Supreme Court New South Wales Medium Neutral Citation: Hrdavec v State of New South Wales [2018] NSWSC 1081 Hearing dates: 9 July 2018 Date of orders: 12 July 2018 Decision date: 12 July 2018 Jurisdiction: Common Law Before: Fagan J Decision: 1. The plaintiff's application by notice of motion filed 26 June 2018 for directions pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules with respect to the opinion report of Mr Matthews served on 16 May 2018 is dismissed. 2. The costs of the notice of motion are to be costs in the cause. Catchwords: EVIDENCE – opinion evidence – exceptions – expert opinion – application by notice of motion for directions before calling expert witnesses – Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20 – proceedings for wrongful arrest, false imprisonment and malicious prosecution – leave sought to adduce opinion evidence of retired Detective Chief Inspector –where application made after proceedings on foot for 20 months – whether application for directions should be made at early stage of proceedings – whether reasonable explanation for delay in application – opinion on whether officer in charge of investigation had reasonable and probable cause to arrest and charge, whether arrest was lawful and whether charges maintained out of malice – whether such opinion evidence admissible – evidence inadmissible – directions refused Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Brown v Hawkes (1891) 2 QB 718 Chapman v Chapman [2007] NSWSC 1109 Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 HG v R (1999) 197 CLR 414; [1999] HCA 2 R v GK (2001) NSWLR 317; [2001] NSWCCA 413 Sharp v Biggs (1932) 48 CLR 81 Texts Cited: Fleming, The Law of Torts, 9th ed (1998) Category: Principal judgment Parties: Valentino Hrdavec (plaintiff) State of New South Wales (defendant) Representation: Counsel: Mr Roger Rasmussen (plaintiff) Mr David Hume (defendant) Solicitors: JN Legal (plaintiff) Makinson & d'Apice Lawyers (defendant) File Number(s): 2016/308826 Judgment 1. The plaintiff commenced this proceeding by statement of claim filed 17 October 2016 claiming damages for wrongful arrest, false imprisonment and malicious prosecution. The claim arises from the arrest of the plaintiff by New South Wales Police on 2 July 2015 and the charging of him that day with offences of aggravated sexual assault in company and depriving the complainant of her liberty (contrary to s 61JA(1) of the Crimes Act 1900 (NSW)) and aggravated indecent assault in company (contrary to s 61M(1)). These offences were alleged to have been committed on 22 June 2015. The plaintiff was remanded in custody following his arrest until 31 July 2015 and was then on bail until 11 December 2015 when the charges were withdrawn. 2. By notice of motion filed 26 June 2018 the plaintiff seeks directions under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to expert evidence he wishes to adduce from a retired Detective Chief Inspector, Mr Gary Matthews. On 25 August 2017 the Registrar fixed the matter for hearing commencing on 13 August 2018. The current estimated hearing time is five days. On 16 May 2018 the plaintiff served on the defendant a report of Mr Matthews and by letter invited the defendant to serve, no later than 13 July 2018, the report of any expert it may wish to engage. The letter proposed that a conclave take place during the month before commencement of the final hearing. 3. In broad terms Mr Matthews' report contains his opinion on whether the officer in charge of the investigation had reasonable and probable cause to arrest and charge the plaintiff, whether the law was observed in the manner of the plaintiff's arrest and whether the officer preferred or maintained the charges out of malice. 4. Rules 31.19 and 31.20 are applicable to the proceedings. So far as relevant for present purposes they are in the following terms: 31.19 Parties to seek directions before calling expert witnesses (1) Any party: (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial: (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. 31.20 Court may give directions regarding expert witnesses (1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings. (2) Directions under this rule may include any of the following: (a) a direction as to the time for service of experts' reports, (b) a direction that expert evidence may not be adduced on a specified issue, (c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court, (d) a direction that expert evidence may be adduced on specified issues only, (e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue, (f) a direction providing for the engagement and instruction of a parties' single expert in relation to a specified issue, (g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue, (h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts' reports in relation to a specified issue, (i) any other direction that may assist an expert in the exercise of the expert's functions, (j) a direction that an expert who has prepared more than one expert's report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief. 1. The defendant opposes the making of any direction under these rules. It submits that if the plaintiff wished to adduce expert evidence he was required by the rules to seek directions in that regard at an early stage of the proceedings, not when they have been on foot for over 20 months. On the hearing of the motion on 9 July 2018 I raised in argument whether the opinions of Mr Matthews contained in his report would be admissible in any event and, if they were, whether his opinion evidence would be reasonably required to enable the Court to resolve the issues. The defendant submitted both these questions should be answered no. 2. It was pointed out by Brereton J in Chapman v Chapman [2007] NSWSC 1109 at [6] that: the obligation to move the court for directions under r 31.19 is one to do so "promptly", as soon as it becomes apparent to a party that he or she may adduce expert evidence. That obligation arises before an expert is retained, let alone before the expert provides a report. 1. The material submitted to Mr Matthews for his opinion is listed in his report. It comprises for the most part witness statements and electronic recordings of interviews which I infer must have been part of the prosecution brief served on the plaintiff in the course of the prosecution during the second half of 2015. That material must have been in the plaintiff's hands and must have been supplied by him to Mr Matthews well before 16 May 2018, in order to allow Mr Matthews time to read the material and to draft his report. The application for directions under r 31.19 should have been made before the material was submitted to Mr Matthews, to permit the Court to determine whether any expert evidence ought be adduced and, if so, whether it should be from a joint expert or a Court appointed expert. 2. As Brereton J said in Chapman v Chapman at [7]: foremost amongst the purposes of the new rules is ensuring that the court has control over the giving of expert evidence, and restricting expert evidence to that which is reasonably required to resolve the proceedings. 1. Those purposes are defeated by the service of an expert report in circumstances such as the present. Unless there was some compelling explanation for the plaintiff's delay or a clear case that the expert evidence would be important to the resolution of issues in the proceedings or some other powerful circumstance in favour of reception of the evidence, I would not make directions under r 31.19 on such a belated application and would not permit the report to be used. In this case there is no explanation offered for the delay and, far from it being clear that the evidence is important, I find it is inadmissible. Elements of the alleged torts 1. The plaintiff's cause of action for wrongful arrest and false imprisonment will turn upon whether the power of arrest under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the Law Enforcement Act") was properly engaged. The relevant part of s 99 is 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 police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. 1. So far as the cause of action for malicious prosecution is concerned, the elements of the tort were summarised in the judgment of the plurality in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1], in these terms (citations omitted): 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. 1. The third element, malice, was further elaborated by their Honours at [88]-[95]. At [89] the following statement from Fleming, The Law of Torts, (9th ed, 1998) at 685 was approved: At the root of [the element of malice] is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause. At [91] their Honours said (citations omitted): 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. 1. Whether or not there was malice in the above sense on the part of the defendant in commencing or maintaining a prosecution is a question of fact to be determined by the jury if the cause of action is tried by jury: Sharp v Biggs (1932) 48 CLR 81; A v New South Wales at [2]. As the plurality said in the latter case at [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. 1. As to the fourth element the plurality in A v New South Wales said (at [76]) that mere proof that the defendant "had no positive belief that the accused person was, or was probably, guilty" would not in every case prove absence of reasonable and probable cause for the laying or maintenance of the charge. In particular their Honours said that the mere absence of such positive belief would not be sufficient where the prosecutor acted on the statements of others, as in the present case. Their Honours continued (at [77]) as follows (emphasis in original): 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? 1. Further on this element of the tort their Honours said at [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. … 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. 1. Finally, with respect to the objective aspect of the fourth element, absence of reasonable and probable cause, their Honours said (at [82]-[83]): [82] ... As Dixon J said in [Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30], 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 (1878) 8 QBD 167 at 171 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 [Fleming, The Law of Torts, 9th ed (1998) at 681 (emphasis added)) 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 (1905) 2 CLR 744 at 754; [1905] HCA 31 (emphasis added), 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". 1. The underlying circumstances relevant to a plaintiff's allegation that an officer in charge acted without reasonable and probable cause are matters of fact to be determined by a jury if the cause of action is tried in that manner. However the ultimate inference whether or not the established facts amount to a want of reasonable and probable cause is for the court: Sharp v Biggs; A v New South Wales at [2]. 2. In the present case it is the third and fourth elements, malice and want of reasonable and probable cause, that are in contest. The statement of claim is pleaded in a form which does not aid identification of the issues. The parties are yet to comply with a direction for the filing and service of a statement of matters in dispute. So far as it is possible to tell on the present state of the papers, the defendant does not appear to contest that it is vicariously liable for the torts pleaded if they should be proved against the officer in charge of the investigation, or that the prosecution terminated in the plaintiff's favour. 3. The plaintiff must prove all elements. If he should satisfy the Court that the officer in charge did not honestly form the view there was a proper case for prosecution or that he did form that view but on grounds which, in the Court's assessment, a reasonable man would not consider sufficient to warrant prosecution, then want of reasonable and probable cause, element (4), will be established. But the cause of action will not be made out unless it is also proved that the officer was actuated by malice in the sense discussed at [12]-[13] above. As the plurality said in A v New South Wales at [40]: Absence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided. The following observation of Cave J in Brown v Hawkes [1891] 2 QB 718 at 723 is to similar effect: Of course, there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. Admissibility of Mr Matthews' report 1. Mr Matthews' report is addressed to the following questions which were submitted to him by the plaintiff's solicitor: A. Did Detective Sergeant Pietruszka [the officer in charge] have reasonable and probable cause to arrest and charge the Plaintiff? B. What if any investigations or further investigations should the Police have conducted prior to the arresting and charging of the Plaintiff? C. Was the Plaintiff charged as soon as reasonably practical after his arrest (Section 99(3) LEPRA? D. Did Sergeant Pietruszka and other police comply with all the applicable regulations and procedures including the Code of Conduct, LEPRA, and other relevant practices? It should be noted the Plaintiff was charged at 4.56am on 2 July. He was later taken to Parramatta Court at 9.30am when he appeared before a Magistrate. E. Were the police justified in opposing bail when the Plaintiff was charged? F. Should the police [have taken] steps to discontinue the charges earlier than they did? G. Was there any conduct on the part of police (including the making of statements) that was intended by such police to mislead other police or the Court? H. Was there any evidence of malice, hostility, ill will or lack of fairness against the Plaintiff or attempts to have him charged and / or ultimately found guilty by Detective Sergeant Pietruszka; Constable Mahony; Constable Bayazidi; Constable Boyd, Senior Constable Malackas; Detective Houldin; Detective Singh and or/ Detective Oxley? 1. The following extracts from sections of the Evidence Act 1995 (NSW) have a bearing upon Mr Matthews' answers to these questions: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 80 Ultimate issue and common knowledge rules abolished Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue, or (b) … 1. The plaintiff relies upon the exception in s 79 as the basis for tendering Mr Matthews' report. This requires that the plaintiff identify what "specialised knowledge" Mr Matthews has and how his opinions are based upon it. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 six of the justices said at [32] of their joint judgment: To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge". 1. In Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Dixon CJ said at 491: 4. The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J. W. Smith in the notes to Carter v Boehm 1 Smith LC, 7th ed (1876) p 577. "On the one hand" that author wrote, "it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." Then after the citation of authority the author proceeds: "While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it." Adopted by Harding ACJ in Reg v Camm (1883) 1 QLJ 136. 1. In that case, concerning a motor accident, it was found that a particular witness did not have the experience from which to be able to describe the usual behaviour of vehicles under the prevailing conditions, nor did he have the engineering expertise to support an abstract opinion on the physics of the situation. At 491-492 Dixon CJ said: What in truth occurred was to use the witness to argue the plaintiff's case and present it more vividly and cogently before the jury. Some of [the witness' evidence was] of opinion that lay outside any qualifications that upon any view however benevolent he could be supposed to possess. Some of it was an attempt to guide the jury upon matters which it was within the ordinary capacity of jurors to determine for themselves. 1. In HG v R (1999) 197 CLR 414 at 428; [1999] HCA 2 Gleeson CJ cited Clark v Ryan, treating it as applicable to s 79 of the Evidence Act. His Honour said, with reference to evidence of a psychologist which had been tendered on behalf of the accused in his trial for sexual offences: [43] To paraphrase what was said by Dixon CJ in Clark v Ryan about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely. [44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinions", (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided. 1. In R v GK (2001) NSWLR 317; [2001] NSWCCA 413 Mason P said at [40]: In New South Wales opinion evidence is not inadmissible only because it is about a fact in issue or an ultimate issue (Evidence Act, s 80(a)). However, judges should exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions (see Steffen v Ruban [1966] 2 NSWR 622 at 626, Arnotts v Trade Practices Commission (1990) 24 FCR 313 at 350-1, HG v The Queen (1999) 197 CLR 414 at 427-8, [Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305]). 1. According to these principles the questions asked of Mr Matthews, as set out at [20] above, invite answers which are inadmissible for the following reasons. 2. As to question A, whether the officer in charge had reasonable and probable cause for charging the plaintiff involves the application of the relevant legal standard to established facts. Similarly, whether the arrest was justified depends upon the application of the legal standard in s 99 of the Law Enforcement Act. Mr Matthews' opinion on these matters is not directed to the proof of "the existence of a fact about the existence of which the opinion was expressed', as provided for in s 76. What he says in answer to question A can only be an attempt to put, through him, the arguments the plaintiff's counsel may wish to make from the evidence and from the facts as found. This aspect of the report is inadmissible, being either a submission or an attempt by the witness to arrogate to himself the Court's function of applying the law to the facts. 3. As to question B, whether any, and if so what, further investigations "should" have been conducted before the arrest and the laying of the charge is irrelevant. This is not a negligence action in which the performance of the police officers' duties to be measured against some standard which Mr Matthews would purport to establish. Whether the contested elements of the tort of malicious prosecution are made out and whether it is shown that s 99 of the Law Enforcement Act was not complied with will be determined by the Court examining what enquiries the police in fact carried out and whether the results thereof were sufficient, according to the Court's judgment, to sustain reasonable suspicion which would justify arrest and reasonable and probable cause for prosecution. 4. As to questions C and D, whether police charged the plaintiff as soon as reasonably practicable after arrest and whether they complied with statute law and regulations in questioning him depend upon the application of legal standards to established facts. Mr Matthews' purported opinions on these matters suffer from the same vice as his answers to question A. 5. As to question E, whether the police were justified in opposing bail is a question the answer to which may or may not throw light upon whether the prosecution was maintained with malice. Mr Matthews' answer indicates that he has understood it in this way. His answer is inadmissible for the same reasons as given in relation to question A. If the issue of whether there was justification for opposing bail actually arises in the trial, there would be no place for Mr Matthews' opinion on the subject. It would self-evidently be a matter for the Court to decide, applying legal standards and having regard to the procedures laid down in the Bail Act 2013 (NSW). Whether bail is justifiably or unjustifiably opposed is a matter for the Court's judgment and could not be in the least assisted by Mr Matthews' asserted expertise on the subject. 6. As to question F, the question whether police should have taken steps to discontinue or withdraw the charges earlier than in fact occurred is another way of posing the question whether they had reasonable and probable cause for maintaining the prosecution. The answer offered by Mr Matthews is thus inadmissible for the reasons given in relation to question A. 7. As to question G, whether any police officers intended to mislead their colleagues is to be answered by the Court making inferences from the proved circumstances, if it arises at all. It is not a question upon which there could be any relevant field of expertise and none is identified by Mr Matthews. If it should become relevant at the hearing for the Court to draw inferences from primary facts as to whether some police intended to mislead others, it could not be said that "the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance" (in the words of the quotation approved by Dixon CJ in Clark v Ryan). 8. As to question H, whether there is any evidence of malice and, if so, whether the Court will make a finding of malice upon the basis of that evidence is not an issue upon which the tribunal of fact could experience any difficulty which would be in any way assisted by Mr Matthews' expression of opinion. Again, by posing this question to him the plaintiff has sought to elicit purported opinion evidence from a witness who does no more than seek to substitute himself for the tribunal of fact. 9. Even if, contrary to my view, Mr Matthews' report or some part of it could be shown to satisfy the exception in s 79 of the Evidence Act, I would exclude it in exercise of the discretion under s 135. That section is in these terms: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. I find the report to be of nil probative value. It reads in all respects as a submission on findings of fact and on the application of legal tests to those facts, which the Court on final hearing will have to determine according to its own assessment. For example in answer to question A the following is said: It is obvious that [the officer in charge] acted maliciously by submitting the Plaintiff to a Record of Interview in which he attempts many wrongful questions and actions to try and elicit some small piece of evidence to support not only his arrest of the Plaintiff but in the eventual charging of the Plaintiff. 1. Mr Matthews' answer to question B includes this, after referring to alibi witnesses whom the plaintiff had nominated and whom it is said were not interviewed or reinterviewed following the plaintiff's arrest: Both should have been interviewed. In my opinion the failure to interview alibi witnesses prior to being charged shows malice towards the Plaintiff. 1. In relation to question E, concerning whether bail should have been imposed, Mr Matthews states: It is my opinion that the Plaintiff should never have been charged and therefore the question of bail should not have arisen. However [the officer in charge] given his course of malice against the Plaintiff would have assisted the determination of bail by the Custody Officer. 1. Mr Matthews' answer to question G contains the following with respect to the facts sheet said to have been prepared for the plaintiff's first appearance before the Local Court: [The officer in charge] is very unfair in his selective facts and fails to record that the Plaintiff protested his innocence, provided alibis and wished to assist Police in proving his innocence. A much different bail result may have been attained had the Magistrate been given these factors. 1. These evaluative assertions from Mr Matthews, even if admissible on some basis which I cannot see, would be of no assistance to the Court in weighing the evidence and drawing conclusions regarding the elements of the torts pleaded. By expressing his own conclusions about malice of unfairness of the officer in charge Mr Matthews has made himself an advocate for the outcome rather than a witness who could assist the Court to find the facts correctly. Orders 1. Directions made on 9 July 2018 resolved the plaintiff's notice of motion in all respects other than the orders sought concerning Mr Matthews' report. The further orders of the Court will be: 1. The plaintiff's application by notice of motion filed 26 June 2018 for directions pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) with respect to the opinion report of Mr Matthews served on 16 May 2018 is dismissed. 2. The costs of the notice of motion are to be costs in the cause. ********** 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: 12 July 2018