District Court New South Wales Medium Neutral Citation: SB v The State of New South Wales [2016] NSWDC 189 Hearing dates: 19 – 23 October 2015; 17 – 18, 22 February 2016; and 31 March 2016. Written Submissions: 7 March 2016 (Plaintiff); and 23 March 2016 (Defendant). Supplementary Written Submissions: 21 April 2016 (Plaintiff); and 22 April 2016 (Defendant) Date of orders: 26 August 2016 Decision date: 26 August 2016 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: Verdict and Judgment for the Plaintiff in the sum of $21,662 Catchwords: INTENTIONAL TORTS – WRONGFUL ARREST – FALSE IMPRISONMENT – whether arrest and detention for lawful purpose; MALICIOUS PROSECUTION – absence of reasonable and probable cause – failure to obtain corroborative evidence and make further inquiries – malice – improper purpose – maintenance of proceedings – application of principles – damages Legislation Cited: Crimes Act 1900 (NSW) ss 61J(1), 61M(1), 61N(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 49(1)(c) Director of Public Prosecutions Act 1986 (NSW) s 9(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(3) Uniform Civil Procedure Rules 2005 (NSW) rr 15.1, 15.4 Cases Cited: A v State of New South Wales (2007) 230 CLR 500 Clavel v Savage [2013] NSWSC 775 Clavel v Savage [2015] NSWCA 61 Dare v Pulham (1982) 189 CLR 658 Dowse v State of New South Wales [2012] NSWCA 337 Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17 George v Rockett (1990) 170 CLR 104 Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 HD v State of New South Wales [2016] NSWCA 85 Hussien v Chong Fook Kam [1970] AC 942 Jones v Dunkel (1959) 101 CLR 298 JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd [2003] NSWCA 66 Kuhl v Zurich Financial Services Limited (2011) 243 CLR 361 Lamag Holdings Pty Ltd v Reylan Pty Ltd (NSW Court of Appeal, unreported, 19 November 1992) Manly Council v Byrne and Anor [2004] NSWCA 123 Nestle Limited v McDougall [1998] NSWCA 158 Nuhic v Rail and Road Excavations (1972) 1 NSWLR 204 Payne v Parker (1976) 1 NSWLR 191 Pupo v Pupo [2015] NSWSC 1633 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Ruddock v Taylor (2003) 58 NSWLR 269 Sahade v Bischoff [2015] NSWCA 418 Sangha v Baxter (2009) 52 MVR 492 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Delly (2007) Aust Tort Reports 81 – 920 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v Riley (2003) 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 Thomas v State of New South Wales [2008] NSWCA 316 West v Government Insurance Office (NSW) (1981) 148 CLR 62 Zaravinos v State of New South Wales (2005) 214 ALR 234 Zreika v State of New South Wales [2011] NSWDC 67 Texts Cited: JD Heydon, Cross on Evidence (LexisNexis, 10th ed, 2014) Category: Principal judgment Parties: SB (Plaintiff) The State of New South Wales – New South Wales Police (Defendant) Representation: Counsel: Mr D Campbell SC with Mr J Sheller (Plaintiff) Mr D Villa (Defendant) Solicitors: Greg Walsh & Co (Plaintiff) I V Knight – Crown Solicitor's Office (Defendant) File Number(s): 2014/137200 Publication restriction: Pseudonym order made in relation to SB, R, and CB. Attention is drawn to the provisions in Part 2, Div 3A of the Children (Criminal Proceedings) Act 1987 (NSW), and in particular, s 15A. Judgment Table of Contents Introduction [1] – [2] Pleadings [3] – [7] WITNESSES [8] – [22] FACTS The relationship between the Plaintiff and the Complainant's mother, R [23] – [32] The complaint [33] – [37] Interview with CB [38] – [39] Plaintiff's relationship with R following complaint [40] – [41] Background to the surveillance device warrant application [42] – [51] The application for a surveillance device warrant [52] – [68] Drafting surveillance device warrant [69] – [74] Interface [75] – [78] Detective Chaplin's contact with R [79] – [94] Pre-arrest and preparation of the Facts Sheet [95] – [97] Arrest [98] – [102] Merrylands Police Station [103] – [113] Interview [114] – [117] Other questioning [118] – [121] Charges and ADVO [122] – [126] No bill and withdrawal of the ADVO [127] – [128] WRONGFUL ARREST AND FALSE IMPRISONMENT [129] – [139] MALICIOUS PROSECUTION Ingredients [140] – [141] Setting for determining absence of reasonable and probable cause [142] Absence of reasonable and probable cause [143] – [150] What does the Plaintiff say? [151] – [153] What was Detective Chaplin's knowledge? [154] – [171] The Plaintiff's pubic hair [172] – [174] Consistency between the statements of the Complainant and CB [175] – [184] What were the circumstances leading to the commencement of proceedings? [185] – [192] Other factors not tested [193] – [195] Detective Chaplin's assessment [196] – [219] Malice [220] – [225] Complainant's statement as to circumcision not put to the Plaintiff in the ERISP [226] – [230] Complainant's description as to circumcision not revealed to the Plaintiff in response to his request [231] – [252] Whether Detective Chaplin maintained the criminal proceedings after 7 June 2012 and the apprehended domestic violence order [253] – [262] DAMAGES [263] – [302] ORDERS [303] Introduction 1. On 6 June 2012, the Plaintiff was arrested and later charged with 16 sexual offences. An interim apprehended domestic violence order ("ADVO") was sought and obtained against him. Bail was refused and he was imprisoned until 10 April 2013. 2. On 21 June 2013 all charges were no billed and on 17 September 2013, the interim ADVO was withdrawn. Arising out of those events, the Plaintiff brings these proceedings. Pleadings 1. On 19 October 2015, leave was given to the Plaintiff to file an Amended Statement of Claim in Court. That pleading brings proceedings against the Defendant as the party responsible for the acts of Detective Troy Chaplin, an officer of the NSW Police. [1] The Defendant conceded that it was vicariously liable for any torts committed by Detective Chaplin. [2] The Amended Statement of Claim makes allegations as follows:- 1. Wrongful arrest and false imprisonment commencing on 6 June 2012, with the false imprisonment resulting in loss of liberty for 10 ½ months; [3] 2. Malicious prosecution in respect of the charges laid on 6 June 2012 and continued until 21 June 2013; [4] and 3. Malicious prosecution of an ADVO order obtained on 6 June 2012 which remained in place until 17 September 2013. [5] 1. The Defendant asserted that at the time of arrest, Detective Chaplin suspected that the Plaintiff had committed an offence and further, that there were reasonable grounds for that suspicion, and it was reasonably necessary for one or more of the purposes identified [6] in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). [7] It was further asserted that from 7 June 2012, the Plaintiff's imprisonment was a result of a judicial act. [8] 2. The Plaintiff submitted that no facts were pleaded or particularised to outline the basis of Detective Chaplin's suspicions, the reasonable grounds for holding any suspicion or the need for arrest. [9] Whilst this is correct, no complaint was raised during the trial and in particular, no complaint was made as to a failure to comply with UCPR 15.1 or 15.4. 3. In respect of the malicious prosecution claim relating to the sexual offences, [10] the Defendant denies that it prosecuted the Plaintiff and says that from 7 June 2012, the Director of Public Prosecutions took over the prosecution. [11] Further, the Defendant denies an absence of reasonable and probable cause for the institution and maintenance of the charges against the Plaintiff. [12] It also denies malice in bringing the charges. [13] 4. In relation to the claim of malicious prosecution arising from the ADVO, [14] the Defendant denied that it initiated and maintained the proceedings against the Plaintiff, denied that there was an absence of reasonable and probable cause for the institution and maintenance of the proceedings for an ADVO, and further, denied malice. [15] WITNESSES 1. The matter proceeded with the Plaintiff, his brother and Dr Roberts giving oral evidence in the Plaintiff's case. Understandably the Plaintiff has a grievance over what had occurred and saw these proceedings as a means of vindication. He deliberately decided not to pursue psychological treatment in order to allow him to remain focussed on bringing to account those who he considered had wronged him. [16] 2. In the Defendant's case evidence was given by Detective Troy Chaplin and Senior Constable Mark Scott-Mahjet. Cross-examination of Detective Chaplin commenced on 22 October 2015, continued on 23 October 2015 and was resumed on 18 February and 22 February 2016. The delay related to a contest over a disputed claim as to the privilege of documents produced by the Office of the Director of Public Prosecutions [17] on subpoena. This was determined by Maiden DCJ on 25 November 2015. When the matter resumed many of the lines of questioning that had been put to Detective Chaplin on the earlier occasion were canvassed again, although some of the responses were at variance with those he had earlier given. Ultimately, counsel for the Plaintiff submitted:- "That takes me to the constable because at the end of the day your Honour is going to be called upon to have to make an evaluation of his evidence and it is our respectful submission that by the time he had concluded giving his evidence it had been clearly established that he was an unsatisfactory witness who had given internally inconsistent evidence on material matters. Indeed, where he was cornered in certain respects, falsified his evidence and had in certain respects falsified it for the purpose of trying to explain the unexplainable. He was also a witness who prevaricated and who evaded and who tried to avoid answering questions on matters, with respect, clear questions that were put to him and he was a witness who when confronted with inconsistencies was disinclined to face up to the inconsistency but rather tried to talk his way out of the dilemma in which he found himself. I will give your Honour some illustrations of this when I take your Honour to his evidence in a moment. As I said at the outset the remarkable thing in the defendant's submission is knowing that there is a head on attack on that witness there's nothing at all said in their submissions about his credibility. What we say the result of the matters that I have just put to your Honour is that your Honour would not accept what he says unless it is supported by other evidence that your Honour does accept …" [18] 1. The proposition advanced by the Plaintiff in relation to Detective Chaplin's evidence is contrary to the general views on witnesses' credibility expressed in Sangha v Baxter. In that case, Basten JA stated:- "There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44] (emphasis added)." [19] 1. Detective Chaplin had many questions directed to his state of mind when doing things four years ago in a lengthy and at times, repetitive cross-examination. There was also an interval of over three months between the commencement and completion of cross-examination. I have borne this in mind. As these reasons will elaborate, there are areas where I have found Detective Chaplin's evidence to be unreliable. In addition some of the records he prepared during his investigation were inconsistent. As these reasons demonstrate criticism can be directed to some of his actions. He himself conceded that with the benefit of hindsight he could have done some things better. 2. In the fact finding process I have considered Detective Chaplin's evidence in the context of the principles usefully summarised by Hallen J in Pupo v Pupo. [20] I accept that alongside the prosecution of the charges and the advancement of the ADVO he had an understandable concern for the safety of the Complainant and her family. I also accept that he laboured under some difficulties in assembling evidence from the Complainant and her mother, R. 3. The Plaintiff also submitted that the way in which Detective Chaplin gave his evidence and the matters about which he gave his evidence left the state of the evidence in a situation which "mandated' the calling of R. [21] The Plaintiff contended that the obligation to call R and her unexplained absence gives rise to the strongest of Jones v Dunkel [22] inferences that could reasonably be drawn. [23] 4. The submission was put:- "The rule goes on to point out how the rule only applies where a party is required to explain or contradict something and in this case, your Honour, that's why I started how I did. The state of Constable Chaplin's evidence and the tact that was made on it is such that where there was capacity, as it were, to affirm or corroborate what he was saying by this lady giving evidence then the failure for her to give that evidence unexplained gives rise to the Jones v Dunkel type inference that we seek." [24] 1. That submission does not identify with precision what it was asserted that the calling of R was required to explain or contradict. JD Heydon in Cross on Evidence [25] notes that "what a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case." [26] In reply, counsel for the Plaintiff identified the issue as:- "Assertions about what she said, assertions about her demeanour when a statement was to be sought, assertions that she executed her statement on a particular day, all of these were contentious issues. All of them were effectively documented and despite my friend saying, well there's no requirement to document, there is a reference where Detective Chaplin concedes the inadequacy of at least the statement taking process with [R]." [27] 1. In the context of the case I accept that the major challenge raised by the Plaintiff was as to Detective Chaplin's assertion that prior to charge, he was aware of the Plaintiff's penis being circumcised having been informed by R and further that he was unable to obtain a formal statement before charge from R because of her emotional state. 2. Counsel for the Defendant disputed the Plaintiff's characterisation of the application stating:- "Mr Campbell made a submission, at the outset of his oral submissions, that your Honour ought have regard to the principles in Jones v Dunkel and the related line of authorities; and that those authorities were applicable because of the absence from the defendant's case of the complainant's mother. It was put on the basis that Detective Chaplin's evidence could not be accepted unless it was otherwise corroborated and that the absence of the complainant's mother could properly be used as a basis for not accepting Detective Chaplin. That is simply wrong, as a matter of law. Jones v Dunkel cannot be used in the way that Mr Campbell, on behalf of the plaintiff, advances it." [28] 1. In Manly Council v Byrne and Anor [2004] NSWCA 123, Campbell J (with Beazley JA and Pearlman AJA agreeing) stated:- "[54] The inferences licensed by Jones v Dunkel are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, though Jones v Dunkel licenses drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party (emphasis added)." 1. In Goodhue v Volunteer Marine Rescue Association Incorporated [29] Gotterson JA stated:- "[28] The rule in Jones v Dunkel is not one that requires a party to call other witnesses in order to corroborate evidence of a witness that has been called by the party. It concerns the drawing of inferences. It enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party's unexplained failure to call a witness whom that party would be expected to call in order to give evidence concerning the fact. However, as the New South Wales Court of Appeal in Morley v Australian Securities and Investments Commission recently reminded, if a party's case is otherwise proved, the inference that the absent witness would not assist the party's case does not detract from the proof (emphasis added)." 1. In JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd, [30] Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed) said:- "[24] When a finding of fact has been made in a party's favour by a judge, the fact that an absent witness' evidence, if it were given, would not support that finding, cannot disturb the finding actually made." 1. Counsel for the Defendant submitted on the question of why the Defendant should not have called R:- "What's put against us is that we should have called the complainant's mother. Sensibly there is no submission that we ought to have called the complainant because even Mr Campbell, one assumes, recognised that that would have been a bridge too far but there is no doubt that the plaintiff could not be criticised for failing to call the complainant's mother and, your Honour, nor can we be criticised for failing to issue a subpoena to compel a woman who has been through enough, I'm not suggesting the plaintiff hasn't but the complainant's mother has also been through enough with this process and had happened to her daughter ultimately what happened in terms of her breakdown in 2013 and, your Honour, firstly she's not someone that we would be expected to call and, secondly, her absence is otherwise explicable." [31] 1. In Payne v Parker, Glass JA observed that the rule only applied when "the missing witness would be expected to be called by one party rather than the other." Further, Glass JA stated:- "The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid; Regina v. Burdett, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid (citations omitted)." [32] It was argued that it was necessary for R to be called. There was no evidence as to the reason for R's inability to give evidence before me. [33] The Plaintiff has submitted that R should be regarded as in the camp of the Defendant as she was heavily relied upon by Detective Chaplin. [34] That however is not the test. R was a witness to be called in the prosecution of the Plaintiff in respect of the charges and the ADVO. Ultimately those proceedings were terminated following Detective Chaplin's intercessions. [35] In my view it has not been established that overall R stood higher in the confidence of the Defendant. [36] In the circumstances I would regard her as being in neither party's camp. Even if I am wrong in this approach, I would not as a matter of discretion draw the inference sought particularly in the context of an action for malicious prosecution where the Plaintiff bore the onus of proof. FACTS The relationship between the Plaintiff and R 1. The Plaintiff and R met in October 2004. [37] At the time, R had six children including the Complainant, then aged 10. The Plaintiff resided at his home in Seven Hills, and R was living at her residence at Lurnea. [38] A relationship commenced in 2005, although both the Plaintiff and R continued to reside at their respective homes until October or November 2005. [39] The Plaintiff met the Complainant and her siblings for the first time in June 2005. At that stage, the Plaintiff and R had been going out for a period of approximately 6 months. [40] Between October or November 2005 and August 2006, R and her children resided at a women's refuge in Burwood. [41] In October 2006, R and her children moved to Sydney Joseph Drive, Seven Hills. 2. The relationship was interrupted on 21 March 2010, when the Plaintiff was charged with the offence of assault occasioning actual bodily harm arising from an incident with R. [42] NSW Police applied and obtained an apprehended violence order against the Plaintiff arising from the incident, and R's mother, also obtained an apprehended violence order against the Plaintiff. [43] According to the chronology, the Plaintiff left the premises at Sydney Joseph Drive, Seven Hills at around the same time. [44] 3. The apprehended violence order prevented the Plaintiff from going within 100 metres of R or from going to her home. Bail conditions were also imposed to the same effect. [45] Notwithstanding this, on 15 July 2010, the Plaintiff conceded that he was pulled over for a random breath test and R was in the motor vehicle, and he was charged with contravening the apprehended violence order that was granted on 21 March 2010. [46] 4. The Plaintiff readily conceded that the circumstances of him being in the vehicle was at a time when he was still subject to certain bail conditions and the apprehended violence order. [47] He conceded that there were other occasions between 21 March 2010 and 15 July 2010 when he and R were in contact and that this was in contravention of the apprehended violence order. [48] 5. Despite attesting that the hearing of the assault charge involving R took place in November 2010, the Plaintiff conceded in cross-examination that he was found guilty of the offence in May 2011. [49] Despite asserting in his chronology that he was placed on a six month good behaviour bond, he conceded in cross-examination when it was put to him that he received an 18 month good behaviour bond saying;- "Yes something like that I think, yeah, I'm not too sure." [50] 1. The Plaintiff accepted in his chronology that shortly after the hearing of the charge involving R, the apprehended violence order was varied so as to permit his relationship with R to continue. [51] 2. The Plaintiff admitted assaulting R's mother at R's house on 5 November 2010. [52] The Plaintiff conceded that at the time of the assault on R's mother, he was still the subject of an apprehended violence order that prevented him from contacting R. [53] When asked whether that was the only time that he had been to R's house between the period commencing from the granting of the apprehended violence order to the trial in May 2011 he stated that he thought that he had been "over there a couple of times." [54] He stated that he understood that at that time, he was in breach of the existing apprehended violence order. [55] He conceded that on the occasion he was present in court in early 2011, he told R words to the effect: "We are still together and we will be together forever." [56] He presumed correctly that in January 2011 he was still the subject of an order preventing him from speaking to R. [57] 3. The Plaintiff conceded that after March 2010, he did not cohabitate with R. He conceded that the relationship he had from that time until at least January 2011 was conducted discreetly. [58] Nevertheless, he accepted that he remained in contact with R (including speaking on the phone). [59] He stated that he was still engaging in sexual relations with R after March 2010. [60] He also denied that R had ceased contact with him. [61] 4. In October 2010, the Plaintiff was charged with assault occasioning actual bodily harm on R's mother. [62] In September 2011, he was convicted and sentenced to 6 months imprisonment. [63] A successful appeal was brought to the District Court of NSW following which the Plaintiff was released in late 2011. [64] There was some suggestion that on his release he was subject to parole orders. [65] 5. The Plaintiff's relationship with R resumed following his release and continued up to around the middle of January 2012. This was two days before the Complainant informed R that the Plaintiff assaulted her. [66] The complaint 1. In late December 2011, the Complainant spoke to her best friend, CB and asserted to her that she had been sexually assaulted by the Plaintiff. [67] In January 2012 (believed to be on the 17 January 2012), the Complainant is said to have told R that "[the Plaintiff] raped me." [68] 2. On 18 January 2012, the Complainant in the company R, attended upon the Blacktown Police Station and reported allegations against the Plaintiff to Detective Constable Chaplin. The process of taking a statement from the Complainant took approximately three months, involving three meetings held on 22 January 2012, 23 February 2012 and 17 April 2012. [69] On 22 January 2012, the Complainant was asked to return to continue her statement on 25 January 2012. [70] The Complainant did not return on 25 January 2012. Detective Chaplin records in his duty book on 21 February 2012 "[c]ontact [R]". [71] Thereafter the Complainant returned to continue her statement on 23 February 2012. [72] She did so between 5:20pm and 8:00pm. [73] Further contact in relation to obtaining a statement was made on 12 March 2012 between Detective Chaplin and R. [74] The Complainant ultimately did so on 17 April 2012 at 1:00pm and completed it at 4:00pm that day. [75] 3. According to Detective Chaplin, the dates were chosen around his and the Complainant's availability. [76] He took the statement as opposed to using an ERISP [77] facility on the advice of the Sex Crimes Unit. [78] It was implicit that at the time of taking the Complainant's statement and until other events had transpired, that there was no specific urgency from Detective Chaplin's perspective. [79] 4. In her statement, the Complainant described in some detail, the facts the subject the offences ultimately brought against the Plaintiff. In addition, the Complainant stated:- "… [The Plaintiff] undid the zipper and pulled out his penis which was erect and held it in one of his hands. Now that I know the difference between a circumcised and un-circumcised penis, I remember [the Plaintiff's] was circumcised." [80] 1. The Complainant also described how the Plaintiff required her to engage in an incident of oral sex. In relation to the Plaintiff's penis, the Complainant describes:- "… I remember feeling so discussed (sic) because around his penis was so hairy and right in my face." [81] Interview with CB 1. Following Detective Chaplin having completed the Complainant's statement Constable Michael Carl took a statement from CB. [82] CB sat in on all the interviews between Detective Chaplin and the Complainant before she made her statement but not when she recounted conversation with CB. [83] 2. In her statement, CB refers to the Complainant's first disclosure to her of the assaults by the Plaintiff in the following terms:- "About midnight my brother, Karl arrived home and had picked up [The complainant] walking along the road. [The complainant] came into my bedroom and was acting crazy. [The complainant] was ranting and raving and falling into the walls. I had seen [the complainant] drunk heaps of times but this was different. I asked [the complainant] if she had taken anything. The complainant attempted to avoid the question and we argued for a while. I was so concerned about [The complainant] that I tried to leave and get Karl but [the complainant] kept cutting me off. [The complainant] was obviously upset and was having a breakdown. That's the best way that I can explain her behaviour. [The complainant] said – '[the Plaintiff] used to rape me.' I was in total shock and hugged [the complainant]. [the complainant] started to cry and we just hugged each other. I was wondering how it could happen because [the complainant] had a busy household. I asked [the complainant] how and when it happened. I don't know the exact words used by [the complainant] but she started to explain how and when it happened. [The complainant] said words like: '[the Plaintiff] used to make me dress up'. The complainant explained that it would happen when her mum took the kids out and she was left at home with [the Plaintiff]. We continued to talk and [The complainant] continued to explain that sometimes when everyone was home and her mum had a shower [the Plaintiff] would go into room [sic]. I remember asking [the complainant] how long it had been going on. [The complainant] said – 'Since I was about 9.' We spoke further about what happened and [the complainant] kept saying that her mum could never find out and stated that she didn't want to talk again about it after tonight. We spoke for about 20 minutes and I comforted her. [The complainant] fell asleep and. I don't remember talking about it after that night." [84] Plaintiff's relationship with R following complaint 1. According to his evidence, after mid-January, the Plaintiff did not have sexual relations with R, and did not see her again. [85] Specifically, the Plaintiff rejected a proposition that during that time the NSW Police were investigating the allegations made by the Complainant in January 2012, and his arrest on 6 June 2012, he maintained a discreet relationship with R. [86] According to the Plaintiff that contact suggested to him some infidelity on his part but not the specific subject of the Complainant's allegations. [87] The Plaintiff stated:- "She actually hadn't. From when [the complainant] first made the allegations in January 2012 [R] stopped seeing me physically, but I had hundreds of phone calls from [R] they would always be ringing me up saying things, like, "You know what you've done; why don't you admit to what you've done?" It was like I was being she never once told me what was going on for the six months. I just kept getting numerous phone calls all through the night everything. She wanted to meet up; chat with me; she'd cancel. She just always kept on bombarding me with, "You know what you did; you don't you admit to what you did?" And I had no idea what she was talking about." [88] 1. Although the Plaintiff enquired as to what R was referring to, she did not give any details. Attempts to set up meetings or to go out to dinner did not materialise. [89] The Plaintiff's evidence was that he thought R at the time was accusing him of "cheating on her." [90] Background to surveillance device warrant application 1. On 17 January 2012 when the Complainant and R had attended Blacktown Police Station, an entry was made in the COPS [91] which read as follows:- "At this time no application has been made to vary or create a new ADVO as investigation strategies will become limited after the POI is made aware of the complaint. The VIC, NOK and OIC have no immediate concerns for the VIC's safety due to no contact with the POI. Application will be made immediately for protection orders once investigations methods complete or immediate concerns identified." 1. In the same document on 17 April 2012 [92] , it was recorded as follows:- "On 17 April 2012, the victim statement was completed and reviewed. FACTS completed and the affidavit for SD/LD underway … VIC protection (ADVO) to be implemented at first available chance. Consultation with VIC and VIC's mother confirms still no contact or identifiable threat currently exists against the VIC or her family." 1. The entry indicates that the application for a surveillance device warrant was contemplated in circumstances where there was no contact or identifiable threat against the Complainant and her family, and Detective Chaplin determined to apply for warrant on completion of the Complainant's statement. 2. Detective Chaplin conceded in evidence that this was his understanding and that he made the decision to apply for the interface no later than the date he had completed the Complainant's statement. [93] 3. He subsequently qualified this by saying that there was contact between R and the Plaintiff, but no contact between the Complainant and the Plaintiff. [94] 4. Detective Chaplin stated:- "That wasn't finalised before the break in relation to the differentiation between [R] having contact with [the Plaintiff] and [the complainant] or her siblings being at risk. So was I aware that [R] was in contact with [the Plaintiff], yes. Was I of the belief and understanding that there was no risk because The complainant or any of her siblings were in contact with [the Plaintiff], no, I wasn't because they weren't in contact with him." [95] 1. Detective Chaplin expressed concern about safety in the following exchanges:- "After speaking with [the complainant] and [R] I was of the belief there was a possibility of interference or intimidation of one of the witnesses and that is why I decided to arrest rather than issue any other court attendance notice." [96] And further:- "An AVO will not protect a person in need of protection listed on any AVO, it's just a piece of paper that is often breached. Looking at [the Plaintiff's] history he'd breached several AVOs in the past and obviously there were no guarantees that I could protect the victim with merely an AVO." [97] 1. Detective Chaplin felt he couldn't request the Plaintiff to come in and assist with his enquires without arresting, stating: "Q. What's to stop you picking up the telephone and saying, "[Plaintiff] could you come in and assist us with our inquiries, we'd just like to have a chat with you about a matter"? A. There's plenty to stop me in this case. Q. What? A. Well, the fact that at the time [the Plaintiff] was on parole for DV assault against one of the family members, and if he was made aware of a possible complaint in relation to this, then of course there's a real threat of intimidation or attempt to contact or harm the witness or victim in this matter. Q. But you knew the terms of his parole meant that he couldn't approach didn't you? A. Well, he had an AVO but he'd breached that on numerous occasions as well. Paper doesn't mean anything. Q. Sir, you say do you HIS HONOUR Q. You're not suggesting parole [is] the same as an AVO are you? A. No, sorry, your Honour. I am just getting to the point that once you know, once someone is made aware of the situation, I identified a history of violence with the family from [the Plaintiff]. I had concerns he may intimidate or harm someone who has made a complaint against him in relation to those matters. My first concern with any matter is the protection and safety of the victim. If that comes at the expense of how I may have to deal with an offender or alleged offender, I have to consider the victim first. If she turned around and I am by no means suggesting anything by this but if you turned around and he was to have killed her because she made the complaint well, then, you know, I am in Coroner Court explaining why. These are all the considerations I had to give as to what I would do and what course of action I would take. I had never met [the Plaintiff] before. Never met him, never met the family, never met the [the complainant's family], never met any of them so I had no idea what any of them were like. All I can do is go on his criminal record, he breached all the AVOs and he's done time inside for assault. My first concern is the victim. That is the only place I can act. I need to consider that first." [98] 1. Outside of the antecedents prepared for the bail hearing, Detective Chaplin conceded that he did not have a record of either the Complainant or R expressing concerns for their safety as at 6 June 2012. Detective Chaplin's evidence was: "Q. What I'm suggesting to you is that whilst there may have been expressed, on your evidence, concerns by [R] and/or the complainant about the complainant none were expressed about [R]? A. I don't recall but I had concerns. So whether they were expressed to me, I don't know. Q. You are unable to tell us, as you sit in the witness box now, about whether either or both of those persons had genuine concerns for their own safety as at 6 June 2012? A. I can't recall either one of them saying they had genuine concerns. Where that information came from would have been a combination of what they said as well as previous issues with [the Plaintiff]. Q. Specifically you have no recollection of them having said anything to you, that's either of those two ladies, having said anything to you about concerns for their safety should [the Plaintiff] be released on any form of bail? A. [R] expressed concerns but I don't recall whether it was about herself as well or only [the complainant]. Q. Did you record this? A. No. Q. Again we're just going off what your distant memory tells us about his." [99] 1. In the COPS entries it was noted before 6 June 2012: "At this time no application has been made to vary or create a new ADVO as investigation strategies will become limited after the POI is made aware of the complaint … " [100] The surveillance device warrant application 1. The timing and context for the application was described by Detective Chaplin as being that he was aware that the Plaintiff and R were still involved in a relationship of a sexual nature. Specifically, Detective Chaplin stated:- "Q. Well, what else did you have? A. At that point after the arrest Q. No, I am talking about before the arrest. A. Sorry, sorry, my apologies. My apologies. Prior to the arrest I was made aware that [R] was still involved in a casual relationship with [the Plaintiff] of a sexual nature. Q. What does that have to do with the charges? A. Because that completely changed the direction of what had to be done. There was no urgency prior to that so therefore my investigation had to speed up in a sense because she was still in contact with him. Therefore, leading up to that I was under the belief there was no contact and no association but that was not the case. Q. Let me get this right because this is a very important matter going through your mind at the time. A. Yes. Q. Are you telling his Honour that you changed the way in which you decided to undertake the investigation that you were undertaking because you found out shortly before the arrest of this man, that he was then in some kind of sexual relationship with [R], is that what you are saying? A. I'm saying that was the cause of why I then decided to do the telephone interface." [101] 1. Detective Chaplin's attention was then directed to the affidavit submitted in support of the warrant to Garling J dated 1 June 2012. In that document Detective Chaplin stated:- "Although [the complainant] has not spoken with [the Plaintiff] before for about 2 years, [the Plaintiff] has been in regular contact with her mother in an attempt to rekindle their relationship. [The complainant's] mother believes that [the Plaintiff] will engage in conversation with [the complainant] to try and prevent her from reporting the assaults." [102] 1. Detective Chaplin was questioned about this statement, and his failure to identify that the Plaintiff was in a sexual relationship with R. He was asked to identify his information about the Plaintiff's attempts to rekindle the relationship. He responded that he was "contacting her." [103] When asked to reconcile the level of disclosure in the affidavit submitted to Garling J with the understanding that the Plaintiff was in a sexual relationship with R, Detective Chaplin stated:- "My understanding and from what [R] told me, yes, they were in a sexual relationship. Does it say, "sexual" in the affidavit, no, it does not." [104] 1. Detective Chaplin conceded that he did not record anywhere the terms of what R had told him in respect of any association between her and the Plaintiff between January and June 2012. [105] He stated that he did not feel the need to do so at the time. [106] 2. On 17 February 2016, Detective Chaplin's attention was drawn again to of his affidavit of 1 June 2012. [107] It was put to him that the contents above quoted were inconsistent with the suggestion of ongoing sexual association between the Plaintiff and R. He denied that there was an inconsistency and stated:- "In relation to the affidavit and the overall intention of the affidavit, she's in regular contact. Whether that be sexual contact or non-sexual contact is irrelevant." [108] 1. Detective Chaplin stated that the information he acquired as to the relationship was obtained before R's original statement of 24 October 2012 and the follow up statement of 28 March 2013. As noted earlier, his evidence was that he was in regular contact with R as the Complainant did not have a phone. He stated that as he needed questions answered, he would speak to R in relation to them. [109] He conceded that the information was not in R's statement. [110] 2. Detective Chaplin accepted that if he had the slightest hint that R was in a sexual association with the Plaintiff, it should have raised a concern. [111] Detective Chaplin then stated that he did not know what happened between January and June 2012, other than what he was told by R, which was that "it was not a sexual relationship." [112] 3. Detective Chaplin was next taken to the evidence he gave on 22 October 2015 as to Plaintiff and R being involved in a casual relationship of a sexual nature. [113] It was put to him that the evidence given [114] was different to the answer he had given regarding any association between the Plaintiff and R. The transcript records:- "Q. You've told us today that there was no sexual association to your knowledge between these two from January 2012 till charged? A. Where in that does it say the date; it just says, prior to the arrest, and it does not identify a date saying when that occurred. Q. Firstly, are you trying to tell us that the casual relationship of a sexual nature that you were talking about was one which had ceased no later than January 2012? A. Yeah, that's my understanding of what the evidence I've given you there is." [115] 1. Detective Chaplin was again asked about the matter on 18 February 2016. [116] 2. It was then put to Detective Chaplin that the contact issue did not lead to a sudden change in the direction of his investigation on or around 17 April 2012. The following is recorded:- "Q. They related to the events as at 17 April 2012 when you made the final decision about seeking a listening device warrant because you then finished the statement of [the complainant]? A. That's correct. Q. You agreed that at page 349 that your understanding was then that there was no contact or identifiable threat that currently existed against the victim or her family? A. That's correct. Q. What I'm saying to you therefore is, that means there was nothing about any then contact which had a bearing on your making an application for the interface warrant; that's correct, isn't it? A. So you're asking me if the warrant the application for the surveillance device warrant was submitted based on the contact, or non-contact, I was aware of that day, the day of submission; or are you asking me about when a decision was made to submit the surveillance device? Q. There was no sudden change in the direction of your investigation about 17 April because of contact issues; was there? A. No, there was not. Q. How then do you reconcile your answer, which I'll give back to you so that you've got it, at 287. A. Which line is that? Q. Same one I took you to before; line 35 to 39. A. Yes. Q. You're putting this forward as a reason why this was something of relevance, that's your previous answer at line 29. A. Yes. Q. Because that completely changed direction of what had to be done? A. That's correct. Q. There was no urgency prior to that, so therefore my investigation had to speed up in a sense because she was still in contact with him? A. That's correct. Q. I take it you mean, there were no urgency before 17 April because you certainly hadn't been urgent in your taking of the statement of [the complainant], had you? A. There was no urgency in the investigation prior to me becoming aware that [R]was still in a relationship with [the Plaintiff]. Q. Therefore leading up to that, I was under the belief there was no contact and no association, but that was not the case, you went on to say in your answer? A. That's correct. The urgency in the investigation strategy commenced at the beginning when I was made aware the statement like, she's come in, she's made the complaint, and then I was made aware that they were still in a relationship of sorts. Q. I'm sorry? A. [R] Q. You say, do you, that you were made aware that she was still in a relationship of sorts when she came in to make the complaint on 19 January? A. No, that's not what I said. Q. When do you say this awareness arose? A. I can't there's no date as to when she told me, but it was obviously at the beginning that she was still in contact with [the Plaintiff], because the fact that there's still contact if there was no contact, if there was no association with him whatsoever, there's no urgency to move forward. Q. But I'm having trouble with your answer, constable. You say to us now that in the early days, you can't tell us just which day, you became aware that she was still having contact with [the Plaintiff], and that concerned you? A. Of course that concerned me. This is well before 17 October when the surveillance device warrant was Q. 17 October, you mean April? A. April, yeah. Q. We've got 17 January, roughly, through to 17 February, 17 March, 17 April; there's three months there. A. Yep. Q. You can't tell us when in those three months you found this out? A. No. Q. But you say that then caused you to completely change the direction of what had to be done, and what, created an element of urgency about your investigation? A. Yes." [117] 1. However this was later qualified in the following exchange:- "Q. You knew nothing about any contact on 17 April; did you? A. I don't know when the contact was. Q. Any suggestion of contact had absolutely nothing to do with you seeking the interface; did it? A. Any contact? Q. Yes. A. Most definitely. Q. What contact do you say caused you to seek the interface? A. The interface is only going to be suitable if there's a reason or a contact number that you're able to obtain or proceed forward with so, of course, it's a consideration. Q. You have said in answer at line 35 that, "There was no urgency prior to that so therefore my investigation had to speed up, in a sense, because she was still in contact with him." A. That's correct. Q. You are saying there, are you, I think you then went onto say, "Therefore leading up to that I was under the belief that there was no contact and no association but that was not the case", do you see that? Do you see that last sentence? A. Sorry, 35? Q. Yes. A. There was no urgency prior to me being made aware that she was in contact with [the Plaintiff]. Q. The next sentence. A. "Therefore leading up to that I was under the belief there was no contact and no association but that was not the case." Q. That must mean, mustn't it, that there was a point where things changed? A. Yes. Q. You can't tell us where and when that was? A. No, I don't know. Q. Then, if you have a look at the next question, "Let me get this right because this is a very important matter going through your mind at the time", do you agree now that this information was a very important matter going through your mind? A. Yes. Q. That no matter what form of contact it was it was an important matter? A. Yes. Q. It was a matter that concerned, with respect, your investigation? A. Yes." [118] 1. Detective Chaplin acknowledged the significance of any contact in the following exchange:- "Q. Just so that I've got this right, and you tell me if I've got it wrong, what you're now telling his Honour is that at some time before a charge that you can't now remember, [R] told you something which led you to understand there was some form of contact still on foot; correct? A. Yes. Q. You didn't know whether it was face to face or by some other means only? A. Yes. Q. What she told you alarmed you so much that you had to change the course of the investigation you'd been conducting. You had to speed it up in a sense? A. It made me change the direction of the investigation. Q. Speed it up as you said? A. Yes. Q. Because you were concerned she might spill the beans? A. No. Q. Why would it be necessary to speed it up if she had just said to you, what might have been, "I'm in some kind of telephone contact with him"? A. Because if the alleged victim and [the complainant], if there was any contact made possible through third party, if he'd go to the house, anything like that, that's going to be a concern. Q. But the evidence that you had was that there hadn't been any kind of association between [the complainant] and [the Plaintiff] for over two years? A. That's correct. Q. Notwithstanding, as you've told us, that not only was there contact between this lady and [the Plaintiff] earlier before the complaint came forward, but sexual relationship; correct? A. Yes. Q. There still hadn't been any contact between them for all that time. Why would you suddenly have this urgent appreciation of some fear of contact? A. Why would I have a fear of contact? She was in a relationship, or whatever the basis of their relationship was, prior to the complaint and after his release, that information was brought to my attention, it made me consider having to change the direction of pace of the investigation because I found out that there was still contact between the two families. If there was no contact and [the Plaintiff] had no contact with [R] whatsoever then there's not that urgency there. Q. The contact of whatever form, was a matter of concern with respect to your investigation? A. Yes. Q. And was a matter, you say, that caused you to accelerate its progress? A. Yes." [119] 1. Referring to his earlier answers, he accepted that he changed the way in which he decided to undertake the investigation as he was responding with respect to a sexual relationship that he understood had finished sometime prior to January 2012 (when the complaint was made). [120] 2. Detective Chaplin's attention was then specifically drawn to his earlier evidence. [121] Detective Chaplin denied that he was telling the Court that as at May 2012, there was a casual relationship of a sexual nature involving the Plaintiff and R. [122] He was then asked to explain the answers he had earlier given [123] and stated:- "That information is in relation to an application for the affidavit for the surveillance device warrant. It's that simple" [124] 1. Detective Chaplin was then pressed by counsel for the Plaintiff and the following exchange appears:- "Q. It's straightforward as his Honour says. You were telling the Court on 22 October 2015 that you belief in May 2012 was that [the Plaintiff] and [R] were then in a sexual relationship, that's what you were saying; isn't it? A. I've never been of that belief. Q. Is that what you said in the two pages of evidence that I've shown you? A. That's what it reads in this transcript but I've never been under that, I'm not sure why I would have said that at that time but I've never been aware of them being in a sexual relationship. Q. If you said that that may have been false; is that right? A. It may have been incorrect. It may have been a mistake but I've never been of that belief." [125] 1. Detective Chaplin's attention was again taken to the contents of the transcript of 22 October 2015. [126] The following exchange appears: "Q. There's no ambiguity there whatsoever, is there? You are telling us on 22 October 2015 that as at May 2012 your understanding and from what [R] has told you was that she and [the Plaintiff] were then in a sexual relationship? A. Yes. Q. That is totally different to what you have told us here this week about your understanding of what is going on; isn't it? A. Yes. Q. How do you reconcile the difference, sir? A. The difference is in relation to how I would produce the affidavit. The affidavit we put in there that she was in a sexual relationship with him and that's why I've made application for that affidavit, so there's obviously confusion between when you're asking me what I knew and what I was putting in a disclosure in the affidavit." [127] 1. I find this difficult to understand. Drafting surveillance device warrant 1. The purpose of obtaining the surveillance warrant was outlined in the following parts of Detective Chaplin's evidence:- "Because the brief light (sic). There was very little material to gather. It was a historic matter. I went through and tried to cover off on as many things as I possibly could in order to prepare the brief." [128] "To secure any possible evidence that may be obtained through our conversation that was recorded lawfully." [129] "The fact that it was lacking any forensic evidence or any witnesses to it that's the standard practice in these situations where we will try and make contact to try and get any admission or further evidence from the accused person for the offence." [130] 1. Detective Chaplin denied that the brief was "light" because he had been "light" on activities before arrest and charge. [131] 2. He acknowledged that where there was a historic statement, it was important to investigate the topics that were able to be investigated contained within the statement. [132] When asked whether he did any of these things, he stated:- "I'm trying to answer your question sir, the answer is yes, and the reason is I had many meetings with [R] during times where I asked her various questions about schools or home addresses, things like that." [133] 1. On 25 April 2012, Detective Chaplin prepared a draft affidavit in support of an application to be made in the NSW Supreme Court on the issue of the surveillance device warrant. [134] Further contact was made by Detective Chaplin with R on 1 May 2012 [135] and 16 May 2012. [136] On 17 May 2012, Detective Chaplin completed a request for assistance to the Covert Applications Unit for a surveillance device warrant. [137] The draft notice for the issue of the surveillance device warrant was completed and forwarded to the Crime Manager on 17 May 2012. [138] On 18 May 2012, changes were made to the affidavit [139] but Detective Chaplin was not able to identify them. [140] 2. The affidavit in support of the application was sworn on 1 June 2012 [141] and the surveillance device warrant was issued the same day. [142] 3. Detective Chaplin's evidence was that a ninety day warrant was sought for the surveillance device warrant to allow for the option of numerous calls over an extended period of time and to allow for any change in investigation strategies should any further information be obtained during the calls made. Detective Chaplin denied that the reference in his affidavit to the investigation being "protracted" was because he needed a lot more information that he already had. [143] Detective Chaplin denied that whatever he did on 6 June 2012 was done in the context where he decided the day before, including the arrest and charging of the Plaintiff. [144] He clarified this by adding:- "I'm saying that on 6 June the only thing that changed was the fact that the interface was unsuccessful and therefore moved onto the arrest phase. If there had been a successful interface it would have progressed further forward for another call or it would have progressed further forward for another call or it would have been reassessed." [145] Interface 1. On 6 June 2012, Detective Chaplin attached a recording device to a telephone located at Blacktown Police Station and saw the Complainant make a number of calls to the Plaintiff on his mobile phone number. This was between 3:00pm and 4.30pm. [146] On one occasion he did hear a conversation take place which is recorded. [147] It is not in issue that the call did not produce any evidence corroborative of the Plaintiff's allegations. 2. When the Complainant rang the Plaintiff and made contact the following exchange took place:- 'I can't believe you never called to say sorry … [148] I'm sorry I can't do it anymore. No, that's fine, are you okay." [149] 1. The call occurred between 3:00pm and 4:30pm on the Plaintiff's mobile phone. According to Detective Chaplin:- "[The complainant] terminated the call and began crying hysterically. [The complainant] was clearly traumatized (sic) from the conversation and it took several minutes to console her until she was able to stop crying." [150] 1. After the interface, the Plaintiff contacted R, which Detective Chaplin regarded as elevating the matter. [151] The Plaintiff confirmed in the ERISP that contact had been made by the Complainant and he subsequently contacted R. [152] Detective Chaplin's contact with R 1. Detective Chaplin's evidence was that during the obtaining of the Complainant's statement and prior to the Plaintiff's arrest he was told by R that, contrary to information supplied by the Complainant, the Plaintiff's penis was in fact not circumcised – that would have during the period between the 22 January 2012 and 6 June 2012. [153] Although the duty book does not contain details of conversations with R during that time, it does record:- 21 February 2012: "Return office and check workoff and memo's actions outstanding. Contact [R]." [154] 12 March 2012: "Speak [R] re statement." [155] 2 April 2012: "Contact [R] re [Complainant's] statement." [156] 22 April 2012: "Call [R]. Attend [ADDRESS REDACTED] re [Complainant]" [157] 1. Detective Chaplin stated that he trusted the information given to him by R as she had been in a sexual relationship with the Plaintiff. [158] 2. The evidence of Detective Chaplin is that he was told face to face by R about the state of the Plaintiff's penis "in the first interview room as you come into Blacktown Police Station." [159] Detective Chaplin said he did not record it at the time because he did not see it as being of great importance to record it right there and then. [160] On 24 October 2012, R is said to have commenced giving a statement to Detective Chaplin. [161] In that statement, R acknowledges that the Complainant supplied a statement to Detective Chaplin and states:- "… I have never read her statement and neither Detective Chaplin nor [the complainant] have ever told me the contents of that statement." [162] 1. This is not necessarily inconsistent with Detective Chaplin's evidence because it is unclear what questions were put to R relating to the state of the Plaintiff's penis. However Detective Chaplin's duty book reveals that 24 October 2012 was recorded as a rest day. [163] Contrary to this, the statement of R states:- "On the 24th of October, 2012 I read this statement and signed my name at the bottom of each page and recorded the time and date. In February, 2013 Detective Chaplin advised me that he lost the signed copy of my statement and requested I sign another copy of this statement. On the 28th of March, 2013 I again read through this statement and have confirmed that the contents are the same as when I signed this statement on the 24th of October, 2012." [164] 1. The statement itself was signed on the 28 March 2013. Detective Chaplin conceded that the date at the top of the statement (24 October 2012) was generated from the computer [165] and had nothing to do with whether it was signed or not. [166] He conceded that R could not have come into the station that day, although the day on the statement can be changed. [167] Detective Chaplin conceded that it was more than likely that the only person who could have changed it was himself. He added:- "… I can't tell you what happened with the date. I can tell you that I was on a rest day on 24 October. It doesn't mean that I have had any malice or tried to change it or change anything for any reason to suit myself." [168] 1. Detective Chaplin was shown the COPS entries in relation to the allegations against the Plaintiff. He conceded that apart from two entries, the rest of the entries were his own. [169] Detective Chaplin's attention was drawn to an entry of 31 August 2012 stating:- "On the 31/8/2012, VIC's mother [R] attended the Blacktown Police Station where he (sic) statement was commenced." [170] 1. Detective Chaplin conceded that R's statement bearing the date 24 October 2012 is silent as to her commencing to provide a statement on 31 August 2012. [171] He stated that:- "[I]t may have been the case that she's come in and we actually started getting details from her in relation to it and the statement wasn't actually commenced." [172] 1. Detective Chaplin acknowledged that the statement of R was inconsistent with both the COPS entry and the duty book. [173] However, even on 31 August 2012, the duty book records it as a rest day [174] and no duties are recorded. [175] Detective Chaplin stated that that did not mean he was not the police station if he was on a rest day. [176] He acknowledged that he could not be certain but:- "… I strongly suggest that I was, given the fact that I was going to be away for three weeks." [177] He questioned the advantage of "changing these dates or trying to." [178] 1. It was then put to him that the only entries about obtaining a statement from R were made on 28 March 2013, which was the date of her statement. [179] Detective Chaplin responded by saying:- "If there is no other entry, there is no other entry." [180] 1. Detective Chaplin's attention was then drawn to the index to the brief to the ODPP which was noted to be current as of 12 March 2013. It noted in Item 7 that the statement of R was "Awaiting." [181] Detective Chaplin stated that the fact that the index said "Awaiting" did not mean that he had not obtained the statement beforehand. [182] He conceded that any statement he had would have been on the computer, but said that it would not have been normal practice to supply the ODPP with an electronic copy that was unsigned. [183] Detective Chaplin's attention was then drawn to a letter dated 21 March 2013 to Mr Peter Naughtin, barrister, which referenced an attachment to an unsigned statement of R. [184] He stated that he did not recall sending an unsigned statement to the ODPP as at that date. [185] 2. Detective Chaplin acknowledged that the circumstances of his obtaining a statement from R were unsatisfactory and that he could have kept better notes and cannot explain the inconsistencies in dates. [186] Detective Chaplin also acknowledged that obtaining a statement from R could have allowed the testing of factual matters put forward to see if they were confirmed or contradicted. [187] In particular, it was put that such things like the dates of school, changes of address, house layout, changes in patterns of behaviour, leaving the child alone, whether or not you could hear things in one part of the house as against another part of the house could have been confirmed. [188] 3. In cross-examination Detective Chaplin stated that he did not obtain a statement prior to charge as R, because she was:- "was emotionally unstable" [189] " And "The [sic] spending any time with R during that time was extremely difficult. She was highly emotional the whole way throughout its and I think I believe I mentioned back in October that she was completely irrational right throughout that time so. [190] 1. Detective Chaplin's stated:- "The ideal world I wanted her statement beforehand (sic). When I was talking to her, when I was engaging her, she would breakdown continually. Information was limited as to what I could get from her. Her big concern was that [the complainant] never knew that she was still in a relationship with Mr [the Plaintiff]." [191] 1. The Plaintiff's evidence provided some support as to her emotional state. [192] 2. There were other difficulties in getting the statement signed. [193] Nevertheless Detective Chaplin acknowledged that the statement ultimately obtained from R did not contain the following:- 1. R's knowledge of the Plaintiff's penis being uncircumcised; 2. The fact of the disclosure by R to Detective Chaplin; 3. The fact of any ongoing relationship between R and the Plaintiff, between January and June 2012; and 4. The fact that Detective Chaplin could not be provided with a statement between January and June 2012 because R was unwell or unstable. [194] 1. Detective Chaplin explained the reasons for this as follows:- "As I explained, at the time I did not feel the need. I can only act on the information I had at that time and what I believed to be important and relevant statistic (sic). I am not saying it was not relevant but at the time I did not feel the need to make excessive notes in relation to what she was telling me. I had full intentions of obtaining a statement from her at a later date which would have gone in to give clarifying questions in relation to things. The circumcision, as I explained before, he either is or isn't. The defence would have known that the minute the charges were laid and the statement was served." [195] Pre-arrest and preparation of Fact Sheet 1. Prior to arrest, Detective Chaplin had made inquiries of the records held by NSW Police in relation to the Plaintiff. [196] Detective Chaplin conceded that he had no formal statement prior to arrest other than those of the Complainant and CB. 2. On 30 May 2012, Detective Chaplin started the Statement of Facts which would be used on the question of bail. [197] In evidence he stated that the majority of the facts were completed before interviewing the Plaintiff. [198] Detective Chaplin could not say whether the Antecedents were prepared when doing the Statement of Facts or before interview of the Plaintiff. He acknowledged that the sequence of the document [199] commences with Antecedents and there was nothing under the heading not known before 6 June 2012 when he saw the Plaintiff. [200] 3. The preparation of the Statement of Facts was despite the fact that Detective Chaplin was preparing and seeking a surveillance device warrant for ninety days because the investigation was expected to be protracted. Detective Chaplin stated that he was prepared because there was a possibility of moving to arrest. [201] Detective Chaplin stated:- "The plan was to send a car in the vicinity of [the Plaintiff]'s home address should the interface have gone badly, they could've intercepted [the Plaintiff] and effected an arrest. Whether that occurred or not, I don't recall." [202] Arrest 1. Senior Constable Scott-Mahjet was sent out by Detective Chaplin to arrest the Plaintiff with another officer in the early afternoon of 6 June 2012. [203] As it turns out, Detective Scott-Mahjet was interrupted by the need to attend to a Commonwealth Bank in Seven Hills regarding an armed robbery. [204] Senior Constable Scott-Mahjet stated that he did so at around 2:45 – 3:00pm. [205] The Plaintiff was arrested later that day at 6:35pm. [206] 2. Detective Chaplin's original plan may explain why Senior Constable Scott-Mahjet had been sent to the Plaintiff's house earlier without Detective Chaplin although the interface was not to take place until later that afternoon. However the true circumstances of that call out are not able to be established on the evidence. In any event they do not assume any significance as no arrest was effected until later when both Senior Constable Scott-Mahjet and Detective Chaplin attended the Plaintiff's home. 3. Detective Chaplin denied that whatever he did on 6 June 2012, he had already decided to charge the Plaintiff at the time of arrest. The transcript records the following exchange:- "Q. See, I will come back to precisely what words you used tomorrow but this morning you said that you went and arrested him as you had identified offences committed on [the complainant] by [the Plaintiff]. A. Yes. Q. You arrested him for the purpose of charging him, not for the purpose of questioning him, didn't you? A. Yes. Q. Therefore you had made a decision to charge him, hadn't you? A. No. Q. As to what you were going to charge him with you may not have made a decision, but you had made a decision to charge him, hadn't you? A. No. [the Plaintiff] could have told me anything during that interview, anything to negate what happened. If there was something there that I felt that was a reasonable excuse not to charge, he wouldn't have been charged." [207] In further in cross-examination, the following exchange is recorded:- "Q. What function, does this man's denials providing whatever factual information he was able in response to your questions, have in the overall process if you say you, at the end of that interview, think it's appropriate to invoke the criminal process? A. On that day, at the conclusion of that interview, I was of the belief that I should proceed with it based on the information I had at hand. Q. That means you had that belief before the visit to his home? A. No. Q. Nothing happened after you visited his home, took him back to the police station and spoke to him, that would have solidified your belief surely? A. Nothing happened, no. Q. A lot happened that would have brought into the question of your belief, surely? A. No. Q. You didn't have any regard to his denials; is that what you're saying? A. Of course, all were considered. Q. That's a circumstance you didn't have before you spoke to him at his home; isn't it? A. I didn't consider that he was definitely going to be charged with the matters prior to the interview, so of course, all the information provided in his ERISP was considered, all of it." [208] 1. Detective Chaplin's evidence that he did not intend to charge the Plaintiff at the time of arrest was consistent with the information that Senior Constable Scott-Mahjet appears to have received. Detective Scott-Mahjet's evidence was as follows:- "Q. When did Detective Chaplin speak to you for the first time about charging? A. After the interview. Q. So you were not spoken to by him at all about the question of laying charges until after the interview; is that right? A. I can't be certain of that, but I know after the interview we spoke Q. I don't want to know what was said at the moment. I just want to know when was the first time you had any discussion with Detective Chaplin about the topic of laying criminal process against this man? A. I'd be guessing. I'd be guessing, sir. It's the same as before, I don't recall I don't recall exactly. Q. He didn't say to you before you went out with him to arrest this man that he'd decided to charge him? A. No. Q. Mm? A. No. Not that Q. Did he tell you why he was arresting him then? A. Because of the alleged sexual assault. Q. Isn't that the charges? A. I'm confused. Q. He didn't say, "I'm arresting him so I can find out what he's got to say about what happened."? A. That would be improper. Q. Correct? A. That would be improper to arrest for an interview Q. Did he tell you then why he was arresting? A. Because he's got a credible a victim of an alleged sexual assault who has, he believes to be, a credible - credible, therefore, there's sufficient grounds to arrest. That's - I don't know - I'm only guessing to say that he it's only a natural course of conversation. What's involved in the allegation and he would have explained that this occurred, that this occurred. I can't remember the exact what he said to me about that, but it is just a natural flow of conversation, what's in the sexual assault, what's alleged to have happened, but - -" [209] 1. Following arrest the Plaintiff was taken to Merrylands Police Station. Merrylands Police Station 1. The Plaintiff asserted that whilst at Merrylands Police Station, Detective Chaplin sought confirmation as to the state of his penis by visual inspection. The Plaintiff's description as to what happened is set out in the following exchange:- "Q. When you say, "they" are we still with Detective Chaplin and Detective Scott Majhet? A. Scott Majhet, yep. They said they just wanted to do a quick strip search. Q. When you say, "they" both of them or one of them? A. Well, Scott Majhet was standing in front, and Troy Chaplin was on his side. Q. Who was speaking to you about a search? A. Scott Majhet. Q. You've described this room that you went into? A. Yep. Q. What happened once you were in the room, and after they'd said something to you about search? A. Yep. They said they just had to give me a quick strip search just to make sure I didn't have any weapons on me. They asked me to lift my T shirt, so I lifted my T shirt up. They asked me to unbutton my pants I just put them down to about my knees. Then they asked me to put my underwear down to about my knees, and it happened all very quickly they go, "Yep, that's fine." They just said, "Get dressed." Q. You'd pulled down your pants, and your underwear? A. Yep to about my knees. Q. And lifted up your T shirt? A. Yep, that's correct. Q. Do you recall looking at the police officers looking at you? A. Yep. Q. What area were they looking at? A. It looked like they were just looking straight at me and, like, down to my underwear region. Q. When you say the "underwear region"? A. Well, I had my pants sort of down to just looking at me. Q. Were they looking at your genitalia? A. Yes. Q. To your observation? A. Yeah, to my observation. Like I said, they probably gave me a quick look, yeah. Q. How long did this process of going into this room A. Just very quickly it just looked like just a couple of minutes it all happened very – very quickly before the interview." [210] 1. In cross-examination, the Plaintiff was asked to give details in relation to the room in which he was said to have been searched. [211] He was unable to give any details beyond describing the room as a little storage room that was "small" [212] and "it looked like there was [sic] folders around – and just general things." [213] He described the room as having lights on but they were not bright. [214] The Plaintiff described having a "strip search" to make sure that he did not have any weapons on him. [215] He was then cross-examined in relation to the basis for any search to be conducted, bearing in mind the fact that he had no history with the possession of weapons, was compliant at the time of his arrest, and had a pat-down search before he was placed in the vehicle. [216] The Plaintiff described the search as having been conducted "reasonably quickly" [217] and that the officers did not conduct a microscopic examination of his penis. [218] 2. In support of his claim of being strip searched, the Plaintiff called his brother. He gave evidence of visiting the Plaintiff at Silverwater Prison at the end of 2011. [219] In relation to this meeting, the Plaintiff's brother's evidence in chief was as follows:- "Q. Did you ask him any questions about what had happened in terms of being arrested? A. Yes, I did. Q. What did you ask him about what had happened to him in terms of his arrest? A. After asking him why do you think she did it and just him going into some sort of conversation about that, as a brother I jokingly asked "You know, did they strip search you?" He made a clear point of Q. Stopping there. You asked him when you say, "did they", who were they? A. Just I just generalised. Q. Did you get a response from your brother? A. I did. Q. As best you can, what were the words he said to you to you? A. I can remember him saying "I got strip searched at Merrylands. I got strip searched at Fairfield. I get strip searched everywhere I go."" [220] 1. The Plaintiff's brother maintained this account in cross-examination. [221] 2. The Plaintiff asserted that there was a 45 minute gap between the time he was placed in the dock and the time that he went to be interviewed in the ERISP room. The custody records were tendered in evidence. [222] They reveal the following:- Time Synopsis 6:35 pm Arrested at 10 Rainbow Street, South Wentworthville and conveyed to Merrylands Police Station [223] 6:45 pm Arrived at Merrylands Police Station and placed in dock [224] 6:47 pm Personal details of the Plaintiff are entered in Custody Management Records [225] 6:51 pm Recording of caution and summary under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) [226] 6:55 pm Sergeant Karl Day records that he informed the Plaintiff of the information contained in the "Caution and Summary of Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002" [227] 6:56 pm Sergeant Karl Day enters response to visual assessment of the Plaintiff 7:20 pm Plaintiff taken to the ERISP room for interview [228] 7:37 pm Entry of the Plaintiff being taken to ERISP room recorded by Sergeant Day [229] 9:05 pm Plaintiff returned to dock after interview [230] 9:10 pm Plaintiff return to dock recorded and entered by Sergeant Day [231] 1. The fact of the interview commencing at 7:20 pm was also stated during the interview by Detective Chaplin. [232] 2. Detective Scott-Mahjet stated that he could not recall whether at Merrylands Police Station, the Plaintiff was searched. [233] He gave evidence of what a strip-search involved [234] before stating that there were no circumstances on the day in question which led to a strip search of the Plaintiff. [235] 3. Detective Scott-Mahjet was asked what happened at the police station and he stated:- "Q. Do you remember what happened when you got to the police station? A. I remember that I stayed with him, with [the Plaintiff], in the charge room, that is. Q. In the charge room. Do you remember him getting to the charge room when you got to the police station? A. No. Q. You don't remember what happened getting from the car to eventually you being in the charge room with him? A. No. Nothing out of the ordinary. It was just a - - Q. Whether it be in or out of the ordinary, you remember nothing at all about it; is that right? A. Sir, if something was out of the ordinary, then I suggest I'd remembered it, because Q. But the point is you remember nothing one way or the other, do you? A. I wouldn't say nothing. Q. What is it that you do remember about events then? A. I remember that it was an every day arrest and that there was nothing to to [sic] leave an impression on my mind that it was out of the ordinary, which means everything - - everything ran smoothly. There was no issues [sic] I remember that Mr - that Detective Chaplin and I and [the Plaintiff] had an excellent rapport. There was no issues [sic]. There was no aggression either way with us. There was no there was no issues. It was we were respectful to each other and we did our job and [the Plaintiff] complied with no issue." [236] 1. It was put to Detective Scott-Mahjet that the records showed that the Plaintiff was placed in the dock at 6:45 pm for 45 minutes before the interview at about 7:30 pm. [237] However, Detective Scott-Mahjet accepted that he could not recall what took place during the 45 minutes in question. [238] In cross-examination the following exchange occurred:- "Q. You can't say where he was or what happened, can you? A. I can say that I know that in this particular circumstance I remained with [the Plaintiff], within close proximity to [the Plaintiff]. Q. You don't say that in your statement, do you? In your duty book? A. No. Q. You haven't written that down anywhere, have you? A. No, but I am certain of it, absolutely certain. Q. We have just got no written record about what you were doing in that 45 minutes, have we? A. No. I can explain how I arrive at that certainty, if you like but there is nothing written about it. I do recall remaining with [the Plaintiff] until the ERISP interview Q. But you can't tell us whether he went in the dock or out of the dock or what, can you? A. No, he is either in the dock or he is standing at the opposite side of the counter or he is sitting down at the dock with the dock door open. I know I was remaining with him in the charge room. Q. But you can't tell us anything about it, or whether he went into a room for a few minutes, you just can't tell us, can you? A. I can tell you that I remained with him. Q. Why? A. Why? On the detectives course that Detective Chaplin and I had just completed one of the senior investigators spoke of maintaining rapport with the suspects. To do that it is basically to remain with them throughout the investigative process. I specifically remember on this incident that Detective Chaplin and I spoke to it because we were on the detectives course together and that is when we said, "Okay, we will give that a go. It will most likely increase the chance of keeping [the Plaintiff] satisfied as much as can be whilst in custody and increase the chance of him participating in an interview." [239] 1. Further in the exchange, the transcript records the following:- "Q. Constable, what was the purpose of this 45 minutes you were trying to establish a rapport with [the Plaintiff]? A. The time frame has no bearing on the establishing of a rapport. It is more the case it depends on the availability of the custody sergeant. Sometimes you will go to a police station, whether it is your own police station you work at or a neighbouring station and there is no one there to accept them into custody. So we fill out the forms, you know this is what the person had in their possession, this is what they are under arrest for and then we wait for the custody sergeant to come down to speak to the person, to advise them of their rights and ask them about their medical conditions if they are suffering any, all those that is all a set standard. All I can Q. You recall were you waiting for the custody sergeant in this case? A. It is possible. I can't be certain. There is also a chance the custody sergeant was there and waiting and I was waiting for Detective Chaplin to prepare some paperwork, I don't know. CAMPBELL Q. What you are saying is this rapport process is something you follow more so when they are going through the introduction to custody process and having to fill out forms and tick and cross boxes, is that right? A. Yes. Q. Once that is finished your role in that respect becomes less? A. Up until the interview then that's my adopted procedure I do now. Q. Between the finishing of the custody process and the start of the ERISP, the need for you to sit there and be his next friend, as it were, is not so important, is it? A. That's the path I chose on that day." [240] 1. Further in cross-examination, the following is recorded:- "Q. What you can say is there was no strip search of the kind undertaken that you associate with the putting on of a glove and all that sort of thing; that's the position, isn't it? You're satisfied that type of search did not take place, aren't you? A. Yes. Q. As to what other things took place, can I suggest to you, you really have no idea? A. I can't I can't necessarily agree with that. Q. Yes, but you didn't disagree with it, can you? A. Well, I think it's inferring that the evidence I've given to this Court today is somewhat untruthful or whatnot and Q. No, you've said you can't recall about whether or not any kind of a search took place of [the Plaintff]; that's correct, isn't it? A. Can you repeat that? Q. Your answer before lunch was you can't recall whether any kind of a personal search of [the Plaintff] took place? A. Are we talking at the police station - - Q. Yes? A. - - or at the scene? At the police station, correct, yes. I can't recall if he was searched or if he wasn't searched. Q. All you can say is that there wasn't this full on glove type search that I know has only happened with me on a fairly few limited occasions? A. Correct." [241] Interview 1. The Plaintiff participated in a recorded interview with Detective Chaplin and Senior Constable Scott-Mahjet at 7:20pm [242] and finished at 9:10pm. [243] 2. It is not in issue that despite a lengthy interview with the Plaintiff and Detective Chaplin and Senior Constable Scott-Mahjet the Complainant's assertion as to circumcision was not was not put to him. 3. In the course of the interview the following exchange occurred:- "Q686: I mean - - - A: No, no, I mean if she's accusing of seeing me [sic] with no clothes on, I'd like her to be able to describe how I actually genuinely look with no sort of clothes on, you know. Q687: Physically look? A: Yeah. Q688: OK. A: Because, like, to me I'm really, this is sickening. Q689: Yeah. A: You know, and to me just be able to see this kind of [sic], you know, if she can come up with this kind of crap - - - Q690: [20:25] Uh-huh. A: - - - than [sic] I really hope that she can sort of back it. Q691: Yeah. A: You know, I genuinely really, really do. Q692: OK. A: You know, I want youse [sic] to test her, to do whatever has to, I mean, I don't, I don't really want her to go through this kind of stuff - - - Q693: Uh-huh. A: - - - but, you know, I, I can't believe where this is coming from. I really have got no idea. I'm, I'm, I'm appalled. I dunno [sic] what to say." [244] 1. Thereafter the state of the Plaintiff's pubic hair was the subject of questioning. The exchange was as follows:- "Q696: Well, in relation to the description, she says that when you put your penis in her mouth that, that you actually had a lot of hair around your penis and it was right up in her face. A: Yeah. No. Q697: All right. A: No. Q698: Do you ever shave your, your, your pubic hairs? A: Yeah. Not right down - - - Q699: Yeah, yeah. A: - - - but yeah, I do sort of usually, yeah. Q700: [20:25] OK. A: Yeah. Q701: So she's gone into a little bit of description there - - - A: Yeah. Q702: - - - explaining about - - - A: Yeah. Q703: - - - like that. So what do you think about that? A: Well, I think she's wrong. Q704: Yeah. A: I mean, I do sort of trim it down, as her mother would probably know. Q705: Yeah. A: So, yeah." [245] Other questioning 1. The Plaintiff then had put to him various claims that the Complainant made when the she was assaulted in which words were attributed as being said by the Plaintiff including:- "You're a slut for letting me do that" [246] "You fucking slut" [247] … "…you fucking whore" [248] and ""You slut, you fucking slut." [249] 1. Detective Chaplin had asked the Plaintiff at one point whether these were the same things that he said to R during sex. He conceded that they were. [250] 2. The Plaintiff was asked as to whether the Complainant had ever seen him and R having sex. The Plaintiff stated that he did not think so. [251] He added that "she might've have heard some but like … thought we were discreet, well we were trying to be." and further that they had sex "usually early in the morning… because we knew all the kids were in bed" or "late at night." [252] 3. The exchange continued as follows:- "Q885: What, I'll tell you the, concern I have - - - A: Yeah. Q886: - - - is that [the complainant's made mention of certain things that you said to her whilst she alleges that you had sex with her, and these are the same things that you've said to R while you're having sex with her. A: Yeah. Q887: So I'm a bit concerned that, you know what I mean, like, how would she know those things - - - A: I - - - Q888: - - - if - - - A: As - - - Q889: You know what I mean, like, how would she, how would she, like that's [sic] you can say certain things about people, you can say, you know, had sex with me or whatever and you can go into detail - - - A: Mmm. Q890: [20:45] - - - but that's something that's unique to you that she knows. A: Yeah. So, like I said, it's something that was very rare. Q891: Yeah. A: You know, that me and Bec would sort of say, just like ….. and that's not in a realm, that you know, I talk to mates and they do the same and that with their missus. Q892: Sure. A: So this isn't something that's, like, rare. Q893: Yeah A: This is something that, you know, I like to sort of, you know, and we wouldn't do it all the time. Q894: Yeah. A: So I got, I really got no idea. Q895: Yeah. Well, obviously, I mean - - - A: But I, I understand what you're saying. Q896: - - - you can see what my concern is - - - A: Yeah, yeah. Q897: - - - that - - - A: Yeah. Q898: - - - that it, it's, no matter how elaborate a story may be - - - A: Yeah. Q899: - - - to be able to identify certain things that ….. A: Yeah, but, like, I mean, those certain things isn't really a qualm. Q900: [20:45] Yeah. A: It isn't really, you know, it's something that's very much in a realm that she could say that and a lot of blokes, most blokes I know do say that. Q901: Mmm. A: You know, like I says [sic], I've got a lot of mates ….. and most blokes say that with their missues, you know, this isn't something that's, like, unique to me, you know, and like I said, it's something that I don't, didn't do all the time with Bec, you know, 'cause Bec - - - Q902: OK. A: - - - didn't really like it too much, so - - - Q903: Yeah. A: - - - it was just something that we were doin', you know …. We were together for a while. Q904: Yeah. A: But, you know, that's it. Q905: Mmm. A: That's as far as I go. I, well, I dunno where she, she gets this from. As I said, I dunno her friends (emphasis added)." [253] Charges and ADVO 1. The Plaintiff was subsequently charged with the 16 offences [254] earlier referred to and a Court Attendance Notice was served on him on at 11:33 pm. [255] The offences were:- 1. Aggravated indecent assault between 1 July and 31 October 2 2005 at Lurnea; [256] 2. Aggravated indecent assault between 1 July and 31 October 2005 at Seven Hills; [257] 3. Incite person under 16 years to commit act of indecency between 1 July and 31 October 2005 at Lurnea; [258] 4. Aggravated sexual assault victim under 16 years between 1 October 2005 and 1 February 2006 at Seven Hills (3 Counts); [259] 5. Aggravated sexual assault victim under 16 years between 1 January 2007 and 31 December 2007 at Seven Hills; (6 counts) [260] 6. Aggravated sexual assault victim under 16 years between 1 January 2008 and 31 December 2008 at Seven Hills; (2 Counts) [261] 7. Aggravated sexual assault victim under 16 years between 1 June 2009 and 1 December at Seven Hills; (2 Counts) [262] 1. The Plaintiff did not request bail and bail was refused by the Custody Manager – Sergeant Karl Day. [263] 2. A provisional ADVO was applied for and made at 11:12 pm on 6 June 2012, [264] naming the Complainant and R as "protected persons." [265] An interim ADVO was made by the Local Court at Parramatta on 7 June 2012. [266] 3. On 17 June 2012, no application for bail was forthcoming before the Fairfield Local Court and bail was formally refused. The Plaintiff waived his entitlement to a committal hearing and on 7 September 2012 the proceedings were adjourned for a "paper committal" on 28 September 2012 at which time the Plaintiff was committed to stand trial before the District Court of NSW. [267] 4. The Plaintiff was remanded in custody from the 6 June 2012 to 10 April 2013. [268] No bill and withdrawal of the ADVO 1. In March 2013, Detective Chaplin became aware that the Complainant alleged to the Hills Local Area Command that she had been raped by a group of young men – a matter that was investigated by the Sex Crimes Squad (operating out of State Crime Command under Strike Force Mikkelsen). That investigation determined that the Complainant's allegations were fictitious – a matter that came to Detective Chaplin's attention through the media. The Complainant was committed to hospital for psychiatric evaluation. Upon becoming aware of those matters, Detective Chaplin spoke to the Complainant, her family and the ODPP. An application for bail by the Plaintiff was not opposed and ultimately the ODPP directed that there be no further proceedings and the charges were withdrawn. 2. On 11 August 2012, Detective Chaplin prepared a submission recommending that the ADVO be withdrawn in circumstances in which the decision had been made by the ODPP to withdraw the criminal charges against the Plaintiff, in the absence of any evidence apart from the original allegations to support the continuation of it. Detective Chaplin consulted with the senior Blacktown prosecutor, who had carriage of the proceedings, the Complainant, and her family. Ultimately, the submission and recommendations were signed off by the relevant officers, and the ADVO was withdrawn. [269] WRONGFUL ARREST AND FALSE IMPRISONMENT 1. The relevant statute pertaining to arrest obligations as at 6 June 2012 was s 99 of the 2002 Act, [270] which read as follows:- 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law. 1. The relevant principles relating to s 99 were set out by Basten JA in Dowse v State of New South Wales [271] :- "[12] It is convenient to focus first on the power of arrest, as that was the power accepted by the trial judge as the basis on which the conduct of the officers was to be justified: Judgment at pp 28 and 32. So far as offensive language and, potentially, the offences of hinder police and enter inclosed lands were concerned, the relevant power was that found in s 99(2) permitting an officer to arrest if he or she suspected on reasonable grounds that the person had committed an offence. That condition involves an actual and honestly held suspicion on the part of the officer for which, in addition, there must be reasonable grounds. As explained by Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298, referring to similar language in the Prevention of Terrorism (Temporary Provisions) Act 1984 (UK), s 12, as to the applicable test: 'It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.'" 1. Later, His Honour stated:- "[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person "for the purpose of taking proceedings for an offence against the person"; it thus assumes that such a purpose must underlie a valid arrest. [27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory (emphasis added): see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. As Tobias JA stated at [71], after referring to the provision in force in 1998 empowering an officer to arrest without warrant on the basis of a suspicion with reasonable cause: 'It logically follows that where an arrest which complied with that requirement was effected, the arresting officer was obliged by the common law to inform the arrestee of the nature of the offence which he, the arresting officer, suspects the arrestee to have committed. To arrest a person on the suspicion of that person having committed offence A but to inform that person that the reason for the arrest is offence B, would be a nonsense and contrary to the clear policy which underpins what has been described by Lord Simonds in Christie as a fundamental rule of the common law with respect to the lawful deprivation of a person of his or her liberty.'" 1. Contrary to the submissions of the Defendant, the power of arrest in s 99(2) is qualified by the power in s 99(3) of the 2002 Act. Such is clear from the reasoning in Dowse, and also acknowledged in the Defence. [272] 2. The Plaintiff did not challenge the Defendant's submissions derived from George v Rockett, that is: "[Suspicion] in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" [273] 1. Detective Chaplin had at the time, both the statement of the Complainant and her best friend CB. He also had on my findings (discussed below) some information from R as to the Plaintiff being uncircumcised. Even accounting for the criticism of that material (discussed below) the existence of facts contained in it was sufficient in my view to induce suspicion in the mind of a reasonable person that the Plaintiff committed the offences earlier referred to. [274] It follows that at the time of arrest, I accept Detective Chaplin did suspect on reasonable grounds that the Plaintiff committed the offences for the purposes of s 99(2) of the 2002 Act. 2. However, even accepting that Detective Chaplin had a concern for the safety of the Complainant (and perhaps her mother), once the Plaintiff became aware of the allegations being made, I do not accept that the Defendant has established that the arrest was made for the "purpose of taking proceedings for an offence." Detective Chaplin's evidence was that no decision was made at the time of the arrest to charge the Plaintiff and certainly there is no evidence that the Plaintiff was told of the charges that he was being arrested for. Indeed in the statement he prepared for the prosecution proceedings Detective Chaplin records himself stating to the Plaintiff at the time of arrest that he was "investigating a sexual complaint" and "investigating a sexual complaint involving [the complainant] and you that have been named as a suspect." [275] 3. In oral submissions on 8 April 2016, counsel for the Defendant challenged the right of the Plaintiff to advance a case on wrongful arrest and false imprisonment in the way it had sought, by asserting that it had not been specifically pleaded. The transcript records the submission as follows: "Your Honour, if it is to be alleged that, notwithstanding the honest and reasonable belief of the police officer, which we have pleaded by reference to s 99 of LEPRA as it was then in force, notwithstanding that the arrest is unlawful because it was undertaken for a purpose foreign to the purpose for which the power is conferred, then that is a matter which ought be specifically pleaded by the plaintiff, ought to have been the subject of reply, ought to have been the subject of clear and direct questions of Detective Chaplin and none of that has occurred and so it is simply not open, in our submission, for the plaintiff to pursue that argument today." [276] 1. Contrary to this submission, this issue was raised in the Amended Statement of Claim. [277] Although the Defendant objected to the filing of an Amended Statement of Claim which included particulars of [6], I granted leave to the Plaintiff to rely on that document as earlier described. [278] 2. The Defendant made no application for adjournment at the time. This not surprising as the Defendant also alleged compliance with s 99 of the 2002 Act in its Defence. [279] The matter was further raised in the Plaintiff's Statement of Issues. [280] 3. The evidence relied upon by the Plaintiff emerged from Detective Chaplin's evidence in cross-examination. No objection was taken at the time. The matter was covered in the Plaintiff's written submissions. [281] The Defendant did not address this issue in its written submissions, [282] but raised objection in oral submissions as earlier identified. Ultimately the question of the lawfulness of the Plaintiff's arrest and consequent imprisonment was a matter on which the Defendant bore the onus of establishing. Even if the case as submitted by the Plaintiff was not particularised, I am satisfied that no unfairness has arisen to the Defendant. [283] MALICIOUS PROSECUTION Ingredients 1. The principles to be considered in a claim of malicious prosecution were stated by the High Court of Australia in A v State of New South Wales. [284] In that case, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ stated:- "[1] … For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause." [285] 1. It was not in issue that both the criminal proceedings and the proceedings for an apprehended violence against the Plaintiff were proceedings of the kind to which the tort applied. It was also not in issue that both proceedings were terminated in favour of the Plaintiff. The question of whether the Defendant in instituting and maintaining the proceedings acted without reasonable and probable cause and maliciously were clearly in issue. [286] Setting for determining absence of reasonable and probable cause 1. In determining the setting in which the absence of reasonable and probable cause is to be assessed, the plurality in A stated:- "[39] The standard form of pleading alleges that the defendant acted (maliciously and) without reasonable and probable cause. A plaintiff who sets out to prove that allegation may, or may not, endeavour to establish, by direct evidence (including admissions), or inference, something about a defendant's belief. In a jury trial that may raise an issue for the jury. At a trial without a jury, that may raise for the judge's decision a specific question of fact. The nature of the question may depend upon what, in the circumstances of the case, is said to demonstrate that a defendant did not have reasonable and probable cause to prosecute. Those circumstances, in turn, may be affected by the nature of the allegations, and the prosecutor's capacity to form an opinion about their strength and reliability. Absence of reasonable and probable cause 1. In the inquiry as to absence of reasonable and probable cause and the nature of the belief that was relevant, the plurality in A [287] stated: "[58] … the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." [288] 1. The plurality then summarised what it referred to as three critical points as follows:- "[77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" [289] 1. In noting the challenges presented where the prosecutor relies upon information supplied by third parties, the plurality in A stated:- "[80] In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. (There may also be a real and lively question about the objective sufficiency of the material, but that may be left to one side for the moment). In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established. [81] The expression "proper case for prosecution" is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. For the reasons given earlier, it will require examination of the prosecutor's state of persuasion about the material considered by the prosecutor. That should not be done by treating the five conditions stated by Jordan CJ in Mitchell v John Heine as a complete and exhaustive catalogue of what will constitute reasonable and probable cause. First, to focus upon what is reasonable and probable cause distracts attention from what it is that the plaintiff must establish - the absence of reasonable and probable cause. And secondly, because those conditions are framed in terms of belief about probable guilt, they are conditions that, for the reasons already given, do not sufficiently encompass cases where the prosecutor acts upon information provided by others." [290] 1. Then referring to the objective aspect of reasonable and probable cause, the plurality stated:- "[82] It is convenient to deal at this point with the objective aspect of an allegation of absence of reasonable and probable cause. As Dixon J said in Brain, if there is no dispute that a prosecutor "believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place" and no question arises as to the materials upon which the opinion was founded, there remains the question, for the Court to decide, "whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause." [83] Reference is sometimes made in this context to the statement of Hawkins J in Hicks v Faulkner defining reasonable and probable cause: "to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." The objective element of the absence of reasonable and probable cause is thus sometimes couched in terms of the "ordinarily prudent and cautious man, placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". Or, as Griffith CJ put it in Crowley v Glissan, the question can be said to be "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty". [84] None of these propositions (nor any other equivalent proposition which might be formulated to describe the objective aspect of absence of reasonable and probable cause) readily admits of further definition. It is plain that the appeal is to an objective standard of sufficiency. The references to "reasonable" and "reasonably", to "ordinarily prudent and cautious", make that clear. [85] Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made. [86] It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. Lister v Perryman, where a charge was preferred on account of what had been reported to the prosecutor, is a good example of such a case. And as Lord Atkin rightly said in Herniman v Smith: "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution." [87] For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case." [291] 1. The test for determining whether the subjective element of absence of reasonable and probable cause has been established is whether the prosecutor has been shown to not have honestly concluded that the material was such as to warrant setting the criminal law in motion. 2. Giles AJA in Thomas v State of New South Wales, [292] observed that this involved a lesser subjective standard than a belief in guilt. [293] In considering the objective element his Honour stated:- "[104] The reasonableness of the belief then comes into play. Was the trial judge in error in finding that the appellant had not established that there was not a reasonable basis for the belief in guilt, or, as that might now be reframed, a reasonable basis for setting the processes of the criminal law in motion? That requires an identification of the material properly to be taken into account on that issue. There is a question as to whether that material is limited to that which is admissible in evidence at trial and limited to that which will certainly be available at trial. [105] The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. (See Lister v Perryman (1870) LR 4 HL 521 per Lord Westbury at 538, Lord Colonsay at 540 and 542; Hicks v Faulkner (1878) 8 QBD 167 at 173-4; Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 at 202-3; Mitchell v John Heine & Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466 at 469-471)." 1. In Clavel v Savage, Rothman J stated:- "[69] … In many instances, for example child sexual abuse and domestic violence, a third-party prosecutor may have serious doubts about the ultimate success of the prosecution, but would consider, even before there was independent corroboration or evidence in support of the accusation, that the objective sufficiency of the material, in light of all the facts of the case, warranted a charge and a determination by jury. In some circumstances the test of objective sufficiency may require consideration of the public policy that a contest as to the credit worthiness should be determined by the fact finder (either a jury or a judicial officer) and not be pre-judged by the police." [294] 1. In dismissing the appeal the Court of Appeal acknowledged the legal principles expressed by his Honour. [295] What does the Plaintiff say? 1. In order to answer the question posed in A at [77] as to what the Plaintiff says of the material Detective Chaplin had a useful starting point is the Plaintiff's pleading. 2. The case for an absence of reasonable and probable cause in relation to the first malicious prosecution, was set out in [19] of the Amended Statement of Claim as follows:- PARTICULARS OF ABSENCE OF REASONABLE AND PROBABLE CAUSE AGAINST THE DEFENDANT (i) That Detective Constable Troy Chaplin (hereafter referred to as "the police officer") had no bona fide belief that there was material sufficient to prosecute, namely material to establish the plaintiff was probably guilty of the charge against him. (ii) That Detective Constable Troy Chaplin had no information in his possession at the time of initiating the prosecution of any reasonable grounds for the holding of any requisite belief to the effect that the Plaintiff had committed the offences. (iii) That Detective Constable Troy Chaplin knew or ought to have known that he had no justification in arresting and detaining the Plaintiff. (iv) The maintenance and continuation of the prosecution was done for the improper purpose to justify the unlawful and improper conduct of Detective Constable Troy Chaplin in charging the Plaintiff in the first place in circumstances where he had acted unlawfully and without justification. [296] 1. The case for an absence of reasonable and probable cause in relation to the second malicious prosecution, was set out in [34] of the Amended Statement of Claim as follows:- PARTICULARS OF ABSENCE OF REASONABLE AND PROBABLE CAUSE AGAINST THE DEFENDANT (i) That Detective Constable Troy Chaplin had no bona fide belief that there was material sufficient to prosecute, namely that there was material to establish that the persons in need of protection (pinop's) feared for their safety such that an interim order was necessary. (ii) That Detective Constable Troy Chaplin had no information in his possession at the time of initiating the Apprehended Violence Order of any reasonable grounds for the holding any requisite belief to the effect that the persons in need of protection (pinop's) required an interim order for their protection and that the Plaintiff had committed the sexual assault offences giving rise to the application for the interim Apprehended Violence Order. (iii) The maintenance and continuation of the prosecution was done for the improper purpose to justify the unlawful and improper conduct of Detective Constable Troy Chaplin in charging the Plaintiff in the first place in respect of criminal offences which have been referred to herein and also initiating the Apprehended Violence Interim Application in circumstances where he had acted unlawfully and without justification. [297] What was Detective Chaplin's knowledge? 1. The Plaintiff contended that the result of Detective Chaplin's enquires prior to the point of arrest and charging in a non-urgent investigation cast significant doubt about the allegations to the point where: "(a) He did not have a suspicion on reasonable grounds that [the Plaintiff] had committed any of the offences for which he was being arrested; or (b) There were plainly no reasonable grounds for the holding of that suspicion." [298] 1. It is not in dispute that the time of the commencement of the prosecution Detective Chaplin has a statement from the Complainant and from CB and an interview with the Plaintiff. The Complainant's statement was detailed describing each of the alleged incidents. The Plaintiff contends that three facts were tested by Detective Chaplin before charge:- 1. whether the Plaintiff was circumcised as the Complainant had alleged; 2. whether the Plaintiff's pubic hair was bushy as the Complainant had alleged; and 3. the alleged inconsistency between the statement of the Complainant and CB. [299] 1. The first fact said to be tested was whether or not the Plaintiff was circumcised. 2. Both parties asserted that Detective Chaplin knew prior to charging and issuing of the ADVO that the Plaintiff was not circumcised. 3. What was heavily in dispute was the source and timing of that knowledge. 4. In response to Plaintiff's assertion that he was not circumcised, [300] the Defence stated:- 'In answer to paragraph [13] of the Statement of Claim the Defendant: (a) admits that it is the plaintiff's case that he is not circumcised; (b) does not know and cannot admit whether or not the plaintiff is circumcised; (c) otherwise does not admit the paragraph." [301] 1. The reason given for this was explained by counsel for the Defendant as follows:- "The reason we have not admitted that he was uncircumcised is because our position plainly is that he was not strip searched and so we don't know. That is a different question to what information we may have had available to us, unverified by physical examination, though it may be, but it's not the same thing as what information we may have had available to us at the time." [302] 1. During the trial, counsel for the Defendant repeated this assertion whilst making an objection. [303] There was no cross-examination on the pleadings. 2. The fact that the Complainant had made an assertion as to circumcision was not concealed but was revealed in the Complainant's witness statement submitted as part of the Crown brief. [304] Detective Chaplin would have known that would occur. [305] The evidence of Detective Chaplin was that "shortly after completing the Complainant's statement being 17 April 2012 and up to 6 June 2012 when the Plaintiff was arrested he informed other "investigators his supervisor" about what he had been told as to the state of the Plaintiff's penis by R. This matter is further considered below in the context of Plaintiff's advocacy of this fact indicating the significance of the discrepancy to the assessment Detective Chaplin undertook. It suffices to state that the fact of Detective Chaplin discussing with others what he had been informed by R was extracted in cross-examination but the response was not directly challenged. [306] 3. Counsel for the Defendant correctly submitted that it was never suggested that the conversation that Detective Chaplin had with other police officers did not occur. [307] In oral submissions, the Plaintiff drew attention to the failure to call the Detective's colleagues who he had spoken to. [308] Further, in reply it was argued that the Defendant should have called the officers he had spoken to. [309] However, a Jones v Dunkel inference is not available where a party does not call a witness to corroborate unchallenged evidence. [310] Moreover somewhat counter-intuitively the Plaintiff relied on the fact that Detective Chaplin later sought advice to demonstrate that he regarded the issue as a matter of concern that needed to be followed up. [311] 4. The Plaintiff asserts that it was doubtful that R was the source of Detective Chaplin's knowledge as there was no record that assists the Court that such a conversation occurred. 5. The records of Detective Chaplin do not record obtaining a formal statement from R prior to the arrest and charging of the Plaintiff. Thereafter the precise date it was first obtained was in dispute and the evidence suggests the records of Detective Chaplin were inaccurate. A version of the statement said to have been signed on 24 October 2012 has not been produced. [312] However in my view little flows from this except a potential adverse reflection on Detective Chaplin's credit. What is clear is that before charge some contact took place as evidenced from the duty books and the unchallenged fact that Detective Chaplin contacted R in relation to arrangements regarding the Complainant's statement as the latter did not have a mobile phone. [313] The affidavit submitted to Garling J also confirms that Detective Chaplin was informed by R of contact between the Plaintiff and R, and the Plaintiff himself acknowledged contact took place. 6. Overall I accept that Detective Chaplin did in fact have a discussion with R of matters relevant to the investigation prior to charge. I am further satisfied that the source of Detective Chaplin's knowledge of the Plaintiff's penis being circumcised was R. 7. I do not accept that there was any inspection of genitalia as claimed by the Plaintiff at Merrylands police station. Why the Plaintiff's brother would have initiated the conversation he claims to have had with the Plaintiff was not revealed. Nor did he describe anyone who he was told carried out the search. Apart from Merrylands, the Plaintiff's evidence was that he was strip searched at Fairfield when taken to prison. [314] 8. Senior Constable Scott-Mahjet had not read the Complainant's statement at the time that the Plaintiff was interviewed, [315] but he had been briefed on the circumstances of the arrest before he went out with another unnamed colleague to effect the arrest for the first time. [316] It seems on the evidence that Senior Constable Scott-Mahjet was not aware of the significance of the Plaintiff's genitalia to the prosecution of the case [317] giving him no cause to direct the asserted search. Nowhere was it put directly to Senior Constable Scott–Mahjet that the Plaintiff was observed to be not circumcised. According to the Plaintiff, Senior Constable Scott-Mahjet stood in front and spoke to him about the search and Detective Chaplin was on his side. 9. Detective Chaplin's evidence was that he was with the Plaintiff for the entire time between going from the charge room to the ERISP room, [318] and that the Plaintiff went nowhere else between the charge room and the ERISP room. [319] That evidence was not challenged. Nor was there any application for a forensic procedure. [320] 10. In relation to his own claim as to knowledge as to circumcision Detective Chaplin was able to provide details of the location where that occurred although not the date. The unchallenged fact that Detective Chaplin consulted other officers the discrepancy after completing the Complainant's statement and before charge, supports to the source of his information being from R. 11. I am further satisfied that Detective Chaplin attempted to obtain a formal statement from R in relation to the investigation before charge but was unable to do so as he asserts. This had some support from the Plaintiff's own description of R's conduct and the records I have referred to. What would have been the contents of any statement however, I cannot determine. The Plaintiff's pubic hair 1. The second issue that the Plaintiff identifies as being tested by Detective Chaplin was the Complainant's claim as to the state of his pubic hair at the time of the alleged assaults. 2. The Plaintiff was cross-examined in relation to the questions asked of him during the interview, and stated:- "Q. You are not suggesting you completely removed the hair from your genital region, are you? A. No, I am not, no. Q. Is it the case that you always kept it closely cropped or you kept it closely cropped from time to time? A. No, I'm not close once I was in a relationship with R, yes I did. Q. Were there periods where it grew out and then you had to shave it again? A. I never shaved it, I always used to like trim it a bit but that is that was after – after I started to stop seeing R. Q. In the period when you were with R? A. Yes. Q. When you say you kept it closely cropped, what were you using? A. Just like the razor, the one that you use like to shave your head. Q. A set of hair clippers? A. Yeah, clippers. Q. How frequently did you undertake that exercise of cropping your public hair using a hair trimmer? A. Continuously, often. Q. Every month, every six months? A. It wouldn't be every six months, It would be like every few weeks. Q. In the period between those trimmings every few weeks, your pubic hair grew longer I take it? A. Yeah but not that much, it stayed a certain length. Q. Are you able to say what length it was? A. Well it wasn't every really bushy, it was always manageable. Q. Are you able to say what length it was or are you unable to say? A. Well, I wasn't getting a ruler out and measuring it, but I would say maybe number 3 or something on the comb. Q. Your haircut currently is what, number 1? A. I usually just shave it with a razor. Q. In any event, what you regard as a number 3 on the hair trim scale, correct? A. Close cropped. Q. It is fair to say, isn't it, that despite being closely cropped, your genital area at all times during the period that you were in a relationship with R, had hair on it, correct? A. Yes." [321] 1. The Plaintiff's evidence in cross-examination as to the state of his pubic hairs is of no significance as it was not within Detective Chaplin's knowledge at the time of charging. What is significant are the answers obtained in the ERISP referred to earlier. In this regard contrary to the Plaintiff's assertion the Complainant in her statement described the area around the penis as "so hairy and right up in my face" not "bushy". The answers confirmed to Detective Chaplin that the Plaintiff was not hairless. Be that as it may, Detective Chaplin conceded that "there was a question mark about whether he was or he wasn't [hairy] because of shaving." [322] Consistency between the statements of the Complainant and CB 1. The third matter tested was a consistency between what the Complainant had said to her friend CB at her house on December 2011, and what CB remembered that the Complainant had said to her. 2. The Plaintiff submitted that this practice was a "very odd situation" which allowed CB to hear the account given by the Complainant. [323] Despite this, the principal criticism raised by the Plaintiff was as to asserted inconsistencies. 3. In CB's statement, the Complainant is said to have stated that the incidents involving the Plaintiff had been going on "since I was about nine." [324] In her statement, the Complainant states that she was first aware that her mother had a new boyfriend (being the Plaintiff) "when I was about ten years old." [325] 4. The CB's statement also records being told that the Plaintiff used to make the Complainant "dress up." The Plaintiff submitted that the Complainant's account of what she said to CB did not mention these facts, "which were the only things which CB recorded that [the complainant] said to her." [326] The Complainant's statement however does record instances where she was told to put her clothes on and was watched to dress up. [327] 5. Both the Complainant and CB described incidents occurring whilst R was at the house in the shower and away. 6. Detective Chaplin acknowledged CB told Constable Karl that that she was wondering how this happened because the Complainant had a busy household. 7. At the time of the earlier assaults, the Complainant was residing at Lurnea. Detective Chaplin did not pre-charge go to the house of the Complainant for the purposes of taking photographs in relation to the criminal investigation. [328] He stated that he was unable to get access to the first residence where the offences were said to have occurred (at Lurnea) as it was a private residence. However, Detective Chaplin did subsequently attend at the residence at Sydney Joseph Drive, Seven Hills. [329] 8. The Defendant asserts that whilst the statements of CB as to the complaints made by the Complainant were different to the Complainant's statement, they neither contradicted nor were they inconsistent with the Complainant's statement. There is force in this submission, even though as I have noted CB alleged that the Complainant had told her that the assaults by the Plaintiff commenced from about the nine years of age, whereas the Complainant stated that she first met the Plaintiff at around ten years of age. 9. Detective Chaplin acknowledged that the Complainant's account was different to what CB said to her. [330] He acknowledged that a line of inquiry could have been triggered, [331] but did not because "… given [the complainant's] condition at the time she could have said anything." [332] 10. On balance, whatever criticism is to be made as to CB's presence at the time of the Complainant making her statement, it was reasonable of Detective Chaplin to form the view he did. What were the circumstances that led to the commencement of proceedings? 1. The Plaintiff acknowledged that R was in contact with him after January 2012. [333] On the Plaintiff's own evidence it is clear that he and R had been in communication since she and the Complainant had reported him to the Police being from 17 January 2012 and until two days before the arrest 2. The fact of Detective Chaplin's knowledge of contact was deposed to in the affidavit in support of the surveillance device warrant. [334] Detective Chaplin's evidence was that he had decided to seek warrant in advance of 17 April 2012 but could not do so until he had a signed statement from the Complainant. [335] He stated that he had since finishing the statement he could move along to obtain the affidavit for the interface. [336] 3. In light of this I am satisfied that the Detective Chaplin did become aware of communication between the Plaintiff and R, after the allegations were made by the Complainant. Detective Chaplin did not reveal any knowledge of a sexual relationship between the Plaintiff and R in the affidavit to Garling J for the surveillance device warrant application. I am not satisfied that in the contact Detective Chaplin had with R, he was advised of a sexual relationship between R and the Plaintiff. In this regard I accept the Plaintiff's own evidence to the effect that there was no face to face contact. Having said that I am satisfied that Detective Chaplin was concerned about the communication between P and the Plaintiff. The Plaintiff's own description of that contact was consistent with R contacting him about the allegations although he did not understand it as such. Further, as mentioned previously, in the affidavit to Garling J, Detective Chaplin indicated that R had told him that if the Plaintiff became aware of the allegations he would try and stop the Complainant reporting the assaults. [337] 4. I accept that Detective Chaplin had concern about the safety as indicated once the Plaintiff became aware of the Complainant's allegations. This is clear not only from his evidence but from the COPs entries. 5. I have previously referred to the fact that after the interface, the Plaintiff contacted R, a matter which Detective Chaplin regarded as elevating the matter. [338] Again, the Plaintiff confirmed in the ERISP that contact had been made by the Complainant and he subsequently contacted R. [339] 6. The Plaintiff also draws attention to the fact that the warrant sought was for ninety days and the references to the investigation being protracted. 7. Counsel for the Plaintiff submitted that Detective Chaplin admitted that he did not have the information to arrest the Plaintiff before the interface, citing Detective Chaplin's answer that he had given where he stated:- "I didn't have the information to arrest [the Plaintiff] prior to the interface … " [340] 1. When the context of that answer is considered the submission made in relation to it cannot be sustained. Detective Chaplin had a habit of repeating what he was being asked before responding to the question. The full context was as follows:- "Q. You don't say that is a result of the failure of the interface, "I made a decision and it was then necessary to arrest [the Plaintiff]" do you? A. No, I don't. Q. Because you certainly did not have the opinion before the phone call that it was then necessary to arrest [the Plaintiff]; did you? A. Sorry, repeat that. Q. You certainly did not have the opinion before the phone call that it was necessary to arrest [the Plaintiff]; did you, then? A. I didn't have the information to arrest [the Plaintiff] prior to the interface. If the interface was unsuccessful I would have arrested, if it was successful I would have proceeded. I just don't want to get my words mixed up with you." [341] Other factors not tested 1. The Plaintiff asserted that many of the facts deposed to by the Complainant could have been tested by Detective Chaplin prior to the arrest but were not. This was asserted notwithstanding:- 1. "The very large number of facts to Detective Chaplin by the Complainant; 2. The ease with which many of the facts could have been tested or verified; and 3. The ample time Detective Chaplin had between the asserted facts being told him, and the arrest and the charge (four and a half months)." [342] 1. At [68] of the Plaintiff's submissions, a number of facts are referred to as having been asserted by the Complainant in her statement to police which were either not verifiable or found to be contradicted by Detective Chaplin whilst the Plaintiff was in prison. These facts were:- "(a) that the complainant's parents split in 2005 at about the time the movie New York Minute was showing; (b) The complainant's teacher in Year 3 was Mrs Jarvis. Mrs Jarvis was her Year 4 teacher; (c) she first met [the Plaintiff] when Big Brother was on. On that occasion [the Plaintiff] met [the complainant's father]. This is wrong. The meeting between [the Plaintiff] and [the complainant's father] did not take place for over a year after [the Plaintiff] and R started seeing each other; (d) [the Plaintiff] used to frequently go into the bathroom when the complainant was in the shower; (e) [the Plaintiff] frequently used to go into the complainant's room; (f) there was an invitation by [the Plaintiff] to take the complainant to McDonalds to which she objected in front of [R]; (g) in between alleged assaults, [the Plaintiff] frequently continued to go into the bathroom when The complainant was in the shower; (h) The complainant's teacher whilst she was in Year 4 was Mrs Arminenie. This is incorrect. Mrs Armini (that is the correct spelling) was the kindergarten teacher; (i) after one sexual assault there were bloodied sheets and The complainant's underwear was also bloodstained – this issue was not even raised with [R] for the purposes of preparing his statement; (j) on one occasion The complainant said she lied to [R] why she was upset because of the fight with her friend Jessica. This matter was not checked with [R]; (k) One of the assaults took place at [the Plaintiff] house. That the complainant went to [the Plaintiff's] house was not checked with [R]; (l) The complainant recalls reading the book Breaking Dawn at the time of the assault when she was in Year 6 which was in 2007. In fact Breaking Dawn was not published until August 2008." [343] 1. The matters raised in (c), [344] (d), [345] (e), [346] (f), [347] (g), [348] (i), [349] , (k) [350] and (l) [351] were in fact raised with the Plaintiff in the course of the ERISP interview. Detective Chaplin had read out to him all of the results of the inquiry as a result of the investigation that he had undertaken and he maintained that none of this changed his view that the charges should be maintained. [352] In cross-examination Detective Chaplin conceded that there were discrepancies revealed by the subsequent inquiries and there was not one matter in the statement that could be confirmed by anyone independent of the Complainant. [353] Detective Chaplin's assessment 1. In submissions the Plaintiff summarised his argument: – "[78] The result of Detective Chaplin's enquiries prior to the point of arrest and charging, in a non-urgent investigation, cast significant doubt upon the allegations to the point where: (a) he either did not have a suspicion on reasonable grounds that [the Plaintiff] had committed any of the offences for which he was being arrested; or (b) there were plainly no reasonable grounds for holding of that suspicion [79] [the Plaintiff] gave candid answers to the questions in the recorded interview in which he fully cooperated and when tested as to his involvement, earlier on the same day in the interface, he passed all tests [80] Coupling [the Plaintiff]'s candour and the passing of tests set for him in the ERISP with the adverse results of the limited actual enquiries he made demonstrate that, at the time of charging, Detective Chaplin did not have reasonable and probable cause for the laying of any charges or obtaining the AVO." 1. The Complainant had provided a detailed statement identifying the events that were alleged to have taken place and the Plaintiff's asserted participation in them. Detective Chaplin in chief was questioned and stated:- "Q. Why did you believe that what [the complainant] had told you in the statement was the truth? A. During the taking of the statement, I continually go back to the beginning each time and go through the evidence with her. She never wavered from the detail that she went into. I tested her on it a number of times during the taking of the statement and had no reason to question that it was not the truth. Q. Did you make an assessment of how she would hold up as a witness in any criminal proceedings? A. I did. Q. What assessment was that? A. I thought from my previous experience that she would be one of the better witnesses that I was able to take to Court on one of these matters. That was the reason I contacted Sex Crimes to have it electronically recorded." [354] 1. That evidence was consistent with what Senior Constable Scott-Mahjet said Detective Chaplin told him about the Complainant. [355] 2. It is also consistent with what Detective Chaplin stated during the ERISP:- "Q920 [20.47] Yeah. It's. I mean, the , the allegation is if it was something, if it was something trivial and, and fairly, like you know, simple in, in reply then you know, I would understand, you know what I mean, like, I would be like, I would be like, OK, a little bit sceptical, but , but I , I've got serious concerns that , that, like, a lot of what she said is true because of how detailed she's able to go to it." [356] 1. In the ERISP the Plaintiff denied all the allegations. However he also confirmed that features of intercourse with R corresponded with the Complainant's allegations. This led to observations being expressed by Detective Chaplin as to how the Complainant would know things unique to the Plaintiff . [357] 2. Detective Chaplin was asked about his assessment in light of the Complainant's description of the Plaintiff's penis being circumcised and information from R that he was not. Detective Chaplin stated:- "Q. In making that assessment you had available to you [the complainant's] statement? A. Yes. Q. And in particular paragraph 20 which is where she describes [the Plaintiff] as being circumcised? A. Yes. Q. You had information from [R] and you understood [R] to have been in a sexual relationship with [the Plaintiff]? A. Yes. Q. You had information from her to the effect as you understood it that he was in fact uncircumcised? A. Yes. Q. Can you tell his Honour what effect if any those matters had on your assessment as to her truthfulness? A. I gave serious consideration to whether it would be significant in relation to her evidence, but given her age at the time HIS HONOUR Q. Say that again? A. I gave consideration as to the fact that she was mistaken as to the circumcision, so [the complainant] was saying that he was when in fact he wasn't, so my consideration was given in relation to that, that the age factor, she may not have been aware at the time, the fact that all the assaults, the alleged assaults my apologies, were whilst [the Plaintiff's] penis was erect, in relation to that I had discussions with numerous detectives in the office, male and female in relation to an uncircumcised penis appearing to be circumcised if it was only ever seen erect. All of those things I considered in relation to it, and I was still of the belief that I was happy to proceed based on that evidence." [358] 1. In opening counsel for the Plaintiff remarked that the Complainant's statement contained:- "…. some flourishes throughout the course of this statement which would send alarm signals out to anybody if they were looking at a statement made by a 16 year old concerning events that had happened seven or eight years earlier, to the extent that she says, 'When I was 7, like or 8', some seven or eight years earlier, 'I can describe with precision the clothes I am wearing, the clothes he is wearing', and then the second time, 'I can describe with precision to identifying a motif on my nightie that I was wearing, the fact that I was wearing socks and the fact that he had a particular type of clothing on'. Now what 16 year old girl, relating back to age eight, could describe that detail, would make one want to have a good look at it, with respect, your Honour. Yet later on, she can't give description to any detail about anything, she's inconsistent, although. So all I am saying is these things should alert the average police officer to, 'I need to get out there and get some corroborative information.'" [359] 1. In cross-examination no questions were put to Detective Chaplin suggesting that the detail provided by the Complainant was a concern based on her age. It was put however that in statement of facts he should have stated that despite the Complainant having been able to identify a lot of first person conversation she was unable to provide intimate knowledge of the accused's anatomy and in fact gave a wrong description. Detective Chaplin acknowledged he could have put it in. [360] 2. The Plaintiff submitted that the Complainant's erroneous allegation about the circumcision was very important. However, Detective Chaplin stated:- "Because I was proceeding regardless with the information that was based on the statement and the fact that her age, the fact that the discussions I'd had in relation to circumcised/non circumcised penis, didn't- it wasn't going to be of major relevance to the evidence of what was at the time like a nine to 11 year old girl." [361] 1. The Plaintiff submitted that Detective Chaplin should not be accepted on this issue because:- "(a) Detective Chaplin sought to obtain a report from an expert on the issue and dropped it for reasons that are simply unexplained; (b) Detective Chaplin made much of [the complainant's] awareness of [the Plaintiff's] anatomy in the antecedents and indeed described that awareness (which he knew to be false) as relevant to the strong prosecution case, albeit falsely; and (c) He knew the identification of features of [the Plaintiff's] penis was going to be an issue in the trial." [362] 1. Detective Chapin did not seek to obtain an expert's report until after arrest and charge. [363] The fact that the matter was anticipated to be raised in the trial and needed to be prepared for was not disputed. The question remained as to Detective Chaplin's assessment of the Complainant's credibility in light of the shortcomings as he saw them, and the decision by him that it was nevertheless appropriate to invoke the criminal process. 2. The Complainant's statement did not assert that all of the of assaults or observations involved circumstances where his Plaintiff's penis was said to be erect, although many of them were. [364] 3. There is no evidence of the identity of any persons with whom Detective Chaplin discussed the matter of an uncircumcised penis appearing to be circumcised, if it was only ever seen erect. [365] However he stated:- "I was satisfied based on the conversations I had with my colleagues in relation to that matter that there was great variance of differences between penises and how they looked erect, flaccid, circumcised, uncircumcised. I was satisfied based on a group of experienced adults that it was no of a significant matter that you are making it out to be." [366] 1. During cross-examination Detective Chaplin acknowledged that he sought advice from others as to how important the difference might be. [367] He had acknowledged there was a discrepancy but refused to accept it as being a "material discrepancy" [368] and a "serious deficiency." [369] 2. As noted earlier the Plaintiff challenged the time and source of Detective Chaplin's knowledge of the discrepancy in the Complainant's account as to circumcision but no challenge was made as to the fact of him consulting on the issue. The significance of this goes to Detective Chaplin's awareness of the discrepancy in the Complainant's observation as to circumcision before the day of arrest and charge. His acknowledgement of its significance was not disputed. As to the decision to invoke the criminal process, it is Detective Chaplin's own assessment of the matter which first must be considered. 3. On this Counsel for the Defendant correctly submitted as to the conversation between Detective Chaplin and other colleagues:- "Irrespective of whether that conversation occurred, the explanation that is contained within that conversation is a cogent explanation as to how a jury could believe the complainant's story, even though she says one thing about his penis and he says another. It is never suggested anywhere, either in submissions or in cross‑examination that the explanation that Detective Chaplin gave didn't provide a proper basis for reconciling the inconsistency. It's just said it's an inconsistency and none of the questions or submissions actually deal with the veracity of the explanation given. In those circumstances, your Honour could not be satisfied that this was not an appropriate case for the invocation of the criminal process, even though there is that identified difference, perhaps, between the evidence." [370] 1. Detective Chaplin did not regard the discrepancy as to circumcision to be of significance to his assessment to proceed. The Complainant's statement evidences a conclusion which she drew retrospectively based on her knowledge (at the time of the statement) of the difference between a circumcised and uncircumcised penis. Detective Chaplin assessed the statement also in light of her age at the time alleged and the fact she may not have been aware. No question was put nor submission made suggesting that that aspect of the assessment was not undertaken, was not relevant or that conclusion reached was unreasonable. 2. Detective Chaplin accepted that there was a question mark in relation to the Complainant's description of the Plaintiff's area around the penis being hairy bearing in mind the Plaintiff's responses in the ERISP. However, the account expressed by the Complainant cannot be dismissed as being inaccurate. Detective Chaplin had regard to the content of the Complainant's statement that was being recalled by CB, and kept in mind the Complainant's condition at the time. Whilst there were variations between the Complainant's statements and CB's statement I do not accept that they were inconsistent. 3. In the context of the other information provided and the age of the Complainant at the time I accept Detective Chaplin's assessment was as he stated. The Plaintiff in the ERISP volunteered the account of the phone discussion he had with the Complainant during the surveillance intercept on the day of his arrest. However he also revealed other information in relation to what he said when having sex with R. This was seen by Detective Chaplin as corresponding with the allegations made by the Complainant about the alleged assaults on her. 4. I have earlier described the difficulties experienced with obtaining a formal statement from R. I do not accept that up until the point of charging the information possessed or the circumstances were such as to oblige Detective Chaplin to make further inquiries as alleged by the Plaintiff. 5. The COPS entry also records that once the Plaintiff became aware of the allegations the investigative options would be limited. Although the Plaintiff at the time may have been the subject of restraint through the ADVO I am satisfied that Detective feared in light of the Plaintiff's previous history that this would not prevent him from making contact. There was still contact between R and the Plaintiff. It was also confirmed in the ERISP. [371] I do not consider the fact that there had been no contact between the Plaintiff and the Complainant from March 2010 until the date of the interface detracted from his concern. 6. Counsel for the Plaintiff put to Detective Chaplin that he had earlier conceded on 22 October 2015 [372] that the brief was "light" and this was prior to him seeking the listening device warrant. Detective Chaplin acknowledged this. It was next put to him that the account he had given with respect of the claimed relationship was false because he knew the case against the Plaintiff was not up to the mark and that it was an effort by him to try and explain why he had changed direction and arrested the Plaintiff when he did. [373] Detective Chaplin denied both propositions. 7. I accept Detective Chaplin's denials of the proposition put to him in cross-examination that he did not manufacture the relationship between the Plaintiff and R as the reason to precede to the interface. In describing the brief as light before attempting the interface Detective Chaplin explained what he meant being that the matter was a historic matter and lacking forensic evidence or witnesses. He was attempting to engage the Plaintiff in the hope of securing additional evidence. [374] 8. In determining when to bring proceedings a practical approach needs to be considered. I accept that Detective Chaplin did honestly believe that it was proper to invoke the criminal process at the time he did. Based on the information in his possession at the time and the circumstances that confronted him I am satisfied that it was reasonable of him to so act. It follows that the Plaintiff has not established an absence of reasonable and probable cause. Malice 1. Assuming that contrary to my findings, the Plaintiff establishes lack of reasonable and probable cause the question which arises is whether the Plaintiff has demonstrated that Detective Chaplin acted with malice. 2. In A, the plurality stated:- "[40] Similarly, where a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make. Absence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided. [41] In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice. [42] In the present case, which is not unusual, the second respondent's conduct was being overseen by other authorities (that, indeed, is said to be part of the problem), and he must have been aware that, soon after the charges were laid, the proceedings could be taken over by an independent prosecuting authority and, presumably, discontinued if the view were taken that there was not a proper case to go forward. In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in a case of a prosecution instituted in a bureaucratic setting, where the prosecutor's decision is subject to layers of scrutiny and to potential review." [375] 1. In this case it is relevant that the charges brought against the Plaintiff were such that they would ultimately be taken on by the ODPP. In respect of the proceedings of an apprehended violence order, there was evidence that these were also the subject of an account of the domestic violence team. [376] 2. The Plaintiff's written submissions in relation to this question rely on specific conduct of Detective Chaplin:- 1. Detective Chaplin held no requisite belief as to reasonable and probable cause and/or there was no objective basis for having reasonable and probable cause; 2. Detective Chaplin actively misled the Plaintiff during the course of the electronically recorded interview which took place on 6 June 2012 by: 1. Skipping over [the complainant's] erroneous allegation about the Plaintiff's penis; 2. Deliberately avoiding telling the Plaintiff what he knew about the erroneous allegation when asked by the Plaintiff directly for information concerning [the complainant's] statements about his private parts. 1. Detective Chaplin's completion of the antecedents which he knew would be relied upon by the bail sergeant, Sergeant Day (and any magistrate charged with determining questions about bail). [377] 1. The Amended Statement of Claim asserted that Detective Chaplin did not disclose to the Court or the ODPP the fact that he was aware at the time of the commencement of the prosecution and its maintenance the fact the Plaintiff's genitalia were the opposite to that asserted by the Complainant. [378] The Defendant asserted some uncertainty as to whether this was still being advanced by the Plaintiff. [379] I have regarded that matter as being incorporated in the Plaintiff's argument as to the preparation by Detective Chaplin of the antecedents referred to earlier. 2. The difficulty of relying on an absence of reasonable and probable cause to establish malice was referred to by the plurality in A where it was stated:- "[90] No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism - like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause - may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated. [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution - a purpose other than a proper purpose (emphasis added)." [380] Complainant's statement as to circumcision not put to the Plaintiff in the ERISP 1. The Plaintiff draws attention to the failure on the part of Detective Chaplin to ask the Plaintiff in his record of interview whether or not he was circumcised. 2. In cross-examination, Detective Chaplin accepted that he relied on what R told him to explain why he did not ask the Plaintiff anything about what the Complainant had said in relation to the question of circumcision. [381] Counsel for the Defendant also submitted that proper and fair regard for the way questions were being asked in the ERISP compared to the Complaint's statement reveal that Detective Chaplin was not putting word for word by word, line by line the statement. It was submitted that what was being done was drawing to the Plaintiff's attention the time and context at which it is said that certain things occurred. The fact that R told the Detective Chaplin of the Plaintiff not being circumcised was asserted to be consistent with the matter not being raised with him during the ERISP. I also accept that the state of the penis does not provide context as to the time or place as to whether an element of the offence occurred. However, the issue as I see it, is the nature of Detective Chaplin's obligations at the charge stage. 3. During oral submissions I asked Counsel for the Plaintiff what were Detective Chaplin's obligations at the charge stage. The response was as follows:- "CAMPBELL: To be the instrument of last resort. The charge phase, well in this case by the time they get to the charge phase got strong denials, confirmed testing wherever they test him that he's passed tests. No reason to doubt that he's not telling the truth. They've got to their own knowledge a complaint that was made in compromised circumstances of bouncing off walls, et cetera that your Honour knows about. Turns to a girl that is entirely different to what's in the complainant's statement, with nothing validating it from the mother. With her making fundamental misrepresentations about the man's penis to their knowledge. With other avenues of inquiry still unexplored and open to them for further investigation that could either support or contradict which we know later contradicted. In those circumstances we would say that the correct thing to do after our review was to say to [the Plaintiff] thank you for coming in today and for answering our questions, we'll consider your answers and the information you've provided further and if appropriate we'll get back in touch with you in the future, not to lay a charge then and there; that was the correct thing to do. In other words same point, it was premature for a decision to be made therefore you cannot have reasonable, emphasis on the word reasonable, objective reasonable and probable cause until you've done those things that reasonable person in your position would have done before asking themselves the relevant questions that underpin the decision making process. Not to say X says you did it. You say I didn't do it and I'm going to shut my eyes to everything else. That's simply a dereliction of the obligation." [382] 1. Those submissions were criticised by Counsel for the Defendant who stated:- "VILLA: There seems to be this assumption on this side of the Bar table that this is an appropriate forum for a Royal Commission into what all of the members of the Blacktown Detectives office knew about [the Plaintiff]. It's a nonsense, with respect but the proposition is that even if he hadn't had those conversations, at the point in time at which he charges and institutes proceedings, on the hypothesis your Honour has put, he's not aware that there's a discrepancy between the description given by the plaintiff and the plaintiff's actual state of anatomy and, your Honour asked Mr Campbell very directly because Mr Campbell kept on talking about "should" and "obligation" and "duty" and "mandate" and all of those terms. HIS HONOUR: To investigate, yes. VILLA: Your Honour asked what the source of that obligation was and all your Honour got was the circular answer; that the obligation was because to charge without doing so couldn't give reasonable grounds. No authority is put before your Honour for the proposition that is advanced by the plaintiff in that regard; and there's a very good reason why there is no authority put before your Honour, and that is because no such authority exists." [383] 1. In my view the Plaintiff's argument imposes an obligation which appears at variance with that set out in the authorities earlier referred to. However desirable, there was no obligation on Detective Chaplin to raise the matter of circumcision, particularly in circumstances where I have accepted that he was aware of the inaccuracy of that part of the Complainant's statement. The argument contended by the Plaintiff to the contrary is rejected. [384] Complainant's description as to circumcision not revealed to the Plaintiff in response to his request 1. When asked about an alleged incident of oral sex with the Complainant the Plaintiff in the ERISP made a request of Police to require the Complainant to describe his physical appearance and to test her. [385] 2. This was not strictly a request for information, as the Plaintiff did not ask what the Complainant had told the Defendant about his intimate parts. In this context Detective Chaplin's response to questions put in cross-examination which culminated with suggestion that his conduct was acknowledged by him to be highly improper does not accurately narrate the evidence. [386] The context in which that acknowledgement was made was as follows: "Q. We'll come back to the question I put to you at line 18; "If he asked you in the course of the interview, is she able to point to anything about me, you would've honestly answered what he said, wouldn't you", answer, "Yes"? A. Yes. Q. If that meant, can she tell you anything about my intimate parts, you would've told him what she had said to you, wouldn't you? A. Yes. Q. You would've told him honestly as to what she had said to you, wouldn't you? A. Yes. Q. Would be grossly improper of you, of a police officer in those circumstances, not to tell him? A. Yes." [387] 1. To the extent that the Plaintiff's statements in the ERISP may have been viewed as an enquiry, Detective Chaplin put to the Plaintiff an account from the Complainant that he "actually had a lot of hair around your penis and it was right up in her face." [388] 2. On resumption of the hearing on 18 February 2012 the following exchange occurs in cross-examination of Detective Chaplin:- "Q. You didn't volunteer any information with respect to her description about his penis being circumcised or not circumcised; did you? A. No. Q. Why not? A. I don't know why at the time. I had a discussion with people prior about erect penises looking like circumcised penises when they were uncircumcised. The fact that her statement always identified an erect penis it was in keeping that it could have been the case. Q. But you see, constable, do you remember the series of questions I asked you just a little while ago were I took you back to what you said on the previous occasion in court? A. Yes. Q. How you said that if he had asked about the topic you would have told him and you would have told him honestly what she had to say? A. Yes. Q. You didn't do that; did you? A. I divulged some parts to him. The fact that I didn't do that. Q. You didn't tell him that she had told you that he had a circumcised penis; did you? A. No." [389] 1. The fact that Detective Chaplin responded by raising the description as to the area around the penis being so hairy does not sit with a deliberate intention to conceal. When the issue was raised by the Plaintiff, Detective Chaplin was paraphrasing from the Complainant's statement at [39] – [40]. The Complainant's description as to circumcision was at [20] of her statement. To the extent it was not raised by Detective Chaplin and ought to have been then I accept that the omission was explicable and an improper motive is not to be inferred. 2. The third issue relied upon was the failure of the Detective Chaplin to accurately record in the antecedents the true position of the Complainant's statement being inaccurate as to the question of circumcision. That related to the following statement submitted on the question of bail: "The offences the accused has alleged to have committed against [the complainant] are of an extremely serious nature. The prosecution will rely on a very detailed statement from [the complainant], during which she is able to identify a lot of first person conversation and identifies intermit [sic] knowledge of the accused anatomy." [390] 1. That statement does not disclose the information that Detective Chaplin obtained and on his evidence accepted from R that confirmed that the Complainant's statement as to the Plaintiff's penis being circumcised was incorrect. 2. Detective Chaplin's evidence on this issue is as follows:- "Q. Then you have pointed to specific matters in that statement during which she's able to identify a lot of first person conversation? A. Yes. Q. And identifies "intermit" which of course is intimate, that is I N T I M A T E; isn't it? A. Yes. Q. Knowledge the accused's anatomy? A. Yes. Q. But what you knew about her expression of identification of the accused's anatomy was that she'd got it wrong, wasn't it? A. Yes. Q. Why didn't you bring that fact to the attention of those who were charged with deciding on this man's bail? A. This relates to the fact that she saw his penis each time an alleged assault occurred. So the fact that she saw it each time, I've put in there the fact that it was uncircumcised when she says it was, it was in her victim statement. Q. What, the fact that it was uncircumcised that wasn't in her victim's statement. She didn't say I said it was uncircumcised when it was. A. No, she identifies in her victim statement, or her statement of complaint. Q. I don't understand your answer, with respect. Can you tell me again why you would put in here as a fact that you would regard as being of importance in the refusal of bail that she was able to identify "intimit", which should mean intimate, knowledge of the accused's anatomy? A. When it comes to sexual assaults, the fact that they see that particular person commit the offence is of importance. Q. But you see, with respect, any girl, whatever age, who is going to allege as a part of the charges against someone, that they were asked to perform oral sex, for example, on the person's penis, is going to see the anatomy, aren't they? A. Yes. Q. The fact that they said to you they've seen a penis means nothing, doesn't it? A. Well, it depends on the position of the assault at the time and how it occurs; they're important things in a sexual assault matter. Q. What you were trying to say is she was only giving intimate description of it, that is she wasn't just saying, I saw his penis? A. But she clearly seen it on all occasions. Q. What you were conveying in your answer, sir, was she's got a knowledge about his intimate parts that she would not have if she had not seen it. That's effectively what you're trying to convey, isn't it? A. Sorry, repeat that. Q. That is she can tell us about his private parts things that she wouldn't be able to tell us if she hadn't seen it? A. Yes. Q. The two things that she'd told you about, one was seriously up for question, and the other was clearly wrong? A. Yes. Q. You didn't convey that in the statement, did you? A. No. Q. You mislead these people, didn't you? A. I didn't mislead them, no. HIS HONOUR Q. What was the purpose of you having that last sentence? A. Your Honour Q. What were you trying to achieve by that last sentence that Mr Campbell has just referred you to? A. Sorry, your Honour, there was no indication that it was a finger, or anything of use Q. Sorry? A. There was no indication that it was like a finger or certainly a penis that was inserted, nothing else. There was intimate knowledge of what was actually occurring to her during the assaults. Q. I'm not sure I follow that. But what were you trying to convey? A. The sexual cases, the experience I've had with some of them, there's discrepancies as to whether the person inserts a finger or a penis, who it is, depending on the position the person's in, so I'm just I clearly outlined the fact that she was sure it was him, sure of exactly what was happening during all of these assaults. CAMPBELL Q. Constable, what you've said there is, identifies intimate knowledge of the anatomy? A. Yes. Q. That's the thing. A. That's correct. Q. She's able to give some kind of a description of the thing that you couldn't give if you hadn't been through what she said she'd been through? A. That's correct. Q. But that was repudiated by the information you knew in the statement, wasn't it? A. It was different to the statement Q. No, it was repudiated, wasn't it? A. What's repudiated? Q. It was demonstrated to be wrong? A. Yes. Q. What you should've said in there, despite [the complainant] having been able to identify a lot of first person conversation, she was unable to correctly provide intimate knowledge of the accused's anatomy, and in fact gave us a wrong description of it. That's what you should've said, isn't it? A. I could've put that in there, yeah. Q. Instead you did the complete opposite, didn't you? A. It's not the complete opposite. Q. You're telling the reader, really and truly this is a strong Crown case, you can believe this girl because she can tell us things about this man's penis that she shouldn't be able to tell us if she hadn't seen it? A. That's correct. Q. Her statement, once it was tested by you by other means, was just completely incapable of doing that, wasn't it? A. Sorry, her statement? Q. Her statement gave a description that you knew you believed to be wrong? A. Believed to be inaccurate, yes. Q. Wrong. A. Well, inaccurate. Q. She says one thing, it's the other. A. She says that she believed it was circumcised, that she only saw it erect. So the fact that she may have got it wrong, that was going to be a consideration for the Court. It was going to be her evidence tested against whether it was erect or whether it wasn't. Q. How is it going to be tested when you didn't bring up the issue with [the Plaintiff], and he didn't get a chance to, notwithstanding that he wanted to know about it, discuss it with you during the course of his interview? A. If it was or it wasn't circumcised based on the evidence she'd given, and the investigation I've done previously that wouldn't have affected the difference of the charge. Q. No, that's not what you said. You said it can be tested in court? A. Yep, but I'm saying at the time of charge. Q. No, but you didn't say that. What you said before was you knew that it was something that could be tested in court. How did you expect what she said at paragraph 20 to be tested in court in circumstances where you didn't give [the Plaintiff] a chance to deal with it in his interview, and in circumstances where you hadn't recorded anything about the inconsistency in R's statement? A. [the Plaintiff] would've been aware if he was circumcised or uncircumcised. Q. Are you saying that [the Plaintiff] would have to jump into the witness box and tell the jury about this? A. I don't know, they could've produced evidence to say that that was the case. Q. By going into the witness box? A. No, you could've produced an expert statement. Q. You were saying let's put the onus back on to him to deal with? A. I'm just saying that that was a possibility. Q. But you know as the investigating officer in charge of a case responsible for the prosecution offence that it's your duty to bring knowledge of an accused person inconsistencies and weaknesses in a Crown case, just as much as their strengths? A. That's right, but I didn't consider that a weakness at the time. It was consistent. Q. You considered it a strength when you filled out the antecedents form to support the opposition to bail, didn't you? A. Yes. Q. It wasn't, was it? A. I believed it was. Q. What, that she'd got it wrong? A. The fact that it was consistent with the fact that during each alleged assault his penis was erect and may have appeared to be circumcised." [391] 1. Counsel for the Plaintiff contended in oral submissions:- "CAMPBELL: Transcript. This is about the inclusion of the reference to the girl being able to give evidence about the intimate nature in the context of it being in the previous page, well in fact you knew that she'd given the wrong information about it and then your Honour sees down the foot of the page "What were you trying to achieve?" "Well there's no indication it was like a finger or certainly a penis that was inserted, nothing else. There was intimate knowledge of what was actually occurring". It's just again lame nonsense coming out of the mouth when he's got no explanation for what he has put in there. Then it continues on and he just wouldn't accept that which he should have accepted through 480, 481, 482. He also puts information there that further supports the improper purpose. HIS HONOUR: A finger is not an intimate knowledge of the accused's anatomy. CAMPBELL: Correct, his evidence, I don't like to use the word loosely, your Honour but it's the only way I can say it, his evidence is just a nonsense about all this, your Honour. One could forgive him if he said nothing one way or the other about it in his statement but he wanted to let the person who makes the decision about bail know this girl is able to tell you things about his private parts that she shouldn't be able to tell you about if he hasn't done what she says was done and that's why you should keep him locked up …" [392] 1. Counsel for the Defendant contended in written submissions: "[17] … In the Antecedents section the Facts Sheet records that the complainant "is able to identify a lot of first person conversation and identifies intermit [scil.. – intimate] knowledge of the accused anatomy." That statement is literally correct, even if the content of the complainant's description of the Plaintiff's anatomy is mistaken. Det Chaplin explained that he intended to convey that the complainant was able to precisely describe which part of the Plaintiff's anatomy was involved in the assaults on her (ie that it was definitely a penis and not, for example, a penis, a matter which he regarded as important in sexual assault cases) [Day 7, T460.6-.15]. The Antecedents also records that the complainant and her mother "have genuine concerns for their safety if the accused is released on conditional bail." Upon a proper consideration of the totality of the evidence on this issue, that statement is not demonstrated to be false." And further: "[81] This is then said to be "sufficient for malice". Except that it is not. Even assuming the accuracy of the Plaintiff's description of Det Chaplin's conduct, what must be established is not that Det Chaplin engaged in improper behaviour in the course of the investigation, or in the preparation of an Antecedents (which, it should be noted, was to be deployed after the fact of charge), but that in instituting the criminal process he did so for a purpose other the proper invocation of the criminal justice system in relation to the very serious allegations made against the Plaintiff. There is no basis for concluding other than that Det Chaplin charged the Plaintiff for the very proper basis of having those serious allegations, made by a witness he regarded as credible, being tested before a court of law." 1. If Detective Chaplin was intending to convey that what the Complainant was able to identify was the Plaintiff's penis not its features then his choice of expression was poor to say the least. Detective Chaplin would however have been aware at the time of preparing the antecedents that the Complainant's statement (that he obtained) would in due course have to be provided to the Plaintiff as part of the prosecution brief thereby disclosing the inaccuracy in the description. It would also be subject to scrutiny in Court and from the ODPP. He stated that he did not regard it as a weakness as it was consistent with the fact that during each alleged assault the Plaintiff's penis was erect which may have appeared circumcised. 2. The obligations of prosecutors responsible for the preparation of facts sheets for use in bail hearings were the subject of discussion in Zreika v State of NSW by Walmsley DCJ. In that case, his Honour stated: "[147] A police officer who prepares a facts sheet for a case, knowing it will be used by the prosecutor, who will usually not have witness statements, should be aware of the heavy responsibility he or she has. Where, as here, a man has to prove exceptional circumstances to achieve bail, the need for the obligations of honesty and fairness is all the more apparent, and the potential for the gross misuse of the position of advocate can arise. It is not good enough to say (as Mr Neil said to me) well the accused's solicitor corrected this or that fact. The facts sheet is usually the first document and often the only factual document read by a magistrate on a bail application, and, as advocates know well, first impressions can be powerful, and difficult to shift, even by subsequently introduced exculpatory evidence. Magistrates and judges look to prosecutors for a fair presentation of the facts. None of the magistrates who dealt with Mr Zreika's case was given a fair view of the facts. That was not the fault of the prosecutors. Their conduct is not in question here. The decisions of the magistrates are not in question here. What I have said is a criticism of Detective Constable Ryder, and those who apparently failed to teach her that what she tells a prosecutor or fails to, can reflect poorly on the police prosecuting service, and may lead to injustices at her hands." [393] 1. Similar criticisms can be made here. However even if I accept the Plaintiff's contention that Detective Chaplin did act improperly, I cannot be satisfied that in commencing and maintaining the prosecution he did so for a purpose other than the proper invocation of the criminal law bearing in mind the material he had and the view which he formed of it. 2. The Plaintiff also submitted an alternative basis on which it claimed that malice could be established. This was Detective Chaplin's reason for instituting the proceedings and the concerns he had for the safety of the Complainant and R if no charges were laid. [394] The Plaintiff submitted at [115] of its written submissions:- "In a sense, the whole thing becomes, from the perspective of the State, quite circular. It, through Detective Chaplin, did not have the reasonable and probable cause for the laying of the charges, the position remains … the purpose of the laying of the charges … create a situation where [the Plaintiff] was either on remand or in prison to satisfy Detective Chaplin's supposed concern about [R] and [the complainant]." 1. As the Defendant suggests, much of the questioning on this matter be considered in the context enquiring as to why Detective Chaplin chose to arrest the Plaintiff rather than inviting him to attend the police station to "have a chat." [395] I accept that this evidence can also be seen in the context of a decision to arrest and charge rather than to issue a field court attendance notice. However, the evidence below is of a different quality. That evidence was as follows:- "Q. Yes. A. No, because I had a duty of care to the witness. Q. You see you also had a duty of care to [the Plaintiff]; didn't you? VILLA: Your Honour, I object to that if it's intended to reflect a legal stand (sic). CAMPBELL: No. HIS HONOUR: I didn't think it was. CAMPBELL Q. You don't just pluck somebody off the street and throw them into a gaol cell because you say you've a duty of care to somebody out on the street; do you? A. No, I do not. Q. There were plenty of ways that you could have made it clear to [the Plaintiff], I suggest, that he should not go anywhere near people. You could serve apprehended violence orders, interim orders on him. He was subject to parole. You could admonish him quite clearly as to the fact that he should just take it easy while you further your investigation and consider what the ultimate result of the investigation will be? A. No. Q. You say that the reason you didn't take that approach is because you were concerned that if you did there may be some risk to the safety of [the complainant]? A. Yes. Q. The reason you later charged, when you did, you say, is out of concern for [the complainant] ; is that right? A. The reason I laid the charge was out of concern Q. When you did, I said. A. Yes. Q. Was out of a concern for her? A. Yes. Q. If you didn't have that concern for her you wouldn't have laid the charges and you would have carried out the inquiries and investigations that I suggested of you; wouldn't you? A. The concerns would have had to have been a completely different circumstance. Q. If you had the same facts as to the allegations and as to the denial but you didn't have the concerns as to her present safety, you wouldn't have charged this man, you would have carried out further investigations; wouldn't you? A. No, I still would have charged him. Q. Why? A. Because I believed I had sufficient evidence to proceed with the charge. I had reasonable grounds to arrest him and I proceeded. Q. But you told us the reason you charged was your concern about her safety. A. The reason why I wouldn't issue an apprehended violence order and say please stay away from her is because that was something I should have considered, the AVO." [396] 1. I do not accept the Defendant's contention that in this exchange Detective Chaplin was directing his attention to the decision to arrest and charge rather than issue a field court attendance notice with the protection of an ADVO. The evidence goes to the very question of whether to commence a prosecution. 2. In its initial written submissions the Defendant did not raise objection to the Plaintiff advancing the case of malice based on the aforementioned premise. [397] In oral submissions, the Defendant asserted that the Plaintiff could not rely on its alternative case [398] for three reasons:- 1. It is not an available argument a matter of law; 2. It was not pleaded nor particularised; and 3. It was not a matter properly put to Detective Chaplin in cross-examination. 1. In the latter respect, it was asserted that the matter ought to have been put to Detective Chaplin on the following basis:- "And your concern for the victim was the only reason you charged. You didn't charge because you believed there was a proper case to be put before a jury or before committal proceedings or a proper case to proceed through the criminal justice process." [399] 1. On a fair reading of this evidence, I am not satisfied that concern for the victim was the sole or dominant purpose motivating the decision to charge. Detective Chaplin believed that he had sufficient evidence to precede with the charge and so stated. [400] Nor was such an alternative case directly put to Detective Chaplin in cross-examination. 2. If I am wrong on this view, I would in any event, not have allowed the Plaintiff to advance the case based on this ground. Whilst it is true that this material came from Detective Chaplin's own evidence and no objection was taken, I accept that it was evidence potentially relevant to other issues in the case such as a suggestion that Detective Chaplin did not have the relevant state of mind to arrest and charge. 3. The Plaintiff did not seek leave to amend, to particularise the claim it now seeks to make. 4. In my view, this is not an appropriate case where the Plaintiff should be able to rely on the assertion made in its written submissions without having properly pleaded and put the matter to Detective Chaplin. [401] Whether Detective Chaplin maintained the criminal proceedings after 7 June 2012 and the apprehended domestic violence order 1. In view of the fact that I have held that the Plaintiff has failed to establish his case as to malicious prosecution it is unnecessary to consider whether Detective Chaplin maintained the proceedings after 7 June 2012. I do so in the event I am wrong in that regard. 2. The relevant principles relating to maintenance of a prosecution were set out by Macfarlan JA (Tobias JA and Sackville AJA agreeing) in State of New South Wales v Landini. [402] 3. In Sahade v Bischoff, Gleeson JA referred to Landini and stated:- "[121] … The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false." [403] 1. Although a precise time when the ODPP took over the matter has not been identified, I accept that it was after 7 June 2012. 2. The Plaintiff asserts that the Defendant called evidence in relation to further inquiries undertaken, in particular, the obtaining of the statement from R, Detective Senior Constable Crystal James, the Complainant's father, Ms Laura Hanley, Ms Fran Bonanno, Mr Rick Daley, Mr Ben Krone, Mr William Conway and Ms Catherine Pugh. [404] The Plaintiff asserted that as the State led evidence that Detective Chaplin read the various statements and was then asked whether those statements caused him to conclude that the charges against the Plaintiff should be withdrawn were not proceeded with, Detective Chaplin remained relevantly a prosecutor. The Plaintiff further asserted that this position was enhanced by the fact that Detective Chaplin's opinion was sought as to whether the charges should be maintained after The Complainant's lies about a further sexual assault were revealed. [405] 3. Detective Chaplin also gave evidence after arrest and charge he was seeking expert evidence as to the question of circumcision. 4. The Defendant asserts that there was no evidence that would constitute maintenance and the only evidence as to what Detective Chaplin did was to respond to requisitions and continue the investigation aspects in his role in consultation with the ODPP. This is not correct. 5. Pursuant to s 9(1) of the Director of Public Prosecutions Act 1986 (NSW), the decision as to whether to proceed or not proceed, or discontinue the prosecution is a matter for the Director of Public Prosecutions. The presence of this power does not define whether Detective Chaplin maintained the proceedings. 6. So far as the various inquiries were concerned there is evidence that some of these were directed to Detective Chaplin by the ODPP and responded to by him. [406] Amongst fulfilling other requisitions there is evidence that the ODPP requested Detective Senior Constable Crystal James take photographs of the Seven Hill home, and for her to make a statement as well as asking her to obtain a statement from the Complainant's father and R. However a number of the statements obtained by Detective Chaplin referred to earlier in these reasons were not mentioned in the ODPP correspondence. Detective Chaplin gave evidence that he took the statements from Ms Laura Hanley, Ms Fran Bonanno, Mr Rick Daley, Mr Ben Krone, Mr William Conway and Ms Catherine Pugh. [407] Detective Chaplin's evidence was that he was trying to cover all bases and to this end made enquiries post charge in relation to obtaining expert in relation to circumcision. There was no evidence that this was sought by anyone bar Detective Chaplin. Further the fact that Detective Chaplin was asked to liaise with the Complainant's family and provide an opinion as to whether proceedings should be maintained after further revelations came to light indicates that he had a positive role as the maintenance of the charges. In all those circumstances I would have found that Detective Chaplin did maintain the proceedings after 7 June 2012 notwithstanding the ODPP involvement. 7. Insofar as the apprehended violence order was concerned, I accept that pursuant to s 49(1)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), Detective Chaplin was obliged to make an application for an apprehended violence order in circumstances where he in fact suspected or believed that a domestic violence offence was likely to be committed by the Plaintiff. However his role did not stop there. The withdrawal policy indicated that he was required to have an ongoing role in determining whether the application should be withdrawn. [408] Upon the issue arising as to the fate of the apprehended domestic violence order proceedings following termination of the criminal proceedings, Detective Chaplin undertook the administrative exercise which led to the termination of the apprehended domestic violence order proceedings by preparing a memorandum dated 11 August 2013. [409] I am satisfied that Detective Chaplin did maintain the proceedings after 7 June 2012. DAMAGES 1. Accepting that Detective Chaplin did not have lawful authority to arrest and detain the Plaintiff, the Plaintiff is entitled to damages for trespass to the person constituted by battery, and for the damages for false imprisonment up to the point where the imprisonment was authorised by a refusal of bail. The Plaintiff asserts that he is entitled to the sum of $25,000. In oral submissions, attention was drawn to the case of State of New South Wales v Abed [410] where an award of $20,000 was upheld in somewhat analogous circumstances (being $10,000 for trespass and $10,000 for false imprisonment). 2. The period of imprisonment in the present case on the Defendant's own account, was longer than that in Abed. The Plaintiff was arrested at 6:35pm, charged at 11:33pm, and applied for bail before the Local Court on the following day. It was not asserted by the Defendant that the time in the interview was not part of the period of the imprisonment, and the Defendant in any event, accepts the period of false imprisonment as one day. 3. Whilst the Plaintiff has drawn attention to the sum of $20,000 involved in Zaravinos v State of New South Wales, [411] that award included a component for aggravated and exemplary damages. [412] 4. The Plaintiff in this case was patted down, handcuffed and put in a vehicle to be taken to Merrylands Police Station where he advised of his rights, interviewed, photographed, charged and refused bail. I do not accept that he was strip-searched. He was placed in cells, first at Merrylands and subsequently at Fairfield. In my view, in light of the Defendant's concession, an amount of $10,000 should be awarded for the trespass, and $10,000 for the false imprisonment, making a total of $20,000. 5. I would award interest at 2% to date being $1,662. 6. The Plaintiff also claims aggravated and exemplary damages. The aggravated damages claim was submitted as follows:- "[The Plaintiff]'s arrest, detention and imprisonment was aggravated by its length and the circumstances in which it arose which was a consequence of, at least, Detective Chaplin's lack of proper attention to investigating [the complainant's] complaints but much more likely, as a result of his determination to arrest and lay charges notwithstanding the inadequate material which, upon even the most basic enquiries, was revealed to be unreliable. That lack of reliability does not seem to have been disclosed to anyone and instead, when disclosure was required to a bail sergeant and the court, was concealed and in fact converted from a weakness to an assertion of strength in the case (see the antecedents). That [the Plaintiff] should languish in gaol for 10 months as a consequence of the actions of Detective Chaplin warrants an award of aggravated damages. The sum of $50,000 is appropriate." [413] 1. These submissions focus on the circumstances of Detective Chaplin performing functions in the light of inadequate and unreliable material. I have found against the Plaintiff on the claim for malicious prosecution but in his favour on the claim for trespass and false imprisonment. Insofar as the Plaintiff has succeeded there is no evidence of any apology nor any acknowledgement of the error made. 2. On the evidence I am satisfied that the failure to effect a lawful arrest and the false imprisonment which ensued, arose in circumstances of a failure to fully understand the circumstances in which those powers could be activated. Notwithstanding this there is no suggestion that the Plaintiff was treated in otherwise than a polite and courteous manner. [414] This is particularly clear from the ERISP [415] and custody records. [416] Constable Scott-Mahjet also gave evidence that this was part of his training to facilitate cooperation from the offender. [417] Much of the Plaintiff's hurt feelings were in my view directed to the Complainant and R. In the circumstances this is not a case where it is appropriate for aggravated damages. 3. So far as exemplary damages are concerned, the submission made was that an award is appropriate to express the Court's disapproval of Detective Chaplin's conduct. [418] In my view there is no evidence that the actions of Detective Chaplin as found by me involved conscious wrongdoing, high handed, outrageous or contemptuous conduct such as need to be marked with the Courts disapproval by an award of exemplary damages. [419] 4. If I am wrong on my findings on malicious prosecution the Plaintiff would be entitled to damages beyond the amount referred to. 5. In relation to loss of earnings, the Plaintiff was arrested on 6 June 2012. He has not worked since being released from prison in Parklea in April 2013. [420] He had previously worked as a landscaper with Universal Landscape. His evidence was that after his release he was not successful in getting back to work with that employer. He had apparently been promised that he would have a job, but eventually he went to the Fair Work Ombudsman who found in his favour. Universal had not terminated him but kept, to use his words, "stringing him along" and he decided to set up his own business before the beginning of the financial year, which I assume was 1 July 2012. [421] The Defendant did not challenge this evidence. 6. The Plaintiff's tax returns for the year ending 30 June 2010 show him earning a gross income of approximately $50,000 and for the year ending 30 June 2011 a gross income was $56,170. [422] 7. For the year ending 30 June 2012, the Plaintiff's earnings were $17,600. However, three months in the middle of that year reflects the period of his incarceration on assault charges, and one month was incarceration was on the sexual charges subject to these proceedings. 8. The Defendant submits that the limited income is a reflection of the difficulties imposed on the Plaintiff's employment by his prior criminal history. No basis in the evidence was established for this contention. On my calculations, the Plaintiff's earnings for the year ending 30 June 2011, would have been approximately $870 per week. He was incarcerated from 7 June 2012 – 10 April 2013, being a total of 44 weeks, which in my view, would entitle him to the net sum of $38,280. 9. In relation to the balance of the period to date, the Defendant asserts that the Plaintiff's employment prospects and employability were already significantly impaired as a result of his prior criminal history and ongoing history of breaching ADVOs. It is asserted that the extent to which the Plaintiff's ongoing employability was affected by psychological sequelae is limited. However, the Defendant presents no evidence that such an impairment has occurred. Bearing in mind the kind of work the Plaintiff performed prior to his incarceration this cannot be inferred. In cross-examination, the Plaintiff stated that Universal's decision not to give him work was because they did not have work to give. [423] The Plaintiff also asserted that he did not look for other work because Universal had undertaken to put him on. [424] 10. The Defendant asserted that the Plaintiff's psychological response is fuelled by anger towards the Complainant, her mother, and the desire for vindication through these civil proceedings. Consequently, a vindication would occur if damages were awarded and any income for the period subsequent to incarceration should be limited to a period of approximately 3 years. 11. The Defendant has not alleged a failure to mitigate. [425] 12. Following release from custody, the Plaintiff went to see his general practitioner of 20 years, Dr Poulos, who referred him to see a psychologist, Ms Helen Fotiadis. [426] He stated that he could recall seeing Ms Fotiadis for up to 8 to 9 months, [427] and further saw Dr Roberts, [428] and Dr Brown. [429] 13. In his evidence, the Plaintiff maintained that he could not go back to work, stating:- "Q. As of now why can't you go to work? A. Still I feel - I just get flustered over everything. Being in certain environments - a few months ago I met up with a mate in the city; I was waiting in, like, an alleyway for him - not an alleyway in a street - I saw some girl that was jogging - she was, like, walked up towards me; she saw me; she turned around - I just spun out. I just really started getting all paranoid, and all of a sudden I though, you know, that this girl would make assumptions I was going to do something; that she was going to call the police. So I'm just, you know, wary being in certain situations - around certain people." [430] 1. Ms Fotiadis, psychologist, saw the Plaintiff on referral by his general practitioner, by Dr Poulos, on 7 August 2013. In her report, Ms Fotiadis states:- "[The Plaintiff] has also presented with anxiety symptomology such as increased heart rate from past thoughts, anger from wrongly being imprisoned where he walks for hours or talks to friends to cope, anger and grief from his breakup with ex-partner, hurt from his ex-partner never asking him but assumed he was guilty, paranoid that the police are watching him since released [sic] with a strong dislike to them since, early morning waking and sleep disruptions, flashbacks of his arrest and prison time, decrease in concentration and memory, increase in nervous tension where he needs to distract himself by doing something, headaches, isolation and withdrawal from activities, decrease in self esteem and confidence, feeling irritable with minimal trigger especially with authority, cautious, rumination on thoughts and obsessing on situations and an inability to relax as is consumed by thoughts [sic] … [The Plaintiff] has not progressed, therefore requires assistance to improve his coping mechanisms for his overall mental health but is not willing to use to techniques [sic] suggested as feels he needs to stay angry to drive him to complete all the pending legal proceedings in the future … " [431] 1. The Plaintiff saw Ms Fotiadis on seven occasions between 9 February 2013 and 28 February 2014. [432] On 22 March 2014, the Plaintiff was re-referred by Dr Poulos by Ms Fotiadis, and was attended upon by her on 4 April 2014 and 16 May 2014. 2. The Plaintiff conceded that he did not undertake any techniques which had been recommended to him for desensitisation by Ms Fotiadis, as he wished to focus on bringing to account those who he had considered had wronged him. [433] He stated that this changed when he entered into a relationship approximately 18 months before the hearing, down to April 2014. [434] He conceded that his condition was slightly improved, [435] he hopes to continue to improve [436] and his experience was that he was improving. [437] 3. Dr Roberts in his report of 6 June 2014, stated:- " … Because of his impaired concentration he has been unable to return to work. He explained that he did not feel right. He ruminates on the above circumstances all the time. Although he described satisfactory sleep, he reported feeling tired, lacking in energy and lacking in motivation. He continues to ride a pushbike and attend the gym, thereby trying to manage his frustration and irritability. He has maintained his circle of friends. He is more cautious than he used to be. He is more vigilant. He has taken steps to ensure that no one knows where he lives. He spoke of being wary of the police." [438] 1. In conclusion, Dr Roberts stated:- "The account presented by [the Plaintiff] reflects a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. The nature and severity of the symptomatology described by him indicate that the condition is verging on a Major Depressive Disorder in accordance with the criteria stipulated in DSM-V. Although [the Plaintiff] has been in receipt of regular psychological therapy, it is apparent that he continued to experience symptomatology of a debilitating nature at the time of his attendance. In the context of his psychiatric condition, he has been unable to pursue his plans to establish a business. He spoke of diminished energy, diminished motivation and impairment of cognition. He described the impact of his psychiatric condition on his interpersonal functioning, which has evidently altered in a way that would be expected to undermine his ability to establish and maintain business relationships. Having regard for the account presented by [the Plaintiff], he has no history of a pre-existing tendency to psychiatric illness. He has never previously been considered to exhibit features of psychiatric illness. Based on the information available, it is apparent that his psychiatric condition arose consequent upon the circumstances outlined above." [439] 1. In a subsequent report of 6 July 2015, Dr Roberts stated:- "The pervasive nature and extent of [the Plaintiff]'s anger is such that I am less optimistic than Dr Brown with respect to his prognosis. His intense sense of injustice is such that it is, in my expectation, unlikely that any legal outcome would prove sufficient to produce a resolution of [the Plaintiff]'s condition. Furthermore, having regard for the protected nature of [the Plaintiff]'s legal circumstances and the associated stagnation with respect to work and other matters, his psychiatric state would in fact deteriorate on completion of the legal process." [440] 1. Dr Phillip Brown examined the Plaintiff at the request of the Defendant's solicitors. In his report, tendered in the Plaintiff's case, he agreed as to the diagnosis "current inability to work and causation issues" in Dr Sampson's report of 6 June 2014. However, he did not consider that the prognosis was "poor." He stated:- "[The Plaintiff] developed an Adjustment Disorder as the result of his being arrested, charged, denied bail and imprisoned for what he believes was without just reason. It is being sustained by his considerable unresolved anger, which he is seeking to resolve by obtaining justice through his legal case. His anger and Adjustment Disorder should resolve if he considers justice has been done by a favourable determination of his case. If he does not, then provision should be made for treatment of his ongoing anger and any Adjustment Disorder." [441] 1. In cross-examination, Dr Roberts considered that if a person was unwilling or unable to pursue a recommended course of treatment, then one was left with the impression that the prognosis is even worse. [442] He considered that whilst the Plaintiff had anger at others, the theory expressed was overwhelmingly with the police. He stated:- "The manner in which he described it to me was this: he was of the view - he expressed the view, that the police were responsible for adequately assessing the information that had been presented to them, and utilising the information appropriately, and investigating the information in such a way that would normally be expected - that was the way that he described it to me. And that if not for, what he perceived to be failures on the part of the police the circumstances would not have unfolded as they did. Whilst he was angry at [the complainant], and he was angry at other people, the fury that he expressed was overwhelming directed at the police." [443] 1. In my view it is reasonable to allow 176 weeks at $870 per week to date, being a figure of $153,120 and an additional sum of $38,280 in relation to the period of his incarceration. This would make the total past damages $191,400. 2. In relation to the future, the Plaintiff claims an amount of $50,000 whilst the Defendant makes no allowance. In my view, it is appropriate to make some allowance for the future by way of buffer, and I do so in the amount of $25,000. 3. The Plaintiff claims Mr Naughtin's fees of $11,800 and I would have allowed this sum, being the cost of legal representation that Mr Naughtin provided in relation to the sexual offences and ADVO proceedings. 4. In relation to future out of pocket expenses, a claim is made for $10,000. 5. Dr Sampson suggests that psychiatric treatment may be required for total of one year, psychological treatment for not less than six months and medication for approximately 12 – 18 months. Psychological treatment would be a course of cognitive behavioural therapy. Dr Brown agrees that the main treatment would be cognitive behavioural therapy, however in his opinion, he did not see the need for referral to a psychiatrist if the Plaintiff was prepared to accept that this would be to ascertain whether the use of the psychotropic medication for symptom relief would facilitate the cognitive behavioural therapy and then monitor his response to it. I have some doubts that the Plaintiff would undertake any therapy, in particular, the psychiatric therapy. Nevertheless, I consider it reasonable on Dr Roberts' analysis to make some provision by way of buffer in the sum of $6000 for all treatment and medication expenses. 6. In respect of general damages, the Plaintiff claims an amount of $300,000 in relation to 10 months of wrongful detention, based on an equivalent of $1000 a day. I accept the Defendant's contention that it is an erroneous approach to apply a daily tariff to the assessment of damages. [444] Nevertheless the Defendant concedes that the Plaintiff's conditions in incarceration were not pleasant, by reason of the nature of the offence by which he was accused. The Plaintiff was apparently placed under protection and only allowed out for one hour a day. [445] The Plaintiff stated that he was placed on remand in Darcy 2 at Silverwater, where he had to associate with other people with similar charges. Whilst he was there, he shared a cell with another prisoner. [446] He stated that he was moved around, and he was concerned because on one occasion, a person was murdered when he was placed with the wrong prisoner. [447] He stated that he observed people committing self-harm [448] and he could hear a person screaming at night. [449] He stated that he was in H block for 6 months and had applied for bail in about August 2012, but this was refused. [450] 7. After Silverwater, the Plaintiff was transferred to Nowra, where he was placed in a limited association placement. [451] He was subsequently returned to Silverwater for two weeks in H block, but could not remember the period of his incarceration involving the transfer to Silverwater. He was told that this occurred because of a lack of beds. [452] After a couple of weeks in Silverwater, he returned to Parklea, where he was placed in a step-up from limited association- he described this as the "next level" where he mixed with everybody. [453] He was allowed out 6 hours a day in this placement, and this included persons who were there for murder and rape, but there was an understanding that everybody would behave themselves. [454] He stated that when he was bail refused at Merrylands Police Station that he was "gutted" and that he did not make a bail application initially upon receiving advice. He also did not have the paperwork whilst he was at Darcy, and he was attempting to re-live in his head, the interview that he gave with Detective Chaplin. He described himself as struggling to understand why he was there and as he did not have any persons' statement, he could not try to prepare for the case in front of him, and was accordingly, extremely traumatised. [455] 8. He described himself as not feeling safe in prison, in particular, after a prisoner was murdered. [456] Whilst at Silverwater, he stated that he was too busy worrying about himself, but was also worried about the main population, because every now and then, he would be taken into the main park where he was able to walk around, and other people, knowing that he was from HN16 were yelling at him comments such as "Rock spider" and "paedophile." [457] 9. The Defendant submits that based on the award of damages in Abed v State of New South Wales, and bearing in mind the differences in terms of a longer period of incarceration, an appropriate award would be the sum of $150,000 to $175,000. 10. Following his release from custody, The Plaintiff was not prescribed any psychotropic medication. When he saw Dr Roberts, he described his psychiatric history in the following terms: "When asked regarding the impact of the circumstances outlined above, [the Plaintiff] explained that he had been emotionally affected. He described being always angry and pre-occupied. He spoke of feeling alright when in the company of his friends but spoke of significant irritability explaining that he had become intolerant of authority and intolerant of people telling him what to do. He ascribed this to his experience in custody. He spoke of the adverse impact of his tendency to preoccupation with the above matters on his concentration and his propensity to frustration." [458] 1. In all of the circumstances, I would have allowed a figure of $220,000 for general damages. Bearing in mind the findings and conclusions I have drawn I am unable to express a view as to circumstances in which aggravated and exemplary damages may be awarded in respect of the malicious prosecution claim. 2. The Plaintiff has not demonstrated any actual damage arising from loss of liberty or dignity from the fact that the ADVO proceedings were brought separately from those which resulted from him being charged. 3. Accordingly the damages I would have awarded had the Plaintiff's claims succeeded, would have been: Wrongful arrest and false imprisonment (general damages) $20,000 Malicious prosecution (general damages) $220,000 Past economic loss $191,400 Future economic loss (buffer) $25,000 Out of pocket expenses (past) $11,800 Out of pocket expenses (future) $10,000 TOTAL $458,200 ORDERS 1. For the reasons given: 1. There will be a verdict and judgment for the Plaintiff in the sum of $21,662; 2. I will hear from the parties as to costs; and 3. Exhibits to be retained for 28 days. Endnotes 1. Amended Statement of Claim filed on 19 October 2015 at [2] – [3] 2. Defence (to the Statement of Claim as first filed) at [3] 3. Amended Statement of Claim at [6] 4. Amended Statement of Claim at [9] – [24] 5. Amended Statement of Claim at [25] – [39] 6. Defence at [6](a) – (d) 7. Hereinafter referred to as the "2002 Act" 8. Defence at [6](e) 9. Plaintiff's Written Submissions dated 7 March 2016 at [19] 10. Hereinafter " the first malicious prosecution claim" 11. Defence at [19](a) – (b) 12. Defence at [19](c) 13. Defence at [20] 14. Hereinafter "the second malicious prosecution claim" 15. Defence at [34] – [35] 16. T 94.24 – .38 17. Hereinafter the "ODPP" 18. T 519.18 – .37 19. (2009) 52 MVR 492, 526 (Basten JA with Handley AJA agreeing); see also: SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [115] (Ward JA with Macfarlan JA and Sackar J agreeing) 20. [2015] NSWSC 1633 at [98] – [116] (Hallen J) 21. T 518.14 – .18 22. (1959) 101 CLR 298 23. T 518.31 – .35 24. T 519.10 – .16 25. JD Heydon AC, Cross on Evidence (LexisNexis, 10th ed, 2014) at [1215] 26. Nuhic v Rail and Road Excavations (1972) 1 NSWLR 204, 221; see also: Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [100] (Bromberg J) 27. T 616.33 – .41 28. T 570.12 – .21 29. [2015] QCA 234 at [28] (Gotterson JA with Margaret McMurdo P and Ann Lyons J agreeing) 30. [2003] NSWCA 66 at [24] (Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed) 31. T 570.46 – 571.7 32. (1976) 1 NSWLR 191 at 201 – 202 (Glass JA dissenting) endorsed in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [78] (McColl JA with Sackville AJA agreeing) 33. West v Government Insurance (NSW) (1981) 148 CLR 62 , 70 (Murphy J) 34. T 619.17 – .19 35. Exhibit 6 36. See Manly Council v Byrne and Anor [2004] NSWCA 123 at [70] – [71] (with Beazley JA and Pearlman AJA agreeing) 37. Exhibit A at [10] 38. Exhibit A at [11] 39. Exhibit A at [14] 40. Exhibit A at [15] 41. Exhibit A at [19] 42. T 76.39 – .46 43. Exhibit A at [30] 44. Exhibit A at [31] 45. T 76.44 – 77.22 46. T 77.47 – .49 47. T 78.33 – .35 48. T 79.36 – .38 49. T 76.35 – .36 and Exhibit A at [33] 50. T 76.42 and Exhibit A at [33] 51. Exhibit A at [33] 52. T 80.12-.16 53. T 80.20 54. T 80.25 55. T 80.29 56. T 80.35 – .45 57. T 81.47 58. T 88.19 – .21 59. T 82.17 and .20 60. T 82.30 – .32 61. T 88.27 – .50 62. Exhibit A at [32] 63. Exhibit A at [34] 64. T 52.21 – .42 and Exhibit A at [35] 65. T 318.20 – .23; see also submissions T 535.1 – .24 and T 595.19 – .21 66. T 83.46 – 84.11 67. Exhibit F, p 459A at [10] 68. Exhibit F, p 329 at [22] 69. Exhibit F, pp 304 – 323 70. Exhibit F, p 314 and Exhibit K, p 14 71. Exhibit L (entry on 21 February 2012), p 103 72. Exhibit F, p 315 73. Exhibit F, pp 315 and 318 74. Exhibit L (entry on 12 March 2012), p 105 75. Exhibit F, pp 318, 323 and Exhibit L (entry on 17 April 2012), p 113 76. T 243.19 – .41 77. "Electronic Recording of Interviews with Suspected Persons" 78. T 244.28 – .33 79. T 287.33 – .38 80. Exhibit F, p 309 at [20] 81. Exhibit F, p 317 at [39] 82. Exhibit F, pp 459 – 460 at [13] and T 312.12-.17 83. T 312.11 – .41 84. Exhibit F, p 459A – 460 at [10] – [11] 85. T 84.13 – .15 86. T 84.17 – .21 87. T 88.26 – .44 88. T 88.28 – .36 89. T 88.46 – .49 90. T 89.30 – .34 91. "Computerised Operational Police System"; see Exhibit K, pp 14 – 15 92. Exhibit K, pp 7 – 8 93. T 349.5 – 37 94. T 350.15 – .16 95. T 355.10 – .15 96. T 252.40 – .43 97. T 256.34 – .37 98. T318.14 – .50 99. T 445.36 – 446.8 100. Exhibit K, p 6 101. T 287.25 – .50 102. Exhibit N, p 106 at [32] 103. T 289.36 104. T 289.45 – .46 105. T 291.3 – .6 106. T 291.9 107. Exhibit N, p 106 at [32] 108. T 356.43 – .45 109. T 357.20 – .24 110. T 357.26 – .27 111. T 359.3 – .4 112. T 359.14 – .15 113. T 369.16 – .26 114. T 287.29 – .31 115. T 370.17 – .25 116. T 414.10 – 416.7 117. T 405.3 – 406.38 118. T 412.43 – 413.44 119. T 410.49 – 411.47 120. T 414.32 – 415.3 121. T 287.25 – 288.42 122. T 416.31 123. T 288.29 – .42 124. T 416.35 – .36 125. T 417.1 – .15 126. T 287.44 – .49 and T 289.23 – .36 127. T 418.31 – .47 128. T 287.6 – .8 129. T 349.46 – .47 130. T 417.26 131. T 287.13 – .15 132. T 291.29 – .45 133. T 291.49 – 292.1 134. Exhibit L (entry on 25 April 2012), p 116 135. Exhibit L (entry on 1 May 2012), p 117 136. Exhibit L (entry on 16 May 2012), p 120 137. Exhibit N, pp 97 – 98 138. Exhibit L (entry on 17 May 2012), p 120 139. Exhibit L (entry on 18 May 2012), p 121 140. T 347.42 – .47 141. Exhibit N, pp 99 – 108 142. Exhibit F, pp 300C – D 143. T 423.3 – .5 144. T 424.8 – .10 145. T 424.12 – .16 146. Exhibit F, p 299 at [5] 147. Exhibit F, pp 300A – 301A 148. Exhibit F, p 300A 149. Exhibit F, p 301A 150. Exhibit F, p 300 at [7] 151. T 442.16 – .19 152. Exhibit F, pp 360 – 363, ERISP Q128 – Q150 153. T 244.48 – 245.30 154. Exhibit L (entry on 21 February 2012), p 103 155. Exhibit L (entry on 12 March 2012), p 105 156. Exhibit L (entry on 2 April 2012), p 110 157. Exhibit L (entry on 21 April 2012), p 114 158. T451.38 – .42 159. T 282.5 – .13 160. T 282.20 – .21 161. Exhibit F, p 325 162. Exhibit F, p 325 at [3] 163. Exhibit L (entry on 23 October 2012), p 25 and T 297.3 – .16 164. Exhibit F, p 329 at [24] 165. T 298.25 – .27 166. T 298.33 – .34 167. T 298.43 – .46 168. T 299.27 – .30 169. T 300.50 – 301.1 170. Exhibit K, p 4 171. T 302.41 – .44 172. T 302.50 – 303.3 173. T 303.19 – .24 174. Exhibit L (entry on 30 August 2012), p 16 and T 303.37 – .38 175. T 303.43 – .50 176. T 304.20 – .22 177. T 304.27 – .29 178. T 304.33 – .34 179. Exhibit F p 329 at [24]; Exhibit L (entry on 28 March 2013), p 60; and T 304.36 – .40 180. T 304.46 181. Exhibit O; see also T 305.21 – .38 182. T 306.27 183. T 306.47 184. T 307.35 – .39 185. T 307.22 186. T 308.13 – .16 187. T 308.50 – 309.4 188. T 309.6 – .26 189. T 294.36 – .37 190. T 364.21 – .24 191. T 309.44 – .47 192. T 88.27 – .50 193. Exhibit R, "Document 66" 194. T 308.13 – .38 195. T 308.41 – .48 196. T 247.7 – .15 197. Exhibit L (entry on 30 May 2012), p 122 ; see also T 436.7 – .45 198. T 465.30 – .34 199. Exhibit F, p 293 200. T 465.26 – .50 201. T 436.9 – .13 202. T 440.45 – .47 203. Exhibit M 204. Exhibit M 205. T 202.14 – .20 206. Exhibit H, p 471 207. T 319.27 – .43 208. T 472.50 – 473.25 209. 209 T 222.34 – 223.25 210. T 55.20 – 56.17 211. T 111.40 – .42 212. T 111.43 – 112.19 213. T 112.30 – .31 214. T 112.37 – .42 215. T 113.6 – .8 216. T 113.10 – 114.32 217. T 116.32 218. T 116.36 219. T 154.39 – .44 220. T 156.21 – .39 221. T 160.45 – 161.17 222. Exhibit H 223. Exhibit H, p 471 224. Exhibit H, p 472 225. Exhibit H, p 472 226. Exhibit H, p 475 227. Exhibit H, p 483 228. Exhibit H, p 476 229. Exhibit H, p 476 230. Exhibit H, p 476 231. Exhibit H, p 476 232. Exhibit F, p 353, ERISP Q48 233. T 178.32 – .33 234. T 179.30 – .44 235. T 180.19 – .21 236. T 187.41 – 188.18 237. T 227.41 – .48 238. T 227.50 – 228.2 239. T 228.4 – .38 240. T 230.19 – .49 241. T 233.9 – .37 242. Exhibit H, p 476 243. Exhibit H, p 476 244. Exhibit F, pp 416 – 417, ERISP Q681 – Q693 245. Exhibit F, pp 417 – 418, ERISP Q696 – Q705 246. Exhibit F, p 391, ERISP Q438 247. Exhibit F, p 402, ERISP Q541 248. Exhibit F, p 402, ERISP Q542 249. Exhibit F, p 418, ERISP Q707 250. Exhibit F, pp 402 – 404, ERISP Q545 – Q571 (although the reference is to R's mother it is clear that this was referring to R) 251. Exhibit F, p 419, ERISP Q710 252. Exhibit F, pp 419 – 420, ERISP Q712 – Q719 253. Exhibit F, pp 437—439, ERISP Q885 – Q905 254. Exhibit F, pp 266 – 290 255. Exhibit F, p 266 256. Crimes Act 1900 (NSW) s 61M(1) 257. Crimes Act 1900 (NSW) s 61M(1) 258. Crimes Act 1900 (NSW) s 61N(1) 259. Crimes Act 1900 (NSW) s 61J(1) 260. Crimes Act 1900 (NSW) s 61J(1) 261. Crimes Act 1900 (NSW) s 61J(1) 262. Crimes Act 1900 (NSW) s 61J(1) 263. Exhibit H, p 481 264. Exhibit J, p 491 265. Exhibit J, p 485 266. Exhibit J, p 491 267. Exhibit 4 268. See Amended Statement of Claim at [27]; the admission in the Defence at [27] and T 61.5 – 69.31 269. Exhibit 6 270. Hereinafter the "2002 Act" 271. [2012] NSWCA 337 at [12] (Basten JA with McColl JA and Hoeben JA agreeing) 272. Defence at [6](c) – (d) 273. Hussien v Chong Fook Kam [1970] AC 942, 948 approved in George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115 [14] 274. George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115 [14] 275. Exhibit F, p 301 276. T 565.49 – 566.7 277. Amended Statement of Claim at [6](i)(1) – [6](i)(4) 278. See Judgment 19 October 2015 279. Defence at [6](c) – (d) 280. Plaintiff's Statement of Issues at [3] – [4] and [14] – [16] 281. Plaintiff's Written Submissions, dated 7 March 2016 at [98] – [99] 282. Defendant's Written Submissions, dated 23 March 2016 283. Dare v Pulham (1982) 189 CLR 658, 664 and Nestle Limited v McDougall [1998] NSWCA 158 at [21] – [23] 284. [2007] HCA 10; (2007) 230 CLR 500 285. [2007] HCA 10; (2007) 230 CLR 500, 502 – 503 [1] 286. Plaintiff's Statement of Issues at [17] and Defendant's Statement of Issues at [5] – [10] 287. [2007] HCA 10; (2007) 230 CLR 500, 515 [43] 288. [2007] HCA 10; (2007) 230 CLR 500, 519 – 520 [57] – [59] 289. [2007] HCA 10; (2007) 230 CLR 500, 527 [77] 290. [2007] HCA 10; (2007) 230 CLR 500, 528 [80] – [81] 291. [2007] HCA 10; (2007) 230 CLR 500, 528 – 529 [82] – [87] 292. [2008] NSWCA 316 293. Ibid [102]. See also HD v State of New South Wales [2016] NSWCA 85 at [99]. 294. [2013] NSWSC 775 at [69] 295. Clavel v Savage [2015] NSWCA 61 at [47] 296. Amended Statement of Claim at [19](i) – (iv) 297. Amended Statement of Claim at [34](i) – (ii) 298. Plaintiff's Written Submissions, dated 7 March 2016 at [78] 299. Plaintiff's Written Submission, dated 7 March 2016 at [64] – [66] 300. Amended Statement of Claim at [13] 301. Defence at [13] 302. T 104.7 – .12 303. T 269.43 – .46 304. Exhibit O 305. Detective Chaplin prepared the index submitted to the ODPP with the complainant's statement: see Exhibit O. Although dated 22 January 2012, it was completed on 17 April 2012 306. T 276.49 – 277.6; see also T 286.8 – .13 307. T 586.8 – .13 308. T 526.3 – .13 309. T 619.21-.34 310. Lamag Holdings Pty Ltd v Reylan Pty Ltd (Supreme Court of NSW Court of Appeal, unreported, 19 November 1992), 7 (Handley JA with Sheller JA and Hope AJA agreeing) 311. T 283.17 – .46; see also Plaintiff's Written Submissions dated 7 March 2016 at [74] (a) 312. T 306.34 – 43 313. T 357.20 – .24 314. T 115.35 – .37 315. T 190.12 – .14 316. T 190.23 – .24 317. T 231.10 – .50 318. T 251.20 – .25 319. T 251.26 – .29 320. T 451.19 – .28 321. T 100.38 – 101.37 322. T 456.3 – .6 323. T 523.35 – .41 324. Exhibit F, p 460 at [11] 325. Exhibit F, p 305 at [7] 326. Plaintiff's Written Submissions, dated 7 March 2016 at [66] 327. Exhibit F, pp 304 at [16], [20], [40], [49], [52] and [56] 328. T 316.39 – 317.9 329. Exhibit F, p 330 at [3] 330. T 315.46 – .47 331. T 316.3 – .5 332. T 316.24 333. T 88.27 – .36 334. Exhibit N, pp 99 – 109 335. T 349.25 – .26 336. T 349.28 – .35 337. Exhibit N, p 106 at [32] 338. T 442.16 – .19 339. Exhibit F, pp 360 – 363, ERISP Q128 – Q150 340. T 424.50 341. T 424.40 – 425.2 342. Plaintiff's Written Submissions, dated 7 March 2016 at [63] 343. Plaintiff's Written Submissions, dated 7 March 2016 at [68](a) – (l) 344. Exhibit F, ERISP Q287 – Q290 345. Exhibit F, ERISP Q291, Q295 – Q307 346. Exhibit F, pp 378 – 379, ERISP Q314 – 321 347. Exhibit F, p 391, ERISP Q440 – Q 441 348. Exhibit F, pp 410 – 411, ERISP Q624 – Q631 349. Exhibit F, pp 411 – 412, ERISP Q635 – Q641 350. Exhibit F, pp 424 – 428 ERISP Q764 – Q801 351. Exhibit F, p 431, ERISP Q831 – Q833 352. T 257.49 – 260.6 353. T 471.17 – .25 354. T 246.10 – .24 355. T 221.48 – 222.8 356. Exhibit F, p 441, ERISP Q920; see also Exhibit F, p 404, ERISP Q 569; and Exhibit F, p 435, ERISP Q865 – Q867 357. Exhibit F, pp 437 – 438, ERISP Q885 – Q900 358. T 255.25 – 256.7 359. T 43.40 – 44.3 360. T 460.40 – .44 361. T 272.35 – .39 362. Plaintiff's Written Submission dated 7 March 2016 at [74] 363. T 277.50 – 278.1 and T 283.30 – .32 (although see T 279.11) 364. Exhibit F, p 309 at [20]; p 313 at [29]; p 317 at [39]; p 318 at [42]; p 319 at [47]; p 320 at [49]; p 321 at [52]; p 322 at [56] 365. T 256.4 – .7 366. T 286.9 – .13 367. T 454.24 – .26 368. T 287.1 – .2 369. T 454.31 – .33 370. T 586.15 – .25 371. Exhibit F, p 440, ERISP Q 917 372. T 287.6 – .8 373. T 420.37 – .45 374. T 349.40 – .47 375. [2007] HCA 10; (2007) 230 CLR 500 at 514 [39] – [42] 376. T 412.7 – .10 377. Plaintiff's Written Submissions, dated 7 March 2016 at [81](a) – (c) 378. Amended Statement of Claim at [20(v)] 379. T 602.41 – .49 380. [2007] HCA 10; (2007) 230 CLR 500 at 531 [90] – [92] 381. T 272.17 – 273.2, T 277.38 – .48 and T 281.21 – .24 382. T 553.10 – .34 383. T 581.39 – 582.6 384. Plaintiff's Written Submissions, dated 7 March 2016 at [85] 385. Exhibit F, pp 416 – 417, ERISP, Q681 – Q695 386. Plaintiff's Written Submissions, dated 7 March 2016 at [85] 387. T 453.5 – .16 388. Exhibit F, p 417, ERISP Q696 389. T 453.44 – 456.17 390. Exhibit F, p 293 391. T 458.29 – 462.15; see also T 466.49 – 467.9 392. T 560.19 – .41; see also oral submissions in reply at T 614.19 – .26 393. Zreika v State of New South Wales [2011] NSWDC 67 at [147] (Walmsley DCJ). These remarks were not challenged on appeal: State of New South Wales v Zreika [2012] NSWCA 37. 394. T 475.6 – .18 was cited by the Plaintiff, but it only refers to the complainant, and not R. 395. T 318.9 – .24 396. T 474.31 – 475.38 397. See Defendant's Written Submissions, dated 23 March 2016 at [82] 398. As advanced in the Plaintiffs Written Submissions, dated 7 March 2016 at [115] 399. T 569.34 – .37 400. T 475.31 – .33 401. Kuhl v Zurich Financial Services Limited (2011) 243 CLR 361 at [69] – [75] 402. [2010] NSWCA 157 403. Sahade v Bischoff [2015] NSWCA 418 at [121] (Gleeson JA) 404. T 258.7 – 259.50 405. Exhibit K, pp 2 – 3 406. Exhibit R 407. T 258.35 – 259.50 408. Exhibit 1, p 13 409. Exhibit J, pp 495 – 497 410. [2014] NSWCA 419 411. (2005) 214 ALR 234 412. Ibid 248 (Bryson JA with Santow JA and Adams J agreeing) 413. Plaintiff's Written Submissions, dated 7 March 2016 at [141] 414. See New South Wales v Delly (2007) Aust Tort Reports 81 – 920 and Zaravinos v State of New South Wales (2005) 214 ALR 234 415. Exhibit F, pp 347 - 456 416. Exhibit H, see especially, pp 473 – 474 417. T 228.31 – .38 418. Plaintiff's Written Submissions, dated 7 March 2016 at [142] 419. State of New South Wales v Riley (2003) 57 NSWLR 496, 530 (Hodgson JA with Nicholas J agreeing) 420. T 73.24 – .28; see also Exhibit A, Item 55 421. T 53.26 – .28 422. Exhibit P 423. T 111.33 – .35 424. T 111.37 – .38 425. T 97.38 – .40 426. T 72.35 – .42 427. T 72.44 – .46 428. T 73.30 – .35 429. T 73.37 – .39 430. T 73.44 – 74.2 431. Exhibit E at p 184 432. Exhibit A at [59] – [65] 433. T 94.16 – 95.25 434. T 95.30 – .34; T 96.16 – .21 435. T 118.13 – .19 436. T 118.21 – .22 437. T 118.24 – .25 438. Exhibit B, p 234 439. Exhibit B, p 237 440. Exhibit B, p 243 441. Exhibit C, p 264 442. T 135.5 – .7 443. T 136.49 – 137.7 444. Ruddock v Taylor (2003) 58 NSWLR 269 445. T 64.20 – .24 446. T 64.28 – .29 447. T 64.31 – .34 448. T 64.47 – .48 449. T 64.37 – .40 450. T 65.28 – .32 451. T 66.15 – .28 452. T 67.15 – .17 453. T 67.28 – .30 454. T 67.33 – .38 455. T 68.5 – .13 456. T 68.35 – .37 457. T 68.25 – .30 458. Exhibit B, p 234 Amendments 08 September 2016 - Minor typographical errors corrected in paragraphs: [1], [12] - [13], [34] - [36], [42], [45], [58] - [59], [78], [133], [155], [162], [204], [209], [216], [241], [270] - [271], and [292]. 08 September 2016 - Minor typographical error at [267] 09 September 2016 - Name removed from paragraph [284] 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: 09 September 2016