Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Hunt [2014] NSWCA 47 Hearing dates: 25 February 2014 Decision date: 13 March 2014 Before: Barrett JA at [1]; Leeming JA at [2]; Tobias AJA at [75] Decision: 1. Set aside the verdict and orders made by the District Court on 30 November 2012 and remit the matter to that Court for retrial. 2. The respondent to pay the costs of the appeal, but be given, if otherwise qualified, a certificate under the Suitor's Fund Act 1951 (NSW). 3. The costs of the first trial should be in the discretion of the judge on the retrial. [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: APPEAL AND NEW TRIAL - findings of fabrication of evidence by police officer - fabrication of key findings not put in cross-examination - submission of fabrication not made - agreement not to take Browne v Dunn points did not prevent substantial miscarriage of justice - retrial ordered APPEAL AND NEW TRIAL - failure to address substantial component of defence case - failure to grapple with competing testimonial evidence in light of independent evidence - failure to address separate heads of damages POLICE - rights, powers and duties - actions for malicious arrest, assault and battery and misfeasance in public office - whether lawful arrest - nature of tort of "malicious arrest" considered Legislation Cited: Crimes Act 1900 (NSW), s 60(1), s 66(1) Evidence Act 1995 (NSW), s 140(2)(c) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Law Reform (Vicarious Liability) Act 1983 (NSW), Part 4 Suitor's Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1) Cases Cited: Ashby v Slipper [2014] FCAFC 15 Bale v Mills [2011] NSWCA 266; 81 NSWLR 498 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1829) 3 Sim 23; 57 ER 909 Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Coote v Kelly [2013] NSWCA 357 Diamond v Minter [1941] 1 KB 656 Halliday v Nevill (1984) 155 CLR 1 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Presidential Security Services v Brilley [2008] NSWCA 204; 73 NSWLR 241 Roy v Prior [1971] AC 470 Smith v NSW Bar Association (1992) 176 CLR 256 State of New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 State of New South Wales v Williamson [2011] NSWCA 183 State of New South Wales v Zreika [2012] NSWCA 37 Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 Village Cay Marina Ltd v Acland [1998] 2 BCLC 327 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: R Clayton and H Tomlinson (eds), Civil Actions Against the Police (Thomson 3rd ed 2004) Category: Principal judgment Parties: State of New South Wales (Appellant) Robert Bruce Hunt (Respondent) Representation: Counsel: J Maconachie QC / E Chrysostomou (Appellant) R de Meyrick (Respondent) Solicitors: Crown Solicitor's Office (Appellant) Beston Macken McManis Solicitors (Respondent) File Number(s): 2012/367950 Decision under appeal Date of Decision: 2012-11-23 00:00:00 Before: Sidis ADCJ File Number(s): 2010/211566 Judgment 1BARRETT JA: For the reasons stated by Leeming JA, it is necessary to set aside the verdict and orders of the District Court, to remit the matter for retrial and to make the other orders his Honour proposes. 2LEEMING JA: The primary judge entered a verdict for the plaintiff Mr Hunt and judgment in his favour for $302,162.61 for his causes of action of malicious arrest, assault and battery, and misfeasance in public office, awarding both aggravated and exemplary damages in respect of each tort. The defendant State appeals as of right and submits that there must be a new trial because of a series of errors disclosed by the reasons. 3The primary judge expressly found that Senior Constable Ochs, for whose tortious conduct the State admitted it was vicariously liable, had fabricated key aspects of his evidence, including the terms of the initial conversation between him and Mr Hunt in which he had said that Mr Hunt threatened him. The evidence found to be fabricated was central to the defence, which was that Senior Constable Ochs had lawfully arrested Mr Hunt. 4That Senior Constable Ochs had fabricated that evidence had not been put to him in cross-examination. No submission was made to her Honour at any stage throughout the trial that she should make such a finding. Her Honour's findings were unfair to Senior Constable Ochs, to the State and indeed, as will be seen below, to Mr Hunt. 5That is sufficient to require there to be a retrial, but regrettably her Honour's reasons disclose other errors, which, lest they be repeated when the matter is heard again, are also identified below. Overview of the plaintiff's and defendant's cases at trial 6The task of the primary judge was to resolve deeply conflicting evidence relating to the events in the early evening of 7 July 2007. That task was difficult - the witnesses' recollections diverged, the events had taken place more than five years earlier, there were few objectively reliable contemporaneous records, and the witnesses had all been exposed to the recollections of other witnesses in the course of Mr Hunt's criminal trial in 2008. 7The difficulty of the task was obvious. The importance to the parties was also obvious. On the one hand, if Mr Hunt's recollection was accurate, there had been a very serious misuse of power by a police officer leading to his wrongful arrest and detention. On the other hand, if Senior Constable Ochs' recollection was accurate, he and his wife had been victims of intimidation in their own home by a neighbour who, as they recalled it, had threatened to kill them both. Objectively established facts and undisputed events 8It was established by CCTV footage that on 7 July 2007 Mr Hunt left the Tomakin Sports and Social Club, on the New South Wales South Coast, at 16.54, where, according to him (and his testimony was corroborated by a witness) he had been drinking very lightly in the course of the afternoon. A call was booked for an ambulance at 17.18 to attend the home of Senior Constable Michael Ochs and his wife Cindy. The couple lived on Percy Davis Drive, some 8.37 km from the Club. 9The primary judge found that the police had probably been called at 17.14. That was the time recorded as the time of arrest on the Field Arrest Form, completed after Mr Hunt had been taken to Batemans Bay Police Station. 10There was no dispute that in those intervening 20 or 24 minutes, Mr Hunt had entered the Ochs' property, and had become involved in a fight with Senior Constable Ochs. There was no dispute that Mrs Ochs had taken a shotgun from their house, loaded it, and took it outside to where the men were fighting. There was no dispute that Mr Hunt was then struck with the butt of the shotgun by Mrs Ochs. Mr Hunt's blood was found on the butt. It was not disputed that Senior Constable Heffernan responded to a radio broadcast following a telephone call by Mrs Ochs to the police, drove with another police officer to the Ochs residence and arrested Mr Hunt, on Percy Davis Drive, outside the Ochs property. 11Mr Hunt was charged with a variety of offences, principally intimidating a police officer, assaulting a police officer in the execution of his or her duty and occasioning actual bodily harm, resisting a police officer and attempting to choke/strangle/suffocate with intent to commit an indictable offence. He was denied bail (he had a lengthy criminal record, including an earlier conviction for intimidating a police officer and, at the time, was serving a suspended sentence for assault occasioning actual bodily harm). In opening the case, his counsel said that once he was denied bail he was taken to Goulburn jail, transferred to Silverwater jail in around September 2007, released on 25 October 2007 but kept on house arrest until he was tried in the District Court at Bega between 28 and 30 July 2008. 12The jury acquitted him of all charges for which he was tried. Mr Hunt was convicted, by a magistrate sitting at Moruya Local Court on 7 November 2008, for refusing to undergo a breath test on 7 July 2007. For that conviction he was fined $500 and disqualified from driving for 15 months, but backdated to 7 July 2007 (so that the period of disqualification had expired by the time of his conviction). Mr Hunt's pleaded case 13Mr Hunt sued the State of New South Wales pursuant to a pleading with some unusual aspects. There was no claim for false imprisonment, nor for malicious prosecution. Instead, the pleading alleged first, that Mr Hunt had been "arrested maliciously and without lawful excuse" by Senior Constable Ochs. Secondly, it alleged that Mr Hunt had been assaulted and battered by him. Thirdly, it alleged that the injuries suffered by Mr Hunt on 7 July 2007, and his subsequent prosecution and deprivation of liberty, were caused "as a result of misfeasance in public office" by Senior Constable Ochs on 7 July 2007. The particulars of misfeasance in public office were arresting and assaulting and beating Mr Hunt without reasonable cause to do so, and maliciously procuring his arrest and charging him with criminal offences, resulting in imprisonment and detention under house arrest for approximately 13 months. The plaintiff identified various heads of compensatory damages, as well as "aggravated and/or exemplary damages". 14No allegations were made against Mrs Ochs. 15The State admitted liability, pursuant to Part 4 of the Law Reform (Vicarious Liability) Act 1983 (NSW), for the tortious conduct alleged of Senior Constable Ochs. The State denied any malice and positively alleged that Senior Constable Ochs lawfully arrested Mr Hunt, used reasonable force, and in addition relied on the arrest by Senior Constable Heffernan and the refusal of bail by the Local Court on 8 July 2007 as partial answers to the allegations. No reply was filed by Mr Hunt. 16It will be necessary to return to some of the issues arising on the pleaded case in order to address some of the grounds of appeal. However, the principal ground of appeal turns upon the findings made in relation to the conflicting evidence of Mr Hunt, Senior Constable Ochs and Mrs Ochs, which may be summarised immediately. Mr Hunt's testimony 17The largest task at trial was to determine on the basis of the evidence what had occurred between 16.54 and 17.18 on 7 July 2007. (There was a great deal of additional evidence about relations between Mr Hunt and Senior Constable Ochs, which was relevant to the motives of each on 7 July 2007, but which it is not necessary to summarise or analyse for the purposes of this appeal.) 18Mr Hunt said that after leaving the Club he rode his motorcycle to his residence on Phyllis Price Drive, some 12 kilometres away. He rented a dwelling located on 100 acres on Phyllis Price Drive. To get home, he rode past the Ochs property, continued along Percy Davis Drive, which is partially unsealed, then turned right some two kilometres down unsealed Phyllis Price Drive. He said the journey took him approximately ten minutes. When he arrived, he said that he noted that a prize pit bull terrier, left in his care by his nephew the night before, was missing. He looked briefly around his property and called and whistled for the dog but it did not return. He said he visited his landlord's house (which was on the same property) but he was not at home. He then rode on his motorcycle to another property on Phyllis Price Drive, and properties on Percy Davis Drive and spoke to residents at each property who said they had not seen the dog. He then arrived at the Ochs property. 19He first saw Mrs Ochs, wearing a dressing gown, and asked to speak to her husband. When Senior Constable Ochs appeared, also wearing a dressing gown, Mr Hunt said he removed his helmet and asked if he had seen a dog. He said that Senior Constable said, "You are here to intimidate me". Mr Hunt decided to leave, put on his helmet, mounted his motorcycle and attempted to start it. He said that Senior Constable Ochs took hold of him, pulled him off the motorcycle and the pair fell to the ground. Senior Constable Ochs called his wife to get a shotgun and call the police. Mrs Ochs appeared with a shotgun. Mr Hunt raised his hands and turned to walk away. He said he was struck to the back of his head by the butt of the shotgun. 20Mr Hunt again stood and attempted to start his motorcycle, but claimed that it was damaged and would not start. He started walking away from the property, followed by Mr Ochs. While on the road he heard a police siren, and he was arrested by Senior Constable Heffernan. Senior Constable Ochs' testimony 21According to Senior Constable Ochs, he and his wife were watching a film on television on the evening of 7 July 2007. Mrs Ochs answered the door and said that she did not know who the man was but he wanted to see her husband. Senior Constable Ochs recognised Mr Hunt from his distinctive helmet. He knew Mr Hunt. He had examined Mr Hunt's criminal record earlier that year, when he had found him riding what he believed might have been an unregistered motorcycle. Senior Constable Ochs said that Mr Hunt stood very close to him, so that he could smell alcohol on his breath, and then this conversation took place: Mr Hunt: "Are you the sergeant at Moruya Police?" Senior Constable Ochs: "No, mate, I'm not." Mr Hunt: "I want to make a complaint about the bastards at Moruya Police Station." Senior Constable Ochs: "Mate, this is not the time or the place. This is my house. I want you to go." Mr Hunt: "I can come to your house any time I want." 22Senior Constable Ochs said that he shouted to his wife to call the police, then Mr Hunt said "I know where you live. I'm going to get you, you bastard". Senior Constable Ochs said "You're under arrest". Mr Hunt turned away towards the motorcycle, so Senior Constable Ochs took hold of him around the shoulders with both hands. There followed a struggle, during which he called to his wife to get the shotgun. Senior Constable Ochs said that Mr Hunt was over him with his hands around his throat saying "I'm going to kill you, you bastard". Suddenly he was released, when Mrs Ochs appeared with the shotgun. The fight continued, Mr Hunt then moved towards his motorcycle, tried to start it unsuccessfully, and then started walking up the driveway. Senior Constable Ochs followed him. Senior Constable Heffernan then arrived and Mr Hunt was arrested and handcuffed and taken into police custody. Mrs Ochs' testimony 23Mrs Ochs said that she heard Mr Hunt ask her husband if he was the sergeant at Moruya Police Station, and the response that he was not the sergeant and that Mr Hunt should leave. She said that she heard her husband shout "You are under arrest". She called the police and hung up when she said she saw Mr Hunt punch her husband in the right ear. She brought out the shotgun when called to do so by him. She said she had never handled a gun before, and tried at first unsuccessfully to load it. She said that she thought Mr Hunt was about to kick her husband in the head, and turned the shotgun around and brought it down like a mallet on Mr Hunt's head. She said she did that twice. 24Those three witnesses gave evidence over some four days of the trial. Many of the details of their evidence are omitted from the summary above. In some respects their recollections coalesced, but in critical respects, their recollections were diametrically opposed. Reasoning of the primary judge 25The primary judge rejected aspects of the evidence of Senior Constable Ochs. Her Honour accepted that Mr Hunt had entered the property in the course of his search for the missing dog and consequently, in [151]-[155] of her reasons, rejected key aspects of Senior Constable Ochs' testimony. Her Honour rejected Senior Constable Ochs' version of the words attributed to Mr Hunt at the opening of their conversation on 7 July 2007, and in particular his claim that Mr Hunt issued a threat to him. Her Honour rejected Senior Constable Ochs' claim that Mr Hunt attempted to strangle him (although Senior Constable Ochs claimed this at the time, there was no evidence of damage to the throat or larynx when Senior Constable Ochs was examined shortly thereafter). 26Her Honour then said at [156]: "I find that Mr Ochs fabricated substantial parts of his evidence for the purpose of justifying the assault on the plaintiff carried out by him and Mrs Ochs." 27Her Honour repeated, at [162], that she "found that Mr Ochs fabricated parts of his evidence". 28Her Honour concluded at [167] that: "Mr Ochs fabricated the terms of the opening conversation and the threat to justify his claim that he believed on reasonable and probable grounds that the offence described in s 66(1) [sic - should read s 60(1)] of the Crimes Act 1900 was committed." 29It is plain that the "substantial parts" found to have been fabricated to which her Honour referred at [156] included Senior Constable Ochs' evidence about the opening conversation and the threats he said Mr Hunt made to him. That was a vital issue in the case, because the lawfulness of the arrest which Senior Constable Ochs claimed he had made turned upon his reasonable suspicion of the offence, in s 60(1) of the Crimes Act 1900 (NSW), of intimidating a police officer. (Although an element of the offence is ordinarily that the intimidation takes place during the execution of the police officer's duty, and Senior Constable Ochs was not on duty at the time, he claimed that Mr Hunt came to his property and made the threats because he knew that he was a police officer: see s 60(4)). 30Her Honour's acceptance of Mr Hunt's testimony led to conclusions that each of the torts alleged had been made out. The finding of fabrication was expressly relied on in her Honour's consideration of the claim for misfeasance in public office at [186]: "Further, I concluded that Mr Ochs knowingly acted in excess of his powers. This element was evidenced by his fabrication of the initial conversation as a basis for his purported arrest of the plaintiff." 31Her Honour assessed damages as a result of physical and psychological injuries at $150,000 (at [192]-[209]), aggravated damages at $50,000 (at [210]-[212]) and exemplary damages at $50,000 (at [213]-[217]). Her Honour then apportioned those damages between unlawful arrest, assault and misfeasance in public office. With the addition of relatively small amounts of economic loss, together with interest (which was not applied to exemplary damages), the judgment was $302,162.61. Failure to put fabrication to Senior Constable Ochs 32In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67], a majority of the High Court (Heydon, Crennan and Bell JJ) considered a trial judge's finding that a party-witness was reluctant to say what had happened. Their Honours said that it amounted to a conclusion that the witness was deliberately failing to comply with the duty to tell the whole truth: at [62]. Their Honours said that two conditions needed to be satisfied before such a criticism could be made by a judge in circumstances where it was crucial to the dismissal of the claim: "First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism." 33Both those conditions were applicable to the present case. The finding of fabrication of the terms of the initial conversation and the threat amounted to something even more serious than the finding of reluctance in Kuhl. Rather than merely failing to comply with the duty to tell the whole truth, it was, expressly, a finding of conscious untruth. It was a finding capable of amounting to a conclusion of perjury, and with serious professional consequences for Senior Constable Ochs. The gravity of such a finding against a police officer cannot be overstated. 34The plaintiff did not submit at trial that Senior Constable Ochs' evidence had been fabricated. 35Senior Constable Ochs gave evidence from 12.30pm on the third day until shortly before lunch on the fourth day of the trial. Most of that time was taken up by cross-examination. It was squarely put to him that "you made up this strangulation, didn't you?". There were other occasions when, more obliquely, it was put to the witness that he was not telling the truth. He was asked, "See, the reason you're denying that [Mr Hunt's motorcycle fell over is] because in fact you know you pulled him off it but you also know that doesn't sound good". 36However, it was not put to Senior Constable Ochs that he was fabricating the opening words of their conversation. Nor was it put to Mrs Ochs, who said she heard those words. Nothing like this was put to either of them. Nor was it put to Senior Constable Ochs that he was fabricating his evidence of the threat which Mr Hunt made to him. 37It is not necessary to express a concluded view on the first condition required in Kuhl. Given the seriousness of the findings, it was essential for her Honour to set out clearly and logically the factual basis for them, and that would have involved a proper analysis of the competing evidence, so as to "engage with, or pple or wrestle with the cases presented by each party": see the authorities referred to in Coote v Kelly [2013] NSWCA 357 at [39]-[40]. At least to a substantial extent, that occurred. Her Honour's process of reasoning was more substantial than has been reproduced above, and dealt with much of the competing evidence. However, the findings that the initial conversation and the threats had been fabricated were very serious, and there is no analysis in the reasons as to why a positive finding of fabrication, as opposed to a rejection of the evidence, was made. Section 140(2)(c) of the Evidence Act 1995 (NSW) applied, although it was not mentioned by her Honour, nor is there anything to suggest that her Honour attended to the Briginshaw requirement of clear and cogent proof of the findings made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. 38It is not necessary to say anything more about the sufficiency of the reasoning process required by the first condition in Kuhl referred to above, because it is clear that the second condition was not satisfied. Senior Constable Ochs was not given an opportunity to deal with the finding that he had fabricated this evidence. Nor was the State. Nor was Mr Hunt. 39True it is that Kuhl concerned a party-witness, and it might be queried whether Senior Constable Ochs ought to be regarded as such for the purpose of the rule. Strictly, of course, he was merely a witness - albeit a witness whom the plaintiff had chosen not to sue as a defendant - and it was possible depending on the course taken by the trial that his interests might diverge from those of the State notwithstanding the admission of vicarious liability. But the position in terms of fairness remains the same whether he be a party-witness or merely a witness. In Bale v Mills [2011] NSWCA 22; 81 NSWLR 498 at [66]-[67], Allsop P, Giles JA and Tobias AJA said: "Fairness in the administration of justice extends not only to ensuring a fair trial for the actual parties but also to ensuring that a witness who is not a party is treated fairly. It is especially important in circumstances such as the present, where a witness such as Mr Schipp had himself no right to object to his credit being impugned with respect to the Centrelink representation and where he was not given the opportunity to respond to what was clearly an extremely serious allegation not only going to his credit as a witness but also, as the primary judge was at pains to emphasise, to his honesty as a person and to his probity as a solicitor and an officer of the court. Further, the unfairness consequential upon the breach struck directly at the entitlement of the appellants to a fair hearing and procedural fairness in the making of findings by the District Court. Here, fairness dictated that, in the absence of any cross-examination on the subject of the Centrelink correspondence, the primary judge refrain from making findings about dishonesty arising from that correspondence." That passage was recently applied by a majority of a Full Court of the Federal Court in Ashby v Slipper [2014] FCAFC 15 at [142]. It reflects the "general rule of procedural fairness" to which Lord Hoffmann referred in Village Cay Marina Ltd v Acland [1998] 2 BCLC 327 at 338. 40When the appeal was heard, counsel for Mr Hunt sought to defend the position by asserting that there was no substantial difference between the rejection of a person's evidence and a finding that he or she deliberately lied, especially where, as here, it was expressly alleged that Senior Constable Ochs had behaved maliciously. That is not so. If authority were needed for the distinction between incorrect recollection and fabrication, Smith v NSW Bar Association (1992) 176 CLR 256 at 268 suffices: "[A]s a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence." 41That is self-evident where, as here, the testimonial evidence was of events which had taken place more than five years previously, and had already been the subject of cross-examination at the criminal trial; cf Watson v Foxman (1995) 49 NSWLR 315 at 319. Moreover, it is one thing to allege that Senior Constable Ochs was acting for an improper purpose in 2007, and a completely different thing to find that he was fabricating his evidence under oath in 2012. That difference was reflected in her Honour's reasons: contrast the rejection of evidence at [151]-[154] with the findings of fabrication at [156], [162] and [167]. 42It was also pointed out that counsel at trial had agreed, and informed her Honour, that neither was taking any Browne v Dunn points. Mr Hunt and Senior Constable Ochs had prepared written statements, and had each been cross-examined previously as to the events of 7 July 2007. As it was put by counsel for Mr Hunt to her Honour: "[W]e both knew precisely what the others' camp were going to say about the facts and were not taken by surprise by that. So, yes, the fact that each and every miniscule aspect of those stories hasn't been put to the other witnesses doesn't mean we can't invite your Honour - the both of us - to accept one witness' version over the other." 43That agreement between the parties does not alter the position for two reasons. The first is that it is one thing to reject the recollection of a witness, and quite another to find that he or she was fabricating evidence. The second is that in any event, the parties cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness. 44That is sufficient to require the appeal to be allowed. It was unfair to Senior Constable Ochs, to be found to have fabricated evidence without that allegation having been squarely put to him. It was unfair to the State to lose on a basis which was not advanced in evidence or in submissions. And ultimately, it was unfair to Mr Hunt, as the disposition of this appeal indicates, for him to be denied the chance to submit to the primary judge that he should win on a basis which did not involve a finding of fabricating the initial conversation and threat, or that, if the judge had formed the preliminary view that there was fabrication, that the witness should be recalled so that he could be confronted with it. 45There has been appellable error giving rise to a substantial wrong or miscarriage so as to warrant a retrial in accordance with r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW). However, there were also a series of additional errors. Because they do not affect the result, and because there must be a retrial in any event, I deal with them relatively concisely. Failure to address part of defence 46A prominent component of the defence case was the reliance on the arrest by Senior Constable Heffernan. This was expressly pleaded in an amendment (Ground 6a) of the defence for which leave was granted at the commencement of the trial. Evidence was led from Senior Constable Heffernan, and was addressed in submissions. This was not addressed at all by the primary judge. 47This was a central controversy which was required to be resolved by analysing the competing evidence: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]. Failure to do so indicates appellable error. 48Mr Hunt's response was a submission that: "The state of mind of Heffernan or the reasonableness of his suspicion is irrelevant as he is not the arresting officer. The defendant cannot 'cure' an unlawful arrest by broadcasting ill-founded allegations or suspicions over the police radio, and then rely on the state of mind of those officers who accept such information at face value when they subsequently encounter and help to apprehend the arrested party." 49That is not an answer to the failure by the primary judge to address this aspect of the defence case. It is true that a person who causes or procures an arrest to occur motivated by malice and without reasonable and proper cause may be liable: this reflects the nature of the original tort (as to which see further below), and may be seen in decisions such as Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 (false statement by store manager that two men were perpetrating a fraud, leading to their arrest by police). Conceivably, that might be applicable to the facts of this case, because it was common ground that Senior Constable Heffernan believed, wrongly, that Mr Hunt was armed because erroneous information had been broadcast in the call for assistance over police radio. 50However, none of this was even pleaded in response to the defence that relied upon the arrest by Senior Constable Heffernan. It is far from clear whether the evidence would support such a claim. Indeed, it is unclear whether ultimately the plaintiff placed reliance on the pleaded tort of malicious arrest (see below). Because the ground was not addressed at all, no findings relevant to it (notably, how the erroneous information came to be broadcast) were made. The missing pit bull terrier 51A large element at the trial was whether Mr Hunt was to be believed in his claim that he entered the Ochs' property in search of his nephew's missing pit bull terrier. The State cross-examined Mr Hunt's landlord to the effect that Mr Hunt was "not allowed to have a dog" and that before July 2007 his landlord "never saw a dog" near where Mr Hunt lived. 52The obvious way to substantiate the presence of the dog was to call its owner, Mr Hunt's nephew. On the first day of the trial, counsel for the plaintiff advised that he had the nephew on subpoena to attend court the following day. That did not occur, and counsel (candidly) advised her Honour that he was a reluctant witness. In closing address, the State asked the Court to infer that the nephew's evidence would not have assisted the plaintiff. When dealing with this, her Honour said, at [105]: "I noted the defendant's concern that the owner of the dog, the plaintiff's nephew was not called to confirm that he entrusted care of the animal to the plaintiff. The plaintiff's unchallenged explanation, however, was that his nephew was served with a subpoena to which he did not respond and that a medical certificate had been provided." 53In the absence of his nephew, Mr Hunt called evidence from two neighbours. One said that Mr Hunt had visited him on 7 July 2007 looking for the dog "a couple of hours before" he heard police sirens; he was asked to give that evidence in August 2012, more than five years after the event. He said that Mr Hunt had been on his property "All up probably five minutes". The other witness had also been asked by Mr Hunt to testify a few months before the trial. The transcript of his evidence (which was given by Skype) discloses a very vague recollection: he could not remember the number of his residence on Percy Davis Drive, he was asked whether he could describe the property, to which he answered "No, not really, mate. As I said I've lived in so many different places". He agreed that his memory was less than perfect ("Like I said I was on workers' comp for eight years and I've been suffering pain for the last eight years and I've taken lots and lots of painkillers and, yeah, sometimes my memory is a little bit lapse [sic]."). Ultimately when asked of the evidence he said "all I could remember is it made the, it made the headlines of the papers". 54The primary judge found the two witnesses called by the plaintiff to be credible: [111]. Her Honour said of the latter that he firmly denied being mistaken in his recollection; it is not clear whether that is a reference to something he said, or reflected, in part, his impression as a witness. 55That reasoning process discloses the following errors. The first is that the explanation for Mr Hunt's nephew's absence from court was not unchallenged, contrary to what her Honour stated. The second is that, making all allowance for the considerable advantage enjoyed by the primary judge of seeing the two witnesses, their evidence of recollecting a visit by Mr Hunt five years previously provided a very slender basis for sustaining a finding that he had done so. The third is that the testimony of neither squarely supported the claim that Mr Hunt had been searching for the dog immediately before entering the Ochs property in the limited period between 16.54 and 17.18 on 7 July 2007. This was not a case where either witness' testimony could be accepted at face value. The evidence of the first witness (who so far as may be discerned from the transcript was evidently the more credible) was incorrect insofar as he recalled Mr Hunt was searching for the dog a couple of hours before he heard police sirens. There is no attempt to grapple with this at all. 56In Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34], Keane JA noted that "[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation". This did not occur. In the present case, the evidence independent of the parties is the evidence of timing, which is referred to below. Timing 57Questions of timing were prominent in the State's case at trial. The primary judge found at [104] that: "the plaintiff had a period of about 20 minutes in which to travel the relatively short distance from the Club to xxx Phyllis Price Drive and undertake his search for the lost dog before arriving at xxx Percy Davis Drive." 58Within that time, the plaintiff had to travel some 12 kilometres, partly along unsealed roads to his house, realise the dog was missing, search for it, then visit two of his neighbours who gave evidence (both of whom said he stayed for around five minutes), all before arriving at the Ochs property. Further, in a statement made on 25 July 2008, Mr Hunt said that he called the dog by name and looked for it "for about five minutes or so" before getting back on his motorbike to search for it, and that he called upon his landlord, a neighbour on the corner of Phyllis Price and Percy Davis Drives, and another house on Percy Davis Drive. That was consistent with his evidence on 29 July 2008 in the criminal trial, when Mr Hunt accepted that it took between seven and ten minutes to travel between the Club to his house, that he spent five minutes at his house searching for the dog, and then between five and ten minutes before he arrived at the Ochs' place. 59Given the objectively established times of 16.54 and 17.18, the possibilities are that (a) Mr Hunt's recollection was inaccurate, (b) some of the times in the previous paragraph are overstated, or (c) the events did not occur. (Another possibility is that the CCTV footage or the ambulance call time recordings were inaccurate.) 60However, her Honour merely said, at [104]: "On the basis that the time at which police were despatched to the Ochs' property was more probably about 5.14pm, the plaintiff had a period of about 20 minutes in which to travel the relatively short distance from the Club to xxx Phyllis Price Drive and undertake his search for the lost dog before arriving at xxx Percy Davis Drive." 61That does not, with respect, engage with the evidence. There are possible explanations which reconcile the evidence as to timing (for example, just as the first neighbour was mistaken about seeing Mr Hunt a couple of hours earlier, he may have been mistaken about his spending five minutes with him), but they were not grappled with in the reasons of the primary judge in the manner indicated by Keane JA in Camden v McKenzie. The assault by Mrs Ochs 62It was common ground that it was Mrs Ochs who struck Mr Hunt with the butt of the shotgun. She was not sued, and it was not alleged that the State was vicariously liable for her tortious conduct. Her Honour rejected this aspect of the defence, saying at [192]: "Mrs Ochs brought out the shotgun at Mr Ochs' direction and struck the plaintiff on the understanding that it was necessary to do so to defend Mr Ochs. She was placed in this position by conduct of Mr Ochs for which the defendant was responsible." 63If a defendant expressly authorises another to commit tortious conduct, the defendant is liable. But the reasons of the primary judge do not sustain such a conclusion. Moreover, the State only admitted vicarious liability for the conduct of Senior Constable Ochs alleged in the pleading, which made no mention of Mrs Ochs. This aspect of the decision cannot stand. The finding of malice 64The primary judge expressly relied upon tests derived from the tort of malicious prosecution, which both parties made clear was not alleged. Repeatedly, the primary judge framed the test as whether Senior Constable Ochs "reasonably and probably believed that the plaintiff's arrest was warranted", and "believed on reasonable and probable grounds that the offence described in s 66(1) [sic - should read s 60(1)] of the Crimes Act 1900 was committed": see at [163] and [167]. Her Honour's finding at [168] was: "I find that the plaintiff established that Mr Ochs acted with malice in purporting to arrest him for reasons other than that he held a reasonable and probable belief that he was guilty of the crime of intimidation of a police officer." 65In the unusual circumstances of this trial, identifying what was alleged is not free from difficulty. 66The primary judge was presumably led to making findings in those terms by reference to the pleadings, particularly the action for malicious arrest. The tort of malicious arrest is said originally to derive from civil arrest: R Clayton and H Tomlinson (eds), Civil Actions Against the Police (Thomson 3rd ed 2004), p 377. The defendant's conduct causing a writ of capias ad respondendum to issue was said to constitute malicious arrest in Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382. The tort extends to maliciously and without reasonable and proper cause procuring a criminal arrest: Roy v Prior [1971] AC 470. All that accords with the pleading. 67However, there are two difficulties with reliance on that pleading. The first is that it does not appear to have been the case that was run at trial. In closing address, counsel for the State (who addressed first) treated the plaintiff's claim as one in false imprisonment, assault and misfeasance, and made the point that malicious prosecution had not been pleaded. Counsel for the plaintiff did not disavow this. He said, "I didn't put the pleadings together in this case. I would have named malicious prosecution rather than misfeasance in public office", and that he accepted the points made about false imprisonment. There is nothing that I have seen to suggest that counsel was aware of the (admittedly obscure) tort of malicious arrest; cf State of New South Wales v Williamson [2011] NSWCA 183 at [24]. 68Secondly, there is to my mind a large question whether malicious arrest could apply to an arrest effected by a defendant personally. At least arguably, if the arrest is lawful, there can be no tort, and if unlawful, there will be assault, battery and false imprisonment. The power to arrest without a warrant conferred by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) turns on whether the police officer "suspects on reasonable grounds that the person is committing or has committed an offence...". A reasonable suspicion is a state of mind less certain than a belief: George v Rockett (1990) 170 CLR 104 at 115; State of New South Wales v Zreika [2012] NSWCA 37 at [25]-[26]. None of this was argued before her Honour, because of the view which appears to have been taken of the pleadings; nor was it fully argued on appeal. Since it can make no difference to the conclusion that the appeal must be allowed, I do not express a concluded view about it. Damages 69Only after determining compensatory damages for physical and psychological injuries at $150,000, aggravated damages at $50,000 and exemplary damages at $50,000 did the primary judge make an apportionment between each of the three causes of action pleaded. At [224] her Honour found compensatory damages of $25,000 for unlawful arrest, $50,000 for assault and $75,000 for misfeasance in public office, aggravated damages of $10,000, $10,000 and $30,000 for each of the three torts and exemplary damage of $10,000, $10,000 and $30,000. That was described in the appellant's submissions as "an arbitrary ex post facto exercise in 'attribution' to each cause of action," failing to give any reasons for the attribution, contrary to Presidential Security Services v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [130]. There is force in the criticism. As Ipp JA there said, "each tort caused different damage and the damage flowing from each should have been identified and quantified". 70In particular, the largest head of damages, compensatory damages of "$75,000 for loss of liberty 10.7.07-30.7.08 leading to psychological injury" paid no attention to (a) the decision to refuse bail on 8 July 2007: Diamond v Minter [1941] 1 KB 656, (b) the lawful arrest by Senior Constable Heffernan or (c) the fact that although Mr Hunt was detained until October 2007, for the following nine months he was released and subject to house arrest. Once again, it is not necessary to determine whether in any circumstances there can be no claim for deprivation of liberty following the time of remand or bail (in State of New South Wales v Koumdjiev [2005] NSWCA 247; 63 NSWLR 353 at [68], Hodgson JA for the Court said that generally no damages were awarded unless malicious prosecution was proved). However, there is no attempt in the reasons to grapple with this aspect of the defence case. Conclusion and orders 71It is not possible for this Court to determine whether Mr Hunt entered onto the Ochs property in accordance with the implied licence confirmed by Halliday v Nevill (1984) 155 CLR 1 afforded to a member of the public for the legitimate purpose of trying to locate the pit bull terrier, and was the victim of a serious abuse of power by Senior Constable Ochs. Nor is it possible to determine whether Mr Hunt entered the property to intimidate Senior Constable Ochs, was lawfully arrested and has no claim against the State. Neither party submitted that the Court could do so. 72There are many aspects of the underlying facts, on both sides of the case, which are troubling. Why did Mr Hunt refuse a breath test (the documents brought into existence when he arrived at Batemans Bay police station recorded that he was affected by alcohol and behaving extremely offensively)? How did his version of events fit with the extremely limited window of time? On the other hand, how did the false information that Mr Hunt was armed come to be broadcast on the police radio? And how did it come about that Mr Hunt was ultimately arrested by Senior Constable Heffernan, walking away from the Ochs' property, having left behind his motorcycle there? 73The only thing of which this Court can be certain is that the decision at first instance is unfair to the parties and to Senior Constable Ochs, as well as disclosing a series of other errors, which require there to be, regrettably, a retrial, unless the dispute can otherwise be resolved. 74Accordingly, I propose that the verdict and orders made by the District Court on 30 November 2012 be set aside, and that the matter be remitted to that Court for retrial. The respondent must pay the costs of the appeal, but should be given, if otherwise qualified, a certificate under the Suitor's Fund Act 1951 (NSW). The costs of the first trial should be in the discretion of the judge on the retrial. 75TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons he has expressed. ********** Amendments 31 October 2014 - The third monetary amount listed in the second sentence of this paragraph has been amended to correctly read Amended paragraphs: 69 31 October 2014 - The amount awarded upon judgment has been amended to correctly read "$302,161.61". Amended paragraphs: 2 and 31 31 October 2014 - The medium neutral citation for Bale v Mills has been corrected. Amended paragraphs: 39 31 October 2014 - The citation for Village Cay Marina Ltd v Acland has been corrected. Amended paragraphs: 39 31 October 2014 - The word "or" has been inserted before the word "grapple" in the quote in the second sentence. Amended paragraphs: 37 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: 31 October 2014