New South Wales Court of Appeal CITATION: State of NSW v Hathaway [2010] NSWCA 184 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11 March 2010, 12 March 2010 JUDGMENT DATE: 6 August 2010 JUDGMENT OF: Tobias JA; McColl JA; Macfarlan JA (a) Appeal allowed. (b) Set aside the judgment and orders made by Simpson J on 7 May 2009. (c) Verdict and judgment for the appellant with respect to the respondent's malicious prosecution cause of action as pleaded in paragraph 7 of the respondent's Amended Statement of Claim filed on 23 August 2006. DECISION: (d) Direct that a new trial be held limited to the issue of liability with respect to the respondent's assault cause of action as pleaded in paragraph 4 of the respondent's Amended Statement of Claim filed on 23 August 2006. (e) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified. (f) Direct that with the consent of the parties and the judge hearing the new trial on the assault cause of action, the latter proceed on evidence already admitted before Simpson J. (g) Direct that the judge hearing the new trial may admit further evidence upon application by either party, should he or she consider it appropriate to do so in the interests of justice. (h) The costs of the trial and the new trial to be determined by the judge hearing the new trial. CATCHWORDS: APPEAL – civil – credibility – whether failure to pay proper regard to respondent's unreliability as witness - APPEAL – civil – evidence – whether evidence supports conclusion – whether failure to assess or address evidence – sufficiency of evidence - APPEAL – civil – retrial – severance of issues – whether damages should be subject of new trial - EVIDENCE – proof – standard of proof – civil – application of Briginshaw principle - EVIDENCE – witnesses – unexplained failure to call witnesses – inferences - TORTS – intentional – malicious prosecution – whether charges brought and prosecuted in absence of reasonable and probable cause and with actual malice – whether informant aware that knife was planted by police officer - TORTS – intentional – trespass to person – assault – whether police officer struck respondent on face with baton Civil Procedure Act 2005 Crimes Act 1900 Evidence Act 1995 Independent Commission Against Corruption Act 1988 Other publications: New South Wales, Royal Commission into the New South Wales Police Service, Final Report – Volume 1, (May 1997) LEGISLATION CITED: Law Reform (Vicarious Liability) Act 1983 Police Integrity Commission Act 1996 Police Regulation 2000 Suitors' Fund Act 1951 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 CATEGORY: Principal judgment A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 Alchin v Daley [2009] NSWCA 418 Briginshaw v Briginshaw (1938) 60 CLR 336 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hall v van der Poel [2009] NSWCA 436 Hare v Harmer (2009) NSWCA 68 CASES CITED: Hathaway v State of New South Wales [2009] NSWSC 116 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; (1992) 110 ALR 449 Palmer v Dolman [2005] NSWCA 361 Payne v Parker [1976] 1 NSWLR 191 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 PARTIES: State of New South Wales Allan Frederick Hathaway FILE NUMBER(S): CA 2009/40167 COUNSEL: A: P W Taylor SC / G Giagos R: J Roberts SC / J Sainty SOLICITORS: A: I V Knight, Crown Solicitor's Office R: Walsh & Blair Lawyers, Wagga Wagga LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20002/2006 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 23 April 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Allan Frederick Hathaway v State of New South Wales [2009] NSWSC 116 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40167/09 SC 20002/06 TOBIAS JA McCOLL JA MACFARLAN JA 6 August 2010 STATE OF NEW SOUTH WALES v ALLAN FREDERICK HATHAWAY A SUMMARY OF THE CENTRAL ACTORS AND THE EVENTS IN WHICH EACH WAS INVOLVED [1] (1) Mr Allan Frederick Hathaway (the respondent) [6] (2) Detective Senior Constable Timothy Briggs (Briggs) [7] (3) Sergeant Virginia Anne Morgan (Morgan) [8] (4) Constable Christopher John Jackson (Jackson) [9] (5) Inspector Thomas Patrick Murphy (Murphy) [10] (6) Constable Gregory James Cox (Cox) [11] (7) Senior Constable Dion McAlister (McAlister) [12] (8) Constable Julie Theresa Philpott (Philpott) [13] (9) Constable Amanda Rae Deissel (Deissel) [14] (10) Senior Constable Raymond Holmes (Holmes) [15] (11) Mr Garry Gaffney (Mr Gaffney) [16] (12) Mr Simon Mansfield (Mr Mansfield) [17] (13) Senior Constable Melinda Jennings (Jennings) [18] THE UNDISPUTED BACKGROUND FACTS [19] THE ASSAULT CAUSE OF ACTION [27] (1) The respondent's version of events [27] (2) Jackson's version of events [37] (3) The primary judge's summary of the competing accounts [45] (4) The various occasions on which principal players had, prior to the trial, been called upon to give evidence or provide statements with respect to the relevant events [47] (a) Reiteration of Jackson's version at trial [52] (b) Jackson's police statement version [54] (c) Jackson's notebook entry [56] (d) Jackson's version to the Critical Incident Investigation Team(CIIT) [57] (e) Jackson's version at the respondent's prosecution [58] (f) Jackson's version to the Police Integrity Commission [60] (g) Jackson's version at his own trial [65] (5) The primary judge's findings with respect to the credit of the respondent [67] (6) The primary judge's findings with respect to the credit of Jackson [80] (7) The primary judge's reasoning in accepting the version of events advanced by the respondent [84] (8) The issues on the appeal with respect to the assault cause of action [90] (a) The movement and position of the bed [91] (b) The improbability of the respondent's version of events [107] (c) The respondent's unreliability and lack of credit [126] (d) The respondent's resistance to arrest [130] (e) Jackson's reactive assault [132] (9) Conclusion with respect to the assault cause of action [138] THE MALICIOUS PROSECUTION CAUSE OF ACTION [146] (1) The nature of the respondent's claim [146] (2) The relevant principles applicable to the malicious prosecution cause of action [153] (3) The relevant findings of the primary judge [161] (a) The movements of the police officers following the removal of the respondent from the Gaffney house [162] (b) The finding of the knife [179] (c) The critical incident [183] (4) The questions posed by the primary judge's conclusions [202] (5) The relevant evidence of Morgan [205] (6) The context in which the evidence of Briggs is to be considered [214] (7) The relevant evidence of Briggs [215] (8) The relevant evidence of Jennings [243] (9) The information available to Briggs at the time the respondent was charged with the knife offences [245] (10) The relevant findings of the primary judge that the knife was was planted and that Briggs was aware of that fact cannot be sustained [258] (a) The applicable standard of proof [259] (b) The absence of Murphy and Mr Mansfield [274] (c) The planting of the knife [280] (d) The destruction of the crime scene [307] (11) Some final observations [322] (12) Conclusion with respect to the malicious prosecution cause of action [330] GENERAL CONCLUSIONS [331] IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40167/09 SC 20002/06 TOBIAS JA McCOLL JA MACFARLAN JA 6 August 2010 STATE OF NEW SOUTH WALES v ALLAN FREDERICK HATHAWAY Judgment 1 THE COURT: On 9 January 2006 Alan Frederick Hathaway (the respondent) instituted proceedings against the State of New South Wales (the appellant) alleging that it was vicariously liable pursuant to the Law Reform (Vicarious Liability) Act 1983 with respect to the wrongful conduct of three members of the New South Wales Police Service, Constable Christopher John Jackson, Detective Senior Constable Timothy Scott Briggs and Sergeant Virginia Ann Morgan. For ease of reference and economy and without intending any disrespect to the police officers mentioned, we shall refer to all relevant police officers by their surname only. 2 Two causes of action were pleaded. The first was that at approximately 10.45am on 6 February 2003 at premises owned by a Mr Gaffney in Wagga Wagga, the respondent was assaulted by Jackson in his attempt to apprehend the respondent whereby he (the respondent) sustained serious injuries (the assault cause of action). The second arose out of a number of offences resulting from the events of 6 February 2003 and in respect of which 10 charges were laid against the respondent by Briggs on 28 March 2003 and prosecuted by Morgan in the Local Court in Wagga Wagga on 11 December 2003. The respondent alleged that five of those charges were brought and prosecuted in the absence of reasonable and probable cause and with actual malice (the malicious prosecution cause of action). 3 The proceedings were heard by Simpson J in the Common Law Division of the Supreme Court between 27 August 2008 and 15 October 2008. On 23 April 2009 her Honour found in favour of the respondent with respect to the assault cause of action and also with respect to the malicious prosecution cause of action insofar as it related to Briggs. Her Honour dismissed that cause of action against Morgan: Hathaway v State of New South Wales [2009] NSWSC 116. 4 Her Honour assessed the respondent's damages in respect of the assault cause of action in the sum of $203,365 including $100,000 exemplary damages. She assessed his damages with respect to the malicious prosecution cause of action in the sum of $107,965, which also included exemplary damages in the sum of $100,000. On 7 May 2009 judgment was entered for the respondent against the appellant in the total sum of $311,330. 5 The appellant now appeals to this Court only with respect to the issue of liability. There is no challenge to her Honour's assessment of damages in respect of either cause of action. A SUMMARY OF THE CENTRAL ACTORS AND THE EVENTS IN WHICH EACH WAS INVOLVED (1) Mr Allan Frederick Hathaway (the respondent) 6 During the morning of 6 February 2003 the respondent was driving an unregistered motor vehicle whilst disqualified in Wagga Wagga. He was pursued by police but attempted to avoid being apprehended. He ultimately entered the backyard of residential premises belonging to Mr Gaffney, found the door to the family room unlocked and entered the house. He proceeded into a bedroom and attempted to hide under the bed but was discovered by Jackson, one of the police officers involved in the pursuit. There was an altercation between the respondent and Jackson in the period before another police officer, Philpott, arrived. The respondent was subsequently arrested, escorted from the premises and taken to a police station and ultimately to hospital. (2) Detective Senior Constable Timothy Briggs (Briggs) 7 Briggs was involved in the initial pursuit of the respondent through the streets of Wagga Wagga on 6 February 2003. However, he was unable to apprehend the respondent. He arrived at Mr Gaffney's premises shortly before the respondent was arrested. He remained there until he spoke to Mr Gaffney who arrived shortly thereafter and then departed. While Briggs was away from the premises, he received a telephone call from Inspector Murphy who told him that Mr Mansfield, a cleaner engaged by Murphy to clean the premises after the respondent's removal therefrom, had found a long bladed knife in the bedroom. Briggs thereupon returned to Mr Gaffney's premises in the company of McAlister and Jackson. On 28 March 2003 Briggs preferred ten charges against the respondent arising out of the events of 6 February 2003 including two charges relating to the knife and which gave rise to the malicious prosecution cause of action. (3) Sergeant Virginia Anne Morgan (Morgan) 8 Morgan appeared as the prosecutor at the hearing of the ten charges preferred against the respondent in relation to the events of 6 February 2003. That hearing took place in the Wagga Wagga Local Court on 10 and 11 December 2003, and 22 and 23 March 2004. She was not otherwise involved in those events. (4) Constable Christopher John Jackson (Jackson) 9 Jackson, a police officer, joined in the pursuit of the respondent on 6 February 2003 and followed the footmarks of the respondent into the bedroom of Mr Gaffney's premises where he was hiding under the bed. Jackson was then involved in an altercation with the respondent which gave rise to the assault cause of action. Jackson left Mr Gaffney's premises shortly after the respondent was arrested. However, he returned in the company of Briggs and McAlister shortly after being informed by Murphy that Mr Mansfield had discovered a knife in the bedroom. After McAlister had photographed the knife, Jackson took possession of it and conveyed it to the police station. (5) Inspector Thomas Patrick Murphy (Murphy) 10 Murphy arrived at the premises of Mr Gaffney shortly after the respondent had been arrested. He was the senior police officer at the scene. He arranged for a contract cleaner, Mr Mansfield, to attend the house to clean up the crime scene. He did not leave the premises at least until after Jackson had conveyed the knife found by Mr Mansfield in the bedroom to the police station for forensic examination. (6) Constable Gregory James Cox (Cox) 11 During the morning of 6 February 2003, in response to a call for assistance from Briggs, Cox pursued the respondent on foot and ultimately caught him. The respondent struggled violently and managed to free himself by kicking Cox in the groin. Cox attended Mr Gaffney's premises a short time later. However, what he did there is unclear and is unimportant in any event. (7) Senior Constable Dion McAlister (McAlister) 12 McAlister arrived at Mr Gaffney's premises shortly before the respondent was arrested. About 10 or 15 minutes after the respondent had been removed from the premises, and having taken a number of photographs of the bedroom, McAlister left the premises. However, he returned to the premises soon after with an exhibit camera from the police station and, on the instructions of Murphy, took further photographs in and around the house. After completing his photographic assignment, he left the premises. McAlister was telephoned by Murphy shortly after the knife was discovered in the bedroom whereupon he again returned to the premises to take photographs of the knife with a different (digital) camera. (8) Constable Julie Theresa Philpott (Philpott) 13 Philpott entered the bedroom of Mr Gaffney's premises during the altercation between the respondent and Jackson. She assisted with the arrest of the respondent. She then remained at the premises until McAlister returned with the station's exhibit camera to take further photographs. After assisting him with this task, Philpott left and did not return. (9) Constable Amanda Rae Deissel (Deissel) 14 Deissel arrived at Mr Gaffney's premises shortly before the respondent was arrested. She assisted the other police officers in handcuffing the respondent. She remained at the premises until McAlister returned with the station's exhibit camera to take further photographs. After assisting him with this task, Deissel left and did not return. (10) Senior Constable Raymond Holmes (Holmes) 15 Holmes also arrived at the premises of Mr Gaffney shortly before the respondent was arrested. He escorted the respondent to the police vehicle and left the premises soon after. He returned to the premises about 30 minutes later, had a brief conversation with Murphy and then left again and did not return. (11) Mr Garry Gaffney (Mr Gaffney) 16 Mr Gaffney was the owner of the residential premises which the respondent entered on 6 February 2003 and in the bedroom of which the altercation took place between the respondent and Jackson. Mr Gaffney was contacted by the police at his work and returned to his home shortly after. He spoke with Briggs and then left the premises. He returned after the knife was discovered to identify it. (12) Mr Simon Mansfield (Mr Mansfield) 17 Mr Mansfield was the cleaner who attended Mr Gaffney's premises when contacted by the police. He arrived at about 12.25pm and commenced cleaning the bedroom. He discovered the knife in the bedroom shortly after and immediately informed Murphy. He recommenced cleaning the bedroom after the knife had been photographed by McAlister and retrieved by Jackson. (13) Senior Constable Melinda Jennings (Jennings) 18 Jennings was the Duty Custody Officer at Wagga Wagga Police Station on 6 February 2003. At about 2.50pm she was introduced to the respondent in the charge room of the police station. She went through all relevant custody procedures with the respondent, which were recorded on the Custody Management Record. THE UNDISPUTED BACKGROUND FACTS 19 As indicated, the events giving rise to the respondent's claims occurred on 6 February 2003 at Wagga Wagga. The respondent was then 39 years of age and was a serial disqualified driver: he had been charged and convicted of that offence on at least five occasions. 20 During the morning of 6 February the respondent was observed by Briggs to be driving in a motor vehicle that was apparently unregistered. He made enquiries over the police radio and confirmed that the vehicle was in fact unregistered. He also learned that the respondent had been disqualified from driving. A pursuit then occurred through various streets of Wagga Wagga. 21 Eventually the respondent drove into a cul de sac followed by Briggs. He then alighted from his vehicle and ran off, discarding the thongs he had been wearing. Briggs chased the respondent on foot for a short time but then returned to his vehicle and called for assistance. A number of police officers responded to that call including Cox and McAlister. Cox then pursued the respondent on foot and ultimately caught him. The respondent struggled violently and managed to free himself by kicking Cox in the groin causing him extreme discomfort and pain. The respondent then ran off again. 22 It was a very hot day in Wagga Wagga, the respondent was barefoot at the time and his route involved climbing over a number of fences, some of which were made of uncut corrugated iron. As a consequence his feet and hands were cut and he left a trail of blood behind him. 23 Ultimately, the respondent entered the backyard of the Gaffney premises. He found the door to the family room unlocked and entered the house. None of the family was home at the time. The respondent left a blood trail to the house and on some plants in the backyard. The police tracked the blood trail he had left to the house. 24 According to the respondent, on entering the family room he turned right through the laundry and then left into the pantry. He then exited into a corner of the kitchen and proceeded through the door between the kitchen and the lounge room. He then crossed the lounge room and entered the bedroom belonging to one of the Gaffney children. Located against the western wall of that bedroom at approximately a metre or so from its northern wall and parallel to it was a single bed with a timber base and frame (the bed) under which the respondent attempted to hide. 25 By this time a significant number of police officers had joined in the pursuit and had congregated in the vicinity of the Gaffney house. One of them was Jackson who observed some "dirty foot marks" on the floor of the house and followed them into the bedroom where the respondent was hiding under the bed. Having inspected the room Jackson eventually looked under the bed where he located the respondent. It is at this point that the facts become controversial. 26 It is appropriate to deal separately with the controversial facts and submissions with respect to each of the causes of action. We shall deal first with the assault cause of action as it essentially only involves Jackson, whereas the malicious prosecution cause of action, except possibly with respect to one evidentiary matter, does not involve Jackson but does involve Briggs. THE ASSAULT CAUSE OF ACTION (1) The respondent's version of events 27 Having entered the bedroom in question and having seen the bed, the respondent placed himself under or parallel with it. He lay mainly on his back but also slightly on his right side. From this position he saw the feet and legs of Jackson as he entered the room. Jackson crouched and looked under the bed and, having seen the respondent, said "Get out. Get out from under the bed or I'll lodge two bullets in your head". At the hearing of the charges against the respondent in the Local Court in Wagga Wagga on 23 March 2004, this evidence of the respondent was challenged. But he confirmed that Jackson threatened him as alleged. Oddly enough the respondent was not challenged on this evidence before the primary judge as to what Jackson said to him on discovering him under the bed: (cf Black 1/288 U-V; 289 R-U; 290 L-M). 28 There was no response from the respondent who remained under the bed. Jackson then stood up and the respondent observed him grab the side of the bed and pull or drag it away from the northern wall of the bedroom. Jackson then tipped or tilted the bed over on its side. As the respondent was no longer hidden, after a couple of seconds he stood up in the space between the bed and the northern wall. He was then standing mid-way along the bed which was still on its side, with the bed between himself and Jackson who then sprayed the respondent in the face with capsicum spray. The respondent raised his right arm to rub his eyes and stop the burning sensation caused by the spray. Jackson then reached for and drew out his police baton and struck the respondent on his right forearm causing immediate pain. 29 Jackson again struck the respondent's right arm whereupon the respondent dropped his arm. Jackson then struck the respondent's right cheekbone with his baton making him "a bit dazey, like a bit drowsy". The respondent felt blood running down his face and feared for his life. He then said to Jackson "Don't hit me any more", but the assault continued. 30 The following exchange then took place (at Black 1/50V-X): "Q. Are you able to say how many times he hit you about the face? A. It was more than twice, sir. Q. Are you able to say how many more than twice? A. No. There was several times, sir." 31 Eventually Jackson ceased hitting the respondent who then walked towards and around the foot of the bed. As he did so Jackson came towards him and struck him around the legs with his baton. At no time during the assault by Jackson was the bed moved. It remained on its side. 32 In cross-examination when shown the photograph of the bed on its side taken by McAlister (at Blue 1/211) (on page 192 of the Tender Bundle and identified by that number in the transcript), the respondent agreed that that was the bed's position whilst he was being struck by Jackson with his baton. It is to be noted from this photograph that the legs of the bed are pointing into the room, towards the southern wall and away from the northern wall. At no time after initially telling the respondent to "Get out. Get out from under the bed or I'll lodge two bullets in your head", did Jackson say anything to the respondent. 33 After Jackson hit the respondent around the legs with his baton, other police officers entered the room. They yelled at the respondent to "get down on the ground, get down on the ground". One of those officers was a policewoman, Constable Philpott. The respondent was then picked up and thrown onto the floor with his arms under his chest. His arms were then pulled from underneath him and he was handcuffed, pulled from the floor, taken from the house through the kitchen, placed in the back of a police van and conveyed to Wagga Wagga Police Station. He was then taken to hospital. 34 In cross-examination the respondent maintained the version of events he had given in chief in that he (a) denied that Jackson hit him on the left arm with his baton ( Black 1/326N-P ); (b) accepted the evidence that he had given on another occasion, that after he was hit in the face he simply stood there in a daze ( Black 1/330B-C ); (c) ultimately accepted that Jackson had hit him more than twice in the face with his baton using a criss-cross swing but only on the right hand side of his face ( Black 1/333C-H ); (d) maintained that when he first stood up to face Jackson, and before he was struck by him, he had blood running down his face from having run his bleeding hands through his hair ( Black 1/335U-336J ); (e) denied that after he stood up there was any pushing or shoving of the bed between he and Jackson ( Black 1/346H ); (f) denied that when he first saw Jackson looking at him under the bed, he flipped the bed over onto its side so that the mattress fell on the officer who then threw the mattress and bed back towards him so that the bed ended up on its side with the mattress side facing the northern wall of the bedroom and with the mattress behind the respondent leaning against that wall ( Black 1/385J-Q ). 35 It will be apparent from the respondent's version of events that first, he was discovered under the bed by Jackson who then threatened him; second, not having responded to Jackson's request to come out from under the bed, Jackson dragged the bed further out from its location parallel to the northern wall of the bedroom and tipped it on its side so that the bed's legs faced into the room thereby exposing the respondent; third, thereupon the respondent stood up and faced Jackson; fourth, Jackson then sprayed the respondent's face with capsicum spray, pulled out his baton and while the respondent was rubbing his eyes struck him twice on his right forearm; fifth, when the respondent dropped his right arm Jackson then struck him on the right side of his face causing excessive bleeding; sixth, unprovoked by the respondent, Jackson continued to strike him on the right side of his face with his baton more than twice and, after the respondent walked to the foot of the bed and around to the other side, Jackson then struck his legs. 36 Thus on the respondent's version of events it would appear that he responded to Jackson passively as a consequence whereof the latter's assault on him was entirely unprovoked apart from the respondent's initial failure to get out from under the bed when first directed by Jackson to do so. He did not pose a threat to Jackson who could not have been in fear of him. The respondent was, on his own case, submissive and generally mute, unflinching and took no active measures (such as ducking) to protect himself from blows from the baton which caused him to fear for his life: (Black 1/50R-S; 329Z-330C). However, according to his evidence at the Local Court hearing in March 2004, when being repeatedly struck by the baton he "kept screaming out, 'don't hit me no more' " (Blue 2/69G-H). (2) Jackson's version of events 37 Jackson's version of events as related in his evidence-in-chief could not be more different to that of the respondent. Upon entering the room and failing to see the respondent, Jackson knelt down on his hands and knees to check under the bed. In this context the evidence established that the distance between the floor and the underside of the bed frame was only 220mm (which converts to the old imperial measure of 8.66 inches). Accordingly, Jackson's chest was almost touching the floor. 38 Having seen a pair of feet, Jackson said "Police" whereupon the bed was tilted up towards him and he observed the mattress coming up and then falling on top of him. The bed was therefore tipped through 90 degrees so that its left side lay upon the floor with the consequence that the foot of the bed faced towards the northern wall of the bedroom, which is the opposite direction to that depicted in the photograph at Blue 1/211. This evidence, as we shall later discuss in detail (at [60]), conflicts with the earlier evidence Jackson had given. 39 After the bedcovers and the mattress fell upon him, Jackson kicked and pushed the mattress away. He then took hold of the bottom rail of the bed at or about its midpoint with his left hand (which he was able to grip as the edge of the frame was clear of the floor due to the size of the bedposts which protruded from the side of the bed frame). At the same time he took hold of the corner of the mattress with his right hand. He then basically stood up, threw the mattress with his right hand and threw the bed away from him and towards the northern wall of the room with his left hand. At this time the respondent was still lying on the floor in a prone position. The effect of Jackson's actions was that the bed frame was temporarily clear of the floor at about waist height. The bed then landed on its side near the wall having been flipped (to use Jackson's expression) by him through 180 degrees. The mattress followed the bed frame and came to rest on its side against the northern wall. 40 Thereupon the respondent "pops up from behind the bed" (at Black 2/596U) and was observed by Jackson to be bleeding from his nose and from a small injury to his right cheek. In the result, the respondent and Jackson were facing each other with only the bed frame between them (according to the latter), the mattress having landed against the wall behind the respondent. We pause to observe that during his cross-examination the respondent maintained that when Jackson flipped the bed over towards him, the mattress remained generally on the bed although the top of it tilted towards him. The respondent then pushed it back into place so that when he stood up and faced Jackson both the bed frame and the mattress were between them. 41 After the respondent stood up, Jackson told him to get on the ground and that he was under arrest. He reached for his radio to call for assistance, but was unable to find it. The respondent then raised the end of the bed and pushed it towards Jackson. One leg of the bed struck him in the right shin causing some pain. The respondent "growled" aggressively at Jackson and again pushed the bed towards him. The two men then pushed the bed at each other a number of times. Jackson then drew his can of capsicum spray and directed its contents towards the respondent's eyes. On being sprayed the respondent again pushed the bed towards Jackson, who in turn pushed it back. He again employed his capsicum spray on the respondent until the can was empty. 42 As the capsicum spray did not subdue the respondent, Jackson then drew his police baton and struck the respondent first on his left arm and then on his right arm in a criss-cross movement or, to employ a tennis analogy, first with a forehand stroke and then a backhand stroke. We interpose that although as we have noted at [34(a)] above, the respondent denied that he was struck on the left arm by Jackson's baton, it was clear from the injuries that he sustained that he was so struck. This was confirmed by the medical evidence to the effect that he sustained a severe injury to his left arm. Jackson denied striking the respondent on the face. 43 The respondent continued pushing the bed towards Jackson who, when he was able, directed a downward blow with his baton to the respondent's legs. He continued to yell at the respondent that he was under arrest. Jackson retreated as he was suffering from the effects of the capsicum spray and the respondent advanced with his hands in a boxer's stance and challenged Jackson to a fight. Jackson repeatedly yelled to him "Police, you're under arrest, get on the ground". 44 At about that time Philpott entered the room followed by other police officers who then arrested the respondent in the manner already referred to. Although Philpott gave an account of what happened when she entered the room, her Honour noted (at [49]), and the contrary was not suggested on the appeal, that her evidence cast only a dim light on the central events and that what was at issue was who had assaulted whom. We shall at this point defer referring to Jackson's evidence in cross-examination. (3) The primary judge's summary of the competing accounts 45 The primary judge summarised the competing accounts in the following terms: "50. On the [respondent's] account, it was Constable Jackson who dragged the bed from above the plaintiff and tipped it on its side, sprayed him with capsicum spray, and, without adequate cause, struck him to the arms, face and legs with his police baton. The [respondent] denied that there had been any pushing or pulling of the bed by him after it had been turned on its side. 51. On Constable Jackson's account, it was the [respondent] who raised the bed, tilted it until it stood on its side, and then used it as a kind of weapon with which to attack Constable Jackson. By the time Constable Philpott arrived, the bed was on its side, and the two men were in confrontation, the plaintiff in a somewhat agitated state." 46 At [52] her Honour recognised that resolution of the events in the bedroom depended upon an analysis of the evidence given by the two central players. Hence, "... [the necessity for] the detailed scrutiny of their evidence on this and other occasions on which they have given evidence of these events." To these occasions we now turn. (4) The various occasions on which principal players had, prior to the trial, been called upon to give evidence or provide statements with respect to the relevant events 47 Each of the respondent and Jackson gave sworn evidence as to the events in the bedroom on three occasions prior to the trial from which this appeal is brought. Relevant parts of the transcript of the evidence given by Jackson on those occasions were in evidence before her Honour. The first occasion was in the Local Court at Wagga Wagga upon the prosecution of the respondent on the 10 charges to which we have referred at [2] above and which included charges of assaulting Jackson and resisting Jackson in the execution of his duties. As we have indicated, those charges were laid against the respondent on 28 March 2003 and came on for hearing on 11 December 2003. On 24 March 2004 the Local Court Magistrate dismissed five of the ten charges including the charges of assault Jackson and resist arrest. 48 A complaint was made presumably, according to the primary judge at [23] of her reasons, by or on behalf of the respondent, about the conduct of Jackson to the Police Integrity Commission (PIC). The PIC conducted an inquiry, which proceeded over a number of days in February and March 2005. This was, therefore, the second occasion on which the respondent and Jackson gave evidence as to the events in the bedroom. The PIC delivered its report in December 2005. 49 The report resulted in Jackson being charged with assaulting the respondent. That charge was the subject of a hearing in the Local Court at Wagga Wagga in November 2007 and the first half of 2008. The respondent and Jackson gave evidence for a third time at this hearing as to the events in the bedroom. The charge was dismissed. 50 It is fair to say that there was no apparent inconsistency, or at least none was relied upon, between the respondent's evidence of his account of the events in question given before the primary judge and those accounts given by him on the three occasions to which we have referred. However the same cannot be said with respect to Jackson. He gave a number of accounts both curial and non-curial. Apart from the three occasions on which he gave sworn evidence, and leaving to one side the accounts he had given to other police officers at the scene, on his return to the police station on 6 February 2003 Jackson typed out a four page statement; later the same day he made a lengthy entry in his notebook and, on the following day (7 February 2003) he gave an account of what occurred in response to questions from the Critical Incident Investigation Team (CIIT). 51 In his cross-examination before the primary judge Jackson abandoned what were said to be critical parts of each of those versions. Those parts related to his assertions regarding the respondent's reaction when he, Jackson, in effect prostrated himself on the floor and discovered the respondent under the bed. (a) Reiteration of Jackson's version at trial 52 It will be recollected that according to Jackson's account of events before the primary judge, the respondent, on being discovered, tilted the bed up towards Jackson through 90 degrees so that its left side lay upon the ground whereupon the mattress (and bedcovers) fell on top of him. 53 At trial Jackson accepted that only the mattress fell upon him. He then kicked and pushed to get out from under it whereupon with his left hand he threw the bed (and with his right hand he threw the mattress) back towards the northern wall of the bedroom with the result that the bed revolved through 180 degrees and the mattress landed up against the wall. It was this aspect of Jackson's account before the primary judge that significantly differed from the versions that he had given on the previous occasions to which we have referred. (b) Jackson's police statement version 54 In his police statement of 6 February 2003 (at Blue 1/311M-P), after seeing the respondent's feet and saying "Police", Jackson stated: "Before I got the chance to say anything else, I saw the bed lift up in the air and it landed on me. I got tangled in the blankets. I felt weight on top of the bed and on top of me. I kicked the bed off me and got to my knees and stood up. I'd lost my portable radio. I saw a male jump up. I know this male to be the accused Alan Frederick Hathaway. I saw that the accused was bleeding from the nose and face." 55 Before the primary judge Jackson accepted in cross-examination that his statement " before I got the chance to say anything else I saw the bed lift up in the air and it landed on me " was wrong and was an assumption he had made. He had also assumed that not only was the mattress on top of him but also that there was someone on top of the mattress – an assumption he conceded to be erroneous. (c) Jackson's notebook entry 56 In his notebook entry of 6 February 2003 Jackson wrote "POI picked bed up and dumped it on me trying to pin me under it. I kicked bed off me and POI and bed hit wall." In cross-examination before her Honour, Jackson agreed that when he wrote the words " I kicked bed off me and POI and bed hit wall " he was proffering for those who might want to look at his notebook an explanation as to how the respondent might have been hurt. He agreed that the effect of what he had written suggested that the respondent's action had caused the bed to revolve 180°. He abandoned this version at trial. (d) Jackson's version to the Critical Incident Investigation Team (CIIT) 57 In his response to questions from the CIIT on 7 February 2003, Jackson stated that after he had seen the respondent's feet he, the respondent, "just kicked the bed up on top of me and he's pushing, I could feel him on top of the bed". He then said that he pushed the bed back up off him and pushed it against the [northern] wall [of the bedroom]. It was on its side. He said that he basically kicked the bed off him using his hands and feet. At trial under cross-examination he abandoned this part of his account, namely, that the bed was thrown on top of him by the respondent and that he could feel the respondent on top of the bed. He also abandoned his answer that he had pushed the bed back up off him and had pushed it against the wall. (e) Jackson's version at the respondent's prosecution 58 At the hearing of the charges of assault against the respondent in the Local Court at Wagga Wagga on 11 December 2003, Jackson gave the following evidence: "Q. Now can you describe to the Court as best you recall what happened from the moment you say the words 'Police' in the bedroom? A. Well as I saw the feet under the bed, I said, 'Police', and the next thing I knew the bed was on top of me. I could feel the weight of the bed on me and I also could feel something else on top of the bed. … Q. Suddenly it becomes airborne and lands on top of you? A. Yes. Q. Wrong side up? A. Yes. … Q. And as far as you know that's done by this man here, Mr Hathaway? A. Yes. Q. He propels the bed up and over on top of you? A. Yes." 59 Again he said that due to the weight of the bed on top of him he assumed that the respondent was on top of the bed. He said he knew the bed was on top of him and he could feel some weight on top of it. He then kicked the bed off him towards the [northern] wall of the bedroom. This version was also abandoned before the primary judge, Jackson accepting that it was only the mattress and not the bed that fell on him. He also accepted that he did not kick the bed off him but only the mattress. (f) Jackson's version to the Police Integrity Commission 60 In his evidence before the PIC on 21 February 2005 Jackson maintained that the respondent had thrown the bed so that it landed on top of him, a manoeuvre that would have required the bed to revolve through 180 degrees. Further, he maintained that he had thrown the bed back towards the northern wall so that it ended up as shown in the photograph at Blue 1/211, a manoeuvre that would have required the bed to revolve through 270 degrees. 61 The following exchange took place: "A. Well, when I was in the room and the bed first got thrown onto me, I couldn't see the defendant at that time. I lifted the bed off me and threw it back. Now, I don't know whether those injuries were caused at that stage or the defendant had the injuries before he went into the room, so that's why I have to answer yes to your question, because it is so broad. Q. So you put forward two possibilities, do you? One is that when you threw the bed off you, which you say was placed upon you by Mr Hathaway - - A. Yes. Q. - - it caused those injuries to his face? A. Well, I can't be sure about that, but that is a possibility. … Q. Is this your position, that you are prepared to deny on your oath that you, in any way, inflicted those injuries upon Mr Hathaway unless it was accidentally by thrusting the bed off yourself? A. Yes. … Q. Somehow he manages to push the bed up into the air and over onto you; is that right? A. Approximately, yes. Q. Then what do you do? A. I lifted it back up and flipped it over. Q. Flipped it over? A. So it landed that way. (Indicating) … The Commissioner: Q. On its side? A. On its side, yes. Mr Rushton: Q. Like that? (Indicating) A. Yes Q. What did you do then? A. I basically stood up – or jumped up and the defendant jumped up as well and we were facing each other from each side of the bed and that's when he picked it up and pushed it back onto me. … Q. And you push it up back towards the wall? A. Yes. I pick it – I lift it up and flip it back towards the wall so it goes – travels over. Q. So you flip it and it does a spin; is that what you say? A. Yes. 62 Although he agreed at the PIC hearing (Blue 1/409I-L) that this was the first time that he had given evidence that the bed had revolved through 270 degrees, and that he had not given that evidence before the Local Court in December 2003, this was not strictly the case. Before the Local Court he had described a scenario (at Blue 1/333G-U) that required the bed to have revolved through 270 degrees so that its legs now pointed away from the northern wall: "Q. So which way did you throw the bed? A. Just kicked it straight up off me towards the wall. Q. And which way, in terms of the bed's orientation, did it land? A. On its side. … Q. So which side of the bed were you on in terms of the orientation of the bed? The bottom side or the top side? A. I believe I may have been on the bottom side. I was more focused on the accused at that time." In any event Jackson abandoned this version of events before her Honour. 63 In his evidence to the PIC on 22 February 2005 (Blue 1/405) Jackson retreated from his 2003 evidence that the respondent was on top of the bed when it landed on him: "Q. And the mattress dislodged and came down on top of you? A. Yes – well, I don't know if it dislodged, but the mattress was on top of me and then the bed was on top of the mattress. Q. Was the mattress covering your head? A. It was on top of me, yes. … Q. That would suggest that if it was coming down on top of you, the mattress had in fact dislodged itself from the base of the bed, wouldn't you agree? A. Yes, probably. Q. If, indeed, the bed was in the same condition as we have seen it today and Mr Hathaway was on top of it, as you say he was, then those slats would have been dislodged out of the bed, too, wouldn't they? A. More than likely, yes. Q. Well, how is it that they ended up like that? A. Well, the obvious answer is that Mr Hathaway probably wasn't on the bed at the time when I picked it up. Q. I thought you told us that he was on the bed and you threw him off? A. Well, I believed that was the case, but that scenario you have just put to me there, thinking about it, obviously he wasn't, then." 64 Nevertheless, the difficulty Jackson faced with respect to his earlier evidence was twofold. First, if accepted, it involved the respondent in a prone position under the bed with very little clearance between the bed frame and the floor, levering the bed up and over through 180 degrees. His version of events at trial, that the bed was turned only through 90 degrees, seems more plausible. Second, if the bed was in fact on top of him, then for it to eventually have come to rest in the manner depicted in the photographs, i.e. on its side with its legs facing into the room and away from the northern wall, Jackson would have had to have thrown it through 270 degrees. As the bed and mattress weighed some 74 kilograms, and even accepting that Jackson was a strong individual, flipping or throwing the bed through only 180 degrees, his ultimate position at trial, seems more realistic. (g) Jackson's version at his own trial 65 The difficulties referred to were apparently realised by Jackson as he was preparing his defence to the charge of assaulting the respondent that arose out of the PIC inquiry. As her Honour acknowledged at [104], it was the investigator retained by his solicitor who suggested to Jackson that it was unlikely, if not impossible, for the events to have occurred as he had initially described them, this being a reference to the bed being on top of Jackson and he having then thrown it through 270 degrees. It apparently became clear to Jackson that first, the respondent could not from his prone position have thrown or flipped the bed through 180 degrees; and, second, that it was the mattress which was on top of him and not the bed frame itself, he having realised that the mattress itself was of substantial weight. If the respondent had only flipped the bed through 90 degrees, then Jackson would have had to return the bed through 180 degrees for it to have ended up in the position depicted in the photographs. 66 At his own trial in April 2008 Jackson gave evidence that he saw the bed lift up and land on top of him. However, on this occasion he said that he had given the matter further thought and now believed that he had been in error, that the bed had only been tilted through 90 degrees and that it was only the mattress that had come off the bed and landed on top of him. He also said that he had lifted the mattress (presumably with his right hand) and grabbed hold of the side of the bed frame with his left hand. He had then thrown the mattress towards the northern wall of the bedroom and flipped the bed over through 180 degrees. After the bed came to rest on its side, the respondent "popped up from behind the bed" whereupon Jackson noticed that he was bleeding from both his nose and somewhere under his right eye. Importantly, he said that the only thing between himself and the respondent was the bed as the mattress was behind the respondent against the wall, evidence which he repeated before the primary judge. (5) The primary judge's findings with respect to the credit of the respondent 67 The credit of both the respondent and Jackson was very much an issue before the primary judge. As her Honour recorded (at [53]), two principal bases were advanced as to why she should reject the respondent's version of events: first, because it was "inherently implausible" and, second, the details thereof were "highly improbable". 68 Her Honour commenced her consideration of the credit of the two main witnesses by observing that first (at [56]), each participant must have been under considerable pressure and threat and in a heightened state of anxiety which would not have been conducive to accurate recall of fine detail and, second (at [57]), as each of the respondent and Jackson had given their account of the events in question on at least four occasions prior to giving evidence in the proceedings, their recollection of the events had been contaminated by the repeated questioning to which each had been subjected on those previous occasions. In fact, her Honour noted that Jackson had acknowledged and, indeed, had claimed that his recollection had been altered (and improved) with the assistance of an investigator (see [65] above) and that his recollection had been "contaminated" by repeated examination and cross-examination of the events in question over a lengthy period of time. 69 Her Honour therefore concluded (at [59]) that: "While the central facts of which the two principal witnesses speak are of fundamental importance in the resolution of the conflict, generally speaking, I find (other than as I hereafter mention) that the minutiae is of little assistance." 70 Her Honour then turned to the credit of the respondent noting (at [58]) that he did not handle cross-examination well, was highly excitable and at times was aggressive or combative. Nevertheless, she did not on the whole form the impression that the respondent set out deliberately to lie or to mislead the court (at [60]). On the contrary, she formed the impression and accepted that his thinking concerning the events was somewhat disordered and was possibly coloured by his initial fear of arrest by Briggs, then of apprehension by Cox and then of the events in the bedroom - whichever version was ultimately accepted. 71 The primary judge acknowledged (at [61]) that the matters to which she had referred impacted upon the respondent's reliability and the weight to be attributed to his evidence. However, with one exception which she regarded as marginally peripheral, she did not find the respondent to be a deliberate fabricator. 72 The exception referred to related to the respondent's denial of his past use of drugs and, in particular, heroin. On the evidence her Honour found (at [71]) that he had used heroin in the past although there was no evidence that he was using that drug in February 2003 so that, strictly, "his past use of heroin is only of marginal relevance". Notwithstanding this comment, she considered that her finding that the respondent had lied about his use of heroin did have a significant impact on the assessment of his credibility and (at [72]) that it was necessary to bear that finding in mind in evaluating his credibility with respect to his account of the critical events in the bedroom. 73 Notwithstanding the detailed attack both in cross-examination and in submissions upon the credit of the respondent, her Honour indicated (at [73]) that she did not propose to "analyse nor even refer to the whole of the evidence, or argument in this respect." She noted, however, that the respondent's Senior Counsel accepted that his client was an unsatisfactory witness whose evidence called for careful examination and, indeed, scepticism. She further observed that it was expressly acknowledged that on the various occasions on which the respondent had given evidence regarding the events in question, he had given a number of " wildly inconsistent " statements. If this be so, we were not directed to those statements on the appeal. 74 Her Honour then dealt with some of the matters that had been specifically raised as bearing adversely on the assessment of the respondent's credibility all of which concerned what the respondent had or had not said to various people in the time of and during the aftermath of his arrest. In this respect the appellant submitted at trial, and repeated on the appeal, that one of the most telling matters which militated against accepting the respondent's version of events was the fact that he had made no complaint that he had been struck on the face by Jackson with his baton. 75 At [76]–[80] of her judgment the primary judge detailed five instances where, immediately following his arrest, the respondent had had the opportunity to complain that he had been assaulted by Jackson but had not. However, at [81] her Honour considered that she was not prepared to draw any inference from the failure of the respondent to complain on any of those occasions. She said (at [82]): "I certainly would not expect him to hope to gain any comfort from complaining to Detective Briggs and Detective James after his arrest at the Local Court; I similarly would not have expected him to complain to the officers at the police station immediately after the arrest of 6 February. Nor, if it is the fact, do I make any findings adverse to the [respondent's] credibility by his failure to complain either to Dr McDonagh or to doctors at the Albury Hospital. Indeed, I cannot be sure that he did not; but if he did not, it is, in my view, of little or no significance." 76 The primary judge then referred to a later occasion when the respondent had had the opportunity to refer to these assaults but had indicated that he had no recollection of what had occurred. The occasion was at his examination by Dr Clark on 27 October 2003. In her report of 29 October 2003, Dr Clark wrote: "In relation to the incident in February 2003, Mr Hathaway indicated that he had no recollection of the events." 77 At [86] her Honour noted that the respondent had had a consultation with Mr Templeton, a psychologist, on 24 December 2003. Mr Templeton's record of that consultation included the following: "Previously no memory of events with police – now recalls the [sic] definitely [sic] hit me more than twice." However, the previous day Mr Templeton had recorded: "States he now recalls police definitely [sic] hit him more than twice during his arrest, however, continues to remember little else of the alleged assault by police." 78 The primary judge also referred to the respondent's admission to Wagga Wagga Hospital on 17 July 2003 and to the hospital notes which recorded "alleged police assault six months ago"; "flashbacks of attack, fear further police violence" and of his stating "…problems all began after alleged 'bashing by cops' ". The record also noted that the respondent had said: "He was under influence of drugs and can't remember incident detail but claims bashed by batons". 79 Her Honour then concluded her findings with respect to the respondent's credibility in the following terms: "91. I think I have said quite enough to demonstrate that the assessment of what happened in the bedroom on 6 February must be made without resort to external circumstances relevant to the [respondent's] credibility. On the one hand, as was conceded, there are real issues concerning his credibility; on the other, there are internal indicators of consistency in his account. In particular, I find his relatively early claims of assault to health professionals, in circumstances where he could not have anticipated that these would be used to support his credibility, persuasive. Even more persuasive are what I would regard as his spontaneous complaint of flashbacks and a fear of police. I do not find his (limited) claims of little or no recollection of assistance: I attribute that to the [respondent's] defensive and self-protective personality. Of particular importance in this context is his refusal to disclose to Dr Clarke information about his family, or his educational background." (6) The primary judge's findings with respect to the credit of Jackson 80 We have already referred at [68] above to her Honour's observation that, amongst other things, Jackson had voluntarily acknowledged that his recollection of the events in question had been "contaminated" by repeated examination and cross-examination relating to the events of 6 February 2003. At [95]-[103] she recorded the various accounts given by Jackson of the events in question. She noted (at [100]) that in cross-examination Jackson agreed that portions of his versions of the events contained in both his statement and notebook made on 6 February 2003 were incorrect and misleading. 81 At [103] her Honour remarked that it was during the course of cross-examination on the various versions he had previously given, that Jackson explained how he had arrived at his current version as related in his evidence-in-chief, namely, that it was the investigator engaged by his solicitor when preparing for his defence of assaulting the respondent, who suggested to him that it was unlikely, if not impossible, that the events had occurred as he had initially described them. At [104] she commented that it was not clear to her why this was so although it may have had something to do with reconciling Jackson's description of what happened with the photographic evidence obtained by McAlister. 82 The primary judge did not however make any express finding as to Jackson's credit or as to the reliability of his evidence as a consequence of the various versions of events which he had given and aspects of which he had, in cross-examination at trial, abandoned. Rather, at [107]–[108] she returned to the "bare essentials of the accounts given by" the respondent and Jackson in apparent addition to what she had written at [50] and [51] of her reasons (extracted at [45] above). She described them in the following terms: "107. The [respondent]'s account was that he was lying, partly on his side, under the bed when Constable Jackson entered the room and looked under the bed and then stood up. Constable Jackson then took hold of the side of the bed, dragged it out (from the northern to the southern walls of the room), and tipped it on its side. The mattress may have fallen a little towards him. He was then sprayed with capsicum spray and struck with the baton. 108. Constable Jackson's account was that, after entering the room, he crouched and looked under the bed where he saw the [respondent]. The next thing he knew was that the bed tilted up towards him, the mattress came over and fell on him. The bed tipped 90 degrees and came to rest with its left side lying on the floor." 83 Her Honour then referred at [109] to the photographs that had been taken by McAlister depicting the bed on its side with its legs facing towards the southern wall of the bedroom. In particular she noted that the mattress was leaning against the upper side of the bed and the lower end of the mattress had slid out and become separated from the base and lay at an angle to the bed. (7) The primary judge's reasoning in accepting the version of events advanced by the respondent 84 At [92] the primary judge summarised eight separate reasons or circumstances advanced by the appellant in support of its submission that it was circumstantially implausible that the events occurred as described by the respondent. It was not suggested that her Honour's summary of those contentions was erroneous and we therefore set them out verbatim: ■ "that Constable Jackson was not significantly involved in the pursuit initially, he had no grudge against the plaintiff, and, in the circumstances of the pursuit, had no time to acquire any motive for a violent assault; ■ the likelihood that the plaintiff would make immediate complaint of any treatment as described; ■ Constable Jackson's inability to predict the plaintiff's lack of credibility, or that he would not immediately complain; and that the likelihood was that such an injury would trigger a critical incident investigation by other police; ■ the likely presence of lay observers as witnesses to the altercation; ■ the likely immediate or unpredictable arrival of other police officers; ■ that Constable Jackson could have no expectation of, and no capacity to predict, co-operation in any misdeeds by him by other police officers; ■ that Constable Jackson lacked any ability to predict the absence of forensic examination; ■ that to conduct himself as the plaintiff alleged was threatening both to Constable Jackson's career and liberty." 85 Her Honour's response to these submissions (at [93]) was that she found them unpersuasive. In general, she said, they proceeded on the erroneous basis that Jackson had taken the time to stop and think through the possible implications of any assault or that he would, prior to engaging in such conduct, take the time and have the reasoning capacity to undertake the analysis which the appellant had advanced. She considered it unrealistic to suggest that Jackson would not have assaulted the respondent because he would have recognised that later forensic examination might implicate him or that the assault might threaten his career or liberty. Such a proposition belied the reality of what occurred, even on the appellant's case. 86 Her Honour did not explain this last statement. On Jackson's version of events, the only assault that he committed was striking the respondent with his baton on his arms and, later, on his legs, in circumstances where the respondent had failed to heed his direction that he get on the ground because he was under arrest and was aggressively pushing the bed against him. Why such conduct might threaten Jackson's career or liberty is not self-evident. 87 Her Honour then referred (at [93]) to Briggs' call for assistance and the converging of a number of police officers at the corner of Kincaid and Simmonds Street. She had "… no doubt that the chase gave rise to heightened excitement and the rush of adrenalin in some if not all of the police officers involved." She then continued: "It is not beyond possibility that Constable Jackson, finding himself the first to come across the [respondent] in a position where he could be captured, experienced such an adrenalin rush, and even fear, sufficient to cause his judgment to be impaired. It cannot be correct that he had no time to acquire a motive for a violent assault – such an assault could, rationally, be entirely reactive. Nor is it realistic to suggest that he would have recognised the likelihood that the [respondent] would immediately complain to other police officers or to others." 88 As we have observed, the primary judge made only limited reference to the appellant's submissions at trial as to the circumstantial implausibility of the respondent's version of events. Further, she considered (at [59]) that, except to the limited extent mentioned, the minutiae of the evidence of the two central witnesses was "of little assistance". She then dismissed (at [94]) those minutiae (being presumably the eight matters advanced by the appellant summarised by her Honour at [92] of her judgment (see [84] above)) on the basis that she considered them to be "too clinical", in that they did "not even pay lip service to the possibility that … Jackson acted spontaneously, whether or not out of fear, excitement, or some other motivating factor." 89 The primary judge thus considered that the respondent's version of what occurred was more likely to be correct. She supported that conclusion (at [111]) with the following five reasons: "(i) the direction in which the bed is facing is consistent with its having been lifted from the southern side of the room, the side on which Constable Jackson was. It is quite inconsistent with having been lifted or tilted from where the plaintiff was; (ii) the position of the mattress: it is still substantially in place. On Constable Jackson's version, the mattress had completely separated from the bed and had landed against the wall; (iii) it is unlikely that, from under the bed where he was, the plaintiff could have obtained sufficient purchase to raise and push the bed as Constable Jackson described. On Constable Jackson's version, it will be remembered; the bed was, initially, airborne. In this respect, one piece of Constable Jackson's evidence is significant. He said that he saw the bed tilt and he was buried under the mattress before he saw the plaintiff. In fact, he said that it was after the bed had come to rest on the floor that the plaintiff 'pops up from behind the bed'. That would mean that, from his position secreted under the bed, the plaintiff managed to raise sufficient leverage to lift the bed, to make it airborne, to such an extent that the mattress separated completely from it. That is improbable, almost to the point of impossibility. It is far more likely that the bed was lifted from Constable Jackson's side of the room, and tilted towards the plaintiff; (iv) if the mattress slipped from the base as depicted in the photograph, it would scarcely have been possible for the plaintiff to push the bed, repeatedly, as described by Constable Jackson; (v) finally, if the bed had been tilted as described by Constable Jackson, it could be expected to have come to rest on its other side, with its upper side facing towards the southern, not the northern, wall." (8) The issues on the appeal with respect to the assault cause of action 90 The Notice of Appeal set out 11 grounds of appeal in relation to the findings of the primary judge on the assault cause of action. However, the appellant's written submissions appeared to consolidate a number of those grounds so that there were essentially five grounds of appeal. We will address each of those grounds in turn. (a) The movement and position of the bed 91 The appellant submitted that the primary judge had misunderstood and in any event failed to properly address Jackson's evidence relating to the movement and position of the bed. This issue essentially turned on the correctness of her Honour's reasons for accepting the respondent's version as to the movement of the bed encapsulated at [111] of her reasons and recorded at [89] above. 92 In our respectful opinion all five matters relied upon by her Honour at [111] are flawed. Before dealing with them in detail, we observe that each of those reasons related to her Honour's acceptance of the respondent's version of what occurred with the bed: they did not purport to relate to any acceptance by her Honour of the respondent's evidence regarding the use of the baton on his face. The only reasoning of her Honour relating to that aspect of the matter was her response at [93] and [94] to the eight circumstances summarised by her at [92] as indicating "circumstantial implausibility" that Jackson would have so struck the respondent: see [84]-[86] above. Nevertheless, what happened with the bed was relevant to how the respondent sustained the injuries to his face, a matter to which we shall return below. Suffice it to say at this point that her Honour did not expressly link her acceptance of the respondent's version of what happened with the bed to those injuries. 93 We return to each of the five reasons upon which her Honour relied dealing with them seriatim: (i) So far as it goes, her Honour's observation as to the direction the bed was facing was correct. But it assumes the correctness of the respondent's evidence that it was Jackson who pulled the bed towards him and then tilted it onto its side through 90 degrees so that the legs of the bed faced towards the southern wall of the bedroom. However the direction in which the bed came to rest was equally consistent with Jackson's version that it was the respondent who first tipped the bed towards him so that the mattress fell upon him and that he then flipped or threw the bed through an arc of 180 degrees in the manner described in his evidence. The point with respect to this first reason is that her Honour simply ignored Jackson's evidence on this issue. (ii) It is clear from her Honour's description at [109] of the position of the mattress to which we have referred at [83] above, that the position of the mattress to which her Honour refers at [111] is based upon the photograph of the bed at Blue 1/211 (a clearer version is at Blue 2/973 ) which was taken after McAlister had been recalled to the premises by Inspector Murphy to take further photographs of the room which by then had been disturbed by cleaners engaged by Murphy (a matter relevant to the malicious prosecution cause of action). However, the relevant photograph of the bed at the time of the respondent's arrest was that at Blue 1/185 (a clearer version of which is at Blue 2/943 and 944 ). If one looks at that photograph the mattress is in a different position to that depicted in the photograph at Blue 1/211 . The point made by the appellant with respect to her Honour's reference to the wrong photograph, was that at the time of the respondent's arrest the mattress was depicted in the correct photograph as leaning against the northern wall of the room at an angle with its lower end touching the base of the bed and its upper end in all probability in contact with the northern wall. What is to be made of this is problematic. The respondent's evidence in cross-examination (at Black 1/303T-304W) was that when he stood up the mattress was tilted towards him and that he pushed it back towards the base of the bed so that he could stand up properly. When shown the photograph at Blue 1/211 (which was taken on the second occasion that McAlister returned to the house to take photographs) he denied that the bottom of the mattress was as far from the base of the bed as is depicted in the photograph. On the other hand, as her Honour correctly stated at [111(ii)], Jackson maintained that the mattress had completely separated from the bed and landed against the wall and that when the respondent stood up and faced him, the mattress was between the respondent and the northern wall, that is, behind the respondent rather than, as the respondent maintained, in front of him. Therefore, we do not regard the position of the mattress, if one takes the correct photograph, as pointing in one direction or another with respect to which version of the movement of the bed is to be accepted as the more probable. (iii) Her Honour's observations in this subparagraph are based upon a version of what occurred given by Jackson on earlier occasions and which he abandoned when he gave his evidence-in-chief at trial. It would appear that her Honour's reference to the bed being " airborne " is to Jackson's evidence on 11 December 2003 at the Local Court in Wagga Wagga and which we have extracted at [44] above. In his statement of 6 February 2003 (at Blue 1/311M ) Jackson stated that he saw " the bed lift up in the air ". In his evidence before the PIC (at Blue 1/363V–W ) he agreed that somehow the respondent had managed to push the bed " up into the air ". He recanted from that evidence at Black 2/644Y-645G . In the foregoing circumstances it is difficult to see the relevance or significance of her Honour's reference to earlier versions of Constable Jackson's evidence to which he no longer adhered. Nevertheless she considered that it was more likely that the bed was lifted from Jackson's side of the room and tilted towards the respondent given that it was improbable " almost to the point of impossibility " that from his position secreted under the bed the respondent managed to raise sufficient leverage "to lift the bed, to make it airborne, to such an extent that the mattress separated completely from it." However this was not Jackson's evidence. In his evidence at trial he did not suggest that the respondent got the bed airborne in the manner asserted. Rather, his evidence was that the respondent had tilted the bed towards him through 90 degrees as a consequence of which the mattress then fell on top of him as he was still on his hands and knees with his chest touching the floor being the position he adopted when he first looked under the bed. In our respectful view there was nothing improbable, let alone almost impossible, in the respondent, who himself was no weakling, raising his side of the bed to the point that it came to rest on its side having traversed an arc of only 90 degrees. The point we seek to make, however, is that in coming to the conclusions she did, her Honour appears to have ignored Jackson's evidence, particularly at Black 2/590V–591J . That evidence needed to be considered but was not. (iv) Again, the photograph to which her Honour is referring is not the one that was taken immediately after the respondent was arrested. In any event, even if on the basis of that photograph, the base of the mattress was no longer touching the base of the bed, it does not necessarily follow that " it would scarcely have been possible " for the pushing and shoving of the bed to have taken place as consistently described by Jackson in all versions of the relevant events which he had given and upon which he was not challenged. (v) This reason suffers from the same flaw as the first reason, namely, that her Honour has ignored Jackson's evidence at trial that he flipped the bed back through an arc of 180º. 94 In our respectful opinion, it follows from the foregoing that each of the five reasons upon which the primary judge relied for the purpose of accepting the respondent's version of the bed's movement is flawed. It follows that her ultimate finding at [113] that on the balance of probabilities the respondent's version of events should be accepted, should be rejected. 95 Nevertheless, although not articulated, acceptance of the respondent's version as to the movement of the bed had some relevance to the ultimate issue of whether Jackson struck the respondent in the face with his baton. This is because it was the appellant's case that in all probability the respondent's injuries were caused by his face coming into contact with the side rail of the bed when it was flipped or thrown back by Jackson in the manner that he described. Jackson acknowledged that this may have been the cause of the respondent's injuries when he wrote in his notebook the words "I kicked bed off me and POI and bed hit wall". At Black 2/660Q-U the following exchange took place: "Q. When you wrote 'I kick bed off me and POI and bed hit wall' you were proffering for those who might want to look at your notebook an explanation as to how he might have been hurt? A. Yes. Q. By hitting the wall? A. Yes. At that stage, I didn't know he was hurt. I knew he was injured." 96 Significantly, Exhibit A was a document recording that on a proper assessment of the medical evidence concerning the respondent's facial injuries, the parties agreed on the following relevant propositions: "A. Mr Hathaway suffered a single laceration 1.5 to 2cm in length to the underside of his right eye. B. Mr Hathaway suffered a comminuted fracture to right cheekbone and associated portions of the right upper jaw and eye socket. C. Hathaway's facial laceration and facial fracture injuries are typical of a low velocity blunt trauma such as a clash of heads, a blow to the face with a fist, an elbow, a knee, or a shoe, or a low velocity industrial accident. D. Similar injuries are consistent with blunt trauma associated with a fall or a low velocity impact with any hard surface, including a wooden bed frame or a baton. E. Mr Hathaway's facial laceration and fracture injuries can be caused by a single impact with or from any of the above. F. Mr Hathaway's facial laceration and facial fracture injuries are not necessarily probative of a blow from a baton. G. Mr Hathaway's facial laceration is probably the result of a single low velocity blunt trauma. H. Mr Hathaway's facial fractures are consistent with, but not probative of, one or more baton strikes to the right side of his face." 97 Propositions D to H (inclusive) are obviously of significance. However, they played no part in her Honour's reasoning process and she does not refer to them in her judgment. Nevertheless, they are significant for the following reasons. First, they establish that the respondent's facial injuries, including both the laceration and fracture injuries, could have been caused by a single impact from either a baton or the wooden bed frame. Second, the respondent's facial injuries, including the fracture, were typical of a low velocity blunt trauma or impact. A question therefore arose as to how, given the description by the respondent of the manner in which Jackson wielded his baton, the strike of the baton upon the right side of his face could be fairly described as one of "low velocity". In this respect at Black 1/327M-328F, the respondent agreed with the earlier evidence he had given that Jackson had flipped the baton out and had executed a "full swing" – "a big round arm swing". He agreed with the following evidence, which he had given on a previous occasion: "Q. The witness indicates taking his arm back behind his shoulder, and a full round arm swing at shoulder height, shoulder height with the baton coming across and -- A. To the face." 98 Furthermore, at Black 1/333H the following exchange occurred: "Q. They hit you [the criss-cross actions] hit you in exactly the same spot in the right hand side of the face? A. I don't know if they hit me in exactly the same spot or not. All I know is he kept smashing me on the right side of my face." The foregoing description by the respondent of the manner in which Jackson allegedly wielded his baton when striking the respondent's face was potentially inconsistent with the proposition that his injuries were caused by a low velocity impact. At the very least, it was a matter worthy of consideration by her Honour, but this did not occur. 99 The appellant also submitted that the bed had moved between the taking of the two sets of photographs by McAllister so that her Honour had erred in remarking (at [110]) that it was never suggested that the position of the bed as shown in the photographs (at Blue 1/211; Blue 2/973) was not the position that the bed was left in after the conclusion of the altercation between the two men. However, we do not regard this as a relevant error if such it be. 100 It may well be that the cleaners engaged by Murphy moved the bed between the taking of the two sets of photographs. In oral submissions Senior Counsel for the respondent accepted that the mattress did move between the taking of the two sets of photographs and that may have been of some relevance. But in our view whether or not the bed was moved at that time was neither a live nor relevant issue at trial. 101 In oral submissions, the respondent accepted that the complete version given by Jackson, and summarised by her Honour at [39], did not fully reappear at the critical passage of her reasons at [111] (Appeal Tpt 90). However, the respondent submitted that her Honour simply did not accept Jackson's ultimate version of what occurred and that she was entitled to do so given his earlier versions as to the movement of the bed that he "unconvincingly" later abandoned. 102 However, there are two aspects of Jackson's evidence in which he has been generally consistent at all times. The first is that whether through an arc of 90 degrees or 180 degrees, it was the respondent who had first "tilted" the bed upon being discovered and not Jackson. The second is that throughout all his versions, both curial and non-curial, Jackson consistently gave evidence as to the pushing and shoving of the bed between them after the respondent had stood up. Furthermore, Jackson was not challenged on his evidence that the pushing and shoving occurred, although the respondent consistently denied it in cross-examination. 103 In any event, while the primary judge was no doubt entitled to reject Jackson's ultimate version, she was required to give adequate reasons for so doing. The reasons she gave are set out at [111] of her judgment upon which we have already commented. Apart from those reasons, her Honour did not reject Jackson's ultimate version as to the movement of the bed upon the basis that he was not telling the truth. It was open to her Honour to find that he had explained the reason why he accepted that he was mistaken that the respondent had turned the bed through 180 degrees so that it ended up on top of him. It did not necessarily follow from that explanation that the version that he gave as to the movement of the bed in his evidence at trial should be rejected. Given that the bed's final position was consistent with the version of events advanced by both principal witnesses, the issue that her Honour was required to resolve was how that came about. 104 On one view of it one can well understand that having discovered the respondent under the bed, Jackson dragged the bed towards the southern wall so as to expose the respondent so that he was no longer underneath it. This could have been achieved without turning the bed on its side. 105 Equally, given the apparent desire of the respondent to avoid arrest once discovered, he had a motive to tip the bed towards Jackson so that the mattress fell on top of him, thus providing him with the possible opportunity to escape. 106 Whilst we accept that each of these matters involved a degree of inference, they are possibilities that the primary judge was required to consider in order to determine whether the respondent had proven that his version of events should be accepted on the balance of probabilities. (b) The improbability of the respondent's version of events 107 The second issue raised by the appellant was the improbability of the respondent's version of events. In essence, the appellant complained that the primary judge failed to make specific findings about critical aspects of the circumstances of the alleged assault and thus failed to address the inherent improbability of the respondent's account. 108 In particular, it was submitted that as the ultimate matter in contest on the assault cause of action was whether Jackson struck the respondent on the face with his baton thereby causing facial laceration and associated fractures, it was necessary for her Honour to evaluate the probability or otherwise of the respondent's evidence that he was injured by a series of unprovoked and repeated baton blows in circumstances where he was submissive, mute, uncomplaining, unflinching and took no measures of any kind to protect himself from the facial blows which he said he sustained. Given that the repeated facial blows ("more than twice") from a steel baton as alleged by the respondent caused a single facial laceration and fracture, her Honour was required to analyse and give careful consideration to the probabilities associated with the respondent's evidence which, it was submitted, she failed to do. For reasons that will become apparent, in our opinion there is merit in this submission. 109 It will be recollected that one circumstance advanced by the appellant at trial as indicating "circumstantial implausibility" that the events occurred as described by the respondent, was that to conduct himself as the respondent alleged was threatening both to Jackson's career and liberty (this being the last dot point at [92] of her Honour's judgment which we have extracted at [84] above). At paragraph 155 of its written submissions at trial, the appellant stated the following: "Still less could Senior Constable Jackson have been able to justify or explain a fatal baton blow. But Senior Counsel put to Jackson that "a baton to the head can be fatal, as you know". Jackson readily agreed. Indeed he professed at the least that if he had hit Hathaway even once in the head with a baton, it would have killed him. There is an undeniable credibility in that recognition by Jackson. Given Jackson's evident size, apparent strength and demonstrated facility with the use of a police baton, it is readily imaginable that he would deliver baton blows of considerable force." 110 The respondent's evidence in cross-examination was that Jackson was "smashing" him in the face and that he was "getting hit full force with a baton" (Black 1/331H-I). A few answers further on he said that Jackson "kept lifting the baton up, smashing me, lifting the baton up, smashing me". 111 Jackson's evidence in cross-examination at Black 2/670Q was that if he had hit the respondent once in the face he believed he would have killed him. Further, at Black 2/670 Jackson agreed that in the circumstances with which he was confronted on his version of events, there was no possible justification for him hitting the respondent about the face or head and that he knew that he was not permitted to strike a suspect around the face or head with his baton: it was a non-strike area "except in exigent [sic] circumstances". The significant conflict between this evidence of Jackson and that of the respondent referred to in the preceding paragraph required resolution. If her Honour considered, as she may have, that this conflict constituted no more than "minutiae" which was of "little assistance", then in our respectful view she was in error: its resolution was critical to her acceptance or rejection of whether the assault on the respondent's face by Jackson with his baton had taken place as the former alleged. 112 Allied to the foregoing was the respondent's evidence that he believed that Jackson hit him more than twice in the face using a criss-cross action with his baton (Black 1/333C), an action Jackson denied. At Black 1/330U–Z the respondent accepted that on his version of the events each of the baton blows directed by Jackson connected only with the right hand side of his face. The question immediately arises: if Jackson was holding the baton with his right hand, and given that the two men were standing face to face when he delivered the blow to the respondent's face as alleged, why was it that he did not strike him on the left hand side of his face as well? If he used a criss-cross action or, to utilise a tennis analogy, a forehand strike followed by a backhand strike, why was it only the backhand strike that connected with the right hand side of the respondent's face with the forehand strike missing the respondent's face entirely? This conundrum, although conceded by Senior Counsel for the respondent (at Appeal Tpt 131) as having been put at trial was not considered by her Honour. 113 Although it was submitted on the appeal that the failure of Jackson's baton to connect with the left side of the respondent's face was merely minutiae, we do not regard it as such. In our respectful opinion it was a not insignificant matter for her Honour to consider, which she failed to do. Furthermore, it is significant that she also failed to deal with the appellant's submission and Jackson's evidence that had he struck the respondent's face with his baton he would have killed him and that this constituted a realistic reason for Jackson not to have struck the respondent's face with his baton. 114 On the appeal the appellant also relied on the following exchange that took place during the cross-examination of Jackson at Black 2/815U-816J: "Q. I suggest that he got up from behind the bed and he was not bleeding from the face at all? A. That is incorrect. Q. I suggest that you then sprayed him with capsicum spray? A. Yes, I did. Q. And I suggest that as he put his hands up towards his face, you struck him about the arms? A. That's absolutely wrong. Q. And after his arms dropped down you struck him at least once with your baton? A. He said I broke his arm three times and that's a lie, absolute lie, fabrication. He said he put his hand up like this and I struck his arm here, breaking, struck his arm here and broke it, and struck his arm here and broke it and then it fell down (indicated). That is absolutely a lie. Q. I put [it] to you after his arm fell down you struck him at least once about the head with your baton? A. He said I struck him multiple times. Q. No, just listen to me. What I am putting to you is that you struck him at least once? A. No, absolutely, did not strike him to the facial area with my Police baton. Q. At all? A. At all." 115 This exchange occurred some 177 pages into the cross-examination of Jackson and was the first time that it was put to him that he had struck the respondent on the face with his baton. The appellant submitted that the exchange supported its submission that the respondent's description of the alleged assault was not credible on the ground that cross-examining counsel for the respondent was not prepared to put to Jackson that he had struck the respondent repeatedly on the face with his baton. It is to be recollected that the respondent, in his evidence-in-chief at Black 1/50F–X, when asked how many times he was hit about the face, said that it was more than twice. When asked how many times more than twice, he responded, "there were several times, Sir". Yet in the exchange referred to in the preceding paragraph it was put to Jackson that he struck the respondent in the face "at least once" rather than "several times". The cross-examination was so limited notwithstanding that Jackson stated in the passage referred to that the respondent had said in his evidence that he, Jackson, had struck him "multiple times". 116 Although her Honour did not address this issue (which was admittedly addressed in the appellant's trial submissions at Black 3/1146Q-X and Black 3/1149O–1150T) we would not place any particular weight upon the appellant's submission which, with respect, seems to be more of a debating point. 117 The appellant further contended that her Honour had failed to deal with the respondent's claim that there was never any pushing and shoving of the bed. However, her Honour did deal with this issue at [111(iv)] and we have already remarked upon this. In this respect it is not insignificant that, as already referred to at [102] above, in all the versions provided by him, Jackson at all times maintained that there was pushing and shoving of the bed. He was never cross-examined to suggest the contrary notwithstanding the respondent's denial thereof. 118 The appellant further placed reliance upon the respondent's failure to make an assault complaint immediately following the events in question and which, it submitted, thus rendered his version thereof highly improbable. In particular, the primary judge's finding at [91], to which we referred at [79] above, was challenged by the appellant on the basis that, given the nature of the alleged assault and the significant injuries which the respondent said he had sustained as a consequence thereof, it was simply implausible that, until he gave evidence at the Local Court in March 2004, he never complained to anyone of the serious assault which he alleged Jackson had perpetrated on him. However, in our view it was open to the primary judge to find that the respondent's lack of complaint with respect to the subject assault was not of itself such as to require her to reject his account of events as improbable. 119 Nevertheless it was submitted that in two respects, her Honour had made factual errors in her findings at [91] of her reasons. The first related to her finding that the respondent's "relatively early claims of assault to health professionals" were persuasive and, presumably, therefore could not be relied upon by the appellant as reflecting adversely upon the respondent's credit. It is apparent that her Honour was referring to what she had recorded at [86]-[88] of her judgment. As we indicated at [77] above, at [86] she recorded a comment by Mr Templeton, who had consulted with the respondent on 24 December 2003, that he now recalled that he had been hit more than twice during his arrest although he remembered little else of the alleged assault by police. As noted at [78] above, her Honour also referred at [87] to the Wagga Wagga Hospital notes with respect to the respondent's admission on 17 July 2003 which recorded "alleged police assault six months ago – required facial surgery to repair # cheek, jaw" and "problems all began after alleged 'bashing by cops'" as well as "claims bashed by batons". 120 With respect to this aspect of the matter we make two comments. The first is that there may well be a question as to whether her Honour was justified in describing the claims of assault as being "relatively early" given the first occurred in July 2003 some six months after the alleged assault took place. The second is that the claims upon which her Honour relied at [86]-[88] of her reasons, and which do record the respondent being assaulted by police, are consistent with the assault by Jackson in striking the respondent with his baton on his arms and legs. The reference to the respondent's "claims bashed by batons" is consistent with, in effect, a lawful use by Jackson of his baton. Furthermore, the Wagga Wagga Hospital note "alleged police assault six months ago – required facial surgery to repair # cheek, jaw" may well be a shorthand reference to the claim by the respondent to the hospital staff that he was struck in his cheek but it is, at least to an extent, equivocal. Therefore, none of the incidents recorded by her Honour established that the respondent made any recorded statement to those with whom he came into contact which unequivocally stated that he had been "bashed" in the face by a police baton. 121 The second respect in which it was submitted that her Honour made factual errors in her findings at [91] of her reasons relates to what she found to be "even more persuasive", namely, the respondent's spontaneous complaint of flashbacks and a fear of police. His fear of the police would be consistent with the fact that he had been charged and convicted of being a disqualified driver on at least five occasions and to the fact that, in the present case, he had attempted to outrun the police in circumstances which ultimately resulted in his arrest and being charged with a number of offences to which he pleaded guilty. On the other hand, it can also be said that his fear was consistent with his having been assaulted by Jackson's use of his baton as well as to the manner in which, according to the police evidence, he was ultimately subdued, handcuffed and arrested. 122 All in all, we would not consider her Honour's findings at [91] demonstrated any error to the point where her findings as to the respondent's credit should be overturned on the basis that the internal indicators upon which she relied to reject the appellant's attack on his credit and, in particular, his lack of early complaint, were not open to her. As was observed by a member of the Court during the course of argument, some people might think that it was not a good idea after just being beaten by a police officer, when there are a number of other police present, to make a complaint about it. 123 There is one further matter raised by the appellant to which we have not yet referred, but which is relevant notwithstanding that it was not referred to by the primary judge. It was submitted that her Honour had failed to take into account, as a matter strongly supporting Jackson's version of events, the respondent's own evidence that he was bleeding from his face before any baton blows were struck. It was Jackson's evidence that after the bed had come to rest the respondent stood up and at that time he noticed that the respondent was bleeding from the nose and also from a small injury on his right cheek. The respondent's evidence at Black 1/335P-336J was that when he first stood up to confront Jackson he recollected blood running down his face emanating from his hair (but not from his face). His explanation for this was that he had probably brushed his bleeding hands (which had been cut when he was jumping corrugated iron fences) through his hair at some point. No doubt her Honour thought that this evidence fell within what she described as minutiae with which she considered it unnecessary for her to deal. And yet it was one of a number of matters going to credit or at least to the plausibility of the respondent's version. In our view her Honour was required to consider this matter. It was an error for her not to do so. It was not, with respect, a peripheral matter to the central and critical issue being the alleged assault on the respondent's face. 124 The respondent made a number of additional submissions to the effect that her Honour had erred in failing to directly engage the minutiae that, it was suggested, were critically destructive of the reliability of Jackson's evidence. Those minutiae included what was alleged to be Jackson's unsatisfactory evidence in relation to an allegedly broken sliding lock on the screen door of the house in Wagga Wagga; to the cupboards in the kitchen; to his knowledge of the seriousness of the respondent's injuries; to the route by which the respondent was removed from the house after his arrest; and to his holding or discarding of his capsicum spray can after he had emptied it and before deploying his police baton. 125 Accepting for the purpose of the argument that her Honour did not deal with any of these matters, in our opinion they were indeed minutiae and she was justified in not referring to them. However, as will be appreciated from what we have written above, there were other so-called minutiae which, although involving what could be described as matters of detail, in our respectful opinion, took on a more substantive and important status to the point that they could not be said to be incapable of playing a significant role in her Honour's analysis and consideration of the evidence and in her ultimate determination as to whether the respondent had established his case. (c) The respondent's unreliability and lack of credit 126 The third issue advanced by the appellant was the respondent's reliability or otherwise, the principal challenge being that her Honour failed to pay proper regard to the respondent's demonstrated unreliability as a witness. In particular the appellant submitted that her Honour erred in confining her credit finding to the respondent's denial of his habitual drug use. A number of submissions were made under this head but we do not find it necessary to deal with them in detail. 127 The ultimate submission was that a series of concessions and admissions made by the respondent in cross-examination indicated his propensity to lie or to advance self-interested recollections he had truthfully, spontaneously and persistently disavowed in the past. Her Honour was in error, so it was submitted, in failing to scrutinise these matters. 128 The respondent contended that her Honour did scrutinise his evidence with care and did make adverse findings with relation to his credit. However, in the end she was not prepared to find that his version of the events in question was a deliberate fabrication. 129 At the end of the day it would appear that her Honour did not rely upon the respondent's credibility as such in coming to her conclusion and which is founded upon the five reasons given at [111] of her judgment. As we are of the opinion that those reasons are flawed, it is unnecessary to make any further comment on the issue of the respondent's credibility. (d) The respondent's resistance to arrest 130 The fourth issue raised concerned the respondent's resistance to arrest, it being submitted by the appellant that the primary judge failed to address either the respondent's conceded motive to resist arrest or his demonstrated propensity to do so violently. It was thus submitted that the respondent's fear of gaol and justified apprehension of its certainty, compelled his unreasoning, violent and increasingly desperate conduct up until the moment of his discovery by Jackson. It was therefore critically important that her Honour address his motivation. 131 However, we agree with the respondent's submission that his fear of apprehension, which was manifest, was not of particular significance in considering whether his evidence should be accepted. On one view of it, his fear of apprehension had run its course when he was cornered and there was little he could do about it as in all probability he knew that Jackson, if not at the moment of discovery, would very shortly have police backup. We further agree with the respondent that the appellant did not spell out why his fear of apprehension would render his version of events less likely. (e) Jackson's reactive assault 132 The fifth and final issue was related to the primary judge's suggestion that Jackson's assault upon the respondent was reactive. This issue concerned [93] and [94] of her Honour's reasons to which we referred at [87] and [88] above. 133 Of course, while it might be the case that the reactive conduct that her Honour attributed to Jackson was "not beyond possibility", it does not follow that that possibility became a probability and her Honour did not so find, at least not expressly. She put it no higher than a possibility and it never reached the level of probability. Nevertheless, her Honour's observations were generally speculative, unsupported by any evidence and not the subject of any cross-examination of Jackson. In particular, it was never put to Jackson in cross-examination that he experienced an adrenalin rush or, for that matter, was in fear for his own safety. True it is that in chief Jackson stated that he feared that he was going to be injured when the respondent kept pushing the bed towards him (at Black 2/601 I) but it was never suggested that he feared for his safety when the respondent stood up behind the bed, and that this was the reason why he not only sprayed the respondent in the face with capsicum spray but also, at practically the same time, struck the respondent on the face with his baton after he had dropped his hands from his face as a result of the blow that Jackson had directed to his right and left forearm. 134 The closest the cross-examination came to any question of injury on the part of Jackson was at Black 2/648 S-V when, in a non-responsive answer to a question, he indicated that he was worried that he might contract hepatitis C which would put his health at risk as a consequence of becoming contaminated with the respondent's blood during the course of the struggle: see at Black 2/614. 135 Critically, her Honour's comments at [93] and [94], if in fact they be part of her reasoning process, are at odds with the respondent's version of events which she accepted. In particular, they are at odds with his evidence that when he stood up he was passive and non-threatening: see [35] and [36] above. If this be so, consideration should have been given to how an experienced police officer like Jackson could have felt threatened or otherwise in fear for his safety. Equally, consideration should also have been given as to whether the respondent's passivity on his own case threw into doubt Jackson's alleged striking of the respondent's face as soon as he stood up from behind the bed as a spontaneous reaction whether out of excitement or "some other [unspecified] motivating factor". 136 Her Honour's reasoning in paragraphs [93] and [94] was in response to the appellant's submissions which she had summarised at [92] (see [84] above]) as constituting eight circumstances said to indicate a "circumstantial implausibility" that the events occurred as described by the respondent. By rejecting those circumstances in the manner she did (as to which see our comments at [85] and [86] above), she also rejected, at least implicitly, the submission that the respondent's version of events in the circumstances was "circumstantially implausible". The opposite side of that coin is that his version was plausible. 137 If this be a correct analysis of her Honour's reasoning process then it may well be that her acceptance of the respondent's version of events went beyond the five reasons she articulated at [111] of her judgment. In our view, her reasons for rejecting at least some of the appellant's submissions of circumstantial implausibility referred to in the preceding paragraph were flawed. (9) Conclusion with respect to the assault cause of action 138 For the foregoing reasons in our opinion the primary judge's findings with respect to the assault cause of action were infected by error sufficient to justify appellate intervention to set them aside. Although in its Notice of Appeal the appellant sought an order that there be a verdict and judgment in its favour on that cause of action, in oral submissions Senior Counsel for the appellant accepted that if her Honour's findings were to be set aside, there would need to be a retrial of the assault cause of action. This must be so given the necessity to accept or reject one version or the other. Such a decision cannot be separated from the issues of credibility and reliability of the two principal witnesses. Regrettably, those issues can only be determined by a new trial: cf. Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [67] per McColl JA with whom Ipp JA and Bryson AJA agreed. 139 Senior Counsel for the respondent submitted that there should not be a retrial, which he described as a "horrific" prospect, an observation with which we would tend to agree. It will be the fifth time that the respondent and Jackson are cross-examined with respect to the events in question. It was submitted by the respondent that after considering Jackson's versions of what had occurred, her Honour's verdict should not be disturbed upon the basis that there had not been any substantial miscarriage of justice: Part 51 r 53(1), Uniform Civil Procedure Rules 2005 (UCPR). However, in our view that condition is satisfied in the present case. 140 The relevant principles relating to whether, having discerned a significant error in the primary judge's assessment of the facts, this Court should order a new trial or itself attempt to make findings of fact on disputed matters, was discussed by the High Court in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816. In that case the court did not question the width of the power of this Court conferred by s 75A(6) and (10) of the Supreme Court Act 1970 to order a new trial in an appropriate case. The alternatives available to this Court were discussed in the light of Waterways Authority by Sackville AJA, with whom Macfarlan JA and Handley AJA agreed, in Hare v Harmer (2009) NSWCA 68 where at [47] his Honour said (citations omitted): " Waterways Authority v Fitzgibbon does not necessarily prevent an appellate court, where the trial judge has been shown to have erred on a factual question, from substituting its own findings of fact for those made by the trial judge. It may be that, once the trial judge's error is corrected, the probative evidence on a particular issue points to only one conclusion. Alternatively, if the remaining evidence, although conflicting, presents no issue of the reliability or credit of particular witnesses, the appellate court may be in as good a position as the trial judge to resolve the conflict. Moreover, it is necessary to bear in mind the " overriding purpose " stated in s 56(1) of the Civil Procedure Act . Nevertheless, Waterways Authority v Fitzgibbon suggests that in a case where there is conflicting oral evidence, or where there is an unresolved dispute as to the reliability of evidence, an appellate court should exercise caution before deciding to substitute its own findings for those made by the trial judge." 141 Sackville AJA's remarks were reiterated by him, with the agreement of McColl and Young JJA, in Alchin v Daley [2009] NSWCA 418 at [52]-[55]. Furthermore, in Hall v van der Poel [2009] NSWCA 436 Basten JA (at [62]) stated the relevant principle in the following terms (which did not involve any departure from the approach adopted by Sackville AJA): "So far as the application of the principle is concerned, this Court is constrained by the fact that there were divergent accounts given by witnesses and this Court is in no position to evaluate the credibility of those witnesses: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] (Gleeson CJ, Gummow and Kirby JJ); The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [133] (Hayne J). Waterways Authority is not supportive of the proposition that this Court should always be reticent in making findings of fact or should only make such findings where "the probative evidence on a particular issue points to only one conclusion": cf Hare v Harmer [2009] NSWCA 68 at [47]; Alchin v Daley [2009] NSWCA 418 at [55]. It does however, demand that caution be exercised in making findings of particular facts and then remitting the matter for a further hearing in respect of separate issues of fact: Waterways Authority at [20] (Gleeson CJ). As his Honour explained in terms apposite to the present case: 'There remain for decision a number of unresolved questions which will depend upon the reliability of the evidence of other witnesses … . At a new trial, the trial judge will have to hear evidence, and make findings about, the circumstances of the accident. The evidence will not necessarily be the same as the evidence at the first trial. It could be significantly different. It is in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the first respondent's forensic success in the Court of Appeal.' " 142 The present case is one where there are divergent accounts by the two principal witnesses of what occurred and this Court is in no position to evaluate their credibility. Accordingly, given the inevitable credit issues that have arisen in determining which version of events of those witnesses should be accepted, it follows that a new trial on the assault cause of action must be ordered. 143 The next question that arises is whether the primary judge's award of damages on that cause of action should also be the subject of a new trial given that there has been no challenge by the appellant to her Honour's assessment. It was nevertheless submitted by the appellant and contested by the respondent, that if there was to be a retrial of the assault cause of action, it must include the issue of damages. With respect, we disagree. As Sackville AJA pointed out in Hare at [40], this Court has power to order a new trial on any question without interfering with the decision of the primary judge on any other question: Pt 51 r 53(2). At [41] his Honour noted that when applying Pt 51 r 53, the Court must have regard to s 56 of the Civil Procedure Act 2005 which provides that the overriding purpose of the Act and of the UCPR is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". 144 The present is not a case in which the ultimate finding on the assault cause of action is capable of reflecting on the quantum of damages assessed by the primary judge in the present case. Either there will be a finding that there was an assault as alleged by the respondent, in which event the damages assessed by the primary judge will be appropriate, or there will be a finding in favour of the appellant, in which event the issue of damages becomes irrelevant. In other words, it is an all or nothing situation that is incapable of reflecting upon the quantum of damages assessed by her Honour. 145 In the foregoing circumstances, and given that there has been no challenge on the present appeal to her Honour's assessment of damages, it would be contrary to the provisions of s 56 of the Civil Procedure Act, where the real issue in the proceedings is whether the respondent was assaulted by Jackson as he alleges, to order a new trial as to the quantum of damages in the event that ultimately the respondent's version of events is accepted. For the foregoing reasons we would therefore propose that the new trial be limited to the issue of liability with respect to the assault cause of action. THE MALICIOUS PROSECUTION CAUSE OF ACTION (1) The nature of the respondent's claim 146 As noted at [2] above, on 28 March 2003 Briggs preferred some 10 charges against the respondent arising out of the events of 6 February 2003. Of those charges, the respondent pleaded guilty to five and not guilty to the other five. On 24 March 2004 the charges to which the respondent pleaded not guilty were dismissed in the Local Court at Wagga Wagga. 147 In his Amended Statement of Claim dated 23 August 2006 the respondent stated that the bringing of the charges to which he had pleaded not guilty occurred in the absence of reasonable and probable cause and was done with actual malice. 148 Of those five charges, three alleged assault by the respondent of Cox, assault by the respondent of Jackson and resisting Jackson in the execution of his duty. The malicious prosecution claim by the respondent with respect to those charges was rejected by the primary judge. There is no challenge to this finding. 149 The two charges upon which the respondent was successful before the primary judge were as follows: ■ "That [the respondent] on the 6th day of February 2003, at WAGGA WAGGA, in the State of New South Wales, did possess an offensive weapon, to wit, a knife, with intent to prevent the lawful apprehension of himself." ■ "That [the respondent] on the 6th day of February 2003, at WAGGA WAGGA, in the State of New South Wales, did break and enter the dwelling house of Garry GAFFNEY situate at 79 Kincade Street, and then while in the said dwelling house did steal certain property, to wit, a long bladed knife the property of the said Garry GAFFNEY." As we have indicated, the informant with respect to each of these charges was Briggs. We shall refer to them as the knife charges. The malicious prosecution cause of action with respect to the knife charges is concerned with events which occurred after the respondent was arrested and removed from the Gaffney house. 150 In short, the primary judge found in the respondent's favour on the malicious prosecution cause of action because she concluded that Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and therefore maliciously for the following reasons: (a) If the events had occurred as Jackson alleged, and the respondent had been in possession of the knife, it was scarcely conceivable that he would not have produced it; or, at least, that he would have been able to conceal it (at [167]); (b) Given the respondent's condition when he entered the Gaffney house, had he touched the knife he would have left his blood and DNA, on it as well as in the kitchen where it had been left by Mr Gaffney that morning (at [168]); (c) The respondent was not responsible for taking the knife from the kitchen drawer and placing it in the bedroom (at [171]); (d) The absence of DNA or fingerprints on the knife indicated it had been removed by a person (or persons) aware of the significance of forensic investigations and the means of avoiding leaving such evidence (at [171]); (e) Accordingly her Honour was satisfied that a person or persons aware of the significance the knife's presence would have in the prosecution of the respondent placed it in the bedroom (at [171]); (f) While her Honour concluded that she could not be satisfied that Briggs was himself personally involved in placing the knife in the bedroom, she was satisfied that he was aware that that was done, by a police officer or officers after the respondent had been removed from the scene (at [172]). We note that while her Honour referred to the knife having been placed in the bedroom by a police officer or officers, the respondent's counsel was more adjectival, suggesting a police officer or officers had planted it. We shall use his expression in considering this aspect of the case; (g) Briggs was aware that a critical incident should have been declared (which would have ensured the crime scene was preserved) and of Murphy's impropriety in arranging for the crime scene to be cleaned up and of the likelihood that this was done for the purpose of frustrating any subsequent investigation ([173]-[199]); (h) Briggs laid the knife charges for the improper purpose of supporting Jackson in his assertions about the respondent, and to strengthen the case against the respondent as well as to perpetuate the fiction that had been created by the placement of the knife in the bedroom, and protect the police involved ([199]). 151 For the reasons which follow we are of the view that this conclusion was not open to her Honour. 152 In order to determine whether or not the malicious prosecution cause of action was proven, it is necessary to examine in some detail the events which occurred after the melee in the bedroom came to an end and, in particular, Briggs' state of mind at the time he preferred the two knife charges. (2) The relevant principles applicable to the malicious prosecution cause of action 153 The relevant principles applicable to the tort of malicious prosecution were exhaustively discussed by the High Court in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500. Her Honour discussed that case in some detail at [116] to [124] of her reasons. The tort has the following four elements relevant to the present case: ■ that the criminal proceedings were brought and maintained against the respondent by Briggs (being a person for whose torts the appellant is vicariously liable); ■ that the relevant proceedings terminated in favour of the respondent; ■ that Briggs acted maliciously; ■ that Briggs acted without reasonable and probable cause. Her Honour recognised that only the third and fourth elements were in issue in the present case, the first two being conceded. 154 At [117] her Honour analysed the judgment of the High Court in A and stated that the following propositions emerged therefrom in relation to the third and fourth elements (omitting citations): "(i) The onus lies upon the [respondent] to prove each element. In the case of absence of reasonable and probable cause, that involves proof of a negative; (ii) Although there may be some overlap between the concepts of malice and absence of reasonable and probable cause, the High Court maintained the principle that there are two separate issues to be litigated; (iii) Malice is proved where a plaintiff proves that the prosecutor brought the proceedings for a purpose other than a proper purpose of initiating legal proceedings – one, but not the only, example of such a purpose is 'personal animus'; (iv) That purpose must be the sole or dominant purpose actuating the prosecutor; malice may be proved by inference, but it must be proof, not conjecture or suspicion; (v) With respect to the absence of reasonable and probable cause, the relevant questions have, in different cases, been differently formulated, for example: '1. Did the defendants in prosecuting the plaintiff take reasonable care to inform themselves of the true state of the case; 2. Did they honestly believe the case which they laid before the magistrates; and 3. Were the defendants actuated by any indirect motive in preferring the charge against the plaintiff [?]'; (vi) Reasonable and probable cause for prosecuting another for an offence exists where the following conditions apply: '(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty'; (vii) 'Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted. Such cause may be absent although this belief exists if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment'; (viii) There is no disharmony between the expressions of the applicable principles in [(vi) and (vii) above]; (ix) The relevant time for consideration of the existence of malice, and the absence of reasonable and probable cause, is the time of institution, and the time of maintenance, of the proceedings; (x) Two questions arise: what did the prosecutor make of the material available? (a subjective question); and what should the prosecutor have made of that material (an objective question)." No issue was taken on the appeal that the foregoing was other than an accurate summary of what the High Court had determined in A. 155 Her Honour continued: "118 'Maintaining' proceedings is a continuing process. It is conceivable that a prosecutor may act for proper reason (ie non-maliciously) or with reasonable and probable cause (or the plaintiff may be unable to prove malice, or the absence of reasonable or probable cause) at the time of institution of proceedings, but, at a later point in the proceedings, and while the proceedings are being maintained, the existence of malice or the absence of reasonable and probable cause may be shown. At any time at which the sole or dominant purpose of maintaining the proceedings becomes an improper (malicious) one, or the prosecutor becomes aware that reasonable and probable cause for the proceedings does not exist, or no longer exists, the proceedings ought to be terminated, or the prosecution is malicious. 119 A good deal has changed in the arrangements made for criminal prosecution since the decisions in Abrath , Sharp , and John Heine . It is seldom that the alleged victim of an offence or person having personal knowledge of the facts initiates the prosecution. Rather, in the ordinary case, the prosecution is initiated by a police officer, acting on information supplied from a variety of sources, of the veracity of which he or she, ordinarily, has no personal knowledge. Where the offence charged is to be dealt with summarily, responsibility for its further prosecution will be taken by a trained police prosecutor". This is what happened in the present case in that the prosecution was taken over by Morgan, a trained police prosecutor. The respondent's case on the malicious prosecution cause of action against Morgan was that she maintained maliciously and in the absence of reasonable and probable cause the prosecution commenced by Briggs. 156 At [120] and [121] her Honour noted that the early cases cited in A imposed two requirements necessary to justify the bringing of criminal proceedings against a person – first, that a prosecutor have an actual, subjective, belief in the guilt of the person prosecuted, and second, that there also exist, objectively, reasonable and probable cause for bringing the prosecution. However, more modern notions of the objectivity and detachment demanded of those acting in public prosecutorial roles created a tension between the requirements of the earlier cases and the more modern versions of that objectivity. 157 In the present case her Honour considered (at [122]) that Briggs did not fit easily into the class of prosecutors acting solely on information provided to him. This was because although Briggs certainly had personal knowledge of the relevant facts concerning the first four charges, all of which related to the respondent's use of an unregistered and uninsured motor vehicle on the morning of 6 February 2003, he was not relevantly present during the confrontation between the respondent and Jackson in the bedroom or subsequently when the knife was found. However, he did arrive after Philpott had entered the bedroom and the confrontation between the respondent and Jackson was still in progress and was present when the respondent was restrained, arrested and removed from the premises. He also observed that there was a deal of blood in the vicinity including upon the respondent's head. 158 Her Honour acknowledged at [123] that the decision to institute a criminal prosecution was a weighty one particularly where the prosecutor is a person whose role it is, acting on information supplied by others, to prosecute on behalf of official prosecution authorities. She observed: "… Obviously, a prosecutor ought not to bring or continue proceedings if satisfied that the evidentiary basis is not reasonably capable of belief. At the other end of the spectrum, it would be wrong for a police officer in receipt of potentially credible information to decline to prosecute because he or she took an adverse view of the informant's reliability, or the reliability of other witnesses. That would be to permit the prosecutor to usurp the function of the court." 159 As her Honour acknowledged at [117], in A the High Court confirmed that the two elements of absence of reasonable and probable cause and malice were separate and distinct. When dealing with the former element, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ observed in their joint judgment at [77] the following: "There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not 'honestly believe' the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" (Emphasis in original) 160 In relation to the element of malice, the joint judgment in A stated at [88] that malice is demonstrated by showing that the prosecutor acted for purposes other than the proper purpose of instituting criminal proceedings. Their Honours then asked what kinds of extraneous purpose sufficed to show malice. At [90] they said that no little difficulty arises if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. Their Honours recognised that proof of particular facts may supply evidence of both elements. The present case falls under that category for a justifiable finding that the knife was planted by one or more police officers would supply evidence of both elements. At [91] their Honours said 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". Furthermore, it must be the sole or dominant purpose actuating the prosecutor. (3) The relevant findings of the primary judge 161 As will become apparent, we have divided the relevant findings of her Honour into three sections. The matters referred to in each of those three sections are interlinked. However, our discussion of those matters is easier to follow if they are addressed separately. We have, where appropriate, supplemented the primary judge's findings generally on matters of detail, drawing for that purpose from the oral and documentary evidence to the extent to which it was unchallenged. (a) The movements of the police officers following the removal of the respondent from the Gaffney house 162 With the abovementioned principles relating to the tort of malicious prosecution in mind her Honour turned to the facts relevant to the respondent's claim for malicious prosecution. At the outset, however, she made the following observations: "127 … There exists a certain level of obscurity about some important aspects of these events. I am satisfied that that obscurity has been deliberately engineered, for the purpose of ensuring that no comprehensive examination or scrutiny of those aspects of the events (which are of considerable importance), or of the individuals responsible for them, can, in these proceedings, take place. The aspects of the events to which I refer are the finding of the knife, and the recruitment of cleaners to clean the house before its investigation by suitably trained and equipped officers. 128 The obscurity comes about principally by reason of the absence, from these proceedings, of two key participants who could have been expected to give significant evidence. One of these is Inspector Murphy. The other is the contract cleaner who was called in by Inspector Murphy to repair the damage to the house. This occurred after Detective McAlister had taken his (with respect to him, amateur) photographs, and before police officers expert in crime scene investigation could be involved." 163 Her Honour also noted at [143] of her reasons that, given the way the evidence emerged, it was not possible to be definitive or precise about what occurred at the Gaffney house in the immediate aftermath of the respondent's arrest. 164 According to the Custody Management Record compiled by the Duty Custody Officer, Senior Constable Melinda Jennings, at Wagga Wagga Police Station, the respondent was arrested at 11.14am, left the premises at 11.15am and arrived at Wagga Wagga Police Station at 11.20am. 165 The primary judge found at [144] that after the respondent's departure, Jackson, Philpott, Deissel, Holmes and Briggs gathered at a garden tap at the Gaffney premises to decontaminate themselves of the effect of the capsicum spray and to remove any blood from their skin and clothing. Although not referred to by the primary judge, it is clear from McAlister's statement at Blue 1/82S that he was also present. Of those officers present at that time, Briggs was the most senior. 166 At or about that time Murphy arrived at the Gaffney premises. Murphy then had conversations with Briggs, Philpott, Jackson and Deissel. Following those conversations and in company with Briggs, he entered the premises and was shown the bedroom where he immediately felt the effects of contamination from the capsicum spray. 167 After having spoken to McAlister, Murphy and Briggs, and realising that he still had the respondent's blood on his arms and legs, Jackson left the premises and returned to the Local Area Command (LAC) to have a shower. He did not return until after the knife was discovered when he accompanied McAlister in returning to the premises at Murphy's direction with a digital camera to take photographs of the newly discovered knife. 168 Holmes had escorted the respondent to the police vehicle and, after retrieving his sunglasses, a portable radio and a baton from the bedroom, left the premises and returned home to change his clothes. In evidence he said that he returned to the premises about 30 minutes later, had a brief conversation with Murphy and then left again and did not return. 169 Murphy had a further conversation with Briggs following which a number of photographs of the bedroom were taken by McAlister. About 10 or 15 minutes after the respondent's removal from the premises, McAlister left and returned to Wagga Wagga Police Station. Briggs, Philpott and Deissel remained at the premises. According to her Honour (at [148]), Briggs was at that time the most senior officer present although this may be an error as apparently Murphy was also present when McAlister took the photographs referred to above. 170 At 11.17am according to the radio log records, being immediately after the respondent was removed from the premises, Briggs contacted the Wagga Wagga Police Station and asked for the attendance of Crime Scene Investigating Police but was told they were unavailable as they had been required to attend a fatal motor vehicle accident at Coleambally. At 11.23am he contacted the operator and requested her to organise someone to return to the premises with the station's exhibit camera. It would appear that McAlister responded to this request although at [148] of her reasons the primary judge stated that Briggs telephoned McAlister for him to return with the camera. Briggs then inspected the house and garden and remained at the premises until Mr Gaffney returned shortly after about 11.15am (being the time he was first contacted by the police at his work). After speaking to Mr Gaffney, Briggs departed the premises and ultimately went to the pawnshop where he had first encountered the respondent. 171 On McAlister returning to the premises as directed, Murphy, as the then senior officer present and having taken charge of the scene, instructed McAlister to take further photographs with the assistance of Philpott and Deissel. McAlister, accompanied by Philpott and Deissel, began taking photographs in and around the house. Philpott made a written record of the photographs taken and Deissel assisted by identifying appropriate subjects and areas to be photographed. All those photographs were in evidence. Having completed his photographic assignment, McAlister left the house and returned to the LAC. Philpott and Deissel also left and did not return. 172 In the meantime, at 11.51am according to the radio log records, Murphy made arrangements for cleaners to attend to repair the damage to the Gaffney house and, in particular, to clean up the bedroom in which the altercation between the respondent and Jackson had taken place. Either Murphy or someone acting on his instructions called a contract cleaner. According to Murphy, the cleaner, Mr Mansfield, arrived at about 12.25pm. Shortly after he discovered the knife and immediately informed Murphy. Murphy immediately telephoned McAlister (who was at the LAC) asking him to return to the premises yet again this time bringing a different (digital) camera. 173 While at the pawnshop, Briggs also received a telephone call from Murphy who told him that the cleaner had found a knife in the bedroom. Murphy asked Briggs to return, which he did in the company of McAlister and Jackson. 174 On their return Briggs was shown the cleaner's discovery of the knife by Murphy. Briggs then directed McAlister into the bedroom where the respondent had been arrested and requested that he photograph the large-bladed knife drawn to his attention by Murphy and which was located on the floor between the bed and the northern wall of the bedroom. 175 It would appear that Jackson, at Briggs' request, then took possession of the knife, and conveyed it to the police station where he entered it in the Exhibit Book. It was tested for fingerprints and DNA but revealed neither: in other words, neither the fingerprints nor the DNA of the respondent was found on the knife handle or, for that matter, its blade. 176 The other matter that needs to be mentioned, although it does not appear to be a finding of the primary judge, was that when Murphy arrived at the Gaffney premises he had a conversation with, amongst others, Jackson who in his own evidence confirmed that he had spoken not only to Murphy but also to Briggs, McAlister, Philpott and Deissel as to what had occurred in the bedroom. However, Jackson was unable to remember the exact conversation he had with Murphy other than confirming that he would have told him what happened and would "have gone through it" (at Black 2/786Z-787D). 177 The relevance of the sequence of events as narrated above is that it bears upon who may have had the opportunity to plant the knife. It would appear from the factual matters as referred to that if the knife was planted, as her Honour found, that that would have had to have taken place between 11.30am or a little later (when McAlister and Murphy arrived at the Gaffney house) and the time the cleaners arrived, according to Murphy's statement, at 12.25pm. Although during that period a number of police officers were present and/or came and went, there was no evidence to suggest that Philpott, Deissel or Holmes could have had anything to do with the planting of a knife. The same applies to Jackson, who departed soon after the respondent and did not return until after the knife was discovered. Further, McAlister left the premises some 10 or 15 minutes after the respondent had been removed and returned to the police station and did not return until telephoned by Briggs (or directed by the radio operator) to do so, bringing with him the station exhibit camera. After he had finished taking photographs which took about 20 minutes, McAlister left the premises and returned to the LAC: see Black 3/872L-Y; 873J-L; 878N, Y). He returned for a third time when summoned by Murphy and/or Briggs after the knife had been discovered. 178 Essentially, therefore, that leaves Briggs and/or Murphy as the possible culprits. However, her Honour was not prepared to make a finding that either of them had planted the knife; only that the knife was taken from the kitchen drawer and placed in the bedroom after the respondent's departure "by one or more of the police officers": (at [171]). As her Honour confirmed, she was not in a position to make a specific finding as to who that was. (b) The finding of the knife 179 Her Honour acknowledged at [155] of her reasons that there was no direct evidence from any person who claimed to have been present in the house when the knife was found, of the circumstances in which or by whom the knife was discovered. This is strictly correct. However, it did not seem to be in dispute that it was Mr Mansfield (the cleaner) who found the knife in the bedroom and pointed out its presence to Murphy although he did not give evidence in the present proceedings. Her Honour also observed, correctly, that there was no evidence from any of the police officers who were present in the house up to and including the time of the respondent's arrest who asserted that he or she had seen the respondent in possession of the knife. 180 The primary judge accepted (at [156]) that the whole of the police brief was in evidence before her for the purpose of identifying the material available to Briggs at the time he charged the respondent and when the proceedings relating to those charges were heard in the Local Court. Nevertheless, her Honour (at [156]) expressed the opinion that some caution ought to be exercised in accepting the content of the various statements as evidence of the truth of what was asserted therein. We would observe that the factual basis for this expression of caution is not readily apparent given that there was nothing in those statements that, at least directly, linked the knife in the bedroom to the respondent. It was not suggested on the appeal that in the Local Court proceedings in 2003/2004 there was any relevant challenge to the contents of the statements of, relevantly, Briggs, McAlister, Mr Gaffney, Mr Mansfield and Murphy on the assumption that each gave evidence in accordance with their statements which they apparently did. All in all, what they said concerning the knife was relatively benign. As far as the evidence went, it is hardly surprising that the knife charges were dismissed. 181 At [163] the primary judge considered it necessary to make a discrete finding of fact in relation to the knife. She said: "163 It is necessary to make a discrete finding of fact in relation to the knife. In this context, I regard the unexplained absence from the witness box of Inspector Murphy as of very considerable significance. He was the officer in charge of the scene after the plaintiff's arrest. He arranged for photographs to be taken. Most importantly, in an extraordinary decision, he arranged for the contract cleaner to enter and clear the scene, plainly destroying potentially critical evidence. He made no attempt to preserve the scene. He was present when Mr Mansfield found the knife. I recognise that, on the defendant's case, at the time he made the decision to have the scene cleaned, the knife had not been found, and police officers did not know of its existence. If the defendant's case were to be accepted, the finding of the knife took the incident into a new, and more serious, dimension. Even accepting that for the moment, and hypothetically accepting the defendant's case at face value, the police were engaged in the aftermath of a serious incident in which a private home had been invaded, a police officer assaulted, and a civilian injured (although the known extent of the plaintiff's injuries at that time was a matter of significant dispute). 164 It is also of significance, although perhaps less so, that the person who was alleged to have found the knife in the bedroom was not called." 182 The primary judge then made findings consistent only with her ultimate conclusion that the knife was planted in the bedroom by one of the police officers. Her reasoning which led to this conclusion was relevantly stated in the following terms: "167 Despite the number of (trained) police officers in the bedroom – five, immediately after the confrontation – not one gave evidence of having seen the plaintiff with a knife. It is scarcely conceivable that, had the events occurred as Constable Jackson said they did, and the plaintiff had been in possession of the knife, he would not have produced it; or, at least, that he would have been able to conceal it. 168 Given the plaintiff's condition when he entered the Gaffney house, he could not have armed himself with the knife without leaving blood, and his DNA, on it (he was not carrying anything that he could have used to avoid physical contact with the knife) and he could not have taken it from the kitchen drawer without leaving blood smears on the floor and the furniture in the vicinity. 169 And it is scarcely credible that, had the knife been in its later location when the plaintiff was arrested and removed, it would have escaped the combined examination of Constables McAlister, Philpott and Deissel, although I have not overlooked that, on Mr Mansfield's (untested) account, it may have been concealed amongst bedding. 170 So far as I can ascertain from the evidence, the one police officer who remained at the house throughout the relevant time (although he was not present at any time when the plaintiff was) was Inspector Murphy. Yet he was one of two participating police officers who did not give evidence. … 171 This is not, of course, an investigation into who was responsible for taking the knife from the kitchen drawer and placing it in the bedroom. I am satisfied, however, that it was not the plaintiff. I am satisfied, having regard to the absence of DNA or fingerprints on it, that its removal was effected by a person (or persons) aware of the significance of those forensic investigations and the means of avoiding leaving such evidence. And I am satisfied that it was placed in the bedroom by a person or persons aware of the significance its presence would have in the prosecution of the plaintiff. It follows that I am satisfied that it was taken from the kitchen drawer and placed in the bedroom, after the plaintiff's departure, by one or more of the police officers. I am not in a position to make a specific finding as to who that was. In fact, for present purposes, that does not matter. What matters is what Detective Briggs knew, as at 28 March when he charged the plaintiff with these offences, and thereafter, up to the time of the hearing, when he maintained them. … 172 … Although I cannot be satisfied that Detective Briggs was himself personally involved in placing the knife in the bedroom, I am satisfied that he was aware that that was done, by a police officer or officers after the plaintiff had been removed from the scene. In part, that satisfaction derives from my conclusions concerning the next issue, the failure to take appropriate steps to preserve the scene and relevant evidence." (c) The critical incident 183 The "next issue" with which her Honour dealt related to the declaration at about 1.30pm on 6 February 2003 of what is referred to in the Police Guidelines as a "Critical Incident". The relevance of this issue, as her Honour noted at [173] of her reasons, was that a "Critical Incident" ought to have been "declared" immediately upon the arrest of the respondent so that appropriate procedures could have been implemented to ensure that the evidence at the scene was preserved rather than, as her Honour found, "deliberately destroyed". 184 This last observation followed on from her Honour's assertion at [127] of her reasons (extracted at [162] above) that the event to which she there referred was "deliberately engineered" for what can only be described as an illegitimate purpose. Her Honour laid the sole blame for that situation at the feet of Murphy who called in the contract cleaners to clean the house before the crime scene had been properly investigated by suitably trained and equipped officers. 185 This finding was established by her Honour to support, at least in part, her conclusion that Briggs was aware that the knife had been placed in the bedroom by a police officer or officers after the respondent had been removed from the scene. 186 The Guidelines relevant to the declaration of a "Critical Incident" were issued in 2002 for use by the NSW Police Service. They defined such an incident as including, relevantly, "serious injury arising from a police operation". When such an incident eventuates a specialised investigation team known as a "Critical Incident Investigation Team" (CIIT) is to be appointed to investigate the incident. If a delay occurs before a CIIT arrives at the scene, the Guidelines require the most senior officer at the scene to take steps to preserve the scene for fingerprinting and appoint an officer to secure it. 187 Her Honour acknowledged (at [176]) that there was a deal of argument at trial as to whether the occurrences at the Gaffney house became, or were known to be, a "Critical Incident". This depended upon whether those present appreciated that the respondent had sustained a "serious injury", a term which was not defined in the Guidelines. However, at [177] her Honour found that a Critical Incident existed because, as was later recognised by the officers concerned, the injuries to the respondent qualified as "serious". 188 In the circumstances her Honour considered (at [179]) that it was necessary to focus upon the conduct of Briggs and his state of knowledge or awareness of the extent of the respondent's injuries. 189 It was acknowledged that until the arrival of Murphy, Briggs was the most senior officer present and it was therefore his obligation (if by reason of the extent of his understanding of the respondent's injuries, the event constituted a "Critical Incident") to preserve the scene for fingerprints and appoint an officer to secure it. Her Honour noted (at [181]) that neither Briggs nor Murphy, on the latter's arrival, took any of those steps. Of course, by the time Murphy arrived the respondent had been removed from the scene and he (Murphy) was not aware, at least firsthand, of the extent of the respondent's facial injuries. 190 The appellant submitted that until the respondent's admission to hospital neither Briggs nor any other police officer was, or should have been, aware that the respondent's injuries were "serious". Nevertheless, her Honour noted at [183] that Briggs accepted the proposition put to him in cross-examination that "serious injury" equated to injury sufficient to require emergency medical treatment such as admission to the Accident and Emergency Ward of a hospital for treatment. However, her Honour acknowledged (at [184]) that at the time of the respondent's arrest, and notwithstanding the amount of blood on him and in the bedroom, Briggs did not believe that the respondent's injuries were serious. It was therefore not obvious to him that the incident ought to be characterised as a "Critical Incident". 191 At [185] her Honour stated that Constable Jennings, the officer at the Wagga Wagga Police Station in charge of the Custody Management Record, took a similar view. On Jennings' recollection of the respondent's arrival at the police station, he was not suffering from injuries that she would have classed as serious. She did make arrangements for his transfer to hospital but that, she said, was standard procedure where capsicum spray had been used. 192 At [186] her Honour accepted that the Custody Management Record, which was quite detailed, tended to support Jennings' view. It recorded that the respondent had: "bruising around his right eye, blood dripping from his cheek, a 2cm cut to the right cheek, and pain to the right knuckles, an abrasive burn with skin off his big toe and one next [to] the right foot, an abrasive burn with skin off on the left foot, and a 3cm cut along the heel and middle toe; a 1.5cm cut on left arm near the elbow, a cut between pointer and middle fingers of the left hand, and grazing on the right forearm". 193 This record was consistent with the contents of the ambulance report recorded by her Honour at [187]. The ambulance report made no reference to the respondent's face and/or torso being covered in blood. In fact, the respondent was transported to hospital in a police car rather than in the ambulance as, according to Jennings, he exhibited signs of aggressiveness. 194 At [188] her Honour recorded that at 11.18am Briggs spoke by radio to the operator and was recorded as saying when asked for a situation report: "Yeah, one in custody, he … they might want to have a look at him there … . All I want is Crime Scene if they're coming …:" 195 When asked whether anyone had been injured he is recorded at [189] by her Honour as replying: "Well, there is actually some matter, apart from the initial traffic stuff, there's a number of assaults on police … as well as an unlawful entry, break and enter type situation in order to avoid us. I'll explain it all later. It's sort of a bit hard (ui) [sic, unintelligible] just to explain everything." 196 On the basis of the foregoing the primary judge concluded: "190 On balance, I have concluded that the position adopted on behalf of the plaintiff ought to be accepted. The photographs demonstrate that a very substantial amount of blood had been shed in the bedroom. There was no evidence that Constable Jackson was injured in such a way as to shed blood. All of the blood must have come from the plaintiff. It was obvious that some of his injuries were facial. That is sufficient to alert a prudent senior police officer that a serious incident had occurred, and to trigger the procedures laid down by the Guidelines. Indeed, in his radio call, Detective Briggs advised those at the police station that the plaintiff ought to be examined. This was a radio call on which reliance was placed by the defendant, but it demonstrates to me that Detective Briggs was, at the very least, aware that the plaintiff had suffered injury requiring investigation. That, alone, raises questions about Detective Briggs' failure to secure the scene. He was not responsible for what occurred after the arrival of Inspector Murphy, and his assumption of control of the situation. But if Detective Briggs had, as he was required to do, notified the Duty Officer in Sydney that a Critical Incident had occurred, then the other procedures – the appointment of a CIIT – would inevitably have followed. It would not have been possible for Inspector Murphy to call in the cleaners and destroy the scene. 191 But, as I have said repeatedly, and I remind myself, this is not a general inquiry into the conduct of Detective Briggs and his colleagues. His failure to take the necessary steps are relevant only if it can be inferred that they were for a reason from which a further inference of malice, or absence of reasonable and probable cause, can be drawn. 192 If, for example, it were concluded that Detective Briggs' failure to implement the procedures resulted merely from an error of judgment on his part in the evaluation of the level of seriousness of the plaintiff's injuries, then no adverse inferences concerning the prosecution could be drawn. If, on the other hand, it could be inferred that Detective Briggs failed to act in order to protect the position of, for example, Constable Jackson, then, plainly, adverse inferences could be drawn." 197 Her Honour therefore posed for herself in the last sentence of [192] of her reasons a test that, in our respectful view, required significant probative evidence before the inference to which reference was there made could be drawn. In other words, her Honour was correctly acknowledging that before an adverse inference as to one of the two elements of malicious prosecution she was considering could be drawn against Briggs, it would be necessary for the evidence to establish, directly or inferentially, that he had appreciated that the respondent's injuries were sufficiently serious as to result in a Critical Incident but that he deliberately failed to declare such an incident in order to protect the police officers concerned in the incident including, in particular, Jackson. We will return to the applicable standard of proof. 198 We note, at this stage, that the question which arises from [192] is what in Jackson's position needed protection which could be achieved only by failing to declare a Critical Incident and thereby not securing the scene for further investigation and, in particular, fingerprinting? In our opinion the only conduct of Jackson that might have required such protection was if he had admitted to Briggs that he had unlawfully assaulted the respondent by striking him on his face with his baton or Briggs suspected that he had done so. For reasons that will become apparent, in our view there is no evidence which would support such a finding, whether by inference or otherwise. 199 The primary judge then turned to the evidence given by Briggs as to what he was told by Jackson. At [193] she opined that it must have been "quite obvious" to Briggs that something untoward had, or very probably had, occurred in the bedroom. She noted that he had given evidence that after the respondent was removed from the scene he asked Jackson what had happened. At [194] her Honour set out that part of Briggs' evidence that she apparently regarded as significant to her findings. Relevantly, that evidence was that Jackson discovered the respondent under the bed; the bed ended up on top of Jackson; there was a struggle and the bed was flipped but Jackson pushed it off him; he was then at one end of the bed and the respondent at the other and there was a pushing/pulling situation. Jackson then utilised his capsicum spray, which had no effect. Ultimately, he then used his baton. 200 Her Honour then recorded at [194] Briggs' evidence as to his knowledge of what had transpired between Jackson and the respondent. Relevantly, that evidence was: "He struck him once when going one way and hit the arm and on the back and going back on the other arm, I believe. … And then the pushing and pulling of the bed continued and then Mr Hathaway has allegedly picked the bed up and then Jackson has been able to utilise the baton and strike him on the leg, and that was when - anyway, Mr Hathaway started letting go of the bed, or something. And then not long after that anymore pushing and pulling. … I believe I asked him about the lacerations, I believe, and he said, basically it wasn't to do with him … or he was unsure as to how that occurred." 201 In light of Briggs' evidence, the primary judge came to the following conclusions: 195 He [Briggs] did not believe that the laceration he had observed to the plaintiff's face could have been caused by a baton blow to the head. He thought that was more consistent with what had occurred earlier, when the [respondent] was running and jumping over fences. He also said that he had been informed (he now knew incorrectly) that, before his entry to the house, the [respondent] had been seen to be bleeding from the head. 196 On this account, it must have been obvious to an experienced Detective even at that early stage that serious questions would be asked concerning the events in the bedroom. That does not mean that he was not entitled, at that point, to accept, at face value, the account given by Constable Jackson. But that account exposed those very questions. It is therefore inexplicable that he did not take more decisive action to preserve the scene. It was not sufficient merely to ask for Crime Scene Detectives to attend, and, when told that they were not available, to do nothing further. That he did not take further action, I consider, was attributable to his recognition of the possibility that Constable Jackson had exceeded the bounds of propriety in his response to the [respondent's] conduct. 197 I am satisfied also, that, although Detective Briggs was not responsible for what Inspector Murphy did, he was aware of its impropriety and of the likelihood that this was done for the purpose of frustrating any subsequent investigation. Even in the absence of the declaration of a Critical Incident, the area remained the scene of a serious crime. 198 It is, therefore, an inevitable conclusion that Detective Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and therefore maliciously. 199 The improper purpose was the support of Constable Jackson in his assertions about the [respondent], and to strengthen the case against the [respondent]. It also was to perpetuate the fiction that had been created by the placement of the knife in the bedroom, and protect the police involved." (4) The questions posed by the primary judge's conclusions 202 Paragraphs [196], [197] and [199] of her Honour's reasons recorded above give rise to the following questions: As to [196] ► Why does it necessarily follow that it was obvious to Briggs that serious questions would be asked concerning the events in the bedroom? ► Given that Briggs was entitled to accept at face value the account given by Jackson, why does it follow that that account exposed those serious questions? ► In any event, what were those " serious questions "? ► What was it about those " serious questions " that required the preservation of the scene? ► What " scene " is being referred to: the bedroom and/or other parts of the house? ► What was it about Jackson's explanation to Briggs of what had occurred that necessarily gave rise to the possibility, which should have been recognised by Briggs, that Jackson had exceeded the bounds of propriety in his response to the respondent's conduct? As to [197] ► What was the impropriety on the part of Murphy of which Briggs should have been aware? ► What was the nature of the impropriety that gave rise to the likelihood that Murphy's calling in of the contract cleaners was done for the purpose of frustrating any subsequent investigation? ► How would any subsequent investigation have been frustrated in the circumstances? As to [199] ► What was it about Jackson's statements about what had transpired with respect to the respondent as understood by Briggs (as per the evidence referred to by her Honour at [194]) that required support by destruction of the crime scene? ► What part of the case against the respondent as understood by Briggs, required strengthening that could only be achieved by destruction of the crime scene and the failure to declare a Critical Incident? ► What was the evidence that enabled the inference to be drawn that Briggs was aware that the knife had been planted by one or more police officers? ► Why was the placement of the knife in the bedroom necessary " to protect the police involved "? ► To which police is reference being made and why? 203 To the foregoing should be added the following questions which arise out of [171] of her Honour's reasons which we have recorded at [182] above: ► Given that the knife could only have been planted after the respondent was removed from the premises at approximately 11.16am (according to the police radio log records) and before Mr Mansfield, the cleaner, arrived (according to Murphy's statement) at 12.25pm and given the limited number of police officers who were present during that period, why would any police officer search the kitchen drawers for the purpose of finding an implement such as the knife? ► Why would its placement and, therefore, its presence in the bedroom be of significance to the prosecution of the respondent for the various offences which he had allegedly committed up to the time of his arrest? ► What would be the point of planting the knife in the bedroom having, in effect, wiped the handle of the knife clean so that there would be an absence of DNA and fingerprints when it was known that the respondent had cut his hands and had blood on them and his feet as he had left a trail of blood to and through the house including in the bedroom? ► Why plant the knife in circumstances where there was no evidence of the respondent's blood either on the floor of the kitchen leading to the drawer or on the drawer or its handle? ► Why plant a knife, the handle of which had been cleaned of fingerprints or DNA when, given the extent of the respondent's blood in the bedroom, it would have been simple and obvious to have smeared some of that blood on the handle and/or blade of the knife before it was planted and which would thereby have strengthened the police case that the respondent had taken the knife into the bedroom? For reasons that will become apparent, in our respectful opinion the primary judge's findings raise more questions than they answer. In particular, the questions that we have identified above as arising out of those findings do not permit of ready answers that go beyond speculation. Significantly, as we have attempted to demonstrate, the evidence does not provide the answers that are necessary to found her Honour's adverse findings with respect to Briggs. 204 In substance, the appellant's submissions on the appeal raise the questions that we have articulated above. Although we do not refer specifically to each of those submissions, our responses to her Honour's findings later in this judgment do encapsulate them. However, before going to an examination of her Honour's findings in more detail it is both necessary and appropriate to refer first to the evidence Morgan, Briggs and Jennings gave at the trial, as well as to outline the information available to Briggs at the time the respondent was charged with the knife offences. (5) The relevant evidence of Morgan 205 The primary judge dealt with the claim against Morgan at [130] to [132] of her reasons. She acknowledged that Morgan undertook a different role to that of Briggs as she was a professional police prosecutor and could only examine the evidence with which she had been provided to determine whether, if accepted, it was sufficient to prove the various offences with which the respondent had been charged. Her Honour regarded Morgan as an impressive witness who gave her evidence frankly and who undertook the task of prosecuting "responsibly, diligently and ethically". However, there are aspects of her evidence that, in our opinion, are relevant to the assessment of that of Briggs. 206 Morgan gave evidence of having received her brief from Briggs, which included not only the photographs taken by McAlister but also the various witness statements to which reference has already been made. At the time she received the brief she was aware that there were no fingerprints or DNA on the knife. She thought that Briggs had told her this. During the course of the first day of the hearing in the Local Court on 10 December 2003 she became aware that the respondent's solicitor was alleging that his client had been assaulted by being struck on the face by Jackson's baton. 207 In cross-examination Morgan was referred in some detail to the case put in the Local Court proceedings against the respondent (repeated in the cross-examination of Briggs in the present trial) by the respondent's solicitor concerning his client's injuries and, in particular, the allegation that most of his face was covered with blood as was his torso and that there was blood splattered around the bedroom. She was also referred to the cross-examination of Briggs relating to the fact that no fingerprints or DNA had been found on the knife. However, at Black 3/993Q-T she denied that it was her understanding that it was any part of the respondent's case at that time that the knife had been planted. 208 It was suggested to Morgan at trial that when the Local Court matter was adjourned on 11 December 2003 to January 2004, there was insufficient evidence to secure a conviction of the respondent in relation to the two knife charges – a suggestion with which she disagreed. The following exchange then took place (at Black 3/1001H-O): "Q. You were content with the proposition that the only evidence against him which could be evidence was that there was, the knife was found in the same room in which he was apprehended? A. I disagree. Q. What other evidence was there? A. Well, the evidence to me, when I read the brief, was of Mr Hathaway being determined to avoid apprehension right from the start. And he seemed to me to be going to extreme measures in order to avoid apprehension, including what was a vehicle pursuit where he adopted a course of dangerous driving; a lengthy foot pursuit around Central Wagga, when he was climbing over fences; that then carried on to the point where he broke into this particular house, went through the area of the kitchen and hid under the bed, on his evidence, for some 20 minutes. There was no doubt in my mind that on the way through the kitchen he picked up that knife." 209 As to Morgan's understanding that the respondent had entered the house through the kitchen, she said that Jackson's evidence was that he saw marks on the kitchen floor. She accepted (at Black 3/1001Z-1002F) that, being mid-February in Wagga Wagga, it was very hot and that given the lengthy pursuit by foot of the respondent, he was no doubt sweating profusely. It was put to her that he had blood on his feet and on his hands. She agreed with the former but not the latter. She also agreed (at Black 3/1002J-U) that there was no evidence on the floor near where the knife had been placed by Mr Gaffney that morning, to indicate that the respondent had been near the drawer in which it had been placed. She also did not consider it problematic that there were no fingerprints or DNA on the knife, noting that it had been found by the cleaner amongst the bedclothes in the bedroom. 210 Morgan was referred to the fact that in the Local Court hearing the respondent's solicitor put forward an alternative proposition as to how the knife came to be in the bedroom but that he did not put anything specific and was not alleging that it had been planted by the police. She accepted that he had put as an alternative reasonable hypothesis that someone else had placed the knife amongst the bedclothes in the bedroom (see Black 3/1003Z-1004F). 211 At Black 3/1007C Morgan acknowledged that at the end of the prosecution case it was still her view before the respondent commenced giving evidence, that there was a case for him to answer on the knife charges and that remained her view after she had cross-examined him. She also disagreed that the evidence in relation to the knife charges was weak. At Black 3/1009E she confirmed that she considered there was sufficient evidence to sustain a conviction on the two knife charges. Nevertheless, she also accepted that the Magistrate was against her and that it was her duty, if she considered that the evidence would sustain an allegation that the respondent had gone into the kitchen, taken the knife and armed himself with it for the purpose of resisting apprehension, to put those propositions to the respondent but that she had not done so. She was asked the following question (at Black 3/1009S-U): "Q. The reason I want to suggest you didn't put any of those matters to him, in particular that he took this knife and took it into the bedroom, was because at that stage you realized you couldn't properly put that to him? A. That wasn't the reason. It would just be tardiness on my part." Again ( at Black 3/1010L-M ) she denied that the reason she did not put these matters to the respondent was because the evidence did not justify her doing so. 212 In re-examination (at Black 3/1012J-S) Morgan was asked why she did not regard the absence of forensic evidence in relation to the knife charge (in particular, DNA) as being problematic. She responded that the chances of DNA transfer from just skin to surface contact was less than 10 per cent and she was unaware that the respondent was bleeding from his hands at the time. However, she did accept that although fingerprints on the blade of the knife would not be expected, she did expect that they would be on the handle of the knife. 213 The point of referring to this evidence is that it is clear that the primary judge accepted Morgan's evidence in its entirety including her reasons for maintaining the knife charges. Having done so, one asks rhetorically, why did her Honour not apparently accept not substantially dissimilar evidence from Briggs? To that evidence we now turn. (6) The context in which the evidence of Briggs is to be considered 214 Briggs' evidence needs to be considered against the background of the following relevant findings of the primary judge which we have summarised (at [150]) but which we now address in detail: (a) The unexplained absence from the witness box of Murphy was " of very considerable significance " in that " in an extraordinary decision " he arranged for a contract cleaner to enter and clear the scene, thus destroying potentially critical evidence and making no attempt to preserve the scene (at [163]); (b) Having regard to the absence of DNA or fingerprints on the knife, its removal from the drawer in which it had been placed by Mr Gaffney must have been effected by a person (or persons) aware of the significance of those forensic investigations and the means of avoiding leaving such evidence (at [171]); (c) The knife was placed in the bedroom by a person or persons aware of the significance its presence would have in the prosecution of the respondent (at [171]); (d) It was obvious that some of the respondent's injuries were facial, which was sufficient to alert a prudent senior police officer such as Briggs that a serious incident had occurred and to trigger the procedures laid down by the Critical Incident Guidelines (at [190]); (e) Briggs was, at the very least, aware that the respondent had suffered injury requiring investigation which itself raised questions about his failure to secure the scene (at [190]); (f) Had Briggs, as he was required to do, notified the Duty Officer in Sydney that a Critical Incident had occurred, then procedures would have been in place which would have made it impossible for Murphy to call in the cleaners and destroy the scene (at [190]); (g) It must have been obvious to an experienced detective such as Briggs even at that early stage, that serious questions would be asked concerning the events in the bedroom and it was therefore inexplicable that he did not take more decisive action to preserve the scene (at [196]); (h) His failure to take further action was attributable to his recognition of the possibility that Jackson had exceeded the bounds of propriety in his response to the respondent's conduct (at [196]); (i) He was aware, although not responsible for, the impropriety of Murphy in calling in the cleaners and of the likelihood that this was done for the purpose of frustrating any subsequent investigation (at [197]). (7) The relevant evidence of Briggs 215 When Briggs arrived at the Gaffney premises, he heard Philpott yelling at the respondent to get on the ground. He entered the premises and was attracted to the bedroom by the noise. Amongst other things he observed the respondent with blood on his head. In cross-examination he agreed that the respondent had blood all over his face and torso. In particular he had blood coming from a wound under his eye. However, he did not consider his injuries to be so serious as to require the declaration of a Critical Incident, a matter to which we shall return. 216 Briggs immediately requested the attendance of Crime Scene police. The radio log records reveal that he made a radio call for Crime Scene police to come to the premises at 11.17am. The Crime Scene police were, he said, specifically trained to take photographs and examine locations where offences had occurred in order to provide a proper presentation of what had taken place. However, his request was denied, as no Crime Scene police were available as they were attending a fatal motor accident in Coleambally. In the absence of those police officers he organised for McAlister, a field intelligence officer whose job it was to go around and take photographs of crime spots and locations, to attend with what he referred to as the exhibit camera. McAlister arrived and the photographs were taken. Briggs agreed in cross-examination that officers such as himself had experience in guiding or directing photographers as to what to look for and what might be significant. He instructed McAlister as to the areas to be photographed. Briggs remained at the premises until Mr Gaffney arrived. He then left, but, upon being informed by Murphy that a knife had been found, subsequently returned to the scene with McAlister and Jackson. Murphy was present when he returned and showed him the knife that had been discovered. 217 Briggs subsequently became aware that a Critical Incident had been declared. In cross-examination (at Black 1/450T-Z) Briggs agreed that under the Critical Incident Guidelines, a Critical Incident is declared when, as a result of police action, a non-police officer suffers injury sufficient to require emergency medical treatment such as admission to the Accident and Emergency Ward of a hospital. He further agreed (at Black 1/465X-Y) that the photographs taken by McAlister revealed a great deal of blood had been spilt in the bedroom and that there in fact was a lot of blood in the bedroom including blood smeared on the carpet, blood spots on the cupboard doors and blood splatters on the walls of the bedroom. When asked if it was obvious that a great deal of blood had been spilt in the room, he answered in the affirmative. Nevertheless, notwithstanding repeated suggestions to the contrary, he consistently disagreed (such as at Black 1/466C-I) that it was obvious that a Critical Incident would be declared, as he did not consider that the respondent had suffered injuries requiring emergency admission to hospital followed by significant medical treatment. 218 However, he did agree that although he had not been notified prior to leaving the Gaffney premises as to the respondent's condition, he might have been informed that he had been taken to hospital. 219 Much attention was directed in cross-examination to the issue of the preservation of the crime scene. Briggs acknowledged (at Black 1/466T-U) that it was basic policing that one preserves a crime scene. He further accepted that a crime scene should be preserved until appropriate investigations have been carried out. As we have indicated, Briggs called for a crime scene investigation at 11.17am, which was within a minute or two of the respondent being removed from the Gaffney premises. He was informed that no one was available as a consequence whereof he organised for photographic evidence to be obtained using McAlister's services. This appears to have occurred on two occasions, at the second of which Murphy was present. In particular, at Black 1/470V he stated that he had requested McAlister to take as many photographs as he could to properly record the scene. Those photographs included a number depicting the state of the bedroom where the altercation between the respondent and Jackson had taken place. Philpott and Holmes assisted in that exercise, ensuring that an appropriate recording of the photographs was made. 220 After McAlister had finished taking photographs and, according to the radio log records at 11.51am, Murphy made arrangements to have cleaners brought in to clean the premises. 221 It was put to Briggs (at Black 1/473Q) that the effect of having commercial cleaners come in would be to destroy the crime scene. However his response (at Black 1/473T-V) was that the decision was made to clean the premises as the crime scene had been photographed. The following exchange then took place (at Black 1/473W-Z): "Q. Had there been any forensic investigation within the bedroom to determine, for instance, how this blood had come to be spilt? A. No, there was no crime scene officers available. Q. But you didn't know that they weren't going, you weren't going to be able to get them there some time later, did you? A. No.' 222 The first of these questions assumes that apart from photographing the bedroom, an expert forensic investigation of the bedroom would determine how the respondent's blood had come to be spilt. In other words, as we understand the purport of the question, it was being suggested that forensic examination, beyond photographing, of the bedroom and of the spilt blood would have enabled a determination to be made as to whether the blood upon the respondent's face was caused by Jackson's use of his baton or due to some other cause such as the right side of the respondent's face coming into contact with the bed frame when it was thrown by Jackson in the manner already described when dealing with the assault cause of action. 223 However, neither Briggs nor any other police officer was asked how a "forensic investigation" within the bedroom would be likely to determine the issue posed. The matter was left hanging. 224 Furthermore, Briggs' response to the question we have referred to in the preceding paragraph was that there were no crime scene officers available. He was not asked whether, had they been available, they could have carried out a forensic investigation to determine how the respondent's blood came to be spilt. 225 As we have indicated, Briggs returned to the scene having been informed by Murphy that a knife had been found. According to Murphy, Mr Mansfield arrived at the premises at approximately 12.25pm. It was sometime after that that he discovered the knife. The radio log reveals that at 1.02pm Murphy radioed requesting that Crime Scene be contacted to see if they had a fingerprint person working on that day who could attend the Gaffney premises. The operator responded indicating that the Crime Scene police were on their way to Coleambally. Murphy then requested the operator to nevertheless see if one of the two fingerprint persons was working. According to the radio log at 1.11pm Murphy again contacted the operator and asked whether she had managed to ascertain whether one of the fingerprint people was working out of Crime Scene that day, to which the operator responded that none were available. 226 At Black 1/478F-G Briggs acknowledged that he was aware that at some stage Murphy had asked the radio operator to see if they could obtain the services of a fingerprint person working that day, although he was not sure whether that was before or after the knife had been found. Nevertheless he accepted that he was told of the finding of the knife by Murphy and acknowledged (at Black 1/480C-E) that: "[s]uddenly what had just seemed like assaulting police and a traffic matter was getting pretty serious in [his] mind". He acknowledged that the knife had just come out of nowhere and was a very dangerous looking weapon. 227 Having returned to the scene and spoken to Mr Gaffney who had told him that the knife had been cleaned, washed and dried that morning and returned to its kitchen drawer, the following exchange occurred (at Black 1/482B-S): "Q. But Mr Gaffney had told you that he'd washed it up and either put it in the sink or in the cupboard, in the drawer? A. Yes, yes. Q. And did you have a look at, did he show you which drawer? A. Yes. Q. And was that before the photographs were taken? A. Yes. Q. And did you have a good look around in that area where the drawer was? A. As in, well, basically. Q. Did you cast your detective's eye round the scene? A. I suppose I would have, yes. Q. You suppose you would have? Did you or didn't you? A. Well, if I looked around the scene, yes. Q. And did you observe any blood marks in the vicinity of the sink or a drawer? A. No. Q. Did you observe any bloody footprints in the part of the kitchen near the sink or the drawer? A. No. Q. You'll recall, you'd been in Mr Smith's backyard and you'd seen bloody footprints on the, outside the toilet and also on the pavers? A. Yeah, I believe, yeah. Q. You didn't see anything like those round that part of the kitchen where this knife had been? A. No, no." 228 Briggs agreed (at Black 2/486-487) that he had looked around the kitchen to see if he could see any blood but had not seen any either on the floor in the vicinity of the kitchen drawer or upon the drawer or sink itself. He said that he took possession of the knife and bagged it, noting that he had not seen any blood upon it. He accepted (at Black 2/487T-U) that having spoken to Mr Gaffney, he was now confronted with what looked like two very serious offences involving a knife and that he was concerned to see if he could link the respondent with the knife. One way of doing that, he accepted, was to see if there was forensic evidence available in the vicinity of the sink or drawer that so linked the respondent such as fingerprints or blood that was not visible to the naked eye. The following exchanges then took place (at Black 2/488P-489K; 489R-490C): "Q. And for that reason you clearly needed crime scene? A. If it was going to go that far, I would have, yes. Q. You were the investigating officer? A. Yes. Q. They were two serious offences involving a knife that was a lethal weapon? A. Correct. Q. Didn't you think it was necessary to investigate the offence? A. As [has] already been explained I was informed crime scene weren't coming. Q. You weren't informed they were never able to get there, were you? A. Never? Q. Yes? A. I was operating under the aspect that they weren't coming. Didn't really matter what I asked for or what I did, they weren't coming. Q. Are you suggesting that had you said 'look, we have these two serious offences involving a lethal weapon. We would want some forensic testing carried out'. The crime scene would have said 'not coming'? A. There is a possibility. Q. And you, of course, said that to someone, did you? A. No, I figured I was still operating on the same ideals [sic] as before. Q. Did you say to Mr Murphy 'shouldn't we wait until the crime scene gets here'? A. No, I didn't say that. Q. You would agree with me that after you seized the knife and some photographs had been taken of the cupboard and the knife in situ and the like, the cleaners got back to work? A. That's my understanding, yes. Q. And you would have [to] agree with me, wouldn't you, that they thereby effectively destroyed the crime scene? A. I would agree with that. … Q. Don't you agree the cleaners coming in had the effect of destroying the crime scene? A. Once we had photographed the scene as best we could on the understanding that the crime scene weren't available, the cleaners coming in and cleaning that location, that scene, I suppose technically would mean it was destroyed, in that it couldn't be then re-analysed. Q. And after the discovery of the knife the cleaners were stopped? A. That's my understanding, yes. Q. But after Mr Gaffney had been there some photographs were taken and the knife was seized. They recommenced cleaning? A. Correct. Q. You knew they were about to do that? A. Yes, I would have, yes. Q. And that certainly also meant that the crime scene would be destroyed? A. That would be correct." 229 The cross-examiner returned to this issue (at Black 2/550I-551T) where the following evidence was given: "Q. Would it be fair to say that you do not regard it as necessary to fingerprint the area where Mr Gaffney kept a knife? A. That would be correct. Q. Why? A. Because I believed that the scene had been contaminated by that point. Q. What does that mean? A. It means there had been police through, the Gaffneys had been through and other people had been through. Q. When you say the Gaffneys had been through, that was later in the day, wasn't it? A. Once I had become aware of the knife. Q. But before you -- A. Before I became -- Q. You wouldn't have thought it was necessary to do that? A. No. Q. What about fingerprinting in the bedroom? A. What about fingerprinting in the bedroom? Q. Yes? A. The bedroom? Q. Yes? A. No, I didn't think that would be necessary. Q. I mean, hadn't you been told outside by Constable Jackson that there had been lots of toing and froing? A. Yes. Q. Do you think it may have been worthwhile seeing if you could get some fingerprints? A. I didn't see the point. Q. Even after the knife had been found? A. Yes ." (Emphasis added) 230 It is not unimportant to observe that it is not self-evident why it would be thought necessary to fingerprint the bedroom and how this would assist in establishing how the knife came to be there. Obviously, the fingerprints of the respondent Jackson and Mr Gaffney's son whose bedroom it was and, perhaps, other members of his family, would be in the bedroom. It may be that in the extract that we have recorded above, and which we have emphasised, the cross-examiner was suggesting that fingerprinting the bedroom might have revealed the identity of whoever placed the knife in the bedroom. If this is what the cross-examiner was getting at, he certainly did not make it plain to the witness. Furthermore, if in fact the knife had been planted by a police officer and, as her Honour inferred from the forensic report, had been wiped clean of fingerprints, then the chances of that police officer's fingerprints being found in a place that shed any light on who placed the knife in the bedroom, would be somewhat remote. 231 At Black 2/492-493 Briggs was cross-examined as to what he had been told by Jackson after the respondent had been arrested and removed from the premises. He said that Jackson described the struggle to him and that he had ultimately utilised his baton, using a figure of eight movement that was the appropriate technique when deploying a baton. He said that Jackson had told him that he, Jackson, had struck the respondent's arm going one way and going back the other way had hit the other arm. With respect to the blood on the respondent's face, the following exchange occurred: "Q. After he had given you that description of what happened, no doubt you said to him 'well, how did he get all that blood on his face'? A. I believe I asked him about the lacerations, I believe, and he said, basically it wasn't to do with him. Q. Wasn't to do with him? A. Or he was unsure as to how that occurred. Q. Which did he say? A. I really can't remember exact words. Q. It is something you have been asked to remember on a number of occasions? A. At this point of time I can't recall exactly which one it was." 232 Briggs was then asked whether it had occurred to him that the injury to the respondent's face, including the laceration which he had observed, could have been caused by the baton. He answered in the negative. When asked "why not"? he responded (at Black 2/493T-Z): "Because a baton in the head, I doubt it appeared to me more a laceration conducive with jumping fences and so forth. I was also informed prior … whether rightly or wrongly, Mr Hathaway had been seen bleeding from the head." He was told that by Deissel who had been so informed via radio by Holmes. 233 As noted at [183] above, a Critical Incident was declared about 1.30pm after which, as Briggs said, he was not permitted to interview any of the relevant witnesses until released to do so by the CIIT. 234 When questioned as to the information available to him at the time that he charged the respondent on 28 March 2003 with the knife charges, he acknowledged that given that the forensic investigation for fingerprints and DNA on the knife proved negative, he had no physical evidence whatsoever to link the respondent to the knife. He agreed (at Black 2/528J-K) that there was simply the fact that the cleaner had found it sometime after the respondent's arrest in the room in which he was arrested coupled, of course, with the evidence of Mr Gaffney. 235 Ultimately the cross-examiner turned (at Black 2/531H-K) to the question of Briggs' knowledge that the respondent had alleged that Jackson assaulted him. Briggs said he first learned of this on either 10 or 11 December 2003 when the respondent's solicitor made the allegation at the hearing before the Local Court at Wagga Wagga of the charges against the respondent. He said that when that suggestion was made he was extremely surprised. Further, he stated that it had not occurred to him at any time between February and December 2003 that the respondent's facial injuries had been caused by Jackson striking him in the face with his baton. 236 Briggs also acknowledged (at Black 532B-F) that it was during the Local Court hearing that he became aware, inferentially for the first time, that it was the respondent's case that the knife had been planted in the bedroom. At the latest he became aware of the suggestion when he was cross-examined at that hearing. He was then cross-examined at trial in some detail as to his evidence at that hearing with respect to his observations as to the extent of blood on the respondent's face and torso. In particular, Briggs was asked whether he agreed at that hearing that there was blood on most of his face, to which he responded on a number of occasions "there was blood on his face". It was then suggested to him (at Black 2/540U-V) that he was trying to avoid answering the question asked of him in the Local Court because he was aware that the amount of blood which, it was then suggested, covered most of the respondent's face, might have some relationship to whether or not he had been hit by a baton. Briggs disagreed with that proposition. Nevertheless he acknowledged that he was aware that Jackson had used his baton to overcome the respondent's resistance in the course of his arrest. 237 We pause to observe that at Black 2/547-548 a number of questions were directed to Briggs relating to entries that he had made in the relevant records when he returned to the Wagga Wagga Police Station, the underlying suggestion being that he was concerned that Jackson had in fact struck the respondent's face with his baton but he was trying to play down what had occurred in order to avoid Jackson getting into trouble. In this context it was suggested to him that Jackson was a friend of his – a proposition to which he agreed insofar as they worked together. However, he made it clear that they had never socialised. 238 We would observe that her Honour, correctly in our view, did not perceive there to be any link between the evidence of Briggs referred to in the preceding paragraph and her finding that an unknown police officer or officers had planted the knife to Briggs' knowledge. 239 In fact, the high point of the cross-examination of Briggs with respect to the alleged planting of the knife came towards the end of his evidence in the following exchanges (at Black 2/551U-557F): "Q. … Now, it is the situation of course that there was, by the time you gave evidence in December 03, there was absolutely no physical evidence of any kind to connect Hathaway with the knife. That is so? You have already agreed to that, is that right? A. That's correct, yes. Q. And this knife was found in quite strange circumstances, wasn't it? A. Yes. Q. It wasn't found by a police officer in the course of an investigation, it was found while someone was cleaning up a crime scene? A. That's correct. Q. Didn't that suggest to you that there may be a cover-up going on? A. No. Q. Didn't suggest that at all? A. What sort of cover-up? … ROBERTS Q. Did it occur to you that the knife might have been put there by someone other than Hathaway or any member of the Gaffney family? Did that occur to you? A. No, it didn't. Q. Why? A. Because the only reasonable hypothesis I had was that it was Mr Hathaway and the fact that to prove the charge in regards to the knife I would have to know the recency the knife was used, when it was used, who last used it [on 6 February]. … HER HONOUR Q. Let's get this clear. You were asked if it could have been. Now, do you mean by that it was not physically possible, or you don't think it is a reasonable possibility? A. I don't believe it is a reasonable possibility. ROBERTS Q. Why not? A. Because of the evidence as was obtained in regards to, from Mr Gaffney as to just the information as obtained and I just cannot see that occurring. HER HONOUR Q. Is that still your position even now? That -- A. - yes. Q. You don't believe it could have been anybody else? A. That's correct. Q. So you still take the view [do] you that it was Mr Hathaway? A. Yes. Q. How do you explain the absence of any blood or DNA on it or in the kitchen? How do you reconcile that belief with those circumstances? A. I have never actually determined exactly, because of the critical incident becoming involved. I was asked my opinion and I still believe it was Mr Hathaway. Q. Have you given some thought to it, or is this a sort of instinctive response? A. Oh no, it is just my general opinion. Q. Think about it now. You know that Mr Hathaway was bleeding from his hands at the time and that it was a very hot day and he had had a long run, so he was undoubtedly perspiring. I think that is in evidence. Wherever else he went he left blood. How do you reconcile the absence of any blood or other DNA traces on the night -- A. Well -- … Q. Any blood in the kitchen with your belief that Mr Hathaway put the knife there? A. There was only one spot located in the kitchen and it is my understanding and my belief that he went through the kitchen prior to going into the bedroom and yet there was blood next door, it is all very confusing your Worship, I appreciate that. But as far as the DNA on the knife goes, there was only two swabs taken by the crime scene officer who would just swab it, the actual manner in which that was done. Q. But knowing what you know about the circumstances now, Mr Hathaway bleeding, particularly from the hand, would you not expect that if he had been picked up the knife he would have left some blood in the kitchen wherever he picked up the knife from and on the door if he had to open it and on the handle of the knife? A. Again, I believe, I appreciate what you are saying there but … There are too many variables. Q. The question I'm asking you is this; you reject any reasonable possibility that the knife might have been put there by somebody else so I'm asking you [to] reconcile that belief with the circumstances I have just mentioned to you? A. I think I have a, an opinion of all those involved. It is a country area, it is a country police station. There is no police officer there that would do anything untoward and that is how I basically reconcile it. Q. So it is your faith in your colleagues? A. That's correct. Q. That makes you stick to the belief that it was Mr Hathaway, even in the face of what seems to be … quite strong evidence that he may not have been the person who did it? A. My belief is he was the one responsible. Q. But you cannot reconcile that belief with the absence of blood or perspiration or DNA? A. No, that's right. ROBERTS … Q. - please understand, I am asking you about your state of mind just before the prosecution case commenced in December? A. (Witness nodded.) Q. Before the case started, do you understand? A. Yes. Q. You have Hathaway injured and admitted to hospital? A. Yes. Q. Crime scene not secured? A. Crime scene unavailable and as a result certain decisions were made. Q. The crime scene is not secured? A. Because of decisions made, yes. I'd agree with that. Q. And in fact, the crime scene is in effect destroyed? A. At the completion of photographing, yes. Q. Didn't that suggest to your mind back in 03, December 03 that this was a cover-up? A. No. Q. Does it suggest to your mind now that it was a cover-up? A. No." 240 The cross-examiner then put to Briggs (at Black 2/555O-557F) some evidence that he had given at the PIC hearing where it was suggested to him that the alleged failure to secure the crime scene and the fact of its destruction by the cleaners, was capable of conveying "a fairly sinister connotation to members of the public", a proposition with which he agreed. It was further put to him that at the PIC hearing he agreed that on one view of it, not being a view that the cross-examiner was then advancing, it very much suggested a cover-up to which his response was "That's the way it looks. Yes, yes". When asked in the present proceedings what sinister connotation he had in mind when he agreed with the proposition that was being put to him at the PIC hearing, he responded "[t]hat someone other than Mr Hathaway left the knife there". However, he did not share the sinister connotation referred to. 241 The cross-examination concluded with the following exchange (at Black 2/562F-M): "Q. And I want to suggest that prior to your laying charges against, the charges in relation to the knife you must have been aware that it was more than likely the knife had not been placed there by Hathaway but by someone else? A. That's not the case. Q. Did you put it there? A. No, I did not. Q. Do you know of any police officer who did? A. No. Q. Would you dispute that it is likely, with the knowledge you have now, that it was a police officer who put it there? A. I dispute that." 242 In re-examination the following further evidence was given (at Black 2/563D-O): "Q. You have been asked a lot of questions about the knife and about half an hour ago you sat back in the witness box and you said something to the effect, in order to succeed on the knife charge you would have to succeed on the question of recency of possession. Remember saying this? A. Yes. Q. What were you talking about? A. To prove the charge involving the knife we would have to show the recency of it being used by Mr Gaffney. Like, it couldn't be a knife that he had no idea about or hadn't seen for four weeks or whatever. So, to prove that fact, the fact that he utilised that knife that morning, and then it goes from where he left it to the bedroom. We would have to know if, the proposition is that police left the knife there or a third person left the knife there, we would have to know prior that Mr Gaffney had utilised that knife as recently as just before he left the door, walked out the door. Q. And is that reasoning process you have just explained, is that something that was present in your mind in connection with the laying of the charge? A. Yes. Q. And is that reasoning process at all significant to you in answering her Honour's question about how you reconcile the preferring of the charge with the absence of objective DNA or scientific evidence? A. That's correct." (8) The relevant evidence of Jennings 243 As already referred to at [191] above, on 6 February 2003 Jennings was the Custody Manager of the Wagga Wagga Police Station. As such her role was to look after the care and well being of persons taken into custody. It was she who made entries in the Custody Management Record relating to the respondent. Relevantly, against the question "Does the person complain of, or have you observed any sign of intoxication, pain, injury or illness" she recorded "bruising underneath right eye" and "approx 2cm cut to right cheek". In cross-examination at Black 3/906M-U she gave the following evidence: "Q. When he was brought in did he have blood on him? A. I can't remember what he looked like from my memory. Q. Don't you remember that his face was very bloodied? A. No. Q. Don't you remember there was blood all over his face and his torso? A. No. Q. If there had been blood all over his face and his torso you would remember it, wouldn't you? A. I would have recorded it, like I did on my sheet of paper, because I recorded the injuries I saw. So my memory, I cannot remember his face, I am purely going off what I saw on that sheet when I took the handwritten notes." 244 Further, at Black 3/930G-Z she again confirmed that she had no memory of the respondent's face and torso being covered in blood or any memory of him exhibiting signs of serious injury when he came into the dock. Further, the major reason for calling an ambulance to collect him was because he was suffering from the effects of capsicum spray and had refused to decontaminate himself or to take the shower that had been offered to him. She denied that it was obvious to her that he was bleeding from the face. It was put to her that the reason she was not prepared to agree that the respondent was covered with blood, was to suggest to the Court that his injuries did not look very serious at all – a proposition which she also denied. (9) The information available to Briggs at the time the respondent was charged with the knife offences 245 Apart from his own statement and observations, Briggs had available to him statements by, relevantly, Jackson, Philpott, McAlister, Cox, Murphy and Constables Deissel and Holmes as well as statements from Mr Gaffney, from Mr Gaffney's neighbour, Mr Smith, and from the cleaner, Mr Mansfield. Only the statements of Briggs, Murphy and Messrs Gaffney and Mansfield dealt with the finding of the knife. We set out the relevant parts of those statements below. 246 In his statement dated 10 February 2003 Mr Gaffney stated that on the morning of 6 February 2003 he had used the knife to cut up some fruit for breakfast after which he had washed it, dried it and returned it to the top kitchen drawer beneath the sink – its usual place. Later that morning he was contacted by police, returned home and was shown the knife in his son's bedroom which, he stated, was lying on the floor between the bed and the wall. He confirmed that no other person from the family, including his son, had been home at the time that he had replaced the knife in the kitchen drawer and that no one in the family had returned thereafter until his arrival in response to the police call. 247 Mr Mansfield was the cleaner who attended the Gaffney house when contacted by the police. In his statement dated 9 April 2003 (which was after the respondent was charged) he stated that on arrival he spoke to Murphy whereupon he went inside and was shown the bedroom off the lounge room. He observed that there was blood on the carpets and walls and that the bed had been upturned. He then set about cleaning the room in Murphy's presence. The bedclothes were piled up on the floor alongside the bed and as he went to move a doona and some clothes that were on the floor, he found the knife. He stopped what he was doing and brought his find to Murphy's attention. A short time later other police arrived and photographed the knife where he found it. The knife was then removed and he continued cleaning. 248 According to Murphy's statement dated 8 March 2003, he attended at the Gaffney house as a result of receiving a telephone call from an Inspector O'Neill at about 10.45am. He attended the premises with McAlister. On arrival he had conversations with Briggs, Philpott, Jackson and Deissel following which he entered the house. He was shown the subject bedroom and immediately felt the effects of contamination from the capsicum spray. Whilst in the room he observed a single bed lying on one side running diagonally from the window to the sidewall and bloodstains on the wooden frame of the bed as well as on the floor, the sidewall and the wardrobe door. He then had a further conversation with Briggs following which a number of photographs of the bedroom were taken by McAlister. He then caused arrangements to be made for the attendance of professional cleaners at the premises. The police radio log records reveal that the cleaners were called at 11.51am. 249 Murphy stated that, whilst waiting for the cleaners, the owner of the premises, Mr Gaffney, arrived and a conversation took place between Mr Gaffney, Briggs and Murphy. Thereafter Briggs and Mr Gaffney left the premises. At 12.25pm Mr Mansfield, a professional cleaner, attended the premises. Murphy had a conversation with him and showed him the bedroom where the bloodstains were located. He was present when Mr Mansfield and a number of his employees commenced cleaning the room with a carpet steam cleaner and hand washing the walls and bed frame. He was present when Mr Mansfield removed the bed linen that had fallen on the ground between the upturned bed and the (northern) sidewall of the bedroom. 250 Whilst removing the bedclothes from the floor Mr Mansfield told Murphy something and directed his attention to the floor between the upturned bed and the sidewall. He observed the subject knife lying in the space between the bed and the sidewall. Murphy directed the cleaners to leave and then secured the room and telephoned Briggs and Mr Gaffney who both arrived shortly after. Murphy then showed them the location of the knife. Mr Gaffney then took Briggs and Murphy into the kitchen and indicated the kitchen drawer in which, apparently, he said he had left the knife that morning. Following that conversation the knife was photographed in situ and seized by the police. Briggs and Mr Gaffney then left the premises. 251 It would appear that the foregoing was the extent of the evidence as to the finding of the knife which Briggs had available to him at the time he laid the knife charges against the respondent and that that position did not change up to and including the time of the hearing of the charges before the Local Court at Wagga Wagga the following December. There was no suggestion in any of that material that there were any fingerprints or bloodstains on the handle of the kitchen drawer in which Mr Gaffney had placed the knife earlier that day. 252 We note there was nothing in the statements that indicated the route by which the respondent had been removed from the Gaffney house. Thus Jackson in his statement said that he and Philpott walked the respondent from the house and placed him in the rear of the waiting police vehicle. Philpott merely said that the respondent was then escorted out of the premises before being placed in the cage of the police vehicle. Deissel stated that he saw Philpott and Jackson escort the respondent to the rear of a police caged vehicle and that he walked behind them. Holmes stated that after the respondent had been lifted to his feet and handcuffed he was taken out of the house and placed in the rear of a caged police vehicle that had pulled up as they arrived outside. McAlister merely said that the respondent was removed from the bedroom. 253 We mention the foregoing matters because it was apparently later discovered that although there were no bloodstains on the handle of the relevant kitchen drawer in which Mr Gaffney had placed the knife earlier that day, and which was located underneath the kitchen sink, nevertheless a bloodstain was found on the glass face of the microwave oven door which, according to the plan of the Gaffney house, was located just to the left of the door leading from the family room into the kitchen and which was a little over two metres from the kitchen sink drawer in which the knife had been replaced by Mr Gaffney that morning. There is no doubt from the plan of the Gaffney house which was in evidence that had the respondent entered the house via the family room and thence into the kitchen rather than, as he said, via the laundry and then the pantry, although he would have passed the microwave oven he would have had to have diverted his route by some metres to reach the kitchen sink drawer in which the knife was located before heading towards the lounge room and to the bedroom where he ultimately hid. 254 In any event, there was no evidence that the blood on the microwave oven matched that of the respondent. Nor, as we have indicated, was there any statement obtained by Briggs that sought to link the bloodstain on the microwave to the respondent although McAlister had taken a photograph of it which, one assumes, was available to Briggs but to which he did not apparently attach any significance at any relevant time during the course of the prosecution of the knife charges against the respondent. 255 Notwithstanding the foregoing, much was sought to be made by both parties at trial and on appeal as to Briggs' knowledge as to the route taken by the respondent when he was removed from the Gaffney house. Briggs agreed in cross-examination that if the respondent, whom he knew to be bleeding, was taken out through the kitchen then that might well explain how the smear of blood got onto the door of the microwave. It was also suggested to him that in his evidence at the hearing in the Local Court of the charges against the respondent, when asked whether he witnessed him being taken out through the kitchen, he answered "Out through the kitchen? Well, that's the only way out". When faced with this evidence at the trial and having by then seen a plan of the Gaffney house, he said he had been mistaken when he gave that evidence in February 2004 in Wagga Wagga and that his ultimate understanding was that the respondent had been removed from the premises through the lounge room. In this respect there was evidence from the police officers both ways, although the preponderance of evidence was that the respondent was removed via the lounge room rather than the kitchen. 256 The following exchange then took place (at Black 2/561G-N): "Q. There is an explanation, I want to suggest to you. You were not telling the truth yesterday when you gave evidence as to what you thought was the route he took out, were you? A. No, that is not the case. Q. The reason I suggest you weren't telling the truth was that you wanted to raise the possibility that the blood on the microwave may have been deposited when Hathaway entered the house? A. No, that is not the case. Q. Because you knew if he was taken out that way then that would answer that possibility? A. That's not the case. Q. Can you possibly say why you gave the evidence you did in Wagga? A. I'm clearly confused." 257 However, whether or not Briggs thought at the relevant time that the respondent was removed through the kitchen is in our opinion of no significance given that it is clear that he did not attach any significance to the bloodstain on the microwave oven door and thus did not take any steps to attempt to match it with the blood of the respondent. It could not and did not play any part in the material available to Briggs as evidentiary support for the laying and maintenance of the knife charges. (10) The relevant findings of the primary judge that the knife was planted and that Briggs was aware of that fact cannot be sustained 258 We turn now to the reasons why the relevant findings of the primary judge that the knife was planted and that Briggs was aware of that fact cannot be sustained. (a) The applicable standard of proof 259 It is appropriate at this stage to consider the standard of proof which was applicable in view of the serious allegation made by the respondent's case against Briggs. 260 In a civil proceeding, the court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities: Evidence Act 1995, s 140(1). In applying the civil standard of proof, it is appropriate to take into account the factors listed in s 140(2), one of which is "the gravity of the matters alleged": see also s 142(2)(b). In an often quoted passage, Dixon J stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 the following: "[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 261 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; (1992) 110 ALR 449, Mason CJ, Brennan, Deane and Gaudron JJ elaborated on the principle enunciated by Dixon J. They stated in a joint judgment at 170-171 that: "[t]he ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 262 This Court has often applied the passages in Briginshaw and Neat Holdings which we have reproduced. Relevantly to the present case, in Palmer v Dolman [2005] NSWCA 361, Ipp JA (Tobias and Basten JJA agreeing) stated at [47] that the more recent authorities and s 140 of the Evidence Act: "make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd , has the allegation been proved on a balance of probabilities". 263 We are satisfied that the Briginshaw principle as articulated by the cases referred to above has application to the present case. This is because the primary judge's conclusion at [198] of her reasons that Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and, therefore, maliciously, was founded on her finding at [171]-[172] that she was satisfied that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more police officers after the respondent had been removed from the Gaffney house. In the language of Briginshaw, the seriousness of that finding and the gravity of the consequences flowing from it are such that it requires "clear or cogent or strict proof" in order to be made out on the balance of probabilities. 264 The seriousness of the primary judge's findings with respect to the planting of the knife and the gravity of the consequences flowing from it are also demonstrated by the fact that the preferring and prosecution of charges on the basis of evidence known by the informant to have been planted was, at the date on which Briggs brought the relevant charges, contrary to s 317 of the Crimes Act 1900 (NSW) which relevantly provided: "A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) … (b) fabricates false evidence …, or (c) knowingly makes use of fabricated false evidence, is liable to imprisonment for 10 years" 265 Furthermore, the planting of the knife and the bringing of charges based thereon would be in breach of s 319 of the Crimes Act which provided: "A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years". 266 The allegations against Briggs that are the subject of the primary judge's findings at [171]-[172] are of such seriousness and carry such grave consequences that they are comparable to an allegation of fraud that the High Court held in Neat Holdings gave rise to the application of the Briginshaw principle. The effect of her Honour's findings is that Briggs was, at least on the balance of probabilities, guilty of serious criminal conduct. Such a finding has the following significant consequences of which it would be reasonable to assume that Briggs would have been aware. 267 First, Briggs' alleged conduct, being an allegation that he had committed one or more criminal offences, was required to be reported to a senior police officer pursuant to clause 20(1) of the Police Regulation 2000. 268 Second, Briggs' conduct as found by her Honour would constitute "police misconduct" as defined in s 5(1) of the Police Integrity Commission Act 1996 (the PIC Act). Such misconduct includes the commission of a criminal offence by a police officer and/or corrupt conduct within the meaning of ss 8 and 9 of the Independent Commission Against Corruption Act 1988. Her Honour's findings against Briggs would amount to both. It would inevitably lead to a PIC investigation pursuant to s 23 of the PIC Act as occasioned with respect to the allegation by the respondent that Jackson had assaulted him. 269 Third, the PIC Act was enacted on the recommendation of the Royal Commission into the New South Wales Police Service (the Wood Royal Commission) which released its final report on 1 May 1997 having already released interim reports on 22 February and 22 November 1996. It was public knowledge that the Wood Royal Commission was concerned, in part, with corrupt police conduct including the planting of false evidence: see Final Report Volume 1 paragraph 2.38. 270 It would be a reasonable inference that in February 2003 Briggs and Murphy, being senior police officers, would have been conscious of the reports of the Wood Royal Commission and the enactment of the PIC Act and would have had some knowledge of the Police Regulation 2000. 271 Accordingly, each of those officers would have been aware of the potential risks and consequences that fabricating or being aware of the fabrication of false evidence against the respondent by the planting of the knife might have upon their careers and, for that matter, their liberty or freedom. 272 For the foregoing reasons we are satisfied that the Briginshaw principle has application to the present case and that clear or cogent or strict proof was necessary to support the finding that Briggs was aware that the knife was taken from the kitchen drawer and placed in the bedroom by one or more police officers after the respondent had been removed from the Gaffney house. It also follows that that finding cannot survive on the basis of "inexact proofs, indefinite testimony or indirect inferences". 273 However, the need to apply the Briginshaw principle to the present case was not referred to by the primary judge and it appears was not raised by either party at the trial or before this Court. Nonetheless, in our opinion it is an important consideration which it is necessary to bear in mind when considering whether her Honour's findings on the malicious prosecution cause of action can be sustained. (b) The absence of Murphy and Mr Mansfield 274 As is evident from [127] and [128] of the primary judge's reasoning to which reference has been made at [162] above, much was made by her Honour of the fact that Murphy did not give evidence at the trial. However, it was not suggested that he did not give evidence at the respondent's trial at Wagga Wagga Local Court in December 2003 and March 2004. Although parts of the transcript of the evidence in those proceedings were tendered before the primary judge, we were not referred to any part of that evidence and, in particular, to any cross-examination of Briggs and/or Murphy, or any other police witness in the Local Court proceedings that suggested how the knife came to be in the bedroom. 275 In any event, as her Honour noted in the last sentence of [127] of her reasons, the obscurity of important aspects of the events which she was satisfied had been deliberately engineered, was confined to the finding of the knife and the recruitment of the cleaners to clean the house before its investigation by suitably trained and equipped officers. However, although it would appear that police officers had been in the kitchen, and Briggs acknowledged as much, there was no evidence that, at the time the knife was found, the cleaners had cleaned the kitchen or any relevant part of it and no suggestion was made by the respondent that the police traffic in the kitchen gave rise to any relevant suspicious circumstance. 276 It may be that where her Honour (at [128]) remarked that two key participants could have been expected to give significant evidence, one of them being Mr Mansfield the contract cleaner, she surmised that had Mr Mansfield been called he could have been asked whether, prior to the knife being found, he had cleaned any other part of the house. However, any such evidence would have been inconsistent with his statement of 9 April 2003 in which he stated that he was self-employed in conjunction with his father and they worked as cleaners in the Wagga Wagga area. Although he stated that a representative of the police had contacted the business and that as a result "we" went to the Gaffney premises, no other part of his statement suggests that his father or anyone else accompanied him at that time. However, this would appear to be inconsistent with Murphy's statement referred to in the next paragraph. Nevertheless, it is apparent from Mr Mansfield's statement that on arriving at the house and speaking to Murphy, he was immediately taken into the bedroom and it was in that room that the cleaning commenced. 277 At paragraph 8 of Murphy's statement to which we have referred at [Error! Reference source not found.]-[Error! Reference source not found.] above, he said that at about 12.25pm "Mr [Simon] Mansfield a professional cleaner attended the premises", that he then showed Mr Mansfield the bedroom where the bloodstains were located, and that Mr Mansfield and a number of his employees thereupon commenced cleaning the room. It was whilst removing bedclothes from the floor that the knife was discovered. The knife was then photographed and seized by the police before Murphy had a further conversation with Mr Mansfield, who then resumed cleaning the bedroom. However, there was nothing in Murphy's statement to the effect that prior to the knife being discovered Mr Mansfield and his employees had commenced cleaning any part of the house other than the bedroom. Nor was that suggested to any of the police witnesses that were called at trial. 278 True it is that Mr Mansfield was not called at the trial, but he was independent of the police, running his own business and there was no reason why, if it was to be suggested that prior to the knife being discovered Mr Mansfield or his employees had cleaned the kitchen, he could not have been called by the respondent to prove that fact. There was, therefore, nothing untoward in the appellant not calling Mr Mansfield at trial. 279 It is also true that Murphy was not called to give evidence at trial. Her Honour acknowledged the relevant principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 312 per Menzies J which she set out at [166] of her reasons: see also Payne v Parker [1976] 1 NSWLR 191 at 201A-B per Glass JA. However, having done so she did, with respect, not identify any inference that was otherwise open on the facts proved by direct evidence which she was more readily able to draw due to the absence of Murphy from the witness box. This is particularly significant as she was not prepared to infer that any particular police officer, let alone Briggs or Murphy, was the culprit who planted the knife. She must have been so disinclined because the evidence did not support an inference that either of those persons had planted the knife themselves or directed that it be planted. Yet her Honour's finding with respect to Briggs was that he was aware that it was planted: she did not infer that it was done at his direction. (c) The planting of the knife 280 We note that all of the information available to Briggs at the time that he brought the knife charges against the respondent on 28 March 2003 and to which reference was made at [245]-[257] was also available to Morgan. It is apparent from her Honour's dismissal of the claim against Morgan that she accepted that the information in the brief of evidence provided to her by Briggs was such that the respondent's claim that she acted in the absence of reasonable and probable cause was unfounded or at least weak. Her Honour made no specific finding to that effect (she said that she did not have to) but it is implicit in her dismissal of the claim against Morgan upon the basis of an acknowledgement by the respondent that he did not have a very good case against her. 281 But unless there was something in that same material that Briggs had available to him that would suggest that he did not "honestly believe" the case that he was seeking to make against the respondent on the knife charges or that he did not have sufficient basis for such an honest belief, it must logically follow that the respondent has failed to establish, the onus being on him, that Briggs did not have reasonable and probable cause to prefer those knife charges. Thus our comment at [213] above that having apparently accepted the evidence of Morgan, what was it that caused her to reject, at least impliedly, not substantially dissimilar evidence of Briggs? 282 In our view the finding of absence of reasonable and probable cause could only be made with respect to Briggs if it was open to her Honour to find, which she did at [172] of her reasons, that he was aware that the knife had been planted by a police officer or officers. Absent that knowledge and given the evidence of Mr Gaffney, the finding of the knife in the bedroom where the respondent had sought to hide and the statements of Briggs and others in respect of which there was no contest that the respondent had attempted to avoid apprehension at all times including climbing over fences and breaking into the Gaffney premises in circumstances where his desperation was indicated by the fact he continued to flee notwithstanding he had caused severe injury to his bare feet, it must follow that a reasonable basis existed for the honest belief of Briggs that it was the respondent who had obtained the knife from the kitchen and taken it into the bedroom. Certainly, there was no physical evidence to connect the respondent with the knife as Briggs acknowledged. The respondent placed much emphasis upon this point in his submissions on the appeal. However Morgan was equally aware of the absence of such physical evidence and yet she was not found to have had no reasonable and probable cause to prefer the knife charges. 283 A further weakness in the prosecution's case was that there were no bloodstains either on the floor near the drawer in which the knife was kept, or upon the drawer or its handle. Nevertheless, short of the knife being planted by the police, there appeared to be no other explanation than that the knife had been obtained by the respondent for the purpose of further avoiding apprehension: see [292] below. 284 In a case such as the present, therefore, the issue of absence of reasonable and probable cause and malice are closely linked. The improper purposes identified by her Honour at [199] were first, the support of Jackson's assertions about the respondent; second, to strengthen the case against the respondent; third, "to perpetuate the fiction that had been created by the placement of the knife in the bedroom, and protect the police involved" and fourth, to conceal what her Honour considered to be Murphy's alleged impropriety in calling in the cleaners in the first place. 285 The difficulty, however, with her Honour's findings in this regard is that it is not self-evident why the planting of the knife was necessary for the purpose of supporting Jackson's version of events of what had occurred in the bedroom. Although her Honour considered at [167] that it was scarcely conceivable that, had the events occurred as Jackson said they did, and the respondent had been in possession of the knife, he would not have produced it or, at least, that he would have been able to conceal it, given that it was found by the cleaners amongst the bedclothes, there is nothing inconceivable in the respondent not immediately producing it to threaten Jackson when the latter discovered him under the bed. Once that discovery was made, events moved very quickly with respect to the movement of the bed and it was conceivable the knife became lost in the process. 286 In our opinion it was not open to her Honour on the evidence to find either that the knife had been planted by a police officer or officers or that Briggs was aware that it had been. The improper purposes attributable by her Honour at [199] of her reasons to Briggs, do not in our respectful view justify the finding that she made. Until the knife was found there was no shortage of information in view of the version given by Jackson to Briggs and/or Murphy and others of the events which occurred in the bedroom including the assault upon Jackson whilst in the execution of his duty, the occasioning of actual bodily harm to Jackson and the respondent's resistance of Jackson in the execution of his duty. In addition, there were the pre-bedroom events which resulted in charges to which the respondent pleaded guilty. If anything, the alleged improper purposes referred to at [199] were no more than possible explanations as to why the knife might have been planted but were of no import absent evidence to support them. 287 Although the charges to which the respondent pleaded not guilty were dismissed, her Honour accepted at [205] of her reasons that Briggs had reasonable and probable cause to bring the charges of assault Jackson and resist Jackson in the execution of his duty against the respondent and that the respondent had failed to demonstrate that their prosecution was malicious. How then, one asks rhetorically, does the planting of the knife and the preferring of the knife charges strengthen the case against the respondent in respect of the charges of assault Jackson and resist Jackson in the execution of his duty? The connection is far from self-evident. Once the knife was found in the bedroom and Mr Gaffney's evidence as well as the circumstances which led the respondent to the Gaffney premises are taken into consideration, it becomes difficult, if not impossible, to appreciate any reason why the police thought it necessary to plant the knife in the bedroom where it would be discovered when the room was cleaned. 288 No doubt there were questions to be asked such as why were there no bloodstains on the knife being that of the respondent? One answer might be that as a consequence of his climbing over fences his feet had been cut and were bleeding, but there were no injuries to his hands. According to the injuries listed by Jennings in the Custody Management Record, the only injury to his upper limbs was a 1.5cm cut on the left arm near the elbow and the middle finger on his left hand. There were no recorded injuries to his right hand and, on one view of it, no reason to assume that that hand had blood upon it which may explain why there was none of the respondent's blood on the knife handle which was, according to Morgan, necessary to provide a DNA transfer. 289 Although Morgan said that she would expect fingerprints on the handle and not the blade of the knife, one possible explanation for the absence of fingerprints may have been that they were removed when the knife was concealed in the bedclothes given Jackson's version that the bedclothes were somewhat thrown about as a consequence of the tipping, pushing and shoving of the bed. 290 However, accepting that this last observation may go no further than speculation, the mere absence of fingerprints on the knife handle did not justify a finding, even on the balance of probabilities, that the knife was planted and any fingerprints on its handle removed by the person planting it. 291 It was submitted, in our view correctly, that no basis existed for a finding that Briggs thought that the knife was relevant to what had actually occurred between Jackson and the respondent in the bedroom. The scenario that the primary judge postulated at [171] where she found that the knife had been placed in the bedroom by a person or persons aware of the significance its presence would have on the prosecution of the respondent, is unrealistic insofar as it purports to suggest that the subsequent finding of the knife would be material evidence supporting Jackson's version of events. No one suggested or could suggest that the presence of the knife of itself could justify any baton blows to the respondent's face. At the time that the respondent was subdued and arrested, there was no objective or any information that would have inclined the police officers, or otherwise made it conceivably desirable for those officers to plant additional evidence in the bedroom. Not until the Local Court proceedings in December 2003 was it suggested that Jackson had assaulted the respondent in the manner ultimately alleged. 292 During the course of argument it was contended by the respondent that given that the respondent appeared to be desperate to do anything to escape apprehension and was prepared to engage in acts of violence in order to resist Jackson arresting him, it may have been thought by a police officer, irrespective of whether or not he or she thought Jackson's evidence might be challenged, that it might look better on the charge sheet if there was something as colourful as a knife found in the bedroom. However, in our view that submission is far-fetched. For the reasons we have explained at [286], at the time Briggs laid the knife charges, there was no reason for him to think the other charges – particularly the assault Jackson and resist arrest – lacked foundation. Accordingly, in our respectful view the respondent's contention was not an inference that was available to be drawn from any of the objective evidence. 293 It was further submitted by the respondent that her Honour's findings involved unlawful conduct by a police officer on the basis that that officer was concerned that Jackson's version of events might not be accepted notwithstanding that no complaint had been made by the respondent that Jackson had beaten him about the face with his baton. 294 However, on the objective evidence, neither Briggs nor Murphy had reason to suspect that Jackson's account needed corroboration. Nor did that evidence justify or support the possibility that Murphy would do anything for the purpose of substantiating Jackson or that he would tolerate any other officers doing anything that was unlawful. 295 Of course, this is not to say that the planting by police of false evidence has not occurred in the past. We have already referred to the fact that such allegations were part of the Wood Royal Commission inquiry in the mid-90's. However, as we have already mentioned at [263] above, it is an extremely serious allegation that would not lightly be inferred unless there was substantial objective evidence to support it. In our opinion, that evidence is conspicuously absent in the present case. 296 The respondent nevertheless sought to support her Honour's finding at [171] upon the basis of the absence of DNA or fingerprints on the knife handle. Of itself, that was a factor which no doubt made it difficult for the prosecution to make out the knife charges beyond reasonable doubt. Briggs accepted that he could not reconcile his belief that the respondent was responsible for taking the knife into the bedroom with the absence of blood, perspiration or DNA upon it. However, it does not follow from that fact that Briggs did not hold an honest belief that the respondent was the culprit. He was aware that there was no physical evidence linking the respondent with the knife, but the evidence of Mr Gaffney and the fact that the knife was found in the bedroom where the respondent attempted to hide in order to evade apprehension, led him to the belief that it was the respondent who had taken it. 297 The respondent also submitted that Morgan's position was different to that of Briggs. This was because Briggs had been at the scene and inspected the area from which the knife had been taken. He knew that it was important to see if evidence could be secured to show that the respondent had removed the knife from the drawer. He knew after the knife had been discovered and removed that the cleaner was effectively destroying the crime scene. He further agreed that the knife had been found in quite strange circumstances capable of conveying to members of the public fairly sinister connotations suggesting a cover up. 298 Although it was submitted that Morgan did not have that knowledge, that is not so. She was aware of the very same matters to which reference has just been made from a reading of the statements contained in her brief. She must have known that a Critical Incident was not declared until later in the day and that the cleaner destroyed the crime scene as she had Murphy's statement of the circumstances under which he called in the cleaners. In our respectful opinion there were no factors of which Briggs was aware that were unknown to Morgan. And yet, although she proceeded with the prosecution, albeit unsuccessfully, no finding of malice or absence of reasonable and probable cause was made with respect to her. 299 One can accept for the purpose of the argument, as Briggs acknowledged in his evidence to the PIC, that the finding of the knife was capable of conveying a sinister connotation. However, even if that be so, it is hardly a proper foundation upon which to make a finding that not only had a police officer acted maliciously but also unlawfully in fraudulently planting evidence. 300 It is true, as the respondent submitted, that if the prosecution could establish that he had removed the knife from the drawer and taken it to the bedroom for the purpose of resisting arrest, that would elevate the degree of his alleged criminality to a higher level. It would lead to the very charges that were preferred against him and in respect of which the malicious prosecution cause of action arose. 301 However, there was never any suggestion that the respondent had used the knife to resist arrest. If that had occurred, it would indeed have raised the degree of his criminality after he entered the Gaffney house. It would be self-evidently objectively serious. Given his antecedents, as submitted by the respondent, his conduct up to the time of his arrest was in any event inevitably going to lead to a custodial sentence. Why, therefore, was it necessary for the police to plant the knife? What, in truth, would that achieve which was not already achieved? The respondent submitted that the finding of the knife would push into the background any question as to how the respondent came to suffer what subsequently turned out to be serious facial injuries, but this is pure speculation. 302 The unanswered question is how the planting of the knife would have reduced or minimised Jackson's alleged assault on the respondent. The planting of the knife could not of itself have been seen to justify, if it had occurred, Jackson's striking the respondent's face with his baton. There is simply no logical link between the two. 303 The appellant also challenged her Honour's finding that the respondent could not have taken the knife without leaving indications of blood or DNA. It was submitted that the respondent did not leave significant amounts of blood elsewhere in the house, only in the bedroom. It was contended that one of the remarkable things that the photographs revealed was how little blood there was in the house until one reached the bedroom and that there was relatively little blood outside the house as well – only occasional spotting and not a continuous trail. Given the lack of blood outside the bedroom, it was not open to her Honour, so it was submitted, to infer that the respondent could not have taken the knife from the drawer without leaving a trail of blood. In our view the appellant's submission is well founded. 304 The respondent sought to support her Honour's finding at [169] that it was scarcely credible that the location of the knife would have escaped the combined examination of McAlister, Philpott and Deissel. Nevertheless, her Honour accepted Mr Mansfield's (untested) account that it was concealed amongst the bedclothes. 305 At the time the bedroom was examined by McAlister, Philpott and Deissel, the bedclothes were in apparent disarray. They were not moved by those officers and properly so. It was not until the cleaner, Mr Mansfield, moved a doona and some clothes that were on the floor that he found the knife. In these circumstances, as it was not appropriate for the three officers referred to by her Honour to have moved anything in the bedroom before it was at least photographed, it was not open to her to regard it as scarcely credible that its location under the bedclothes would have escaped the combined examination of the officers concerned. 306 For these reasons, her Honour's finding that although she could not be satisfied that Briggs was himself personally involved in placing the knife in the bedroom, she was satisfied that he was aware that that had occurred after the respondent had been removed from the scene cannot be supported. (d) The destruction of the crime scene 307 Her Honour's observations at [127]-[128] to which reference has already been made in a different context (see [274]-[279] were made in the context of what she held to be a deliberate failure to declare a "Critical Incident" thereby deliberately permitting the evidence at the scene to be destroyed. There are difficulties with this proposition for she did not indicate with any clarity what potential evidence, relevantly to the ten charges, was deliberately destroyed apart from the reference (at [175]) to steps that should have been taken to preserve the scene for fingerprinting. However, the only "scene" to which her Honour could be referring was the bedroom as that was the only part of the house which, prior to the knife being found, was apparently disturbed by the cleaners. And yet it was not until Mr Mansfield found the knife under a doona on the floor that any relevant fingerprinting could have taken place. It was never suggested that Mr Mansfield handled the knife before he pointed it out to Murphy who immediately made arrangements for it to be bagged and removed for forensic examination. 308 It was also not suggested, nor did her Honour find, that there was any relevant disturbance by the cleaners of the kitchen drawer in which the knife had been kept. True it is that the drawer and its handle did not appear to have been forensically examined for fingerprints, bloodstains or DNA. If it had of been, and the respondent's fingerprints and/or DNA found on it, then no doubt that would have been powerful evidence in support of the prosecution of the knife charges. 309 One can accept that once the knife was found and the evidence of Mr Gaffney relating to what he had done with it that morning had been obtained, then fingerprinting of the drawer and its handle should have occurred. No doubt Mr Gaffney's fingerprints would have been revealed. But the fact that the fingerprinting did not take place could not of itself lead to an inference that this was due to the fact, established on the balance of probabilities, that the knife had been taken from the drawer by one of the police officers and planted in the bedroom. 310 At [204] of her reasons, her Honour observed that "Detective Briggs was entitled to accept, for the purpose of his consideration of the prosecution of the plaintiff, and to act upon, the description of events given by Constable Jackson" and "by 28 March, Detective Briggs had no alternative scenario, no contradiction of what Constable Jackson said, and no apparent reason (apart, perhaps, from healthy scepticism) to doubt it". Although those comments were made in the context of charges preferred against the respondent of assaulting Jackson and resisting arrest which her Honour found that Briggs had reasonable and probable cause to prefer, they make it difficult to accept her Honour's findings at [196] that Jackson's account exposed " serious questions … concerning the events in the bedroom " and that it was not sufficient for Briggs "merely to ask for Crime Scene Detectives to attend, and, when told that they were not available, to do nothing further". 311 Even if any of this be so, it does not explain the alleged planting of the knife by the police. If in fact Briggs had permitted the crime scene to be destroyed (notwithstanding that he had had it extensively photographed by McAlister) because he was concerned that Jackson may have caused the respondent's facial injuries, and even if, as her Honour considered (at [197]), it was likely that Briggs was aware of Murphy's actions in calling in the cleaners for the purpose of frustrating any subsequent investigation, it does not logically follow that the knife was planted to Briggs' knowledge. In our respectful opinion there was nothing in Briggs' cross-examination from which such an inference could be drawn. 312 It must be remembered that at no relevant point up to the time the knife was found, did the respondent complain that he had been hit in the face by Jackson with his baton. Furthermore, Briggs had given evidence to which her Honour referred at [195], that he had been informed (which he later knew to be incorrect) that before his entry to the house the respondent had been seen to be bleeding from the head. 313 Furthermore, at no point did her Honour make any express or implied finding adverse to Briggs' credit whether demeanour based or otherwise. In fact his evidence as to his belief of the seriousness or otherwise of the respondent's injuries was corroborated by Jennings and, again, her Honour made no adverse finding as to her credit. We accept, of course, that her finding that Briggs was aware that the knife had been planted involved the implicit rejection of his belief that it was taken into the bedroom by the respondent and of his denial that he knew of any police officer who did plant it: see his evidence extracted at [239] and [241] above. However, in our view that does not detract from the point we seek to make. In any event, the respondent did not rely on any submission founded on Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]. 314 With respect to the primary judge's finding of Murphy's so-called impropriety in calling in the cleaners and thereby destroying a crime scene, the appellant submitted that whether or not it was prudent for Briggs to call a Critical Incident, the fact is that he did not believe that that was justified given his limited knowledge of the respondent's injuries. True it is that there was a great deal of blood but the true extent of his facial injuries was not discovered until he was admitted to hospital and x-rays were taken. On the other hand it is clear that Briggs did call for a crime scene investigation but was unable to achieve one. He therefore did the best he could by utilising the photographic services of McAlister. It was indeed a judgment call on the part of Briggs (Murphy never having seen the respondent) as to whether the injuries that he could see were such as to require emergency admission to hospital followed by significant medical treatment as the Police Guidelines required. 315 Briggs' judgment that the respondent's injuries were not serious in the relevant sense was confirmed by Jennings who observed the respondent when he was placed in the dock upon his arrival at Wagga Wagga Police Station at 11.20am, some five minutes after he left the Gaffney premises. Even though she did not record any blood on his face or torso, she did refer to his facial injuries as being bruising underneath his right eye and an approximately 2cm cut to his right cheek. 316 At face value it could not properly be said that those injuries could be regarded as so serious as to require immediate admission to the emergency department of Wagga Wagga Hospital. As noted at [244] above, Jennings' evidence, which it is not suggested the primary judge rejected, was that she called the ambulance as a matter of course as the respondent was suffering from the effects of capsicum spray, an observation which she also recorded in the Custody Management Record. 317 As to Murphy, he was aware and had himself been involved in the photographing of the scene by McAlister and had on two occasions (at 1.02pm and 1.11pm) after the knife had been found called for fingerprint assistance, which was not forthcoming: see [225] above. Given the state of the bedroom, it is not surprising that prior to the knife being found Murphy had called for contract cleaners to come in and clean up the mess. Although her Honour apparently regarded this as highly suspicious and inappropriate behaviour by a senior police officer, there is nothing in Briggs' evidence or Murphy's statement from which one could demonstrate an objective, factual foundation for the adverse findings she made against Murphy. It is a long bow to infer from the foregoing circumstances that Murphy intentionally sought to destroy a crime scene that, if forensically examined, he suspected would have revealed the knife had been planted. 318 The respondent also made much of the fact that Briggs had agreed that notwithstanding the significance of the bed and notwithstanding that it was he, Briggs, who directed McAlister as to what should be photographed, there were in fact no photographs of the bed save for some close up photographs of blood on the slats of the bed and a small portion of the bed captured, apparently accidentally in one photograph. It was further submitted that the photographs were in any event of poor quality and taken by an untrained officer. 319 What her Honour should have made of this is difficult to tell, but in our view it did not justify a finding or an inference that Briggs had deliberately failed to implement procedures to preserve the crime scene. Without wishing to be overly repetitive, Briggs immediately called for a crime scene but was unable to achieve one. He then had to do the best he could with the resources available to him. 320 For the foregoing reasons, in our respectful view, there is nothing in that part of her Honour's reasons at [173] to [199] that deals with the failure of Briggs to report a "Critical Incident" or his and/or Murphy's failure to preserve the crime scene by the latter, with the former's knowledge, calling in contract cleaners which in any way supports her Honour's earlier finding that due to the absence of fingerprints or DNA on the knife, it must have been planted by one or more of the police officers who were aware of the significance that its presence would have on the subsequent prosecution of the respondent. 321 For the same reasons, in our opinion the matters to which her Honour refers do not properly form a sound factual foundation upon which to infer that Briggs planted the knife or that he was aware that the knife had been planted by another police officer or that it had been planted for the purpose of protecting Jackson in some unidentified manner. Therefore, we do not regard the alleged failure to preserve the scene in the circumstances as playing any logical or probative part in her Honour's conclusion that the knife was planted to Briggs' knowledge and that Briggs therefore lacked reasonable and probable cause and acted maliciously in preferring the knife charges against the respondent. (11) Some final observations 322 It is apparent from that part of these reasons that deals with the movements of the relevant police officers from the time of the respondent's arrest and immediate removal from the Gaffney premises to the discovery of the knife in the bedroom, that all but Briggs and Murphy can be eliminated as suspects with respect to the alleged planting of the knife. Although not express, this seems to be implicit in her Honour's reasons as criticisms and findings of impropriety were only directed by her to those two officers. None of McAlister, Holmes, Philpott or Jackson was cross-examined to suggest that they had planted the knife. In the absence of Murphy from the witness box, only Briggs was so challenged. 323 It is further apparent from our analysis of their movements that only Murphy was present during the whole of the period between the respondent's arrest and discovery of the knife. Briggs left after he had arranged McAlister's first photographic exercise and did not return until summoned by Murphy after the knife was found. 324 Thus the prime suspect was Murphy although her Honour was not prepared to so find notwithstanding her adverse remarks relating to his absence from the witness box. We would respectfully agree with her Honour's apparent and proper reluctance to find that Murphy planted the knife as there was no evidentiary foundation for such a finding. 325 At the relevant time Murphy held the rank of Inspector and was 42 years of age. Briggs was a Detective Senior Constable and was 34 years of age. The latter, as the senior officer apart from Murphy, was it would seem, in charge of gathering the evidence and formulating and preferring charges against the respondent. 326 Given the matters to which we have referred at [266]-[271] above, one is driven to ask, perhaps rhetorically, why would Murphy or Briggs plant the knife (or direct or permit other more junior officers to do so) knowing they were committing a serious criminal offence thereby and, if their conduct was discovered or even suspected, they would be subject at the very least to a PIC inquiry or worse. They had much to lose and precious little to gain, as the consequence of such conduct was potentially dire. 327 There is a further matter. If it were Murphy who planted the knife, why would he inform Briggs that he had done so? Sharing responsibility for lawful conduct is one thing: sharing it for criminal and corrupt conduct is another. It simply defies even a modicum of common sense, let alone self-preservation, for Murphy and/or Briggs to have embarked upon or been party to such a risky enterprise. 328 Of course, if Murphy did plant the knife, that of itself would be irrelevant unless Briggs was aware that he had done so. At [179] of her reasons the primary judge said it was necessary to focus upon the conduct of Briggs "and his state of knowledge or awareness of the extent of [the respondent's] injuries". With respect, this was to focus on the wrong issue. The focus should have been upon Brigg's state of knowledge or awareness that the knife had been planted. Essentially, her Honour's reason for that finding was confined to [171] although she sought to bolster it by finding (at [197]) impropriety on the part of Briggs and/or Murphy in destroying, or permitting the destruction of, the crime scene. 329 With regret we do not find her Honour's reasoning process either satisfactory or persuasive. It is not supported by the objective evidence and certainly does not pass muster in terms of the application of the Briginshaw or Neat Holdings principles. (12) Conclusion with respect to the malicious prosecution cause of action 330 In our opinion the challenge by the appellant to her Honour's findings with respect to this cause of action should be sustained. As we have indicated, the success of the respondent's claim depended very much upon him establishing, to the requisite standard, that the knife had been planted in the bedroom by a police officer to the knowledge of Briggs. In our opinion, her Honour's finding to that effect had no evidentiary foundation and should be set aside. The malicious prosecution cause of action should, therefore, have failed at trial, and it is appropriate that a verdict now be entered in the appellant's favour in this respect. GENERAL CONCLUSIONS 331 In our opinion the appellant has succeeded in establishing error on the part of the primary judge with respect to her findings on both the assault cause of action and the malicious prosecution cause of action. However, the appropriate relief should, as we have already indicated, be a new trial with respect to the assault cause of action limited to the issue of liability. In respect to the malicious prosecution cause of action, there should be judgment for the appellant. A new trial of that issue is not required in the interests of justice as there is no evidence to support a finding that the knife was planted. 332 In the foregoing circumstances in our opinion, the respondent should pay the costs of the appeal. At this point the appellant should also be entitled to its costs of so much of the trial before the primary judge as related to the malicious prosecution cause of action. The costs of that trial with respect to the assault cause of action should abide the result of the new trial with respect thereto. However, at this stage it seems to be inappropriate to make any order as to the costs of the trial before the primary judge given that we would only be speculating as to the extent to which the malicious prosecution cause of action took up the time of that trial. 333 Of course, in the event that the respondent fails on the new trial with respect to the assault cause of action, then it would follow that he should be ordered to pay the costs of both the first and second trial generally. 334 Accordingly, in our view it should be left to the judge hearing the new trial to determine the costs not only of that trial but also of the trial before her Honour and that this Court should only deal with the costs of the appeal. 335 We would therefore propose the following orders: (a) Appeal allowed. (b) Set aside the judgment and orders made by Simpson J on 7 May 2009. (c) Verdict and judgment for the appellant with respect to the respondent's malicious prosecution cause of action as pleaded in paragraph 7 of the respondent's Amended Statement of Claim filed on 23 August 2006. (d) Direct that a new trial be held limited to the issue of liability with respect to the respondent's assault cause of action as pleaded in paragraph 4 of the respondent's Amended Statement of Claim filed on 23 August 2006. (e) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified. (f) Direct that with the consent of the parties and the judge hearing the new trial on the assault cause of action, the latter proceed on evidence already admitted before Simpson J. (g) Direct that the judge hearing the new trial may admit further evidence upon application by either party, should he or she consider it appropriate to do so in the interests of justice. (h) The costs of the trial and the new trial to be determined by the judge hearing the new trial. ********** 06/08/2010 - Order ommitted in error - Paragraph(s) 335 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.