UBS in Geneva" that it was "authentic and valid and issued by the Swiss Authority through the UBS." Dr Khater even invited Mr Hamod to negotiate the sale of the certificate to the Khater Group. 33 On or about 8 June 1994 Mr O'Dowd and Dr Khater met Mr Hamod at the same hotel. Mr O'Dowd, on behalf of Tone Chi Investments and Dr Khater, on behalf of the Khater Group, signed a buy/sell agreement for the sale of three bullion certificates including the certificate to the Khater Group. However, the banks refused to fund the Khater Group for the transaction because the records "inside the UBS and inside the issuing Banks show that the owner of the bullion certificates was PT Galaxy Trust Indonesia and not Tone Chi Investments as alleged by Mr O'Dowd." 34 In June 1994 Mr Hamod engaged someone called Gary Calhoun to conduct due diligence on the certificate. This was apparently despite the advice earlier received from Dr Khater on this subject. At all events, Mr Calhoun advised Mr Hamod that the certificate was authentic and valid and issued by the Swiss Authority through the UBS. Mr Calhoun also advised that the owners of the certificate were the Army and security forces of Indonesia. He referred to the certificate as a "soldiers' certificate". Mr Hamod even had subsequent dealings with the Treasurer of Morocco. 35 Mr Hamod then describes in dramatic and lurid detail how he and Mr O'Dowd were kidnapped. It would seem that the Alfima Trust placed some kind of embargo or what Mr Hamod described as a blockade upon the sale of his bullion certificates. A meeting was arranged between him and Mr O'Dowd and Mr Enini in Zurich. They all drove in a mini bus from Geneva but before long they had crossed the border with France. Mr Hamod became concerned. Several hours later they crossed into Italy. This was not the way to Zurich. Mr Enini announced that there had been a change of plan and that he and Mr O'Dowd would instead be staying in Milan and travelling to Zurich the following day. Mr Hamod said that he and Mr O'Dowd were not aware that they had been kidnapped until they arrived at a hotel in a suburb of Milan and found that they were the only guests of the hotel apart from Mr Enini "and his people". They guarded Mr Hamod and Mr O'Dowd 24 hours a day. They were not allowed to venture outside the hotel without guards. Telephone calls were restricted. His calls were also monitored. 36 In early July 1994 Mr Enini and his people confiscated Mr Hamod's bag containing the original certificate and his files on the sale of bullion certificates. They were taken to a meeting in Zurich with a Mr Aleman who photocopied the certificate, apparently to permit him to perform some kind of due diligence upon it. He was advised that this would take about two days. When they returned to the vehicle Mr Hamod became aware that Mr O'Dowd was planning to escape. However, before that could happen they were taken to a farm on the outskirts of Zurich. They were introduced to a Mr George Kurian who was the chairman of the Manix Group in London. Mr Kurian advised Mr Hamod that his father was a sultan of one of the islands of Indonesia and had escaped to Switzerland with his family when President Sukarno assumed power. He expressed interest in the certificate. Mr Hamod said that Mr Kurian inspected the certificate and "advised that [it] appeared genuine and authentic and [that] it would take a couple of days to conduct due diligence on the validity of the certificate." 37 In about mid-July 1994 Mr Hamod agreed to assist Mr O'Dowd to escape from the hotel in Milan. He staged an argument with Mr Enini's people and occupied Mr O'Dowd's guard. Mr O'Dowd took his personal bag and disappeared from the hotel. He became lost and disoriented in the back streets of Milan with no knowledge of Italian and was recaptured shortly thereafter. 38 And so the adventure goes on. Mr Hamod was returned to a hotel in Zurich. Mr Hamod started an argument with the manager of the hotel in the hope of having the manager call the police. This is exactly what happened. The hotel manager called the police and Mr Hamod was locked up for two hours and interrogated by senior officers. He told them of having been kidnapped by Mr Enini and his people. However, when the police checked this story they found no trace of Mr Enini or his people having ever been at the hotel. The police advised Mr Hamod that he and Mr O'Dowd were listed as missing persons in Europe and that the police in Geneva had issued a warrant for his arrest. At the time it took approximately two hours to convince the police officers in Zurich that they had been kidnapped from the Manotel Hotel in Geneva some four weeks earlier and that the argument had been a deliberate ploy to attract the attention of the police. He was advised that the police intended to keep him detained until Mr O'Dowd was found, failing which Mr Hamod would be charged with his murder. 39 It will come as no surprise that the police officers in Zurich inspected the certificate in Mr Hamod's possession and took a copy of it. After a day of detention a senior police officer advised Mr Hamod that the certificate and the papers for his mandate were genuine and that the police officers in Geneva requested that he be transferred to Geneva for further interrogation about his disappearance and the disappearance of Mr O'Dowd. That is what happened. The police in Geneva attempted to have Mr Hamod admit that he had murdered Mr O'Dowd and that he had stolen the certificate from him. The police in Geneva detained Mr Hamod for approximately three and a half weeks between late July and late August 1994. The police eventually informed Mr Hamod that they would release him when Mr O'Dowd was found alive. Mr O'Dowd turned up on 21 August 1994 and Mr Hamod was advised that he was free to go. In late August 1994 Mr Hamod was escorted to Zurich airport by a unit from the Swiss Armed Forces along with the certificate right to the door of his plane. One of the senior army officers told Mr Hamod that he was crazy for carrying the original of the certificate with him in a personal bag and that the certificate should have been in a safekeeping account in a bank. Mr Hamod arrived back in Australia with the certificate on or about 22 August 1994. 40 The preceding description of the events related by Mr Hamod in his statement is a severely truncated version of all of the things he describes and is a summary extracted from a total of 241 introductory paragraphs. Considerable detail has necessarily been deleted for obvious reasons. However, none of this material is in my view particularly relevant to any of the plaintiffs' causes of action in any event. The events in Australia 41 According to Mr Hamod, in late September 1994 Galaxy and Mr O'Dowd defaulted on an agreement with him made in June of that year to pay him 2.5 per cent of the face value of the certificate as compensation for his "costs, expenses, commissions and damages payable from the sale of the bullions [sic] certificates". The agreement and the acts said to constitute Mr Hamod's performance of it are set out in his statement. By some date in late 1994 Galaxy is said to have owed the second plaintiff approximately US$770M and to have owed Mr Hamod US$12 billion. Perhaps unsurprisingly, neither Galaxy nor Mr O'Dowd had made any attempt prior to the date of Mr Hamod's statement to settle these accounts with him. 42 In September 1994 Mr Hamod received unspecified threats and demands from Mr O'Dowd and Ivan Clarke if he did not return the certificate to them. 43 Immediately preceding par 529 of Mr Hamod's statement there appears the heading "Unlawful Arrest and False Imprisonment". The paragraphs from par 281 until that paragraph are impossible to summarise in any helpful way. They are on one view a rambling series of apparently but not obviously related reminiscences by Mr Hamod covering roughly the period from August 1994 until 20 January 1995 when he was arrested. There are conversations that are set out with named people on all manner of disparate topics that have at least Mr Hamod and the certificate as reoccurring themes but without any obvious or clearly stated aim or purpose. 44 At all events Mr Hamod ultimately describes the things that happened to him on 20 January 1995 in some detail. He said that on that day at approximately 2.00pm he was in the conference room at the National Australia Bank and in the presence of Mr Muhlbauer, Detective Biaggi, Mr Wall, Mr Balding, Mr Lees and Mr Done. Mr Hamod said that Det Day placed him under arrest and took possession of his personal bag that contained the original of the certificate. He said that a short time later he was escorted from the bank in handcuffs to a waiting vehicle outside the bank. Huge crowds of the public were said to be gathered and watching what occurred. He was taken to the Fraud Enforcement Agency at Strawberry Hills and placed in an interview room under police guard. 45 Mr Hamod took part in an electronically recorded interview later the same day. Both the transcript of the interview as well as the DVD on which it is recorded were tendered by the plaintiffs and each had been an exhibit to Mr Hamod's statement. Detectives Day and Riddel were present during the interview. Mr Hamod agreed that he had gone to a meeting at the bank where there were people "who claimed that they were representing a buyer". When asked what they were buying, Mr Hamod replied as follows: "They claimed that they have authenticated a faxed copy of that certificate, and they have verified it in the bank head office at Switzerland, and they told me they would like to buy the certificate from us. And we have sent a written agreement with all the procedures for their understanding of the procedures and all of the information they relate to the certificate. And I've asked them during that meeting as to whether they have received copies of that agreement, and they said yes they have. And I said, 'Well, are you happy with it?' and they said yes they were." 46 Question and answer 25 of the record of interview are in these terms: "Q25 Do you agree that during the course of that meeting [at the National Australia Bank] detectives from this agency entered the room and informed you that you were under arrest? A. Detectives of this agency walked in the room, showed badges, I was just looking, informed me that I was under arrest, vaguely, maybe yes." 47 Mr Hamod told the detectives that Mr O'Dowd gave the certificate to him. He said, "I've checked it out through various, several institutions in Germany, in New York and in Switzerland, and confirmed that the certificate is for real, and it is issued by UBS, it is registered by UBS. It shows on UBS as clean". 48 In answer to Q46 Mr Hamod said this (in part): "When I was satisfied with that, then I've accepted the job and I wrote the letter of acceptance to Mr O'Dowd and I've proceeded with the job as his representative and mandate, they call it, organising sales and organising meetings and organising procedures of writing the procedures to how we should go on about the sales of the certificate. . ." 49 The recorded interview extends to 110 pages and some 453 questions and answers. To some extent the content of the interview mirrors much of the material in Mr Hamod's statement and the precise relevance of it is equally difficult to understand. The same topics and personnel continue to figure prominently in the narrative. Mr Hamod's answers tend to be rambling and unstructured. However the focus was to some extent sharpened by the interrogator from time to time, as demonstrated by the following question and answer: "Q272 Do you - do you disagree that today – or do you agree that today at the meeting at the bank of UBS there was specific references to settlement of the – of the sale of the certificates and when you and/or your associates expected payment of that sale? A. I did explain it over and over verbally during the meeting that what needed first, the agreement must be signed, the buyer demonstrate their capability to authenticate – the buyer authenticate, then we expected the buyer , after authentication and the producing, producing – production of a letter to us – and I think I explained that procedure, that the buyer hand over a letter confirming the authentications through the bank, and confirming the value of the certificate. And they prepared an irrevocable bank guarantee with schedules of payment – because they don't have to pay for it straightaway, they can pay for it over four months. And then we will exchange the original for the irrevocable bank guarantee, give it to the bank and let the bank sort it all out. And that's – I discussed that during the meeting." (Emphasis added) 50 In the answer that follows, Mr Hamod also spoke in terms of "the only way to follow proper sale for these certificates". Several other answers given by Mr Hamod during this interview speak in terms of "the buyer" or "the buyers". He said he believed that the document (meaning the certificate) was "for real". He later asserted in answer to Q325 that he was not interested in selling the certificate. This was said to be for the reason that certain strict procedures had been put in place for the authentication or verification of the certificate and he would not be prepared to accept "one dollar" until that occurred. He instructed Mr Wall "You shall not accept deposit before he give you a letter from UBS signed by UBS that the certificate is for real". There is a considerable tension between Mr Hamod's insistence that the certificate had to be authenticated and his expressed views that it was "for real". His answers suggesting that he was asserting some form of lien over the certificate "for unpaid wages" or that he considered himself somehow likened to an unpaid mortgagee in possession tend to suggest that he considered that the certificate had a value and was therefore valid. 51 In addition Mr Hamod was asked at Q379 why, in effect, he could not have sought to authenticate the certificate himself. He answered "I cannot authenticate it myself because who do I go to authenticate it? To which person do I go to?" This answer is in contrast to the several assertions by Mr Hamod in his statement that the certificate had been the subject of "due diligence" and that it was the "real deal". When pressed on this, and that he had earlier said that all that had to be done was to phone UBS and give them the numbers, Mr Hamod resorted to the following answer at Q381: "I have checked it – I have checked this certificate on NATO's computer indirectly after – on NATO's computer through a friend in Germany, Germany, is registered here. I have checked it in United Nation, I have checked it with World Bank. I have checked it with a retired officer, I was satisfied that the certificate was genuine, but since O'Dowd had left me stranded in Geneva, O'Dowd might have written to the bank and cancelled the certificate. O'Dowd may have written to the bank and transferred the certificate. O'Dowd may have written to the bank and said that I stole the certificate. So I had to authenticate it again. And again and again and again, you got to keep authenticating until that certificate gets in the hand of a trustee bank. You might have to authenticate it 10 times, 15 times until it gets into a bank." 52 At a point very near to the end of the police interview Mr Hamod is asked whether there is anything further that he wished to say about it or the matter generally. He gave a long answer. It was as follows: "Well, what I would like to say about this matter is that I would like you to look into that I am a victim, a victim of unpaid wages and I am claiming, I claimed a lien and I am acting in a trustee position, and the agreement I have put up – and writing I put it in good faith, I put based on good – face value that the statement obviously received from O'Dowd in writing. I've acted in good faith. I did not act with dirty intention or I did not act with the intention to defraud as you alleged. I totally deny that I have intended to defraud anybody and I deny that I have requested any money from anybody. I deny that I even asked for any fees or anything up front. I have never intended to defraud anybody. I put the agreement in the procedure for a genuine government buyer, not a divisional buyer - government or…bank buyer. If UBS were a genuine buyer UBS would have signed the agreement, they would have sealed it, but it is in my opinion, and basically on the evidence we have, which is tapes, we've got tapes conversation because from last Sunday we suspected there is something fishy going on so we taped each and every conversation from Nicholas Wall and Michael Tee and everybody, and based on the evidence we have we believe that UBS have done deliberately, and had misled Nicholas and Nicholas misled us all. Nicholas is in collusion with UBS and failed to declare that – but we believe whoever made the charges had misled you people to do what you have done to us because we've done nothing wrong. And if them documents were fake the Swiss Government would have gaoled me before I left Switzerland and would have took possessions of them in Switzerland. I would urge you to take that into consideration, and I urge you to discharge me because I don't believe I committed any – and I have a family, have three lovely childrens [sic] and I hate to break their heart any further. Then what happened with O'Dowd has broken my whole family's heart by bankrupting me and placing me under hardship at home because it's not nice to employ somebody and promise to pay their wages, promise to pay their fees and then force them to put bonds and they promised to return the bonds and force them to put money for the sake of getting a job, so I hope that you will – you and your superior will recognise that I am a very loyal citizen to Australia. I've been here for 24 years, I've never broken the law, I have been a managing director for 17 years up until last July when I retired due to the bankruptcy. I have never intended to break any law, I would never break any law, and if you have any problems with me whatsoever, please let me go home tonight and I would report to you or to your police station, come back any time, give you interview at any time, and I am sure justice will prevail at the end of…". 53 Following this meeting Det Day prepared a summary of the facts "in the matter of Anthony Hamod charged with use false instrument and obtain benefit by deception". It is dated 6 February 1995 and the plaintiffs tendered it as part of their case before me. At the risk of unnecessary detail and of some repetition, that document is relevantly in these terms: "FACTS IN THE MATTER OF ANTHONY HAMOD CHARGED WITH USE FALSE INSTRUMENT AND OBTAIN BENEFIT BY DECEPTION On the 14 October 1994, the defendant attended a meeting at the offices of the 'Utilis Australia Pty Ltd' (investment bankers) where he met with agents of that company. The defendant initially discussed the sale of sugar with these agents, however towards the conclusion of the meeting he produced what appeared to be an original certificate of guarantee for platinum metal under issue of the Union Bank of Switzerland. The certificate was a bearer certificate for platinum bullion being 4590 tonnes of platinum with an estimated value of $US 60,000,000,000.00 (Sixty billion US dollars). The defendant stated that he had received a mandate to sell the certificate from another male. When questioned by the agents as to its authenticity the defendant stated that he had recently been to Europe and completed his due diligence with the Union Bank of Switzerland (UBS). The defendant stated that the President of the UBS was responsible for the certificate of guarantee, and further stated that he had met with the original signatories to the document, Dr Freyer and Dr Haggien [sic: Hagen], Commissioners for the bank. The defendant claimed the certificate was genuine and original and that he had authority to sell the certificate. The defendant offered a discount for a potential buyer of 40 per cent. One of the investment agents obtained a copy of the certificate and stated that he would contact the defendant in the near future with potential buyers. Inquiries made by UBS Sydney branch with their head office in Switzerland revealed that the documents produced by the defendant were false. This bank later contacted Police and sought their assistance. In December 1994 officers from the Utilis Australia attended a meeting in Nowra and there discussed with the defendant and his accountant matters connected with the sale of the certificate. At this meeting HAMOD stated that upon the original certificate being released the buyer would be required to pay an up front fee. Over following months the amount of this up front fee was spoken about on numerous occasions. On the 17 January, 1995 HAMOD's accountant sent a fax to Utilis in Sydney and asked for 1% of the total value of the certificate as an up front fee in all totalling over 500 million Australian dollars. A number of telephone calls then occurred between the accountant and staff of Utilis and the accountant on behalf of HAMOD agreed that the up front fee should be levelled at ½ % of the total value of the certificates namely 250 million. On the 20 January 1995 the defendant in company with a number of other Nowra businessmen including a solicitor, a bank manager, the accountant and two security guards attended two meetings at the offices of UBS Sydney and another Sydney bank. At these meetings they discussed the proposed sale of the certificates with the investment officers from 'Utilis Australia' an officer from UBS and a proposed buyer. These meetings were recorded electronically by virtue of a lawfully obtained listening device warrant. During the course of the first meeting discussions were entered into concerning the up front payment of $250 million dollars by the buyer to the defendant prior to final settlement and transfer of the certificate. During the course of the second meeting the original certificate was produced by the defendant. A short time later the defendant was arrested and conveyed to the Fraud Enforcement Agency. When spoken to in relation to his involvement he stated that he had a lean [sic] on the certificate and a mandate from O'DOWD to sell the certificate. He denied ever requesting an up front payment for the sale of the certificate. Police will allege that HAMOD nominated an up front payment on a number of occasions and through his accountant had negotiated the reduction in the value of the up front payment from in excess of $500 million dollars to $250 million dollars. Conversations concerning the payment of that money and the final settlement had been recorded by way of listening device. Further evidence will be led that he had arranged a banking facility to accept this money on his behalf and in fact instructed the bank to anticipate receipt of the money on or about the 20 January, 1995. The prosecution will also rely on the history of how HAMOD came into possession of the certificate. There is evidence to suggest that during the middle of 1994 HAMOD and another man by the name of O'DOWD travelled through Europe and on a number of occasions offered this certificate along with other certificates for sale to a number of buyers. During negotiating the sale of these certificates HAMOD asked for up front payments. It is believed that none of these sales were successful. Documents seized by Police indicate that HAMOD had been informed by people in Europe that forged certificates were being circulated in Europe at that time. Although HAMOD has maintained that he has authenticated the certificates with numerous authorities in Europe including UBS officials this is clearly not the case. During his European visit HAMOD was incarcerated by Swiss Police for failing to pay his hotel bill. HAMOD subsequently obtain [sic] his release from prison and passage to Australia through a Swiss legal firm. Police believe that after returning to Australia HAMOD negotiated the release of his property still being held by the Swiss hotel which included the certificate the subject of this charge. On the 24 October, 1994 O'DOWD faxed HAMOD and demanded the return of the Certificate. On 26th October 1994, HAMOD contacted Nowra Police and stated that he had received threats to his life and his family from O'DOWD and an associate. He stated that the threats were generated as a result of the business details concerning the Certificates. The whereabouts of O'DOWD and his associate is [sic] not known at this point of time." 54 Part of the plaintiffs' case included the tender of the Reasons for Decision delivered by Magistrate Horler on 3 April 1998. There was an understandable debate about the admissibility of that document, particularly having regard to the fact that a Certificate of Acquittal dated 12 March 2004 and a handwritten document purporting to be an order pursuant to s 32 of the Criminal Procedure Act 1986 dated 3 April 1998 had earlier been tendered by the plaintiffs and admitted without objection. The document was ultimately admitted as evidence of the fact and content of her Honour's reasons but not as evidence of the truth of facts asserted in those reasons. Even having regard to that limitation, it is instructive for present purposes to review some of the matters to which her Honour referred. 55 In the proceedings before her Honour, Mr Wall gave evidence that he had been told by Mr Hamod that Mr Hamod believed the certificate to be genuine. Her Honour observed that for the prosecution to succeed it had to prove beyond reasonable doubt that Mr Hamod knew the statement was false or misleading and that it was made recklessly. Her Honour ultimately came to a conclusion, in my opinion controversially, that Mr Hamod had every reason to form the view that the certificate was genuine and that it represented an underlying transaction between a former President of Indonesia and UBS. Furthermore, her Honour was satisfied, also in my opinion controversially, that Mr Hamod never believed the certificate to be false but to the contrary held the belief that it was genuine and that that belief was reasonably held. She held that he was not reckless in making such a statement to Mr Wall, and possibly also to Mr I, as to whether it was true, false or misleading either at on 14 October 1994 or any other time including 20 January 1995. Having come to that conclusion, her Honour did not deal with the question of intent for the purposes of s 178BB. 56 In my opinion, her Honour's decision is helpful for at least two reasons. First, it explains, if explanation were necessary, the powerful combination of Mr Hamod's indignation and determination to prosecute the present proceedings. The proceedings were clearly terminated in his favour. Whereas the Certificate of Acquittal is by itself sufficient to establish one of the matters that Mr Hamod must prove in these proceedings, and which is not disputed in any event, it is not difficult to understand how or why it is that he also seeks to resort to and to embrace both the language and the process of reasoning adopted by her Honour as if to promote it as a further basis for the vindication that he so desperately and understandably seeks to achieve. It is also apparent that he wished, but by reason of my ruling was unable, to rely upon her Honour's decision and findings as proven facts in the present case. 57 Secondly, however, her Honour's decision amounts to a helpful summary and chronology of the sentinel points in the prosecution case on the one hand and of the defence's responses in support of the contention that the circumstantial case propounded by the prosecution could not be, and had not been, made out on the other hand. Bearing in mind the limitations upon the use that can be made of this material, it is nonetheless useful, at least with respect to the plaintiffs' case against the first defendant, to refer to it as a contemporaneous record of some of the events that occurred leading up to and at the time of Mr Hamod's acquittal. 58 It was the prosecution case before her Honour that Mr Hamod made statements that satisfied the allegations in the charge against him to Messrs Wall and I on 14 October 1994 in the offices of Ray Whitten, solicitor. The statements were never in writing but consisted in things allegedly said by Mr Hamod either on 14 October 1994 or 20 January 1995. Mr Hamod denied ever saying that he personally authenticated the certificate or any other certificate with UBS officials in Geneva or anywhere. It appeared to her Honour, however, that Mr Hamod conceded that it would be reasonable for her to infer from what he said about the certificate at these meetings that he was making a statement that it was genuine. 59 Her Honour's reasons record that Mr Wall conceded that as soon as he had learnt from UBS that the certificate was a fake, he concluded that Mr Hamod must have known that from the start. Her Honour also recorded that the inevitable inference that followed from that was that Mr Hamod would have been considered by Mr Wall to be a liar and a fraud and that that had influenced Mr Wall's subsequent attitude towards Mr Hamod and his perceptions of his behaviour. 60 Her Honour reviewed in some detail the evidence given by Mr Wall on the question of whether or not Mr Hamod had ever said to him that Mr Hamod had personally authenticated the certificate at UBS in Geneva. In summary, the evidence of Mr Wall on this topic was that Mr Hamod had in fact done so. However, her Honour came to the following conclusion: "With the best will in the world, in the light of the difference in dates, sources and wording highlighted above, it seems to me it would be unsafe to find as a fact that Mr Hamod at any time said he had personally authenticated the certificate at UBS in Geneva which senior UBS bank officials. Doubt that he ever said any such thing would seem also to be corroborated by what Mr Hamod said at the 20 January 1995 meeting at UBS". 61 Her Honour also recorded a series of propositions apparently advanced by the prosecution in support of a circumstantial case that the certificate was not genuine. These were as follows: 1. There was no challenge to a statement by a UBS security officer that the certificate was not a UBS document. These included logos on the certificate, the quality of the paper upon which it was printed, egregious spelling and punctuation mistakes, the absence of a UBS account number and no traceable UBS official signature. 2. Any fool looking at the document could see it was a nonsense on its face. 3. Dr Fryer and Dr Hagen told at least Mr Hamod and Mr O'Dowd that the certificate was not genuine after they had examined photocopies of it. 4. Mr Enini warned Mr Hamod about forged documents circulating in Switzerland. 5. Mr Hamod did not himself take the certificate into any UBS centre in order to authenticate it with a UBS official. 6. If Mr Hamod originally thought that the certificate and Mr O'Dowd were genuine he must have been disabused of that view by the time he returned to Australia when he became aware that Mr O'Dowd had 'double-crossed' him about his deposit and his commission, travelled at his expense, caused him to be kidnapped for three weeks because of his possession of the certificate and to end up in a Swiss Detention Centre for some weeks being interrogated about a hotel bill he had every reason to believe Mr O'Dowd had paid. 62 Her Honour proceeded to comment that although a document in several languages with spelling mistakes may look absurd, and although the quantities of metal and potentially huge sums of money involved may also seem absurd or improbable, she considered that the vast body of documentation adduced by the defence in its exhibits suggested that there was every reason for Mr Hamod to form the view that the certificate was genuine. Without intending to be exhaustive, her Honour listed some of the factors that led her to form such a view. They were as follows: 1. The very first written instruction received by Mr Hamod from Ivan Clarke indicated that the buyer would have to be a Central Bank or Ministry of Finance and Mr O'Dowd, being a mandate for the seller, a trustee company for the Chinese Government, settlement would have to occur in Canton or Beijing. 2. Mr Hamod apparently helped to negotiate a signed agreement for a different certificate between Mr O'Dowd as mandate for the Chinese Government seller and the Moroccan Government. 3. Several other buyer groups executed buy/sell agreements with Mr O'Dowd after lengthy negotiations during which Mr Hamod was largely present so that he became aware of lengthy examinations of the certificate by, for example, lawyers. These included Mr George Kurian, Dr Aliki and the Alfima Trust. Each of these buyer groups asserted that it had completed its due diligence on the certificate. 4. Mr Hamod was told in the Khater Group transaction that the sale was being stalled when UBS refused to recognise Tone Chi Investments as the legal transferee from the last holder and insisted on a direct mandate from Dr Edison Damanik, Chairman of the PT Galaxy Trust, to Mr O'Dowd. In the events that occurred, Mr Hamod paid for Mr O'Dowd to travel to Jakarta to get the requisite Power of Attorney after it was established that Mr Damanik either would not or could not travel to London. 5. In the Aliki transaction, the problem was that the seller could not agree on the settlement venue, the buyer being unwilling to travel to China, and Mr Hamod himself spoke to and faxed the proposed buy/sell agreement to a Chinese translator in Melbourne at Mr O'Dowd's direction. 6. Mr Hamod also gave lengthy, repeated and consistent accounts in each case of how over months in Europe he had slowly learned from various buyer representatives about the history of the certificates, how they had variously informally checked them out through UBS connections, in one case meeting with Dr Damanik, and how the final authentication process would be done bank-to-bank and would take a long time. He also learned that it was irregular for certificates to have been removed from the central bank repository from where they came and that it was dangerous for individuals to be carrying them and for Mr O'Dowd to be showing them indiscriminately. 7. Mr Hamod also said that he was introduced at a meeting by Mr Kurian to various individuals, one of whom at least he was given to understand to have been an adviser to Mr Kurian and a retired secretary of UBS, and another person who was an IMF official also advising on the transaction. 8. Mr Hamod also gave the same history of the certificate at the UBS meeting on 20 January 1995 when he knew that UBS officers were present. 63 Once again bearing in mind that the copy of her Honour's Reasons for Decision became an exhibit before me only for a limited purpose, it is nevertheless pertinent to record the views that she expressed with respect to the question of whether or not the certificate was a fake and a forgery or genuine. Her Honour said this: "Nowhere is it implied, and there is nothing in the formidable body of corroborating documentation adduced by the defence, which could lead to any suggestion that there is no underlying transaction of obligation involving UBS and Sukarno, nor any suggestion that the paper itself is a forgery. Moreover, the Jeff Adelman faxes . . . and Mr Adelman's evidence to the Canadian Mutual Assistance makes me now less convinced that I was during the course of the prosecution case that, whatever I found Mr Hamod's belief to have been or be, I should now be satisfied in that [the certificate] is in fact a nonsense. Certainly that material (Ex D73 is dated 29 December 1995 and the Mutual Assistance interview September 1995) could raise a doubt now, despite Mr Schicker's evidence, as to [the certificate] being a fake." 64 It will be apparent from what appears above and below that I find it difficult to understand how her Honour could have come to that view. I stress, however, that in the scheme of this case, and despite what one might reasonably assume to be Mr Hamod's views on the matter, the correctness or otherwise of her Honour's conclusions and opinions and her decision is beside the point. Gyles AJA adverted to this recently in Thomas v State of New South Wales [2008] NSWCA 316 at par [105] as follows: " [105] The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules." (Emphasis added and citations omitted) 65 The plaintiffs next relied upon the statement of Jason Lymbery dated 19 May 2008. Both of the defendants took significant objections to large portions of this statement. Considerable portions of it are clearly irrelevant in as much as they deal with subject matters wholly unrelated to the factual or legal issues joined by the parties to these proceedings. Furthermore, to the extent that some portions of Mr Lymbery's statement arguably deal with relevant issues, they are almost exclusively in an inadmissible form. 66 Mr Lymbery was cross-examined by Mr Maconachie QC who, with Mr Hutchings of counsel, appeared for the first defendant and by Mr Speakman SC who appeared for the second defendant. With some minor exceptions, that cross-examination did not address the substance of anything said by Mr Lymbery in his statement. There may be a number of reasons for this, not the least of which in my opinion being that almost nothing said by Mr Lymbery was in any way related to anything that I am required to decide other than in the most superficial way. For example, Mr Lymbery corroborates the evidence of Mr Hamod concerning some of the events of 20 January 1995. However, with very minor and largely irrelevant exceptions, none of these events is controversial in the first place or related to advancing the issues that the plaintiffs must necessarily address in the proof of their case in the second place. In short, Mr Lymbery's evidence was of no obvious value to the plaintiffs' case and can be disregarded without affecting their case against either of the defendants in any way. 67 The plaintiffs called no other oral evidence. Mr Hamod's wife, Mr Jahno, Mr Selim Hamod, Mr Hamod's brother and Mr El Teres all provided statements but were ultimately not available for cross-examination and their statements, although in some cases tendered, were ultimately not relied upon. In any event it is apparent that they also did not advance the case of the plaintiffs in any substantial or necessary way at all. Alike with the evidence of Mr Lymbery, their usefulness to the plaintiffs in the proof of anything that the plaintiffs were required to establish was marginal at best and absent entirely at worst. The balance of the plaintiffs' case – the additional documentary evidence 68 It is difficult with any sense of satisfaction to describe or attempt to summarise the voluminous additional documentary material that the plaintiffs insisted on putting into evidence in this case. Mr Hamod's statement had no less than 231 exhibits. These were assembled in what Mr Hamod said were 57 volumes. In the end result somewhere in excess of 75 of those exhibits were tendered by the plaintiffs. A proper assessment of the plaintiffs' case requires reference to at least some of them or an explanation as to why they are, or appear arguably to be, of little or no utility. 69 Exhibit "AH9" to Mr Hamod's statement became exhibit "L" in these proceedings. It is described in his statement as "a copy of the bullion certificate 2,890 Metric Tonnes Gold and 2 pages of the bullion certificate 9270 metric tonnes platinum that [Mr Hamod] received from Mr. O'Dowd and forwarded to Mr. Enini to conduct due diligence". It is not the certificate that is the subject of conjecture in these proceedings. It casts no light on any issue that requires illumination before me. 70 Exhibit "AH11" to Mr Hamod's statement became exhibit "M" in these proceedings. It is described in his statement as "a copy of the letter from Mr O'Dowd dated 5 April 1994 for appointment as the mandate for the sale of the bullion certificates". In order that such a description is not permitted to lead to any misunderstanding it is important to set out what the letter says. It is described at the top of the letter as "(Sample for Mr O'Dowd letter)". It is addressed "To whom it may concern". It is said to be "Re: Purchase/Sale of AU". The letter continues that it is to confirm that Mr Hamod is "NOMINATED AS AUTHORISED AGENT with authority to": "Negotiate such transactions on my behalf and prepare an agreement to be acceptable for me and corresponding to the instructions given. All arrangements undertaken by Mr Anthony Hamod, which are covered by this authority, have to be accepted separately by the undersigned. The closing of a contract / deal can be made only with the signature of the undersigned. Sincerely Yours Mr Michael B. O'Dowd The Sellers Signatory" 71 A similar letter on the letterhead of International Investments Asia Pacific Pty Ltd bearing the date 5 April 1994 also forms part of the same exhibit. 72 Exhibit "AH14" to Mr Hamod's statement became exhibit "N" in these proceedings. It is a copy of the certificate and is undoubtedly relevant. It requires no further comment at this time. I note, however, that the second defendant contended that the documents tendered by the plaintiffs in fact contained as many as ten separate and different versions of the certificate. 73 Exhibit "AH22" to Mr Hamod's statement became exhibit "O" in these proceedings. It is a document made up of four pages. Mr Hamod did not seek to make it relevant in any submissions and it would have been surprising if any such submissions could have been created. The document does not have, and should never have been given, any place in these proceedings. It is but one example of the many other documents that fall into that category. 74 In my opinion, the same can be said of the greater majority of the former exhibits to Mr Hamod's statement that were tendered in these proceedings. Without wishing to derogate from that observation in any way, exhibit "AH20" to Mr Hamod's statement became exhibit "AAF" in these proceedings. It is described in his statement as "a copy of the agreement that Mr O'Dowd and Dr Khater signed on 13 June 1994 for the sale of the 3 bullion certificates to Khater Group and a copy of the documents for power of attorney to Mr O'Dowd to execute the agreement on behalf of Dr Edison Damanik the chairman of PT Galaxy Indonesia Trust". Bearing in mind that the document was tendered by the plaintiffs, and clearly refers on the first page to the certificate, it goes on to provide that the seller agrees to transfer what is described as "the legalised Holder Title to the Buyer upon the payment of the full agreed value of U.D. $70 Billion Dollars to the seller and the payment of Commission to the following parties". One of the parties said to be entitled to the payment of a commission is Mr Hamod, described as "The seller agent" whose commission was to be "2% (two percent) of the value being the sum of U.S. $ 2-8 Billion Dollars" [sic]. The likelihood that Mr Hamod or anyone in his position, particularly with his avowed lack of experience and unfamiliarity with bullion transactions in 1994, would in the circumstances that he describes ever become entitled to a commission of two per cent of $70 billion, is arguably a background fact in the context of which the liability of at least the first defendant falls to be assessed. It is for that reason alone a potentially relevant matter in these proceedings. However, neither the document in terms, nor any available inferences arising from anything that it contains, would appear in my opinion to be supportive of any part of the plaintiffs' case. 75 The plaintiffs' submissions did not draw my particular attention to any of the hundreds of other documents that were tendered by them. Unassisted reference to all of them has therefore inevitably proved to be unfortunately and inappropriately but necessarily time consuming. Even the critical material that made up (or at least formed the greater part of) the police brief was not referred to in a structured and analytical way for any purpose, as one might have expected, to support a contention that any of the plaintiffs' causes of action had been established. I repeat that this may have been, and in all probability was, the result of the fact that Mr Hamod appeared for the plaintiffs himself and clearly had no conception or at least no apparent appreciation of the legal burden upon the plaintiffs that had to be met in order to succeed. My first task therefore became one of analysing the submissions of the defendants, as their predicated response to the unarticulated case of the plaintiffs, in the hope of gleaning what it was that the plaintiffs actually propounded in their favour. 76 The defendants provided detailed written submissions on the factual and legal aspects of the nominated cases against them. As I have indicated, I will refer to these submissions in the course of attempting further to evaluate the plaintiffs' case. In conformity with the approach taken by the plaintiffs to all of the first and second defendants' submissions that dealt with the particular legal aspects of the plaintiffs' several pleaded causes of action, the plaintiffs did not contend that the defendants' submissions were erroneous. However, the plaintiffs' submissions, which were lengthy, did not make an actual concession that they were correct. Rather, the plaintiffs made no submissions at all on issues of law such as the elements of the torts relied upon or whether their cases had been proved to the requisite standard. This may well have been the result of a failure by the plaintiffs, in the absence of legal advice, to direct attention to the matter, as previously discussed. I was simply not provided with any argument that I should approach the defendants' characterisation of the legal elements of the plaintiffs' causes of action in some other way. THE CASE AGAINST THE FIRST DEFENDANT False arrest and false imprisonment 77 The plaintiffs allege that members of the New South Wales Police knew that the certificate held by the plaintiffs was authentic and had no reasonable and probable cause to believe to the contrary. The first defendant admits the fact of the arrest and initial detention but says that members of New South Wales Police arrested and then detained Mr Hamod with lawful justification. 78 Mr Hamod said that on 20 January 1995 he was arrested by police for an alleged fraud. He was denied bail and sent to prison. He was not released until 24 August 1995 on strict bail conditions that remained in force until about August 1996. Mr Hamod said that he was never charged officially before the courts and he never knew the charges that he had to respond to until March 1997 when Magistrate Horler insisted that the prosecutor define the charges. Mr Hamod alleged that officers of the Corrective Services Department arranged for him to be bashed to death and that he suffered severe injuries. The police are said to have served part of the brief in September 1995 that contained three charges and served the balance of the brief in July 1996. 79 Mr Hamod said that he was taken in handcuffs from the National Australia Bank in Sydney to a waiting vehicle outside the bank in front of huge crowds of the public who were watching the operation. He said that there were in excess of 40 police officers involved in it and there were several police vehicles blocking the nearby streets. Det Day and Det Riddel made no attempt to cover his face from onlookers and he was unable to do so himself because of the handcuffs. 80 Mr Hamod said that his personal property was seized, including his bag containing his diaries for 1994 and 1995, his passport, other personal property and the original certificate. He said that he was given no receipts for these items. Mr Hamod said that he overheard Det Day saying to Mr Lees at the bank before he was taken away that the certificate was a fake and Mr Hamod attempted to obtain a benefit by using it. 81 Mr Hamod's version of what happened to him was explored in cross-examination on the twelfth day of the hearing. It would appear that the plaintiffs assert that there was no proper basis for Mr Hamod's arrest or subsequent detention. The contention must be that Det Day did not have the requisite suspicion, or if he did, there was no reasonable basis for it. The contention is apparently supported by listing a litany of alleged assaults, overzealous handcuffing, rougher than usual handling, removal of his personal property and a contempt for Mr Hamod's dignity by parading him in front of the public outside the offices of the National Australia Bank. Mr Hamod alleges that all of his personal items were taken from him by Mr Riddel at the offices of the National Australia Bank and "never returned", and that he was never informed of the subject matter of the charges. 82 The first defendant has emphasised that there is no count in assault pleaded and that the raft of serious allegations which would, if proven, clearly constitute an assault, or assaults, are not advanced otherwise than as evidence of a wrongful arrest and false imprisonment, and, perhaps inferentially, as evidence of malice with respect to the claim for malicious prosecution. The first defendant denies the unlawfulness of the arrest and imprisonment, that Mr Hamod was never informed of the subject matter of the charges, that he was stripped of his personal possessions at the bank premises or that rough treatment occurred. 83 As at 20 January 1995, the statutory power of a constable to arrest without warrant in New South Wales was contained in s 352(2) of the Crimes Act 1900 which provided: "Any constable may without warrant apprehend, any person whom the constable, with reasonable cause, suspects of having committed any such offence (being an offence punishable, whether by indictment, or on summary conviction, under any Act) and take the person, and any property found upon the person, before an authorised justice to be dealt with according to law." 84 The required state of mind was addressed in George v Rockett [1990] HCA 26; (1990) 170 CLR 104, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [14]: " [14] Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. . . The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture." 85 It is uncontroversial that Det Day arrested Mr Hamod. He made the decision to do so. He was the informant. His state of mind at the point of arrest is the proper focus. The Charge Sheet records that he was arrested at or about 1.45 pm on 20 January 1995. He was charged at 10.59 pm on 20 January 1995. The apprehending officers are identified as Det Day and Det Riddel. Det Day is dead. Resort to inference is necessary. 86 The material that is contained in the police brief, referred to below, includes considerable information that came to the attention of Det Day and other members of Operation Cleggars prior to 20 January 1995. The material in Mr Wall's statement is of particular relevance. This material demonstrates that Mr Hamod was proposing to negotiate the sale of the certificate and that Det Day was entitled to suspect at the date of Mr Hamod's arrest that it was a fake or a forgery. This is also supported by the information provided to Det Day or his colleagues prior to Mr Hamod's arrest by Mr Ludowici and Mr Muhlbauer. Moreover, the meetings in the UBS boardroom and at the National Australia Bank on the day of Mr Hamod's arrest provided material to Det Day that was all supportive of the reasonableness of any suspicion that Det Day might be thought to have formed, including that Mr Hamod knew that statements he had made were false or misleading in a material particular. 87 The plaintiffs proffered no relevant contentions on this issue and reference to their written submissions does not produce an obvious understanding of the case they propound. The first defendant submitted that the decision to arrest was entirely appropriate (see Fleet v District Court of NSW [1999] NSWCA 363 at [72] – [74] and Zavarinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58) given that Mr Hamod was apparently attending a meeting with his lawyer Mr Lees, his accountant Mr Balding, a bank manager Mr Done and associated "security" or like persons. What could his purpose have been other than to sell the certificate, or negotiate the first part of a sale process? 88 The first defendant asked what it was that Det Day could properly have made of the presence of Mr Hamod with his entourage, speaking with representatives of UBS Australia Limited and (what he must have believed was) a buyer, whilst in possession of the original certificate. Could Det Day reasonably be expected to believe that Mr Hamod was in search of a safety deposit box into which he could place the certificate without the need to fold or crease it, an explanation that he subsequently offered? 89 In my view Det Day made the decision to arrest based upon sound material, and for the purposes for which the power to arrest exists. The obvious propriety of the arrest and the steps taken to the point of arrest, inform the question as to whether or not Det Day was acting in good faith, or other than in good faith (for the purpose of the principles relating to the tort of malicious prosecution) and whether there was reasonable and probable cause for engaging the criminal process. This is discussed below. 90 The reasons for the arrest were also in my view adequately and appropriately communicated to Mr Hamod. There was no recording of the actual words used as the listening device had been worn by Mr Wall who left the room at the bank before the arrest occurred. Det Day said in his statement that he said the following: "Mr Hamod you are under arrest for attempting to sell a fraudulent bearers certificate here today. I want you to understand that you are not obliged to say anything further about this matter unless you wish to do so, but whatever you say will be recorded and may later be used in evidence. Do you understand that?" He said. "Yes". 91 These words of arrest are replicated in Mr Riddel's statement originally prepared for the police brief. The evidence of Mr Riddel also deals with this. Mr Riddel said that following the lengthy interview of Mr Hamod he heard Det Day say to Mr Hamod, "Mr Hamod you will shortly be taken to the Sydney Police Station and [sic] where you will be charged with use false instrument and obtain benefit by deception. Do you understand that?" Mr Hamod is said to have replied, "Is anybody else being charged?" Mr Hamod was in fact charged later that evening. 92 Mr Riddel was not required for cross-examination either in respect of that statement or his adoption of it in his statement tendered by the first defendant in the proceedings: see Browne v Dunn (1893) 6 R 67 (HL). It is evident and I find that Mr Hamod was informed of the "true ground of the arrest" (in full and proper compliance with the requirements identified in Christie v Leachinsky [1947] AC 573) and the general nature of the offence in respect of which he was arrested when Det Day said "you are under arrest for attempting to sell a fraudulent bearers certificate here today." The fact of the arrest, accompanied by those words in the circumstances described, makes it plain that Det Day had formed the requisite state of mind to arrest, and that he did so on reasonable grounds. 93 Moreover, the contention that Mr Hamod was never informed of the subject matter of the charges relies upon a finding that he was not informed of the subject matter of the charges at anytime whilst he was at court on 21 January 1995. The news media documents relied upon by the plaintiffs in support of the injurious falsehood claim alone make that claim untenable as the reports of the events in open court include reference to the subject matter of charges. See also Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 and State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125. 94 In considering the police investigation of the second defendant's complaint about Mr Hamod, and the decision to arrest him, one must have regard to Det Day's duty as a constable of the New South Wales Police. A police officer is under a duty to prevent and investigate crime: Collins v Wilcock [1984] 1 WLR 1172 at 1178 F-G; Director of Public Prosecutions v Puskar (Supreme Court of New South Wales, Newman J, 9 July 1992, unreported). 95 By the common law in Australia, a constable owes to the general public a duty to enforce the criminal law: R v Commissioner of Police of the Metropolis; Ex Parte Blackburn [1968] 2 QB 118. It is the function of a constable to bring or to assist in bringing prosecutions as part of his or her duty to enforce the law: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 (at 283). A constable acts as a peace officer and exercises an original authority in this respect: Enever v R [1906] HCA 3; (1906) 3 CLR 969 at 977; Attorney-General for New South Wales v Perpetual Trustee Company Limited (1954) 92 CLR 113 at 119. Neither changes in organisation nor the imposition of ever increasing statutory duties has altered the fundamental character of the constable's office: see for example, Attorney-General for New South Wales v Perpetual Trustee (supra) at 120 – 121 and Campbell JA in New South Wales v Tyszyk [2008] NSWCA 107 [106] – [111], where his Honour reviewed the authorities in respect of the duty of a constable. 96 For the reasons set forth above, I reject Mr Hamod's contention that he was not informed of the reason for his arrest, that his arrest was wrongful or that he was falsely imprisoned. Malicious prosecution 97 In A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said this at par [1]: " [1] For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause". 98 Although the first defendant also drew attention to what the majority in A's case said at par [34], that "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward", no point appeared to be taken with respect to this issue in the proceedings before me. At par [38] the majority made the following comment: " [38] For the reasons explained by the House of Lords in Glinski v McIver , justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect." (Emphasis added) 99 It appears to have been faintly suggested on behalf of the first defendant that by 24 January 1995 the conduct of the prosecution had been taken over by the Director of Public Prosecutions. However, there is no doubt that the person who effectively set the instant criminal proceedings in motion was Det Day and that it is he who must accept the form of responsibility or accountability imposed by the tort. Furthermore, the present proceedings were conducted in that way throughout. 100 It was also uncontroversial that the charge that proceeded to committal and was there dismissed, and the charge that proceeded to hearing and was thereafter dismissed, constituted a termination of the proceedings favourably or without adverse consequences to Mr Hamod. There is an issue as to whether Mr Hamod can demonstrate "termination of the proceedings in his favour" in respect of the third charge pursuant to s 178BB, which became the subject of a nolle prosequi. For reasons that will emerge, that dispute does not presently acquire any significance. In contrast, the third and fourth elements of the tort are very much in issue. 101 In order to establish malice a plaintiff must establish that the prosecutor acted maliciously – that is to say, for an improper purpose and not for the purpose of carrying the law into effect: see, for example A's case at par [40] as follows: " [40] Similarly, where a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make. Absence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided." 102 The matter was further discussed in the joint judgment at pars [91] – [93]: " [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution – a purpose other than a proper purpose. [93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law." (Citations omitted) 103 The joint judgment in A's case also provides a clear statement of what a plaintiff is required to prove in relation to the absence of reasonable and probable cause in the following extracts: " [76] The absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty. In particular, references to belief in guilt, or more properly, the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. A case where the prosecutor acts on the statements of others is one example of such a case. [77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or aintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion? ***** [80] In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. (There may also be a real and lively question about the objective sufficiency of the material, but that may be left to one side for the moment.) In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established. [81] The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. For the reasons given earlier, it will require examination of the prosecutor's state of persuasion about the material considered by the prosecutor. That should not be done by treating the five conditions stated by Jordan CJ in Mitchell v John Heine as a complete and exhaustive catalogue of what will constitute reasonable and probable cause. First, to focus upon what is reasonable and probable cause distracts attention from what it is that the plaintiff must establish – the absence of reasonable and probable cause. And secondly, because those conditions are framed in terms of belief about probable guilt, they are conditions that, for the reasons already given, do not sufficiently encompass cases where the prosecutor acts upon information provided by others. " 104 The absence of reasonable and probable cause is to be determined on the material that the prosecutor had available when deciding whether to commence or maintain the prosecution, not whatever material may subsequently come to light. The majority judgment in A deals with that at par [56] as follows: " [56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge". 105 Belief can be relevant to whether the prosecutor had reasonable and probable cause to prosecute. It is the nature of the belief that is in question. Moreover, the question of reasonable and probable cause is not an abstract or purely objective one. The question is whether the prosecutor had reasonable and probable cause to do what he did, not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect: see A's case at par [38]. 106 The nature of the belief may differ depending upon the nature of the case. This is explained at par [71] of the joint judgment in A's case: " [71] . . . If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs ) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine ) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." 107 Finally, the two elements of the tort need constantly to be borne in mind as appears from the joint judgment in A's case at par [54]: " [54] It is on this basis that the tort has hitherto been understood as requiring proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). The two requirements meet the two different kinds of case posited in Johnstone v Sutton – maliciously taking up a prosecution "for real guilt", and proceeding upon apparent guilt from circumstances which the prosecutor "really believes". That is, the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort. A conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution." 108 The first defendant submitted that the plaintiffs had failed to prove either the third or fourth elements of the claim in malicious prosecution. The police brief 109 It becomes necessary to consider the material contained in the police brief. It is extensive. The plaintiffs tendered it in these proceedings. Exhibits AQ1, AQ2 and AQ3 contain the police brief served on Mr Hamod on 15 September 1995. The brief tendered by him was not complete, although Mr Hamod submitted, "the content of the index of the Police Brief of Evidence is a confirmation of the brief of evidence": plaintiffs' submissions at par 383. The first defendant submitted that the incomplete nature of what was tendered qualified the use that could be made of the brief for any purposes concerning the case against it. The second defendant was also at pains to emphasise the specifically limited purposes for which it was received in evidence. For reasons that will emerge, these concerns do not ultimately achieve any significance. Detective Day 110 The statement of Det Day is the first document of substance. It is dated 13 February 1995. The statement sets out in a logical and chronological sequence what Det Day did from the point when he received a briefing from two other detectives on 17 January 1995 until the events of 20 January 1995, including the arrest of Mr Hamod and the conduct of the lengthy interview with him. The brief contains a transcript of that interview, to which earlier reference has been made. Mr Hamod suggested that the transcript was inaccurate in part, but the extent of the inaccuracies that he pointed to, accepting that they exist, does not seem to be great or particularly significant. Phillip Balding 111 The brief also contains a transcript of an interview conducted by Det Day with Phillip Balding at the Nowra Police Station on 10 February 1995. Mr Balding was an accountant and Mr Hamod was one of his clients. Mr Hamod had indicated to Mr Balding that he had a certificate that had been passed on to him by Mr O'Dowd and that he had the full authority of both Mr O'Dowd and the last holders of the certificate to sell it to whoever may wish to buy it. Mr Hamod told Mr Balding that he had personally validated the certificate at the United Nations. Mr Balding said that he became convinced that the certificate was genuine. 112 He told the interviewing detectives that Mr Hamod had sought to set up some form of an account with the Advance Bank for the deposit of an up front payment of $250M prior to validation of the certificate. Mr Hamod was to be the sole signatory on that account. Mr Balding said that Mr Hamod told him that he was concerned that UBS may call the police because they would deny that the certificate was real. Mr Hamod promised Mr Balding a payment of $20M if the negotiations to sell the certificate were successful. He was asked whether the size of that figure caused him concern. He gave the following answer: "I thought they were a little bit over the top but I – it didn't – how can I put it? It didn't sort of concern me. I just treated it as a comment. If it happened, it happened. If it didn't happen, it didn't happen. I didn't see the – you know, I didn't expect to get. You know, if it happened, it happened. It just didn't sort of – didn't worry me. I hadn't – didn't go out and spend that money and wait for it to come in. It was just one of those things where he suggested but at the same time, I might add, that he was – he offered a lot off [sic] other people a lot of money as well. I'd just accept it as – as what he said and left it at that." 113 Mr Balding was also asked about the validity of the certificate as the following question and answer demonstrate: "Q84 Right. Did you ever consider the possibilities – possibility that this certificate was forgery prior to Mr Hamod's arrest? A. No, I asked Mr Hamod to show me the – his authorities, to sell the certificate. He did that and on the face of it at the time, those authorities appear to be in order today. I had no reason to question him. I was under the impression that these sort of things do happen in Europe where they do sell certificates. And as I said, I had no – no need to – to question the – the authenticity of the certificate, nor Mr Hamod's action, so once I seen the authorities, I accepted that – that everything appeared to be in order." 114 Mr Balding was asked finally to say what in hindsight he thought his role had been in the matter. He answered as follows: "Yes, initially I was under the impression that I was acting as Mr Hamod's accountant. I was under instruction to arrange – to arrange this transaction for him. He gave me instructions. I followed those instructions out as would any professional person acting on instructions. On hindsight, after thinking about this for some time now, it seems to me that I've been used. It seems to me that – that I've – was – you know, from what I've been told, the certificates are forgeries that these certificates effectively don't exist with this particular bank and that it seems to me that I've – I've – I've sort of, to use the slang word, I've been conned." René Schicker 115 The police brief next contains a statement from Mr René Schicker translated from German and dated 19 March 1996. He had at that time worked with UBS since 1993 as a security agent. He was provided with a faxed copy of the certificate. He said that the certificate was a forgery. He said: "I knew straight away that it was a bogus document: the UBS logo was false. There were a number of spelling mistakes in the certificate . . . and the amount was also much too high (a transaction like that would be beyond the capacity of the UBS and in addition lead to a serious drop on the precious metal market). In addition, the UBS has never issued metal securities. Subsequently I also checked the signatures and found that these persons aren't known within the UBS, let alone authorised to sign." 116 The certificate is in the police brief. Statements of evidence by Det Riddel, Det Scrimgeour, Det Christey, Sgt Dubois, Const Finucci, Const O'Hearn, Det Eastham and Det Biaggi are also in the brief. Mr Hamod did not seek to draw attention to any particular parts of these statements or to suggest that they were inaccurate in some way. 117 The brief also contains an unsigned and incomplete statement made by Mr Hamod. I was not referred to that statement for any purpose. Much of the detail that it contains is in any event replicated in Mr Hamod's principal statement in these proceedings. Nicholas Wall 118 The second volume of the police brief commences with a long statement given to the police by Mr Nicholas Wall on 22 March 1995. He was then an investment banker employed by Utilis Australia Pty Ltd. His duties included buying and selling in the commodities market and the financial market on behalf of the clients of the company. 119 On 13 October 1994 or thereabouts Mr Wall received a telephone call from Mr Hamod who wanted to arrange a meeting. A meeting was subsequently arranged. Mr I was also present. At that meeting Mr Hamod asked Mr Wall if he had clients who would buy gold or platinum. He said "possibly". Mr Hamod then produced from his briefcase two original bearer certificates, the first issued by the Union Bank of Switzerland for 4590 tonnes of platinum and the second issued by the Central Bank of Stockholm for 6200 tonnes of gold. 120 According to Mr Wall, Mr I asked Mr Hamod how much platinum was for sale. Mr Hamod is said to have replied: "4590 metric tonnes held by Korea and some gold held by Central Bank of Stockholm…These are genuine certificates bet you have not seen anything like this? I recently returned from Switzerland and I have had the certificates authenticated by UBS Senior Bank Officers in Geneva. I have met with the signatories to the certificates some of them are old people and they have verified their signatures. The certificates are kept in a bank safe deposit box and they are bearer certificates owned by Soekarno of Indonesia. Galaxy Trust was the owner and they have appointed Brendon O'Dowd as their mandate to sell. O'Dowd has messed up in Europe and he had been kidnapped because he carried the certificates. Brendon O'Dowd appointed me the mandate to sell the certificates, we have met with several buyers but O'Dowd messed things up, we had sold one certificate to New York Life Insurance. . ." 121 Mr Wall said that over the following days he spoke to Mr Hamod by phone on a number of occasions. Included in these conversations was the sale of the certificate. Mr Hamod reiterated how he had authenticated the certificate and gave details of what he had done. On 30 November 1994 Mr Wall received from Mr Hamod by facsimile Mr Hamod's proposed buy/sell agreement for the certificate and his appointment as his mandate to sell. 122 Mr Wall's statement is 23 pages long and annexes a wealth of documentary material. Part of that material is a copy of the transcript of the electronically recorded events in the UBS boardroom on 20 January 1995, which culminated in Mr Hamod's arrest. Mr Hamod tendered a recording of that meeting independently of Mr Wall's statement in the police brief. Part of what Mr Hamod said at that meeting is as follows: "These certificates are registered with the World Bank and with the United Nations and I think you are aware of that fact. And that's why we are satisfied the certificate is genuine; we are satisfied the certificate, ah, is original and, ah, we would ask the buyer to satisfy I before they even are contemplating putting any money. So that's the procedure… that must be adhered to. And step one of the procedure is that the buyer has to identify himself first of all, second the secrecy agreement must be signed by all party present in the room so we can adhere to the original procedure that is connected to these certificates. Obviously your buyer's got a large sum of money also, we have the certificates and so as much as your buyer deserves privacy, we deserve privacy… we will only give the necessary information for the buyer to satisfy himself, but we are not guaranteeing this information…we want the buyer to satisfy himself… and then we exchange the original for the irrevocable bank guarantee and then the money should flow on. But until there's – the buyer is satisfied we should not even be talking about deposit, because it is illegal to talk about deposit before the buyer satisfy himself. Well…if you're happy to proceed we are happy to proceed." 123 The police brief also contained a copy of the electronically recorded transcript of the meeting at the offices of the National Australia Bank on 20 January 1995. Messrs Hamod, Muhlbauer, Lees, I and Wall were in attendance. It is unnecessary to refer to the content of that document for present purposes. Philip Ludowici 124 The police brief also contained a statement dated 7 March 1995 from Mr Philip Ludowici. He was then employed by UBS Australia Ltd as the Executive Director, Logistics. He met Mr Wall who produced to him what appeared to be photocopies of a bearer platinum certificate as well as other documents including a mandate for Mr Hamod to negotiate the sale of the certificate. There were other documents as well. Mr Ludowici said that he faxed a copy of the certificate to UBS Security Services in Zurich. The next morning, which was 8 December 1994, he received a document sent by facsimile from René Schicker informing him that the Union Bank of Switzerland never issued such documents and that the document was a forgery and a complete fantasy. 125 Mr Ludowici wrote to Mr Wall at Utilis Australia Pty Ltd the following day and told him that the certificate was bogus. That letter is in the police brief. He also indicated that UBS was willing to provide support for a police investigation. On 12 December 1994 Mr Ludowici telephoned Det Henderson at the Fraud Enforcement Agency. Phillip Muhlbauer 126 A statement by Mr Muhlbauer dated 27 February 1995 is in the police brief. He was the Chief of Staff of UBS Australia Ltd. Mr Muhlbauer's statement deals with what occurred at times leading up to and during the meeting in the UBS boardroom on 20 January 1995 in terms that are uncontroversial and unnecessary to repeat. Gary Lees 127 Gary Ernest Lees gave a statement to the police dated 3 March 1995 that was also in the police brief. Mr Lees was a solicitor. He said that he had originally been asked by Mr Balding to come to the Sydney meetings on 20 January 1995 and "hold a clients [sic] hand on settlement". He was shown a document that he came to understand was an agreement "in relation to the sale of the Platinum Certificate" apparently to a value of $60 billion. 128 Mr Lees' statement gives details of meetings and preparations in Nowra in the days before the events in Sydney on 20 January 1995. He was present at the meetings at the UBS boardroom and at the National Australia Bank in Sydney on that day and describes what occurred. Among other things he said that he looked at the buy/sell agreement that seemed to him to be a normal commercial agreement. The police subsequently interviewed him on the same day and an 86-page transcript of the electronically recorded interview is in the police brief. Although the plaintiffs tendered that document, Mr Hamod did not refer me to any portion of it for any purpose and he made no submissions about it. Peter Done 129 The police brief also contains a statement by Peter Done dated 20 January 1995. He was the Business and Lending Manager of the Advance Bank in Nowra. Among other things Mr Done said that on 9 January 1995 Mr Balding told him that Mr Hamod had received a commission to sell platinum certificates. Mr Hamod said to him that Mr O'Dowd had the authority to sell the certificates from the current owner and that he had passed the authority on to Mr Hamod to sell because Mr O'Dowd did not have the connections to sell them himself. Mr Hamod said to him, "When I find a buyer I am to receive a fee and that fee I will deposit into the Advance Bank Nowra". Mr Balding said that the transaction would be "in the billion dollars, so much so there are not enough zeros on my calculator". An account with the bank was subsequently opened in the name of the second plaintiff. 130 A further statement of Peter Done dated 6 April 1995 is in the police brief. He refers again to the meeting at the Advance Bank offices at Liverpool at which he and Mr Hamod, Mr Balding, Mr Lees, Mr El Teres, Mr Lymbery, Mr Sturgess and Mr Titcombe were present. He said that Mr Hamod took documents out of a briefcase and said, "These are Platinum Certificates". He continued saying, "If the transaction takes place today a sum of two hundred and fifty million dollars will be forthcoming and I would like to lodge it with the Advance Bank". Mr Hamod was told that the bank would not accept the transaction. Brian Titcombe 131 The third volume of the police brief commences with a statement by Brian Titcombe dated 6 February 1995 that also refers this meeting. He recalled Mr Balding saying, "We are all going into the city to attend a settlement for the transfer of these platinum certificates" and he recalled a reference to some weight of platinum between three and four thousand tonnes. Mr Balding said to him, "The purchasers are going to offer a cheque for two hundred and fifty million as a holding deposit on these certificates which are worth sixty seven point four billion dollars". Mr Titcombe said in his statement that on hearing this proposition he felt it was all quite difficult to believe. In 30 years of banking experience that was what he described as "well out [of] the realms of the ordinary". Paul Sturgess 132 A statement by Paul Sturgess, the Area Manager, Branch Operations of the Advance Bank for the Liverpool area dated 6 February 1995 is also in the police brief. It is to a similar effect as the statement of Mr Titcombe. Jeffrey Melville 133 A statement by Jeffrey Melville, the manager of the National Australia Bank in Nowra, dated 2 March 1995 is in the police brief. It refers to a request by Mr Balding on behalf of Mr Hamod to open a safe custody facility at his branch. Samir Hamod 134 Mr Hamod's brother Samir Hamod gave a statement to the police dated 16 February 1995. Most of what it contains is of little apparent relevance and difficult to understand. It refers to his dealings with Ivan Clarke and Mr O'Dowd and a request for money to pay Mr Hamod's hotel bill in Switzerland. It is unnecessary to refer to it in detail. However, at some point an argument developed between Samir Hamod and Mr Clarke and Mr Clarke said to him, "I don't want to deal with your brother because my [sic: 'your'] brother is a crook". Samir Hamod replied, "Now you say my brother is a crook after you send him to Switzerland to set up the deal, you say you have the real gold." Mr Clarke started swearing and said, "Look you tell your brother I want the certificate or we will send some people to kill him, I have people who lives [sic] two hours from him". Samir Hamod called Mr Hamod and told him what Mr Clarke had said. Mr Hamod replied, "I am not going to give them the certificate until I get my commission from the other deal we had in Switzerland. If they pay me my commission I will send them the certificate." Michael Teh 135 The next statement in the police brief is that of Michael Teh dated 22 March 1995. He was a commercial banker. On 14 October 1994 he attended the meeting arranged by Mr Wall. Paragraph 6 of his statement is partly as follows: "Towards the end of the meeting [Mr Hamod] said "Do you have a client for Platinum or Gold?" [Mr Wall] said "Yes it is possible". I said, "Yes We can help you". Then I saw [Mr Hamod] reach into his brief case and remove three pieces of paper which he handed to me. They appeared to be photo copies of Platinum and Gold certificates. The first piece of paper that I saw was a certificate of guarantee for 4590 metric tonnes of platinum issued by the Union Bank of Switzerland. I think the second piece of paper that I saw was part of the first certificate. The third piece of paper was a Certificate of Guarantee for about 7000 metric Tonnes of Gold issued by the Bank of Stockholm. . . I said "Do you have the originals?" Hamod said, "Yes I've got it in my briefcase. These are bearer certificates of platinum." I said, "Can you prove up under Swiss procedure?" Hamod said, "Yes on a bank to bank basis." 136 Mr Teh said that he had seen such certificates in his dealings in Europe for amounts of five to ten tonnes of gold or platinum but he had never seen a certificate for anywhere near the amounts of Mr Hamod's certificates. The certificate he inspected appeared to be similar to the original certificates he had seen in Europe. Mr Hamod told him that the police, MOSSAD and the CIA, were protecting him. Mr Teh had doubts about the authenticity of the certificates. 137 On 2 November 1994 Mr Wall provided him with a document that was a contract for the sale of the platinum. On 12 November 1994 Mr Hamod telephoned him and said, "If I present the original documents to the buyer I request a KTT payment from the buyer to my account for fifty million US". Mr Teh said that he did not think that was possible. He said he was surprised at the request for an up front fee of that amount. 138 Mr Teh later asked him if the certificates were genuine. Mr Hamod replied, "Yes it is authenticated by myself." Mr Teh asked, "Does the contract you are sending contain the certificate of authority to sell signed by you?" Mr Hamod said, "No it does not require one because the offer is genuine and the certificates are real". 139 On 18 January 1995 Mr Teh went to Mr Wall's home. While he was there the telephone rang. It was Mr Balding. He listened to the conversation at Mr Wall's request. Mr Balding asked, "How long will it take to authenticate the certificates?" Mr Wall replied, "It will take about one week." Mr Balding said, "How are you going to pay the two hundred and fifty million dollars?" Mr Wall said, "By bank draft through Chase Manhattan Bank." 140 Mr Teh's statement also deals with the meetings on 20 January 1995 at the UBS boardroom and at the National Australia Bank up until the moment when the police enter the room. He confirms that the transcription of the meetings appears to him to be accurate. 141 Mr Balding's statement dated 3 March 1995 is in the police brief. He said that some time around the middle of 1994 Mr Hamod telephoned him from Europe. He told Mr Hamod that he had been declared bankrupt. Mr Hamod said to him that he would come home soon and said, "I have brought back from overseas some platinum certificates." He also said, "I will sell them eventually." Early in January 1995 Mr Hamod contacted Mr Balding and said that Mr Wall had spoken to him and said that he had a buyer for the certificates and wanted to sell them on Mr Hamod's behalf. On 9 January 1995 Mr Hamod asked him to open the account at the Advance Bank at Nowra as previously mentioned. The statement also refers to Mr Hamod asking Mr Balding whether or not he could contact the Advance Bank to find out if Mr Done could accompany Mr Hamod to Sydney for the sale of the certificate and to ensure that the bank guarantee was irrevocable. Without attempting to summarise the whole of the statement, which is 22 pages long, it is sufficient to note that it is replete with references to Mr Hamod speaking of the sale of the certificate, the buy/sell agreement, the up front fee from the buyers, commissions or fees calculated as a percentage of the contract price, the need to inform the Reserve Bank of large sums coming into Australia and several other terms and formulations specifically or contextually predicated upon the sale of the certificate by Mr Hamod. Other documents contained in the police brief 142 The police brief contains many other documents. They include what appears to be the transcript of intercepted telephone conversations between many of the people whose statements and records of interview have been referred to already. There is also a copy of a Buy/Sell Agreement describing Mr Hamod "for and on behalf of Hamock Investments Pty Ltd" as the seller of the certificate. The document appears conspicuously inadequate for the transaction that is anticipated by its terms. The name of the buyer is blank. The seller and the buyer will agree to negotiate and fix a schedule or the payment of the principal amount owed on the certificate. It speaks of authentication and due diligence. A sum of $600M is referred to as the first tranche but the sale price is not specified. Instead the seller "warrants to sell the certificate for a cash price valued at sixty percent (60%) of the calculated value of the certificate and agrees to grant a forty percent (40%) gross discount for commissions". The agreement is effectively meaningless and it is difficult to see how it could ever have been performed or enforced if it had been executed. 143 The plaintiffs' written outline of submissions was some 225 pages long. Reference to this document from time to time in the context of all of the plaintiffs' pleaded causes of action against both defendants is obviously critical. However, as a general proposition the document never comes to terms with or addresses the matters that the plaintiffs are required to establish to prove their claims. This will need in due course to be explored with respect to all of the pleaded causes of action. 144 For presently relevant purposes the outline does not at any point address the concepts of malice or absence of reasonable and probable cause. Once again it is difficult accurately to summarise anything that the outline contains. It includes references to the alleged gross negligence and professional misconduct of various of the plaintiffs' former solicitors, to "biasness" exhibited by me in my approach to the plaintiffs during various stages of the proceedings, to the expenditure by the plaintiffs of $45,000 as the cost of security arrangements for the certificate when being examined by the second defendant's expert and to allegations of contempt of court by the defendants. The list is not exhaustive. 145 Mr Hamod has consistently complained about the extent to which the defendants have complied with their obligations to discover certain documents. In the case of the first defendant Mr Hamod contended that documents referred to in Det Day's duty book fell into this category. Legal advice from the legal department of the Fraud Enforcement Agency and the office of the DPP and the Attorney General are included in this list. No attempt is made to draw a connection between these alleged omissions and the existence of malice or the absence of reasonable and probable cause if such a connection was being suggested. 146 I have already referred to the question of the validity of the certificate as an issue in these proceedings. A significant aspect of the charge against Mr Hamod concerned the fact that the certificate was not genuine and that, in the words of the charge, he had made statements that it "was genuine and that he had authenticated [it] with UBS bank officers in Geneva, which statements he knew to be false or misleading in a material particular and which were made with reckless disregard as to whether they were true or false or misleading". The plaintiffs steadfastly maintained the authenticity of the certificate as a cental plank in their case. For example, they made the following written submission (at page 16): "The Plaintiffs are disadvantaged by the refusal of Justice Harrison to adjourn the hearing of the matter from the 8th of September of 2008 so that the Plaintiffs could receive the official documents from certain world authorities for the official authentication and validation of the Platinum Certificate to submit in evidence and shorten the proceedings . . ." 147 The same submissions contain the following paragraphs: " The Platinum Certificate The Platinum Certificate comprised of 35 folios and 55 pages issued by the Union Bank of Switzerland on the 27 of October 1978 and the First Plaintiff is the lawful holder of the Certificate. The First Plaintiff can now confirm that the Authorities in the United States of America and in Europe confirmed the authenticity and validity of the Platinum Certificate and are currently in the process of putting arrangements in place to facilitate transaction with the Certificate." 148 The evidence in my view clearly establishes that the certificate is not genuine. Statements upon which the second defendant relied and upon which the makers were not cross-examined are clearly to this effect. The evidence of Mr Westwood gives collateral support to these opinions. The assertion that the certificate purports on its face to represent the existence of more platinum than is known to exist stands uncontradicted: see in this respect the statement of Martin Gauch made 4 March 2008 (Ex 2D23), particularly at par 103. 149 It can be assumed (because it is not submitted in terms) that the plaintiffs contend that any reasonable conduct of the investigation by Det Day would have and should have ceased as soon as it was known that the certificate was genuine. No charges should have been laid either. It seems to be part of the plaintiffs' case that Det Day in fact had information that the certificate was genuine, which was not included in the police brief. 150 For example, par 709 of Mr Hamod's principal statement, bearing in mind that the first two sentences were objected to on the grounds that they were hearsay, bad in form, speculative and argumentative, give flavour to his approach to this issue. That paragraph is in these terms: "In August 1996, I also discovered that the police officers withheld from the brief of evidence my documents on the matter of the Certificate that the police officers seized on 20 January 1995 and the documents on the matter of the Certificate would have proved that the Second Defendant and their holding company UBS Switzerland had misled the police officers on the issue of the authenticity and validity of the Certificate. The documents eventually proved that the police officers were aware of the fact that the Certificate is authentic and valid Certificate and that I was legally entitled to hold the Certificate and offer it for sale. I refer to paragraphs 544 to 553 hereinabove to exhibits AH5 to AH25 for the documents that I am referring to and to exhibit AH86 for a copy of the receipts from the police officers for the return of the documents in June 1997 after a court order and insistence of Her Worship Magistrate Horler for return of the documents there and then in court on 3 June 1997." 151 Exhibits "AH5" to "AH24" and "AH86" to Mr Hamod's statement were tendered in evidence in these proceedings. They consist in a miscellaneous collection of mostly correspondence during 1994 about gold and platinum certificates of guarantee. There are hundreds of pages. They together defy description in any brief or meaningful way. There are several references to "due diligence". They do not, contrary to Mr Hamod's evidence, prove that the certificate was authentic and valid or that police officers in possession of them would have been aware that the certificate was authentic and valid and that Mr Hamod was legally entitled to hold it. On the contrary, on one view, the documents would have heightened suspicion that Mr Hamod was interested and engaged in attempts to sell a bogus platinum certificate. For example, part of the 58 pages that alone make up Ex "AH12" (Exhibit AY in the proceedings) is a letter dated 15 April 1994 signed by Mr Hamod that contains the following sentences: "Further to our discussion and correspondence re above subject, I confirm that I received your RWA for the above proposed sale and I thank you for your cooperation on the subject. Subject to your understanding of the fact that we are selling the certificate for the metal, I hereby advise you that Mr O'Dowd our Sellers Signatory accepted your RWA for the above proposed sale." 152 In hypothetical terms a demonstration that Det Day in fact had information that the certificate was genuine could well have supported a submission about both the existence of malice and the absence of reasonable and probable cause. A demonstrated knowledge on the part of the prosecutor that the terms of the charge were contradicted by facts known to the prosecutor at the time of the commencement of the proceedings would be a strong starting point for the plaintiffs in this case. The closest that the plaintiffs ever come to confronting the issue derives from Mr Hamod's consistent references to his having "conducted his due diligence and satisfied himself the Platinum Certificate is authentic and valid" (plaintiffs' outline of submissions at page 20 and elsewhere throughout the evidence) or that others, such as the Swiss Police in Zurich, had done so. The plaintiffs did not lead evidence that satisfies me that the certificate was ever anything more than the defendants have shown it to be and they did not seek to challenge or contradict such evidence in any meaningful or convincing way. The plaintiffs have not attempted to demonstrate, and have not articulated a submission, that it was unreasonable for Det Day to have formed the suspicion that Mr Hamod had made a statement that he knew to be false in a material particular, that is, that the certificate was genuine and that he had authenticated it with UBS officers in Geneva, or that he did so recklessly disregarding the question of whether or not the statement was true or false or misleading in a material particular. 153 I reiterate that it is particularly unsatisfactory to have to attempt to glean or to (re)construct the plaintiffs' case from the wealth of disparate documents and submissions upon which they appear to rely. One of the authorities appended to the plaintiffs' submissions is A (supra) from which I have quoted extensively. There can be no doubt that it is an authoritative statement of the relevant law or that the plaintiffs accept it as such. But the plaintiffs' submissions do not direct me at all to material suggesting that both of the relevant tests that it adumbrates are met on the evidence in this case. Having regard to the wealth of material tendered and written by or on behalf of the plaintiffs it is difficult to be certain, but as far as I can determine the plaintiffs do not at any point in their submissions (other than in terms such as at pars 265, 609 - 611 and similar) use either the word "malice" or the expression "absence of reasonable and probable cause" anywhere else at all and nowhere in a way that assists me to understand what they say about them. 154 The material in the police brief, which I have attempted to summarise in a relevant way, is on the contrary replete with material that suggests that Det Day would have been entitled to form the view that the certificate was bogus and that Mr Hamod was attempting to sell it as the genuine article when he knew that it was not. Mr Hamod did make statements that the certificate was genuine and that he had authenticated it with UBS in Geneva. (For reasons that are explained in more detail below, these statements must have been false). The plaintiffs do not attempt to relate these statements by Mr Hamod to their obligation to establish, if they are to prove malice, that Det Day acted for an improper purpose and not for the purpose of carrying the law into effect. The plaintiffs do not identify, and certainly have not proved, the existence of such an improper purpose. There is not even the faintest suggestion of it. 155 Far from attempting to deal with the evidence that suggests that the certificate was bogus, the plaintiffs have at all times embraced the notion that it was genuine and that they were entitled to sell it. There are many examples of this. In his written submissions at par 92 Mr Hamod said that in or about late December 1994 he began to make enquiries with representatives of potential buyers about an expression of interest in the certificate. At par 437 of his statement Mr Hamod said that in or about mid December 1994 he prepared an offer and a proposed buy/sell agreement for the sale of the certificate and prepared letters for invitations for expressions of interest from international merchant bankers. He sent these out at the end of that month with a copy of the certificate. 156 It seems to follow that Mr Hamod's emphasis must be that the case against him was malicious and commenced without reasonable or probable cause to the extent that he held a belief that the certificate was genuine and the prosecutor must, or should, have known this at the time when the proceedings were commenced. I re-emphasise that this is speculation on my part because the plaintiffs' case is not made clear. The problem with this, however, is that it is difficult to see how Mr Hamod could have held a belief that the certificate was genuine if he had made any proper inquiries, as he said he did. The statements that he made about the certificate must have been statements, which arguably he either knew to be false or misleading in a material particular or at the very least which were made with reckless disregard as to whether they were true or false or misleading. Having himself tendered the police brief in his own case Mr Hamod does not attempt to refer to it in any way to support the existence of malice or the absence of reasonable and probable cause. As I have said already, Mr Hamod does not in fact refer to the police brief in any meaningful way at all. 157 Curious as well is the fact that Mr Hamod referred to Det Day from time to time in complimentary terms. For example, he said the following in the course of his cross-examination by Mr Maconachie QC: "Q. Did Mr Day-- A. God bless his soul. Q. I beg your pardon? A. God bless his soul, his is not with us Q. Why did you say that? A. God bless his soul; he is an honest man . Q. Why did you just say God bless his soul? A. Because whenever I have a dead man name mention I say God bless his soul. That's my habit." (Emphasis added) 158 While such an expression of opinion is not determinative of any issue in the proceedings, it makes the task of understanding the plaintiffs' claim that Det Day was actuated by malice that much more difficult. This is particularly so when no direction or detail attends the pleaded contention that Det Day did not honestly form, and can be shown not to have honestly formed, the view that there was a proper case for the prosecution, or that he formed such a view on an insufficient basis and that there was animus towards Mr Hamod. I remind myself that proof of malice will often be a matter of inference, but it is proof that is required, not conjecture or suspicion. 159 Det Day was armed with information that the certificate was bogus. He was armed with information that Mr Hamod was touting it as the genuine article and that he had authenticated it and that others had done so to his knowledge. Det Day had information that the certificate was being offered for sale by Mr Hamod or that expressions of interest in it were being sought. Mr Hamod's insistence that prospective buyers conduct their own due diligence was not inconsistent with his having made false statements that the certificate was genuine or with a reckless disregard on his part as to whether it was or not. As the High Court said in A, even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for which there appears to be no evidence in the present case) 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. Det Day was clearly persuaded that the laying of the charge was proper. The material available to him at the relevant time was objectively capable of warranting the laying of the charge. 160 The plaintiffs' case alleging malicious prosecution against the first defendant fails. Injurious falsehood 161 The plaintiffs plead certain representations allegedly made to the media by members of the New South Wales Police. The alleged maker of each statement is not specified. It is asserted that the each of the statements ought not to have been made as: "…members of the New South Wales Police knew or were in possession of sufficient information to know that the Platinum Certificate was genuine as had been corroborated by Mr Muhlbauer on behalf of the second defendant and by the false allegations made by PT Galaxy Indonesia Trust regarding the alleged theft…" 162 The plaintiffs appear to contend that because Galaxy had made false allegations that the certificate had been stolen from it, it must be genuine. In any event, the plaintiffs offer no evidence that members of the New South Wales Police knew that the certificate was genuine or that they were in possession of any information (let alone "sufficient information") that it was. There is also no acceptable evidence that Mr Muhlbauer "corroborated" or made any representation to the effect that the certificate was genuine. 163 The evidence upon which the plaintiffs rely in support of the allegations pleaded at par 77(a) to (d) inclusive of the statement of claim is an article in the Illawarra Mercury on 21 January 1995 in the following terms: " $66b fraud Police charge Nowra man, 45 A 45-year old Nowra man was charged in Sydney late last night with a $66 billion attempted platinum fraud. Police said last night they believed it could be the world's largest fraud attempt. Detective Senior Sergeant Mike Edgtton of the NSW Fraud Enforcement Agency said the man was arrested after a two-week investigation. He will appear in Central Local Court, Sydney, today. "We would say it's the biggest (fraud attempt) in Australia," he said. Asked how it rated in international terms, Snr Sgt Edgtton said: "It would certainly be among the largest, if not the largest (in the world)." Police allege the man from Nowra tried to negotiate a certificate of guarantee with a Swiss bank for 4590 tonnes of platinum worth $A66 billion. Police believe the certificate was forged. Snr Sgt Edgtton would not identify the Swiss bank that instigated the FEA investigation. The international law enforcement agency, Interpol, was "not yet" involved, he said. Police say they planned to release a full statement today. Platinum was priced at $A554.26 a troy ounce yesterday – more expensive than gold, which traded at $A502.35 per troy ounce." 164 The evidence relied upon by the plaintiffs regarding par 77(e) of the statement of claim is to be found in Ex AAAA. That exhibit consists in a series of newspaper articles reporting on Mr Hamod's court appearance at Sydney Central Local Court on 21 January 1995. One of the articles states, "Police told the court they had seized documents involving sums even larger than the $US60 billion with which Hamod had been charged yesterday". That is plainly a reference to a statement made in court. The evidence relied upon by the plaintiffs regarding par 77(f) is also to be found in Ex AAAA. Again, it is plainly a reference to a statement made in court. The paragraph preceding the relevant portion of the document containing the words identified in par 77(f) commences with the words "Police told the Court". The first defendant submitted that the statement cannot be relied upon to ground a claim for damages: see for example Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 211 - 216. 165 The evidence relied upon by the plaintiffs regarding pars 77(g) and (h) is also to be found in Ex AAAA. They appear also to be references to a statement (or statements) made in court to be found in an article reporting upon court proceedings. In any event, the words complained of in par 77(g) are apparently a reference to a statement in court made by Mr Hamod's legal representative and Mr Flinders denies saying the words referred to in par 77(h). 166 In The Mentone Racing Club v The Victorian Railways Commissioner (1902) 28 VLR 77, the Victorian Court of Appeal considered the tort of injurious falsehood. In the course of argument Williams J observed: "I am inclined to think the law is this: Any untrue statement the natural result of which would be to cause injury to some person, and which does in fact cause such injury, is actionable. But it is a good defence to show that it was made with reasonable and probable cause and without malice." 167 In White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441, Campbell JA held at pars [160] - [164], after referring to the decision of the High Court of Australia in Palmer-Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 that malice was an essential element of the tort of injurious falsehood, and that if a plaintiff failed to prove malice, that was sufficient for the claim to fail. 168 In Palmer-Bruyn and Parker Pty Ltd v Parsons (supra) Gleeson CJ said at [14]: " [14] As was pointed out in Ballina Shire Council v Ringland , injurious falsehood may involve the making of statements which, although untrue, are not defamatory of the person about whom, or about whose property or business, they are made. But it is the falsehood which must cause the harm; harm of a kind which is intended, or, of a kind which is the natural and probable consequence of the making of the false statements. The loss to the appellant of McDonald's business resulted from the publication, by a newspaper, of the fact that someone had concocted a bogus document and thereby falsely attributed certain conduct to the appellant. It was the publication of the truthful information that someone connected with the Council, on the approach to falsity described above, had made false statements about the appellant, with all the implications that had as to relations between the appellant and the Council, that caused the harm of which the appellant complained. It is not the case that the respondent, having set out to make trouble of some kind for the appellant, and (let it be assumed), having made false statements for that purpose, is now liable for all harm to the appellant that followed in the events that ensued." 169 The first defendant submitted that the claim of injurious falsehood advanced by the plaintiffs in their statement of claim depended upon them establishing ownership of the certificate. The allegation made against the first defendant is that because of statements made to the media in or about January 1995, Mr Hamod could not sell the certificate. He does not allege that he owns it. Even if that proposition could be established, there is presently no evidence that addresses, let alone establishes, any entitlement to sell the certificate, or that the plaintiffs or either of them has made a loss due to their inability to sell it. There is no evidence of malice in the making of any of the statements on which the plaintiffs rely. There is also the problem for the plaintiffs that they continue to maintain that the certificate is genuine when the evidence establishes conclusively that it is not. 170 Finally, the first defendant contended that anything said by former Sgt Flinders in court attracted absolute protection in accordance with the principles providing immunity to witnesses for anything said in court. It submitted that it is well settled that witnesses are immune and enjoy an absolute privilege from action for civil damages for perjured evidence given in court, or for steps preparatory to giving perjured evidence in court. The plaintiffs did not argue to the contrary. In my opinion, that is not surprising. 171 The plaintiffs' case alleging injurious falsehood against the first defendant fails. Failure to cross-examine 172 The first defendant relied principally upon statements by Messrs Balding, Carrigg, Scrimgeour, Riddel, Flinders, Eastham, Wall, Henderson, Johns, Christey, Dunn, Williams, Rankin, Lysaught and Edgtton and Mrs Vale. In cases where any particular witness gave a statement to the police with respect to the original proceedings, the witness has referred to and adopted the contents of the earlier statement for the purposes of these proceedings. Where appropriate, some of these witnesses have also offered comments upon portions of Mr Hamod's own principal statement. Reference to only some of them needs to be made. 173 Mr Wall's role in the relevant events and his statements about them are understandably very important. His statement prepared for this case contained the following paragraphs: "4 I first spoke with Mr Hamod on or about 13 October 1994. 5 After meeting Mr Hamod (and others including Mr Phillip Balding) on 5 December 2004 [sic, 1994], I formed the belief that the certificates that Mr Hamod was attempting to sell were false. I contacted UBS Sydney and sought confirmation of my belief. I ultimately spoke with a Mr Phillip Ludowici of UBS Sydney who confirmed in writing that the certificates were false. 6 I was subsequently telephoned by Detective Sergeant Andrew Day . . . 7 Detective Sergeant Day informed me that he required that Mr Hamod attend a meeting in possession of the false certificates. 8 I thought of sending Mr Hamod a bogus telex confirming that there was a buyer in the wings." 174 This material deals with the first contact between Mr Wall and UBS representatives and the police and is obviously at the heart of events that form part of the subject matter of the plaintiffs' case against the defendants. Once again, Mr Wall was not tested on any of it. Moreover, Mr Wall sets out a long series of denials of things allegedly said by him to Mr Hamod. These denials all stand uncontradicted. 175 Mr Hamod also challenged the continuity of possession of documents and other things taken from him and the validity of records kept concerning them. Mr Hamod was generally critical of the proposition that none of the physical evidence that entered the custody of the police had been lost or compromised. Whether this was directed to the proof of malice or the absence of reasonable and probable cause, or anything else for that matter, is not specified and is difficult to assess. Mr Michael Johns was the Exhibits Officer at the Fraud Enforcement Agency from December 1994. He gave a very detailed statement of the tasks he performed and the procedures that he was required to follow in that role in relation to exhibits in the case against Mr Hamod. He concluded by saying that "none of the exhibits relating to the arrest of Anthony Hamod [was] ever removed from the Exhibit Room in the absence of compliance with the Fraud Enforcement Agency's exhibits procedures identified" by him in his statement. He was not cross-examined. 176 In considering all of the plaintiffs' claims against the first defendant it is important to observe that none of the first defendant's witnesses was required for cross-examination. (The same is true of the second defendant's witnesses. This is discussed below). The position where relevant evidence is not the subject of cross-examination was recently considered by Tobias and McColl JJA in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 in the following terms: " [110] … the relevant evidence was not the subject of challenge. The appellant therefore placed reliance upon the following passage from the judgment of Rolfe AJA, with whom Sheller JA and Davies AJA agreed, in M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 …: '21. Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say 'prima facie' because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence." [111] The above statement of Rolfe AJA was directed to the evidence of an expert. However in HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 …, after citing the passage from Thompson recorded above, Tobias JA said with the agreement of Mason P and Hodgson JA: '86. I would interpolate here a reference to the following passage from the judgment of Newton J in Bulstrade v Trimble [1970] V.R. 840 where, at 849, he said: 'I know of no case where it has been held that where evidence of a witness upon a particular matter is allowed to pass without cross examination, but evidence of a substantial character is called by the opposite party in direct contradiction thereof, the judge or jury is required in law to accept the former evidence. And, in my view, this is plainly not the law.' 87. In my opinion there is no inconsistency between this statement of the position and that stated by Rolfe A-JA in Hull . The critical issue where there is no cross examination of a particular witness, including an expert witness, is whether, as in the present case, there is a credible body of evidence of a substantial character in direct contradiction of the non cross examined evidence.' [112] There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex , there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence… (emphasis added) 177 The evidence of the first defendant's witnesses can therefore be taken to be accepted by the plaintiffs as truthful. Such a state of affairs in the normal course of events would have been of considerable importance where the plaintiffs were represented by experienced counsel or solicitors. In the present case it probably cannot be disengaged from the conclusion that Mr Hamod as an untrained and self-represented litigant was unaware of the need to put significant matters in issue by appropriate challenge if he wished to make submissions that contradicted the evidence of these witnesses. This seems to me in any event to follow when one considers the evidence given by the witnesses upon whom the defendants relied and who were not cross-examined. There was not any "credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence". In the end result it is not critical to a determination of the dispute. This is for the reason that the evidence upon which the plaintiffs rely for their own case does not in my view establish what they must prove in order to succeed. Comment 178 It will be apparent that I have found it difficult to discern the precise legal and factual bases upon which the plaintiffs put their case against the first defendant. Little attention to the elements of the pleaded causes of action would appear to have been given. At one level there is a clear and undoubted sense of outrage that Mr Hamod feels for having been cast into prison for seven months, there to be subjected to all of the harsh and distressing consequences that attended such an ordeal. As far as I am aware no public acknowledgment of it has ever been made or at least not with the prominence that Mr Hamod presumably feels it deserves. It was undoubtedly a frightening and terrifying experience for him and for his family. 179 Not all of the factual allegations and contentions that Mr Hamod raises are accepted by the first defendant and it would probably be more accurate to say that most of them are denied or disputed. However, Mr Hamod's feelings that an injustice has been perpetrated upon him are understandable even against the background of facts that are not in dispute. The seemingly unending capacity that Mr Hamod retains to continue to speak about, and to produce written material on, these issues is eloquent testament to the enduring sense of grievance that he maintains to this day and to the profound effects that all of these events have had upon him, including I suspect the state of his physical and mental health, which is referred to in medical reports that were actually tendered. So much is natural and understandable and would attract the sympathy of all but the most unfeeling observer. 180 I have attempted to distil the nature of the legal issues that attend proof of the plaintiffs' case against the first defendant. As I have discussed, the plaintiffs did not suggest that the formulation of these matters on behalf of the first defendant or the cases upon which it relied were wrong. The plaintiffs must be taken to have accepted the task that confronted them was as described by the first defendant in its submissions. That being so it is not enough to point to a certificate of acquittal as, in effect, the start and the finish of the inquiry. The cases make clear the role of the prosecuting authorities and the constrained circumstances where they will be called to account for the performance of acts apparently in the course of their duties. Those circumstances do not exist here. Mr Hamod was not arrested wrongfully, nor was he prosecuted maliciously within the meaning of the authorities. None of the statements to which he refers amounts to proof of a case of injurious falsehood against the first defendant. I have no (or at least very little) doubt that the difficulties that confronted the plaintiffs were long ago explained to Mr Hamod and probably on more than one occasion. Even if this is not so, the plaintiffs have not succeeded in overcoming those difficulties in this case. THE CASE AGAINST THE SECOND DEFENDANT Conspiracy to injure by unlawful means and conspiracy to injure by lawful means 181 The proceedings by the second plaintiff against the second defendant were dismissed by consent on 14 November 2005 by her Honour Harrison AsJ. 182 The tort of conspiracy may take two forms: (a) An agreement or combination between two of more persons to commit a lawful act with the predominant purpose of injuring or damaging the plaintiff, and the act is carried out and the purpose achieved: McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 at 362 per Dixon J; Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 717 per Dixon J. (b) An agreement or combination between two or more persons to commit an unlawful act with an intention to injure the plaintiff, and the act is carried out and the intention achieved: Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 78 and 122. 183 In either case the plaintiff must prove the following elements: (a) a combination or agreement between two or more individuals (required for both types of conspiracy); (b) an intent to injure the plaintiff (required for both types of conspiracy but must be shown as the predominant purpose for "lawful means" conspiracy); (c) pursuant to the combination or agreement and with the intention to injure, certain acts were carried out; and (d) resulting loss and damage to the plaintiff. 184 The tort of conspiracy is only complete if the agreement is carried into effect; "the acts that are done in pursuance of the agreement are an integral part of the tort": Marrinan v Vibart [1963] 1 QB 234; Crofter Hand Woven Harris Tweed Company Limited v Veitch [1942] AC 435. There is a difference between "lawful means" conspiracy and "unlawful means" conspiracy in relation to the degree of intention required to establish the tort. 185 In respect of both types of conspiracy, intention to injure or damage the plaintiff is an essential requirement: Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 at 342 per Mason CJ, Dawson, Toohey, Gaudron and Toohey JJ (citing as authority McKernan v Fraser [a case involving "lawful means" conspiracy] and Williams v Hursey [a case involving "unlawful means" conspiracy]). It is not enough if such injury is merely foreseeable or even likely. As Mason P (with the concurrence of Handley and Hodgson JJA) said in McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 at [13] (cited with approval by Kiefel and Jacobson JJ in Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 at [9]): "These principles emphasise that a plaintiff in a case such as the present must establish intent to injure the plaintiff. It is not enough to establish that the acts of the conspirators necessarily involved injury to the plaintiff or that the plaintiff was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage." 186 To be a "lawful means" conspiracy, the desire to harm the plaintiff is "the sole, the true, or the dominating, or the main purpose of the conspiracy": McKernan v Fraser at 362 per Dixon J; see also 398 - 399 per Evatt J. The court must be satisfied that the motive or ultimate object, rather than the immediate purpose, of the combination is to inflict injury on the plaintiff, or that the defendants were actuated by "disinterested malevolence" directed against the plaintiff individually: Spencer v Australian Capital Territory [2007] NSWSC 303 at [37] per Brereton J. It will be fatal to a claim of "lawful means" conspiracy if it can be shown that the defendants were acting for the advancement or protection or defence of their interests: McKernan v Fraser at 362 per Dixon J, 400 per Evatt J; or were impelled by their desire to protect or secure the interests of themselves: Cox v Journeaux at 718 per Dixon J. 187 For an "unlawful means" conspiracy to be actionable, "one of the purposes … must have been to injure the plaintiff": Fatimi Pty Ltd v Bryant [2004] NSWCA 140; (2004) 59 NSWLR 678 at [13] per Handley JA (McColl JA agreeing generally at [83]). This requirement will be satisfied if it can be shown that "the conspiracy and the unlawful means were aimed at or directed at the plaintiff": Fatimi at [13]; see also Dresna Pty Ltd v Misu Nominees Pty Ltd (supra) at [9] and [12] per Kiefel and Jacobson JJ; Lonrho Plc v Al-Fayed [1992] 1 AC 448 at 467 per Lord Bridge (quoting Lord Denning MR with approval). 188 "[W]hat is required is that [the alleged conspirators] should have acted in order that, not with the result that, the plaintiff should suffer damage": Dresna at [12]. As Hely J put in Australian Wool Innovation Ltd v Newkirk [2005] FCA 290; (2005) ATPR 42-053 at [64]: "The tort [of 'unlawful means' conspiracy] requires an intention to injure. As Kiefel and Jacobson JJ observed in Dresna … (… at [7]) an agreement to do an unlawful act that results in damage to another party is not the same as a conspiracy to injure that party. In order to prove a conspiracy a claimant must show that the wrongful act complained of was done with a design of injuring the claimant and that it did so… Their Honours went on to say … that the test for an action in conspiracy is: 'what was the object of those combining when they acted as they did'. They must have acted in order that, not with the result that, the claimant should suffer damage." 189 As Windeyer J said in Womboin Pty Ltd v Reichelt (Supreme Court of New South Wales, 25 August 1995, unreported at 36) (after citing Northern Territory v Mengel): "Intention itself is a difficult concept which might in some circumstances be thought to relate to an obvious result of an intended action. But that would not preserve the distinction between intentional torts and negligence." 190 The events that occurred on 20 January 1995 were clearly the result of a planned police operation in cooperation with representatives of the second defendant. Indeed, it was Mr Ludowici of the second defendant who first brought Mr Hamod's activities to the attention of the police on 12 December 1994. Representatives of the second defendant were also obviously present at the recorded events on 20 January 1995 at the offices of the National Australia Bank. Some reference to the various other ways in which representatives of the second defendant assisted the police has already been made. However, it is necessary to review the role of the second defendant in some more detail before proceeding further. 191 The second defendant tendered and relied upon statements by Mr Ludowici, Mr Gauch, Mr Grumbacher, Mr McMurtrie, Mr Muhlbauer, Mr Goldstein, Mr Mϋller-Lhotska, Mr Schicker and Mr Westwood. As with the plaintiffs' approach to the witnesses for the first defendant, Mr Hamod did not seek to cross-examine any of these witnesses despite foreshadowing at an earlier time that this might occur. 192 The conspiracies alleged by Mr Hamod are based upon the proposition that representatives of the second defendant knowingly made false statements to the police that the certificate was a fake, a forgery and invalid in order to prevent him from selling it to a third party. All of the pleaded causes of action depend upon the certificate being "valid" or "authentic". It should not pass without comment that the pleading reaffirms Mr Hamod's original intention to sell the certificate. Mr Westwood, Handwriting and Questioned Document Examiner retained by the second defendant, concluded that the certificate was not genuine. As I have noted, that opinion was not challenged. 193 Other witnesses gave evidence touching upon the validity of the certificate. Some of these witnesses expressed views about this topic in statements given by them to police. I have already referred to some of these. It can be assumed that these original statements lie at the heart of Mr Hamod's pleaded case against the second defendant. Indeed the case pleaded against the second defendant limits the operative acts said to be causative of loss to Mr Hamod to the giving of formal statements to the police after 20 January 1995 and the giving of evidence during the criminal proceedings. 194 Mr Ludowici reaffirmed that he rang the Fraud Enforcement Agency on 12 December 1994 and spoke to Det Henderson about the certificate. He said that he considered it to be his role to inform the police about his knowledge of the certificate and the surrounding circumstances. He also considered that it was a matter for the police to determine whether, and if so how, they wished to take any action in relation to the certificate. Mr Ludowici subsequently gave the police a statement for use in the criminal proceedings, to which earlier reference has been made. He was not cross-examined in this Court on that statement, on anything said by him during his evidence in the criminal proceedings, or upon anything in his very detailed statement prepared for these proceedings. 195 Mr Gauch gave a statement in extraordinary detail about his experience of international precious metals trading generally and certificates of ownership or guarantee in particular. He said that in his (extensive) experience to his knowledge, no Swiss bank including the Union Bank of Switzerland, ever issued or authorised any instrument that conferred on the bearer title to, or evidenced ownership by the bearer of, a quantity of precious metal or that constituted a guarantee to the bearer backed by precious metal. His detailed examination and exposition of the certificate demonstrates convincingly, in the absence of any other evidence or opinion about it, that the certificate was not genuine. He even gave evidence that the amount of platinum supposedly represented by the certificate was more than total world production of all platinum group metals between 1900 and 1978 inclusive and significantly more than the production during the same period of platinum alone. He was not challenged on his evidence. 196 The evidence demonstrating that the certificate was a fake is overwhelming. The plaintiffs did not lead any evidence in their case to suggest, let alone prove, that it was genuine. 197 With respect to Mr Hamod's failure to cross-examine any of the second defendant's witnesses, the second defendant submitted that there was no evidence at all (let alone a "credible body of evidence of a substantial character") in direct contradiction of at least the following evidence: (a) The entirety of Mr Westwood's report, Mr Gauch's witness statement and Mr Müller-Lhotska's witness statement. (b) The entirety, or substantially the entirety, of Mr Schicker's witness statement, Mr Ludowici's witness statement and Mr McMurtrie's witness statement. (c) Most of Mr Muhlbauer's witness statement and Mr Grumbacher's witness statement. 198 Nor in the second defendant's submission was any such evidence "ex facie illogical or inherently inconsistent; or … based on an incorrect or incomplete history". It also submitted that any other evidence in contradiction of the balance of the second defendant's witnesses from the plaintiffs was not "credible" or of "a substantial character". (This submission was made in support of a rejection of Mr Hamod's case of injurious falsehood as well). 199 Mr Hamod has not proved that there was any relevant agreement. There is no evidence of any agreement. Mr Hamod has not proved that there was an intention to injure him, let alone a predominant intention of the sort required for conspiracy to injure by lawful means. There is no evidence of such an intention or of any intention at all. There were no unlawful means. The statements made and evidence given were truthful. There is no evidence to the contrary. Finally there was no loss or damage. The certificate was worthless. 200 Mr Hamod's case alleging either form of conspiracy against the second defendant fails. Injurious falsehood 201 The four elements of the cause of action of injurious falsehood were identified by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (supra) at [52] as follows: "(1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement". 202 The prevalent view is that malice is established by showing the existence of an indirect, dishonest or improper motive or intent to injure without just case or excuse. It is sufficient to show the defendant knew the statement was false. Carelessness does not amount to malice but recklessness or conscious indifference to truth may. 203 The second defendant submitted that none of the impugned statements made was false. What was said about the certificate was true. There was no malice and certainly no evidence of malice. There was no loss or damage. 204 The second defendant also relied upon witness immunity as a complete answer to Mr Hamod's claim. It contended that absolute immunity (or absolute privilege) was a complete defence to the entirety of Mr Hamod's claim because the case pleaded limited the operative acts said to be causative of loss to him to the statements given to the police and the giving of evidence in the subsequent criminal proceedings. The second defendant relied upon the following principles. 205 First, a witness has absolute privilege in respect of civil causes of action in relation to evidence given by that witness in court: eg Mann v O'Neill (supra) at 211. 206 Secondly, the immunity operates even if the evidence given by a witness is false: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139 (Rich J), 140 (Starke J), 144 - 145 (McTiernan J), cited in Commonwealth v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 at [44] – [45]. 207 Thirdly, "the immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings": Commonwealth v Griffiths at [42]. This at least includes the following: (a) The swearing of an affidavit. (b) Proofs of evidence. (c) In Commonwealth v Griffiths , it was said to be "well accepted" that the immunity extends to "the preliminary examination of witnesses to find out what they can prove". 208 Fourthly, the privilege applies in relation to "any form of action": Cabassi v Vila at 144 (although perhaps not malicious prosecution: see for example R v Beydoun (1990) 22 NSWLR 256 at 260). This includes conspiracy. Cabassi v Vila was such a case. 209 Fifthly, the privilege extends to those who would otherwise be vicariously liable: Commonwealth v Griffiths at [115] - [116]. 210 Accordingly, absolute immunity applied to the giving of evidence before Magistrate Horler, the giving of witness statements to the police and any alleged conspiracy about the nature of evidence to be given or about the nature of any witness statements to be given. 211 Mr Hamod did not provide any submissions to the contrary. He did not contest the second defendant's statement of the relevant principles. The factual circumstances that underpin the second defendant's submissions were also not contested. The statements upon which Mr Hamod relies are clearly protected by the privilege for which the second defendant contends. 212 The clearly significant and predominant issue is the genuineness of the certificate. As I have already indicated, the evidence about this is overwhelming. The plaintiffs have never attempted in any convincing or structured way to demonstrate that the certificate was genuine. The likely reason for this, among many, may be the inescapable conclusion that it is bogus. The driving motivation for the present litigation has to my mind been so strong and all embracing for Mr Hamod that the simple necessity to establish, in the case of all pleaded causes of action against the second defendant, that the certificate was valid has either been ignored or overlooked. 213 Mr Hamod's case alleging injurious falsehood against the second defendant fails. Mr Hamod's credit 214 The second defendant submitted at great length and in considerable detail why Mr Hamod should not be accepted as a witness of truth. It submitted that he was an untruthful and confused witness and that his evidence should generally be rejected except where corroborated by a defendant's witness, an independent contemporaneous document or where his evidence was against interest. The first defendant joined in these submissions. 215 It will be apparent that the plaintiffs' cases in all respects fail for want of proof of the critical elements necessary for the establishment of any of their pleaded causes of action. That result is in no relevant respect directly related to or dependant upon an assessment of or decision about Mr Hamod's truthfulness. A finding about whether or not Mr Hamod was at all times or ever telling the truth is not critical to a finding against the plaintiffs. By far and away the most significant problem with Mr Hamod's evidence is its relevance and admissibility. I have already commented upon Mr Hamod's close and understandable emotional connection to the subject matter of this litigation. The result that I have come to in this case will itself be difficult and unpalatable for Mr Hamod at several levels. Mr Hamod did his best according to his own lights to present a case that was beyond his abilities and legal understanding. The task that he set himself was always problematic, even with the assistance of experienced lawyers. It avails no one in the circumstances as I have found them to embark upon an analysis of Mr Hamod's truthfulness for no good purpose if it seems likely to produce no obvious benefit and quite likely to produce some detriment. Conclusions and orders 216 It follows that the plaintiffs have been wholly unsuccessful in all of their claims against both defendants. 217 I was asked at the conclusion of the proceedings to refrain from making any orders as to costs until submissions on the topic had been received. Accordingly, I will at this stage make only the following orders and invite the parties to make submissions on the question of costs if so desired at some convenient time to be arranged in consultation with my Associate: 1. Verdict for the first defendant. 2. Verdict for the second defendant. ********** 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.