Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clyne v State of New South Wales [2012] NSWCA 265 Hearing dates: 3 August 2012 Decision date: 24 August 2012 Before: Campbell JA at [1]; Macfarlan JA at [2]; Meagher JA at [72] Decision: Application for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - robbery at Post Office - post office employee arrested - whether wrongful arrest and false imprisonment - s 352(2) Crimes Act 1900 - whether arrest for the purpose of questioning wrongful - whether reasonable cause for suspicion that offence committed TORT - malicious prosecution - whether reasonable and probable cause - whether material warranted putting the processes of the criminal law in motion COURTS - disqualification of judges for apprehended bias - efforts of judge to clarify plaintiff's case and to ensure that experts addressed all relevant issues in the proceedings did not give rise to an apprehension of bias Legislation Cited: Civil Procedure Act 2005 Crimes Act 1900 Uniform Civil Procedure Rules 2005 Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500 Clyne v State of New South Wales (No 1) [2011] NSWSC 629 Clyne v State of New South Wales (No 2) [2011] NSWSC 630 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Commonwealth Life Assurance Society Limited v Smith [1938] HCA 2; 59 CLR 527 Director of Public Prosecutions v Nicholls [2001] NSWSC 523; 123 A Crim R 66 Helton v Allen [1940] HCA 20; 63 CLR 691 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 Texts Cited: J D Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths Category: Principal judgment Parties: Janet Lorraine Clyne (Applicant/Appellant) State of New South Wales (Respondent) Representation: Counsel: M McAuley (Applicant/Appellant) P Menzies QC/M Hutchings (Respondent) Solicitors: Collins & Thompson (Applicant/Appellant) Crown Solicitor's Office (Respondent) File Number(s): CA 2009/297847 Decision under appeal Citation: [2011] NSWSC 629; [2011] NSWSC 630 Before: Fullerton J File Number(s): SC 2009/297847 Judgment 1CAMPBELL JA: I agree with Macfarlan JA. 2MACFARLAN JA: TABLE OF CONTENTS Summary of case and conclusions [3] The relevant legal principles [14] Apprehended bias [14] Wrongful arrest and consequent false imprisonment [15] Malicious prosecution [18] Material available to the police [20] At the time of the arrest [20] At the time Ms Clyne was charged [25] The judgments at first instance [27] First issue - apprehended bias [35] The course of the hearing at first instance [35] Consideration [51] Second issue - the rejection of evidence [58] Evidence of the criminal background of the two informers [58] Transcript of the Local Court proceedings [61] Third issue - whether wrongful arrest and false imprisonment [62] Fourth issue - malicious prosecution claim [68] Orders [71] SUMMARY OF CASE AND CONCLUSIONS 3In March 2003 Ms Janet Clyne, the appellant, was employed by Australia Post as a Post Service officer at the Spit Junction Post Office. On 25 March 2003 she reported that a robbery had occurred whilst she was working at a counter at the Post Office. She said that a man, whose appearance she described in some detail, presented her with a note saying that he had a gun and wanted the money she was counting. She handed the money to the man who then fled. Ms Clyne reported the robbery to another Post Office employee, the police were called and Ms Clyne provided a statement. 4In June 2003, an informant, Mr Daniel Munn, was interviewed by Detective Senior Constables Young and Cosgrove at North Sydney Police Station. Mr Munn informed them that Mr Jamie Young had told him that he had robbed the Mosman Post Office (a reference to the Spit Junction Post Office) with the assistance of an employee (on the basis of the description given, clearly Ms Clyne) who ensured that the closed circuit television ("CCTV") was not recording at the time of the robbery. 5Subsequent police enquiries revealed that: (a) There were numerous telephone contacts between Ms Clyne and Mr Young in the days before and after the robbery, including contact one hour prior to the robbery. (b) The CCTV equipment at the Post Office was not operating at the time of the robbery. It had been serviced in January 2003 and found to be working effectively. It was Ms Clyne's responsibility to ensure that it was operating. (c) No other employee observed the robbery or the robber. (d) At the time of the robbery, Ms Clyne's register contained six times the acceptable cash level stipulated in the Australia Post cash management plan. 6On 15 October 2003 Ms Clyne was arrested by Detective Cosgrove for "stealing" but was released from North Sydney Police Station within about an hour. On 15 December 2003 police investigations were suspended "due to lack of additional or other corroborative evidence to further implicate either CLYNE and/or YOUNG" (Police Complaint Directive Memorandum dated 23 October 2006). 7On 2 October 2006 Ms Clyne commenced the present proceedings against the State of New South Wales claiming that it was vicariously liable for the conduct of the North Sydney police officers who wrongfully arrested her on 15 October 2003 and falsely imprisoned her for the short period that she was held at the police station on that day. 8Service of Ms Clyne's statement of claim led to a "Police Complaint Directive Memorandum" dated 23 October 2006 from Detective Sergeant Flaherty to Detective Cosgrove requiring him to submit a comprehensive report stating his knowledge of the matter. Thereafter the police conducted further investigations into the robbery and on 16 August 2007 served a Court Attendance Notice on Ms Clyne identifying Detective Cosgrove as the prosecutor of an offence under s 156 of the Crimes Act 1900 of "steal property of master/employer" at the Spit Junction Post Office on 25 March 2003. Mr Young was served on 21 August 2007 with a Court Attendance Notice in relation to an offence of larceny arising out of the same incident. 9After an eight day hearing in the Local Court of the criminal proceedings against Ms Clyne spread over April, August and December 2008, the charge against her was dismissed by Magistrate Marsden on 10 December 2008. In August 2008 Mr Young had pleaded guilty to the charge against him. 10Ms Clyne then amended her Statement of Claim in the present proceedings to claim damages against the State for malicious prosecution by Detective Cosgrove. The injuries that Ms Clyne alleged she sustained as a result of police misconduct include post-traumatic stress disorder and major depression. 11On 14 June 2011 the hearing of the present proceedings commenced before Fullerton J sitting in the Common Law Division of the Court. On 22 June 2011, her Honour, on the application of the State under Part 29 r 10 of the Uniform Civil Procedure Rules 2005 ("UCPR"), entered judgment for it on Ms Clyne's malicious prosecution claim (Clyne v State of New South Wales (No 1) [2011] NSWSC 629). On 24 June 2011, again on an application by the State, her Honour entered judgment for it on Ms Clyne's wrongful arrest and false imprisonment claims (Clyne v State of New South Wales (No 2) [2011] NSWSC 630). Rule 29.10 permits the Court to give judgment for a defendant after the conclusion of the plaintiff's case on the ground that "on the evidence given, a judgment for the beginning party could not be supported". The applications here were made at the conclusion of Ms Clyne's case. 12Ms Clyne has sought leave to appeal against those judgments, contending that: (1) The primary judge erred in refusing to disqualify herself for apprehended bias, principally said to arise out of her Honour raising matters at the hearing that were adverse to Ms Clyne's case and had not been raised by the State. (2) Her Honour erred in rejecting Ms Clyne's tender of police documents relating to the criminal background of Mr Munn and Mr Brad Hinsby (another informer) and the transcript of the Local Court proceedings against Ms Clyne. (3) Her Honour erred in concluding that Ms Clyne did not adduce evidence capable of supporting her allegations of wrongful arrest and false imprisonment. (4) Her Honour erred in finding that Ms Clyne did not lead evidence from which a conclusion could be drawn that Detective Cosgrove did not have reasonable and probable cause for his prosecution. 13For reasons given below, I do not consider that any of these contentions is well-founded. As a result, Ms Clyne's applications for leave to appeal should be dismissed. I have dealt with the issue of bias first, in conformity with the decision in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117]. THE RELEVANT LEGAL PRINCIPLES Apprehended bias 14In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 the plurality observed: "[31] It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide ... [32] As the plurality in Johnson v Johnson explained, '[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues'" (Citations omitted). Wrongful arrest and consequent false imprisonment 15At the time of Ms Clyne's arrest in 2003, s 352(1) of the Crimes Act 1900 permitted any police constable or other person to arrest without warrant any person in the act of committing or immediately after having committed "an offence punishable, whether by indictment, or on summary conviction, under any Act". Section 352(2) was relevantly in the following terms: "(2) Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence, ... and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law". 16Section 356C and 356D in Part 10A of the Act relevantly provided as follows: "356C Detention after arrest for purposes of investigation (1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 356D. (2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested. ... (4) The person must be: (a) released (whether unconditionally or on bail) within the investigation period, or (b) be brought before a Magistrate, authorised officer or other person or court within that period, or if it is not practicable to do so within that period, as soon as practicable after the end of that period. (5) A requirement in another Part of this Act, the Criminal Procedure Act 1986, the Bail Act 1978 or any other relevant law that a person who is under arrest be taken before a Magistrate, authorised officer or other person or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate, authorised officer or other person or court is authorised by this Part. ... 356D Investigation period (1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period. (2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant." 17The appeal was argued upon the basis that if the arrest of Ms Clyne was lawful, she would fail on both her false imprisonment and wrongful arrest claims. Malicious prosecution 18The elements of malicious prosecution were summarised in the plurality judgment in A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1] as follows: "For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause." 19Their Honours also observed: "[38] ... The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect. ... [56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge." MATERIAL AVAILABLE TO THE POLICE At the time of the arrest 20To the summary in [5] above of the material available to the police at the time of Ms Clyne's arrest should be added the following. 21The police records included the following note of information supplied by Mr Munn on 21 May 2003: "[Mr Munn] was informed [by Mr Young] that an employee of the post office would ensure the video CCTV was not recording at the time of the intended offence. The informant [Mr Munn] was asked to act as a second principal by keeping 'a look out'. The offer to participate in the robbery was declined. The informant later had a conversation with the offender [Mr Young] who boasted about the commission of the offence. The offender stated he had attended the post office and met the female employee at the counter who handed him the proceeds of the robbery. The informant stated that the female employee was 41 years of age and currently on stress leave and would be seeking criminal compensation". 22The record of an electronically recorded interview with Mr Munn on 13 June 2003 included the following statement by Mr Munn: "[Mr Young] said ... if you want to make some money just come over with me to the Post Office at Mosman, I know the girl that works there. She's told me that the cameras were down, so all we got to do is walk in and pick up a bag off her and then meet her after work and split the money with her". 23Mr Munn also informed police that the woman from the Post Office, whom he knew to be named 'Janet or Jeannette', received a large proportion of the money taken from the Post Office and that the woman had told Mr Young that "she'd get compo ... she'd get paid for going on stress leave" (Judgment [15] and [16]). 24Further, the police ascertained that Mr Young's appearance was completely different to the description of the robber given by Ms Clyne. The difference was so great that there was no reasonable possibility of a mistake on her part. At the time Ms Clyne was charged 25After Ms Clyne's commencement of the present civil proceedings, and prior to her being charged, by means of service on her of the Court Attendance Notice, with the offence of "steal property of master/employer", the police took the following presently relevant steps: (a) Mr Young was questioned at length in an electronically recorded interview. He denied any involvement in the robbery. (b) A signed statement was obtained from Mr Munn identifying Mr Young as a person "who approached me in the year 2003 and asked me to participate in a staged robbery at Post Office on the North Shore". Mr Munn had not previously been prepared to sign a statement. In an interview on 10 June 2007 Mr Munn indicated that, contrary to his previous position, he was now willing to give evidence against those allegedly involved in the theft (Judgment [29]). (c) A statement was obtained on 6 August 2007 from Mr Luke Mason, an employee of Australia Post, stating, inter alia, that: * Mr Young had been employed by Australia Post as a Postal Delivery Officer in the Spit Junction area between November 2001 and May 2002. * An earlier attempted armed robbery had occurred at the Spit Junction Post Office on 27 August 2002. In that incident Ms Clyne had been handed a note by a person stating that he had a gun and that money should be put in his bag. * At the time of the reported robbery on 25 March 2003, Ms Clyne had Post Office cash in her register well in excess of that which was appropriate under normal procedures. * No Australia Post employee other than Ms Clyne reported seeing the incident on 25 March 2003. * The CCTV equipment at the Spit Junction Post Office was regularly serviced and no malfunction had been reported prior to the incident. * The hold-up alarm was activated on 25 March 2003 but Mr Mason did not say at what time that occurred. (d) A statement was obtained from Mr Julian Hill who was the manager of the Spit Junction Post Office in March 2003. Mr Hill supplied information concerning the maximum amount of cash that Ms Clyne should have had in her register and the operation of the CCTV security system. He was not aware of any malfunction of the system after it was serviced in January 2003. He said that the regular servicer of the system tested it on 26 March 2003, after the robbery, and found no defect. 26It is unnecessary to refer to the steps taken by the police between 16 August 2007, the date of service of the Court Attendance Notice upon Ms Clyne, and the conclusion in December 2008 of the hearing of the criminal proceedings against her as Ms Clyne's malicious prosecution claim in the present proceedings relates only to the initiation of the prosecution of Ms Clyne and not to its maintenance thereafter. Her counsel confirmed this on the hearing of the appeal. It is also apparent from Ms Clyne's Outline of Submissions at first instance dated 23 June 2010 [19]. THE JUDGMENTS AT FIRST INSTANCE The judgment concerning the wrongful arrest and false imprisonment claims 27The primary judge referred to her discussions with Ms Clyne's counsel concerning the way in which these claims were put and concluded as follows: "[34] ... Mr McAuley [counsel for Ms Clyne] did not articulate, or articulate with sufficient clarity, that his client's case of wrongful arrest was to be maintained on the basis that at the time of arrest police used their powers for an improper or collateral purpose. The closest he came to putting his client's case in a way that was consistent with her arrest (and subsequent detention) being unlawful was in the context of my enquiring of him as to how Particular 4.6 should be read and understood in light of his submissions that she was arrested for questioning. Mr McAuley submitted as follows: She wasn't arrested bona fide for the purpose of investigating if [she] committed an offence. She was arrested for an extraneous purpose, not bona fide purpose, namely for the purpose of questioning her with a view to obtaining admissions. And that's not a purpose which comes within section 352(2). [35] It was on the basis of this further refinement of the plaintiff's case, which Mr McAuley assured me was the case he put on his client's behalf after careful consideration, that Mr Menzies [counsel for the State] then made a fresh application for judgment under Part 29 r 10". 28Her Honour's conclusion that judgment should be entered for the State on these claims involved accepting the State's submissions as follows: "[38] Mr Menzies submitted that in circumstances where it was conceded that the arrest was on the basis of the police officer's reasonable suspicion that the plaintiff had committed the offence of larceny, and where it was common ground that upon her arrival at the police station she was entered into formal custody in accordance with the protocols provided by Pt 10A of the Crimes Act for the express purpose of investigating her involvement in the offence for which she was arrested by formally questioning her, the arrest was entirely lawful and in complete accordance with Part 10A of the Crimes Act . [39] In the context of the application for judgment under the UCPR he submitted that in these circumstances there was no evidence capable of supporting the plaintiff's case that the arrest was unlawful, or that she was falsely imprisoned consequent upon an unlawful arrest, and that judgment should be entered in the defendant's favour". 29A point raised by the State's Notice of Contention on appeal was that her Honour referred to the State's application in relation to the wrongful arrest and false imprisonment claims as being under r 29.10 of the Uniform Civil Procedure Rules. Both parties agreed that the application was in fact made under r 13.4 to strike out the Statement of Claim (or at least what remained of it after judgment was given for the State on the malicious prosecution claim) on the basis that it did not disclose any reasonable cause of action. Nothing turns on her Honour's misunderstanding on this point. The judgment concerning the malicious prosecution claim 30The primary judge noted that the State did not contend that the first two elements of the tort of malicious prosecution (the institution of criminal proceedings by the defendant and their termination in favour of the plaintiff) had not been established and noted that proof of the presence of malice (the fourth element) was insufficient if an absence of reasonable and probable cause (the third element) was not established (Judgment [39] - [41]). Her Honour then observed: "[41] ... Accordingly, even were I satisfied that there was some evidence of malice, evidenced by the informant's attitude toward the plaintiff when he served the Court Attendance Notice as deposed to by the plaintiff and her partner and/or by the suggestion that the proceedings were commenced by the informant as a 'payback' for her bringing proceedings for wrongful arrest and false imprisonment, that would not be enough to support a verdict in her favour." 31In relation to the subjective aspect of the element of absence of reasonable and probable cause (see [19] above), the primary judge concluded: "[50] The defendant submitted that there is no evidence at all to support the proposition that Detective Cosgrove did not honestly form the view that there was a case against the plaintiff which warranted or justified prosecution. He submitted that there was an abundance of evidence to support the fact that he held that honest belief. The plaintiff's counsel did not submit that there was any direct evidence of an absence of an honest belief but that, since the decision to charge the plaintiff was not based on a sufficiency of evidence, that supported an inference that he did not in fact have a honest belief that the evidence warranted setting the criminal law in motion. [51] I am not persuaded that there is any force in the plaintiff's submission. Having regard to the weight of the evidence available to Detective Cosgrove at the time of service of the Court Attendance Notice, the inference that he did not have such a belief is simply untenable. For this reason alone the defendant's application for judgment in its favour must succeed. When separate consideration is given to the objective aspect of the allegation of absence of reasonable and probable cause I am compelled to the same conclusion." 32Her Honour said the following in relation to the objective aspect: "[53] The plaintiff conceded that the body of circumstantial evidence available to police at the time of the service of the Court Attendance Notice, namely contact between the plaintiff and Jamie Young on the day of the robbery; the fact that the cash she had in her till far exceeded the office imposed limit and the fact that the CCTV equipment under her control was not functioning at the time of the alleged robbery, was sufficient to raise a suspicion of her criminal involvement in the theft, but that it was a weak circumstantial evidence case. That much might fairly be said. In fact, were that the only evidence it might well have supported a finding that the prosecutor acted without reasonable or probable cause in laying a charge based upon it. However it was not the only evidence. It is clear beyond question that the mainstay of the case against the plaintiff was the evidence of Munn. While it is equally as clear that Detective Cosgrove had concerns about his reliability as an informant, this was balanced against the fact that he provided police with information that was not in the public domain in 2003 and in 2006 expressed his willingness to give evidence concerning those matters without reward or inducement. Counsel openly conceded the circumstantial evidence case against the plaintiff was "bolstered" by the direct evidence of Munn but maintained the submission that the prosecution of the plaintiff suffered from a fatal deficiency which he was not able to identify. In these circumstances, his submission that there is a sufficiency of evidence to support a finding in the plaintiff's favour that the prosecution was commenced without reasonable or probable cause simply lacks any force with the corollary that the defendant's application for judgment must succeed." 33The primary judge accordingly entered judgment for the State on the malicious prosecution claim. 34I turn now to the resolution of the application for leave to appeal. FIRST ISSUE - APPREHENDED BIAS The course of the hearing at first instance 35The statement of claim current at the date of the hearing at first instance, the Fourth Amended Statement of Claim, listed as one of the particulars of Ms Clyne's malicious prosecution claim that she "did not commit any offence of stealing on 25 March 2003" ([9.1]). In its defence, the State denied the allegation of malicious prosecution but, appropriately, did not respond specifically to the particulars. The result was that the matter particularised was in issue in the proceedings, although such an issue is not, at least usually, appropriate to raise in a malicious prosecution claim (see Commonwealth Life Assurance Society Limited v Smith [1938] HCA 2; 59 CLR 527). 36In her evidence in chief, Ms Clyne was asked by her counsel whether she had participated in any way in the robbery on 25 March 2003. She denied any involvement. 37Ms Clyne was cross-examined about a number of topics relevant to the robbery, including her friendship with Mr Young, her telephone contact with him, the CCTV at the Post Office, the maximum cash that she ought to have had in her register at the time of the robbery, the visual appearance of Mr Young, her conversations with Mr Young about whether he was involved in the robbery and his guilty plea. In addition, the following exchanges occurred: "Q. You see, let me suggest this to you. Could this be the case, that you'd had some conversation with James Young at some point about an idea for a robbery, that it may even have just been a joke? HER HONOUR Q. The question is put: have you ever discussed with James setting up a robbery of the post office, whether seriously or mucking about? A. No, not jokingly, not - never. ... Q. Was this the case, that your conversations with Mr Young [after the robbery] were to the effect that each of you were [sic] to protect each other, to remain silent, not give the game away? A. There wasn't any game. Q. Was this the case, that, shortly after the day of the robbery or, indeed that very evening, you met with Mr Young at a hotel on the North Shore and there divided the proceeds? A. No" (Transcript 15/06/11, pp 129 and 133). 38In the course of discussion between counsel and the primary judge concerning the tender of the Facts Sheet used in relation to Mr Young's guilty plea, the following interchange occurred: "MENZIES: As we understand it, in fact unnecessarily, my learned friend put in issue the guilt of the plaintiff. So, if I appear to be dancing around the proposition, it is because I am concerned that I don't do more than I need to or more than is permissible. But, obviously, the authorities are pretty plain that, ultimately, guilt is irrelevant. In this case, for reasons which are clear to my learned friend, he put in issue guilt, both pleaded it and then asked questions about it. That being so, that issue, to some extent, becomes open, but I am not trying to re-run proceedings which have already been determined. HER HONOUR: No. It is an important point of distinction. I can see why the issue was pleaded and why you are dealing with it self-evidently, but of course Miss Clyne is entitled to the full benefit of having been acquitted" (Transcript 15/06/11, p 136). 39Counsel for the State subsequently put to Ms Clyne in cross-examination that the description she gave police of the robber was "a complete fabrication", which she denied (Transcript p 138). 40The cross-examination to which I have referred in [37] - [39] above in my view confirmed the existence of an issue between the parties as to whether Ms Clyne was involved in the robbery. 41Each party engaged an expert to deal with the issues arising out of Ms Clyne's claim that she had suffered psychiatric injury as a result of police misconduct. Dr Chanaka Wijeratne was engaged by Ms Clyne and Associate Professor Jonathan Phillips by the State. The experts conferred with each other on questions agreed by the parties, and produced a document setting out their findings. 42Shortly prior to the two experts giving concurrent oral evidence, the following exchange occurred between the primary judge and counsel for the State: "HER HONOUR: ... Mr Menzies, I take it that you will ask both of the doctors to comment upon the way the plaintiff presented to Dr Wijeratne following the second robbery in the context of what I assume to be the defendant's case; namely, that she was in collusion with the robber. Because Dr Wijeratne - and Dr Phillips accepts his diagnosis that she was, following the second robbery, suffering from post-traumatic stress disorder. Now, both doctors have proceeded on the given or hidden assumption that she was traumatised when the robber came in and she having certainly no advance notice of it, and that her trauma relates to the fact that she was robbed as a victim. But you are going to have to grapple with that diagnosis and how that diagnosis obtains in the event that you persuade me, as I expect you will, on the question of causation - that you will seek to persuade me on the probabilities that she was in collusion, and if I were satisfied of that on the probabilities as a foundation to the causation question, whether or not the post-traumatic stress disorder diagnosis obtains or whether it has to be in some way revisited. Because that's a rather critical question, isn't it? MENZIES: Yes, your Honour. The matters that really have to be taken up with both the doctors is, one, that. Two is the effects of medication upon her presentation to various people at various times. Three, the relevance of her other criminal history. Four, the relevance of her alcohol history, particularly the 97-98 period and subsequently. So there seem to be those four areas which need to be expanded upon. The way that I intend to do it would be simply to invite them to make some further assumptions, and then consider their evidence in light of those further assumptions. ... HER HONOUR: A person might, I assume suffer trauma in clinical terms consequent upon arrest, independent of whether the arrest was justified or unjustified. MENZIES: Indeed. HER HONOUR: And in the event that the arrest was both lawful and justified as a matter of fact because she was in fact in collusion with the robber, what happens to her claim in that instance, do you say?" (Transcript 16/06/11, pp 227 - 228). 43Soon after, the following exchange occurred between the primary judge and counsel for Ms Clyne: "McAULEY: That interchange was, I think, useful, with respect, in clarifying some of the issues, but I should say that I will object to any question which operates on the assumption that there was collusion between Mr Young and the plaintiff. HER HONOUR: Why? McAULEY: Because I say that any such question would be inconsistent with the acquittal. HER HONOUR: I think what I should tell you is that you should take that objection; I will overrule it. McAULEY: Thank you, your Honour. HER HONOUR: But in the event that I am persuaded by you in the fullness of time that it is a proposition that cannot be revisited in this proceeding, then that question will fall away. Otherwise we're going to have the doctors here until-- McAULEY: No, I don't want that to happen. I want to deal with this expeditiously. So I just wanted to highlight that" (Transcript 16/06/11, p 231). 44In the course of the experts' concurrent oral evidence, the primary judge posed two questions for the experts that asked them to assume that there had been collusion between Ms Clyne and the robber. In response to a further objection from Mr McAuley, her Honour said: "we'll return to resolve that in the course of the proceedings, don't think that you should not, if you wish, take up that question with either of the doctors and explore it further. That's not going to undermine your objection in any way Mr McAuley" (Transcript p 250 - 1) 45After Professor Phillips responded to her Honour's questions, Mr Menzies QC (counsel for the State) indicated that he wished to ask a question, said to have arisen out of Professor Phillips' response, upon the assumption that Ms Clyne was "interested in benefiting from a compensation claim". Both experts responded and questions were put to them upon the further assumption that Ms Clyne had a criminal history. 46The day after the experts' evidence concluded, counsel for Ms Clyne sought to tender evidence as to what occurred at the hearing in the Local Court of the criminal charge against Ms Clyne. In response to questions from the primary judge, counsel indicated that the material formed part of Ms Clyne's case that she was innocent of the criminal charge brought against her (Transcript p 264). Counsel nevertheless contended that the State could not allege in the proceedings before her Honour that Ms Clyne had colluded with the robber because that would be to "go behind the verdict in [Ms] Clyne's favour in the Local Court" (Transcript p 265). Counsel accepted on appeal that this submission was not well-founded and that the verdict of acquittal did not preclude the issue of collusion being raised in the civil proceedings (see generally Helton v Allen [1940] HCA 20; 63 CLR 691; J D Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths [5215]). 47After a lengthy discussion between the primary judge and counsel, Mr McAuley indicated that he no longer sought to prove Ms Clyne's innocence as part of his case (Transcript p 285) and, after further discussion, counsel for the State responded by withdrawing any suggestion that Ms Clyne had colluded with the robber. The primary judge then confirmed that the questions asked of the experts "on an assumed basis that Ms Clyne was in collusion with the robber" would be disregarded (Transcript p 300). 48On 22 June 2011, the seventh day of the hearing, the primary judge delivered her judgment in favour of the State on Ms Clyne's malicious prosecution claim. After counsel for Ms Clyne then explained her case on wrongful arrest and false imprisonment, the primary judge suggested to counsel for the State that he withdraw the State's application for judgment on those claims because the application looked "problematic". The State then withdrew the application. 49On the next morning however, counsel for the State said that he needed confirmation of the way in which Ms Clyne put her case on those claims. Lengthy discussion in which her Honour sought clarification of that case then ensued. After a short adjournment, counsel for Ms Clyne applied for her Honour to disqualify herself, saying: "McAULEY: I'm instructed to make an application that your Honour disqualify yourself. The basis of the application is on the basis of bias. The evidentiary material upon which I rely is the question by your Honour when the experts Dr Phillips and Dr Wijeratne were before the Court, and your Honour's questions in relation to the alleged collusion. The second evidentiary basis is the suggestion by your Honour yesterday that Mr Menzies withdraw his application. It wasn't a situation where Mr Menzies withdrew his application, as it were, on his own initiative, the suggestion coming from your Honour. And thirdly, the interchange with the exchange that's occurred this morning in relation to the plaintiff's case. HER HONOUR: Yes, that application is refused" (Transcript 23/06/11, pp 381 - 382). 50Counsel for the State then made an application that "the Statement of Claim be struck out on the basis that it doesn't reveal a cause of action" (Transcript p 382). The primary judge delivered judgment on that application on 24 June 2011. Consideration 51On appeal Ms Clyne contended, on the same three bases relied upon at first instance, that the primary judge should have disqualified herself. She also contended that her Honour erred in giving no reasons for her refusal of the disqualification application. 52Ms Clyne's first complaint was, and is, that her Honour raised with the experts the issue of possible collusion of Ms Clyne in the robbery (see [42] above). In light of the way in which Ms Clyne's case had been conducted to that point, there was in my view no error in her Honour doing that. The statement of claim, the defence, Ms Clyne's evidence in chief and the State's cross-examination of her (see [40]) combined to indicate that there was an issue between the parties as to whether Ms Clyne had colluded in the robbery. It was appropriate for her Honour to ensure that the experts' oral evidence did not pass without this issue being addressed, to avoid the expense and inconvenience of recalling the experts at a later time. In taking this course her Honour was complying with ss 56 - 58 of the Civil Procedure Act 2005 which require "the just, quick and cheap resolution of the real issues in the dispute or proceedings". 53A related complaint made by Ms Clyne on appeal was that following the primary judge's questions to the experts upon the assumption of collusion, the State was permitted to question the experts on the assumption that Ms Clyne had been motivated by a desire to benefit from a compensation claim (see [45] above). Her Honour did not rule against Ms Clyne's objection to this occurring: she had made it clear that Ms Clyne's various objections would be determined at a later point. That point was never reached as the issue of collusion (and therefore of Ms Clyne's motivation) was withdrawn from the proceedings (see [47] above) and the relevant questions to the experts came to be disregarded. Again in my view the primary judge's conduct was unimpeachable. 54Even if, contrary to my view, the primary judge was mistaken in considering that collusion was an issue in the proceedings, there was undoubtedly enough in the parties' conduct to provide a reasonably arguable foundation for such a view. In those circumstances, there is no substance at all in Ms Clyne's contention that her Honour's conduct of the hearing in this respect (or indeed in any other respect) might have given an appearance of bias to a fair-minded lay observer (see the test referred to in [14] above). 55Likewise, the primary judge's suggestion that counsel for the State withdraw his application for judgment was entirely proper in light of the information that counsel for Ms Clyne had at that stage supplied to her Honour about Ms Clyne's case. Again, the primary judge was complying with ss 56 - 58 of the Civil Procedure Act: in this instance by discouraging a party (not, it should be noted, Ms Clyne) from pursuing an apparently unmeritorious application. 56The third reason Ms Clyne gave to her Honour for the disqualification application was similarly without foundation. It was entirely proper for her Honour to attempt to clarify the nature of Ms Clyne's case. 57I also reject Ms Clyne's submission that the primary judge erred in not giving reasons for her rejection of the disqualification application. The application was so clearly ill-founded that no reasons were required. Indeed little more could have been said in response to the application than that her Honour, in attempting to clarify Ms Clyne's case, in dissuading counsel from running what she then perceived to be a groundless application and in ensuring that the expert witnesses addressed all relevant issues in the proceedings, was simply performing her duties under ss 56 - 58 of the Civil Procedure Act. This would have been apparent to any fair-minded observer of the proceedings and did not need to be spelt out. SECOND ISSUE - THE REJECTION OF EVIDENCE Evidence of the criminal background of the two informers 58The primary judge rejected the tender of voluminous documents relating to the criminal records of Mr Munn and Mr Hinsby, in effect, upon the basis that the documents could not reasonably establish that the information provided to police "was so wholly unreliable ... that the police should not have placed any reliance upon it" and that it was therefore irrelevant (Transcript p 24). 59Ms Clyne's complaint about the rejection of this evidence, so far as it related to Mr Munn, should in my view be dismissed upon the basis that the evidence otherwise before her Honour demonstrated that the police were aware that when Mr Munn supplied information to them he was on bail for robbery and had an extensive criminal history (NSW Police Service COPS entry). Further detail concerning that record would not have assisted Ms Clyne's case. The primary judge was therefore correct to treat it as irrelevant. 60Police obtained statements from Mr Hinsby, a cousin of Mr Young, on 29 October 2007 and 25 February 2008, after the criminal charge was laid against Ms Clyne and well after her arrest. If police obtained any information from Mr Hinsby prior to that time (which is not suggested by the parties' chronologies) it did not, and does not, play any significant role in determining the propriety of the police conduct in arresting and charging Ms Clyne. As a result, the primary judge rightly rejected evidence about Mr Hinsby's past as irrelevant. Transcript of the Local Court proceedings 61Counsel for Ms Clyne was not able at first instance (Transcript p 308) or in his Written Submissions on appeal ([30]) to proffer any plausible reason why the tender of the transcript of the Local Court hearing in 2008 would have assisted Ms Clyne in demonstrating that the police acted improperly in arresting her in October 2003 and charging her in August 2007. In these circumstances, her Honour was right to reject the tender of the transcript. THIRD ISSUE - WHETHER WRONGFUL ARREST AND FALSE IMPRISONMENT 62Ms Clyne's argument on appeal was put as follows: "[T]he trial judge mis-stated the applicant's case on wrongful arrest and false imprisonment, failing to acknowledge the applicant's case on wrongful arrest - that she was not arrested bona fide in accordance with s 352(2) of the Crimes Act 1900 (NSW), with the intention of taking the applicant before an authorised justice to be dealt with according to law, but for the purpose of questioning, which turned into harassment and bullying at North Sydney Police Station" (Written Submissions [56]). 63As is apparent from [11] above the primary judge identified, and rejected, the submission to this effect made by Ms Clyne at first instance. Her Honour was correct to do so as s 352(2) (quoted in [15] above) neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice. It simply required the constable to in fact take the arrested person before a court. However if some other statutory provision came into operation before the arrested person was taken before a court, the obligation to take the arrested person before a court might be displaced. Consistently with ss 356C and D, the arresting officer's intent at the time of arrest might lawfully have been only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him or her before an authorised Justice. I agree with the view to this effect expressed by Adams J in Director of Public Prosecutions v Nicholls [2001] NSWSC 523; 123 A Crim R 66 at [15] - [16]. 64Ms Clyne's submission quoted in [62] above must therefore be rejected. Even if Ms Clyne established that the arrest was "for the purpose of questioning", that would not have invalidated it. Furthermore, the "harassment and bullying" referred to in the submission was not alleged to have been the, or a, purpose of the arrest. The latter point is emphasised by the use of the words "turned into" in the submission. As the primary judge said at [33]: "[A]t no time did [counsel for Ms Clyne] seek to make the case that at the time of arrest it was the intention of the police officer to question the plaintiff informally in the intimidating environment of detention with a view to extracting admissions from her, and that for that reason that her arrest was affected for the improper purpose of questioning her in that particular way". 65In my view the material in the possession of the police at the time of Ms Clyne's arrest (see [5], [20] - [24] above) clearly constituted reasonable cause for suspicion that Ms Clyne had committed a relevant offence (see s 352(2)). Counsel for Ms Clyne, quite properly, made the following concessions in this respect at first instance: "MCAULEY: They had a suspicion and I'm happy to concede that police officers investigating a matter quite properly act on suspicions. HER HONOUR: And do you concede that they had available to them at the time of her arrest reasonable evidence to ground a reasonable suspicion that she was implicated in the robbery? MCAULEY: I wouldn't phrase it quite that way. I would say that there was a suspicion which was such that it was appropriate to further investigate the matter. That's how I would phrase it. HER HONOUR: And it was entirely appropriate to further investigate the matter by putting the allegations to Mrs Clyne? MCAULEY: Yes" (Transcript 21 June 2011, p 337). 66On appeal counsel argued that his concessions stopped short of admitting that the relevant suspicion was reasonable. It seems to me that this was implicit in the concessions but in any event there can be no doubt that the suspicion was reasonable. 67As there is no other challenge to the primary judge's decision concerning the wrongful arrest and false imprisonment claims, Ms Clyne's contention that the primary judge erred in finding that a judgment for Ms Clyne on those claims could not be supported on the evidence before her must be rejected. FOURTH ISSUE - MALICIOUS PROSECUTION CLAIM 68It is not easy to identify precisely what Ms Clyne's argument is concerning the primary judge's conclusion on this claim. At its highest, it appears to be a contention that because the investigation was suspended for some years and only restarted when Ms Clyne commenced the present civil proceedings against the State, an inference should be drawn that the police only charged her, to use the primary judge's expression (Malicious Prosecution Judgment [41]), as "payback" for her bringing the civil proceedings. As her Honour noted, this contention might support an argument that the police acted maliciously but Ms Clyne would still need to show an absence of reasonable and proper cause for the prosecution in order to succeed on her claim (ibid). 69As the plurality in A v State of New South Wales confirmed, the element of reasonable and probable cause is concerned with the sufficiency of the material before the prosecutor "to warrant setting the processes of the criminal law in motion" (at [71]). At least where, as here, the complaint relates to the institution of criminal proceedings, as distinct from their maintenance up to and during trial, the focus is not on whether the police possessed admissible evidence enabling them to prove that the person charged has committed an offence (see Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 at [105]). After charge, ordinarily much work will occur in the collection and preparation of evidence for trial. The relevant question is whether the material available at the time of charge warrants those "wheels" being put in motion. Ms Clyne did not in fact contend that the decision to charge her lacked a reasonable basis because, although the material possessed by the police might have been sufficient to generate a reasonable belief in Ms Clyne's guilt, much of it (particularly the hearsay evidence of Mr Munn) would not have been admissible against her at a hearing of the criminal charge. 70The primary judge concluded that "[h]aving regard to the weight of the evidence available to Detective Cosgrove at the time of service of the Court Attendance Notice, the inference that he did not have [an honest belief that the evidence warranted setting the criminal law in motion] is simply untenable" (Judgment [51]). On appeal Ms Clyne has not given any plausible reason for regarding that conclusion as erroneous. There was considerable material available to the police at the time of Ms Clyne's arrest (see [65] above) and it was to some extent supplemented by the time she was charged (see [25] above). As her Honour concluded, Ms Clyne's case did not provide any reason for thinking that Detective Cosgrove did not believe that he had sufficient material to warrant charging Ms Clyne. The fact that the police may have been prompted to pursue the matter by the commencement of Ms Clyne's civil proceedings does not in my view indicate otherwise. ORDERS 71For the reasons I have given, an appeal by Ms Clyne would be bound to fail. As a result, I propose that her application for leave to appeal be dismissed with costs. 72MEAGHER JA: I agree with Macfarlan JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2012