Brookfield v State of Queensland [2024] QSC 219

SUPREME COURT OF QUEENSLAND CITATION: Brookfield v State of Queensland [2024] QSC 219 PARTIES: IAN WALTER BROOKFIELD (plaintiff) v STATE OF QUEENSLAND (defendant) FILE NO/S: BS15087 of 2021 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 27 September 2024 DELIVERED AT: Brisbane HEARING DATE: 15-19 April 2024 JUDGE: Cooper J ORDER: 1. The amended claim filed on 21 July 2022 is dismissed. 2. I will hear the parties as to costs. CATCHWORDS: TORTS – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT – LAWFUL JUSTIFICATION – ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS – where the plaintiff, in pursuing a debt, repeatedly contacted the debtor, as well as his staff, family, and business associates, via text, email, and social media – where the police initially declined the debtor’s request to investigate the plaintiff’s conduct on the basis that it was a civil dispute – where the police subsequently investigated the debtor’s complaint, arrested the plaintiff and charged him with various offences related to his conduct towards the debtor, including breaching bail conditions – where the charges against the plaintiff were subsequently dismissed or dropped – where the plaintiff was arrested pursuant to a warrant and charged for dishonesty offences relating to his alleged forgery of a signature on a contract – where those charges were subsequently dismissed by a magistrate – whether the arrests of the plaintiff were lawful TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – ESSENTIALS OF ACTION – ABSENCE OF REASONABLE AND PROBABLE CAUSE – where the plaintiff’s conduct towards the debtor led to him being arrested -- 1 of 65 -- 2 for and charged with stalking and using a carriage service to menace, harass or cause offence – where the arresting officer gave evidence that he honestly believed that the available material made it appropriate to charge the plaintiff with the offences – where the plaintiff’s conduct included sending emails and other communications to the debtor, his family members, and his staff accusing the debtor and his family of criminal conduct, insulting them, complaining about their conduct, and creating harassing social media posts – where the plaintiff was also separately investigated for and charged with fraud for taking a deposit payment on a vehicle that was encumbered – where a breach of bail charge was laid based on what one police officer told another regarding the plaintiff attending a courthouse where the complainant was, in contravention of a bail condition – where the material relied on to support charges of forgery, uttering and perjury was said to demonstrate that the plaintiff knew the complainant had not signed the contract but the plaintiff was nevertheless purporting to rely on it in court proceedings – whether it would have been open to a jury to convict the plaintiff of the offences – whether the charging police officers acted without reasonable and probable cause in charging the plaintiff TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – ESSENTIALS OF ACTION – MALICE – GENERALLY – where a charging police officer’s evidence was that his purpose was to enforce the criminal law when he charged the plaintiff – where police initially believed the matter to be civil in nature but later changed their position upon a detailed review of the evidence – where police had told the plaintiff that there was new material to justify charging him but failed to identify that new material – where a charging officer sent an email to the lawyers acting for the complainant which summarised the facts of the complaint and which the plaintiff said demonstrated that the officer acted to assist the complainant in his civil dispute with the plaintiff – whether the police acted maliciously in charging the plaintiff TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where police requested that the plaintiff provide his mobile telephone and computer to police and informed him that he would be arrested and detained while a warrant was obtained if he refused – where police requested the plaintiff to accompany them to a police station and participate in an interview – where the plaintiff was arrested on numerous occasions for various offences – where police imposed a bail condition on the plaintiff prohibiting him from commencing any further civil proceedings against the alleged debtor – where the plaintiff complained to police about the police’s conduct in arresting and charging him and he was dissatisfied with the outcome of those complaints because -- 2 of 65 -- 3 there were errors in the reports made by police in relation to his complaints – whether any of the police conduct constituted invalid or unauthorised acts, or otherwise constituted misfeasance in public office TORTS – MISCELLANEOUS TORTS – NOVEL OR DEVELOPING TORTS – where the plaintiff alleged the police perverted the course of justice by allegedly assisting the complainant debtor’s lawyers, directing a police officer to arrest and charge the plaintiff, and imposing a bail condition restraining the plaintiff from instituting further civil proceedings against the debtor – where this aspect of the plaintiff’s claim is arguably framed as a breach of statutory duty – whether the plaintiff had a private right of action against the police for allegedly perverting the course of justice TORTS – MISCELLANEOUS TORTS – INTIMIDATION – where the plaintiff alleged that the police’s conduct in the course of arresting and charging him amounted to intimidation – where the plaintiff did not characterise any of the alleged acts as a threat by the relevant police officers which was intended to compel the plaintiff to comply with a demand – whether the police conduct amounted to intimidation TORTS – MISCELLANEOUS TORTS – CONSPIRACY – GENERALLY – where the plaintiff alleged that the police conspired with the complainant/debtor and his lawyers to have the plaintiff charged and arrested – where there was no evidence of such an agreement between the police and solicitors – whether the police conduct amounted to conspiracy Police Powers and Responsibilities Act 2000 (Qld), s 365, s 367, s 369 A v New South Wales (2007) 230 CLR 500, cited Ballard v Multiplex [2012] NSWSC 426, cited Ferguson v State of Queensland [2007] QSC 280, cited Irving v Pfingst [2020] QSC 280, cited Irving v Pfingst [2021] QCA 280, cited Jack Brabham Engines Ltd v Beare [2010] FCA 872, cited Lee v Abedian [2017] 1 Qd R 549, approved McFadzean v Construction, Forestry, Mining & Energy Union (2007) 20 VR 250, cited Northern Territory v Mengel (1995) 185 CLR 307, cited R v Bossley [2015] 2 Qd R 102, approved R v Kovacevic [2020] QSC 399, cited COUNSEL: The plaintiff appeared on his own behalf DM Favell for the defendant -- 3 of 65 -- 4 SOLICITORS: The plaintiff appeared on his own behalf Crown Solicitor for the defendant [1] From about 2016, the plaintiff (Mr Brookfield) took steps to recover a debt which he claimed was owed to him by Mark Mergard. That debt was said to be owed to Mr Brookfield in circumstances where Mr Mergard’s company, Real Estate Now Pty Ltd (Real Estate Now), agreed to purchase a rent roll from Blue Prop Pty Ltd (Blue Prop), a company owned by Mr Brookfield’s friend, Ms Nightingale. Mr Brookfield claimed that Real Estate Now did not comply with its obligation to pay for the rent roll. Blue Prop subsequently assigned the debt, or its cause of action for breach of contract, to Mr Brookfield. [2] In pursuing the debt, Mr Brookfield commenced various civil proceedings against Mr Mergard and Real Estate Now. He also sent emails and text messages to Mr Mergard, his family, staff and business associates; and he published social media posts about Mr Mergard. In doing so, Mr Brookfield did not limit himself to statements about Real Estate Now’s obligation to pay the debt which Mr Brookfield claimed was owed to him; he also addressed other unrelated matters. [3] Mr Brookfield’s conduct led Mr Mergard to complain to the Queensland Police Service (QPS). As a consequence of those complaints, Mr Brookfield had various interactions with QPS officers stationed at Bundaberg. Mr Brookfield was charged with various offences. All of the charges were eventually dismissed. [4] Mr Brookfield claims that, in investigating Mr Mergard’s complaints and charging him with criminal offences, QPS officers committed numerous torts against him: false imprisonment, malicious prosecution, misfeasance in public office, perverting the course of justice, intimidation and conspiracy. He seeks damages in an unspecified sum, but in any event an amount greater than $750,000. [5] For the reasons which follow, all of Mr Brookfield’s claims must be dismissed. Mr Mergard’s first complaint about Mr Brookfield’s conduct [6] On 30 October 2017, Mr Mergard complained to officers at Bundaberg police station that Mr Brookfield was stalking him. Detective Senior Constable Jon Murray was tasked with investigating Mr Mergard’s complaint. [7] During his investigation, Officer Murray had a telephone conversation with Mr Cliff, a partner at the law firm Mills Oakley, who was acting for Mr Mergard. During the discussion, Officer Murray recommended that Mr Cliff send a letter to Mr Brookfield making it clear he should not make further contact with Mr Mergard, and that if Mr Brookfield’s conduct continued it might constitute the offence of stalking under the Criminal Code or the Commonwealth offence of using a carriage service to menace, harass or cause offence. Officer Murray described this as drawing a line in the sand after which any further communications by Mr Brookfield could be investigated by the QPS. [8] On 7 November 2017, Mr Brookfield attended the Bundaberg police station wishing to speak to police about his dispute with Mr Mergard. Officer Murray spoke to Mr -- 4 of 65 -- 5 Brookfield. An audio recording of this conversation was captured on Officer Murray’s electronic recording device. [9] Mr Brookfield commenced the conversation by stating that Mr Mergard had sworn two false affidavits in civil proceedings and described the nature of his dispute with Mr Mergard. Officer Murray said that Mr Brookfield’s assertion about Mr Mergard giving false evidence was not a matter for police at that stage: it had to be tested in the civil proceedings. [10] Officer Murray then moved the conversation to the complaint Mr Mergard had made about Mr Brookfield’s conduct. He told Mr Brookfield that Mr Mergard’s solicitors would be sending a letter to Mr Brookfield demanding he cease his communications with, and about, Mr Mergard. He said that a line was being drawn in the sand. He told Mr Brookfield that he was not to send any further correspondence to Mr Mergard or to have any form of contact with Mr Mergard, other than by contacting Mr Mergard’s solicitors. If Mr Brookfield continued to communicate with Mr Mergard going forward he would be charged with stalking. Mr Brookfield confirmed that he understood what Officer Murray had said to him. [11] Later in the conversation, Officer Murray said the following to Mr Brookfield: “You have to stop this shit, okay? Immediately, okay? You will find yourself, if this continues, going down the criminal line. We will pursue any person who breaches the Criminal Code, … Really, we could go back eighteen months and deal with all the emails, all the messages, Facebook, whatever it may be, because that is menacing, harassing and threatening in nature. Now, threatening can be just by purely ‘I’m going to take you to court’ but continual menace and harassment, okay? That is an offence under the Commonwealth Crimes Act, okay, using a carriage device to menace, harass or intimidate, okay? We could go down that line. We have chosen, at this point, because it is [the subject of] civil proceedings, to leave it in the civil jurisdiction, okay. That’s the only reason we are not pursing that criminal conduct – and it is criminal, okay? As it is a long and protracted series of contacts, it is stalking, okay? Under the stalking legislation it clearly fits that criteria, the elements are proven. … Again, we are not pursuing that, at this point, because we believe that it is before the civil jurisdiction and we find that it is a civil dispute at this stage.” [12] Officer Murray told Mr Brookfield that any future contact with Mr Mergard, other than through his solicitors, would not be lawful and would lead to him being pursued by the QPS for the offences just explained to him. [13] Towards the end of the conversation, Officer Murray asked Mr Brookfield if he understood that his conduct towards Mr Mergard was to cease. Mr Brookfield confirmed that he understood. [14] The day after his conversation with Mr Brookfield, Officer Murray sought and obtained approval from Detective Senior Sergeant Bishop, the Officer in Charge of Bundaberg Criminal Investigation Branch, to finalise Mr Mergard’s complaint without taking any further action on the basis that the complaint was considered to be a civil matter. -- 5 of 65 -- 6 Mr Mergard’s further complaints about Mr Brookfield’s conduct [15] On 29 June 2018, Mr Mergard sent an email to Officer Murray attaching a Facebook post published by Mr Brookfield. The post referred in derogatory terms to a vessel which Mr Mergard used to conduct tours from the town of 1770 through a business named “1770 Reef”. It appears that Mr Brookfield operated a competing tour business that was based in Bundaberg. [16] That email was forwarded to Detective Sergeant Andrew Self because Officer Murray was on long service leave. After considering Mr Mergard’s email and the Facebook post, Officer Self advised Mr Mergard it did not constitute evidence of stalking. He indicated that Mr Mergard’s complaint was civil in nature and not a matter for investigation by the QPS. He recommended that Mr Mergard seek advice from his solicitor as to what civil remedies might be available to him. [17] On 17 July 2018, Rod Jellyman, a solicitor at Mills Oakley, sent an email to Senior Sergeant Glenn Cameron. It listed various conduct by Mr Brookfield which caused Mr Jellyman to form the view that Mr Brookfield might have committed the offences of stalking and of using a carriage service to menace, harass or cause offence. Officer Cameron advised Mr Jellyman that Mr Mergard’s complaint was being dealt with by Officer Self. Mr Jellyman said that Mills Oakley was collating evidence in the form of emails, text messages and screen shots for Officer Self to consider. Officer Cameron forwarded this email correspondence to Officer Bishop, as Officer in Charge of Bundaberg CIB. Officer Bishop then forwarded the email exchange to Officer Self. [18] In October 2018, Mr Jellyman telephoned Officer Self and asked that the QPS revisit its investigation of Mr Mergard’s complaint. Officer Self asked Mr Jellyman to provide him with the material to support Mr Mergard’s complaint. [19] On 25 October 2018, Officer Self received a letter from Mills Oakley signed by Mr Cliff. The letter asserted that Mr Brookfield had committed serious offences which should be investigated by the QPS. The possible offences identified in the letter included perjury, forgery, making false statements, attempted fraud, stalking, theft and using a carriage service to menace, harass or cause offence. Along with the letter, Mills Oakley sent two folders of supporting documents. [20] Officer Self tasked Detective Senior Constable David May with reviewing the material contained in the two folders provided by Mills Oakley to determine if any criminal conduct could be substantiated. [21] On 27 November 2018, Officer May completed a report on his review of the material provided by Mills Oakley. The report set out a timeline of events and an analysis of the possible offences. Officer May concluded that the material provided by Mills Oakley did not contain any evidence of criminality on Mr Brookfield’s part. He stated that it was clear that the matters raised by Mr Mergard were civil in nature and described Mr Mergard’s complaint to the QPS as vexatious. [22] Some time prior to 20 December 2018, Officer May had a telephone conversation with Mr Jellyman and informed him that the QPS had decided not to further investigate Mr Mergard’s complaint against Mr Brookfield. On 20 December 2018, -- 6 of 65 -- 7 Mr Jellyman sent an email to Officer May requesting that Officer May provide written confirmation of that decision. [23] Officer May replied to Mr Jellyman’s email later the same day. He stated that the investigation of Mr Mergard’s complaint had been finalised after a detailed and thorough review. He said that the material provided by Mills Oakley was not sufficient to found a prima facie case for a criminal prosecution of Mr Brookfield. [24] On 10 January 2019, Mr Jellyman sent an email to Officer Self requesting that he provide the QPS file number for Mr Mergard’s complaint. Mr Jellyman expressed difficulty comprehending the reluctance of the QPS to enforce the law against stalking in respect of Mr Brookfield’s conduct. He said he was seeking the QPS file number to enable Mills Oakley to advise Mr Mergard on possible courses of redress open to them in respect of his complaint. [25] On the same day he received Mr Jellyman’s email, Officer Self read the report that Officer May had prepared following his review of the two folders of material provided by Mills Oakley. Officer Self accepted the conclusions which Officer May had set out in his report. Officer Self did not review the individual documents contained in the two folders provided by Mills Oakley because he had delegated that task to Officer May. [26] Officer Self then sent an email to Mr Jellyman on 10 January 2019, stating that there was insufficient evidence to consider laying a charge of stalking. He also explained his reasons for agreeing with Officer May’s conclusion that there was insufficient evidence to proceed against Mr Brookfield in respect of any of the other offences previously identified by Mills Oakley. Officer Self concluded his email with the following summary: “In my view as a Senior Investigator, this matter appears to be a ‘tit for tat’ type scenario. Both parties are attempting to commence legal action of any type, against each other, for minor issues, to gain some advantage or leverage. There is insufficient evidence to prove any offence beyond a reasonable doubt which is the standard which police investigations are held. A large volume of irrelevant material does not constitute evidence that would be considered by a court. I am satisfied with the review conducted by DSC MAY and concur with his findings that there is insufficient evidence for these allegations to proceed further. I recommend that any further legal avenues be considered in the civil courts.” [27] Mr Jellyman replied to Officer Self, requesting the file number for the two folders of material which Mills Oakley had provided. He said that Officer Self would understand the file numbers and the folders of material may be needed for reference by others should Mr Mergard not be satisfied with Officer Self’s response and the actions taken by the QPS under Officer Self’s guidance. [28] In response, Officer Self sent an email to Mr Jellyman stating that the folders of material would be returned to Mills Oakley because they were not considered evidence. He informed Mr Jellyman that he would be happy to review any further material which constituted evidence that would be acceptable to a criminal court. -- 7 of 65 -- 8 [29] On 25 March 2019, Mr Mergard sent an email to Officer Cameron referring to Officer Self’s decision not to further investigate his complaint against Mr Brookfield and requesting a meeting with Officer Cameron for the purpose of showing him the documents previously provided by Mills Oakley to Officer Self and subsequently returned. [30] Officer Cameron forwarded Mr Mergard’s email to Officer Bishop, as Officer in Charge of Bundaberg CIB. In turn, Officer Bishop forwarded the email to Officer Self asking whether there was anything new to the information and requesting that Officer Self respond to Mr Mergard’s solicitor. Officer Self replied to Officer Bishop, confirming that there was no new information. He had had extensive dealings with Mr Mergard’s solicitor regarding the complaint, but Mr Mergard refused to accept the finding. [31] On 28 March 2019, Officer Self sent an email to Mr Jellyman asking if he still represented Mr Mergard. He received a reply from Alison O’Connell informing him that Mr Jellyman no longer worked at Mills Oakley and that all future correspondence should be addressed to her and to Mr Cliff. [32] On 29 March 2019, Officer Self sent an email to Ms O’Connell in which he referred to Mr Mergard’s recent email to Officer Cameron on 25 March 2019 and to his email to Mr Jellyman on 10 January 2019 notifying his decision on the stalking complaint. He stated that the position set out in his email to Mr Jellyman had not changed. [33] On 3 May 2019, Ms O’Connell sent an email to Officer Self in which she stated that the matters identified in the Mills Oakley letter dated 25 October 2018 and the accompanying folders of material constituted a fresh complaint about Mr Brookfield. She requested that Officer Self provide the QPS file number for that fresh complaint. Ms O’Connell also attached an affidavit of Mr Mergard which had recently been filed in Federal Court proceedings. Ms O’Connell stated that the exhibits to that affidavit demonstrated the threats and harassment which Mr Mergard had been subjected to by Mr Brookfield up to 23 April 2019. [34] Officer Self replied to Ms O’Connell on 7 May 2019 in which he said (among other things) that the affidavit of Mr Mergard appeared to be a scan of the material in the two folders previously provided by Mills Oakley and later returned. [35] On 8 May 2019, Ms O’Connell sent an email to Officer Self addressing the points he had raised in his email the previous day. She stated that the affidavit of Mr Mergard which she had attached to her email of 3 May 2019 did not simply reproduce the material in the two folders previously provided by Mills Oakley. She also attached further messages and posts by Mr Brookfield which she asked Officer Self to consider. [36] Officer Self and Ms O’Connell then continued to exchange email correspondence in which Ms O’Connell pressed Officer Self about the prospect of Mr Brookfield being charged with a criminal offence. [37] On 14 May 2019, Officer Self sent an email to Ms O’Connell. He said he had spent the previous few days going through the documents which Ms O’Connell had provided and reviewing them, apparently for the first time, in chronological order. He said he would consider the offence of stalking but would also look at a possible -- 8 of 65 -- 9 offence under s 119B of the Criminal Code which addressed intimidation of a witness. He asked Ms O’Connell to notify him of Mr Brookfield’s next court appearance in the civil proceedings and to provide a list of all court dates involving Mr Brookfield and Mr Mergard. In a further email sent on 15 May 2019, Officer Self explained to Ms O’Connell that emails or Facebook posts which Mr Brookfield sent or published immediately prior to a court hearing might constitute evidence of intimidating a witness. After Ms O’Connell informed Officer Self that Mr and Mrs Mergard had not been present at any of the earlier hearings in the civil proceedings, Officer Self said that he would not look further at the offence of intimidating a witness. [38] After further email correspondence between Officer Self and Ms O’Connell, Mr Mergard attended the Bundaberg police station with Ms O’Connell on 22 May 2019, to meet with Officer Self and provide further information in respect of the complaint about Mr Brookfield. During that meeting, Officer Self commenced taking a statement from Mr Mergard in support of his complaint. There was not enough time to complete that statement at the meeting and Mr Mergard had to return to finalise it at a later date. Ms O’Connell asked that she be provided with a copy of the statement to check it before it was signed by Mr Mergard. [39] At the meeting, Ms O’Connell provided Officer Self with two folders of material in what appeared to Officer Self to be the same folders that had previously been provided in October 2018. However, Officer Self did not know if any material had been added to those folders. The material in the two folders comprised 802 pages. Ms O’Connell also provided Officer Self with copies of Facebook posts, emails and text messages which he had not seen before. Ms O’Connell told Officer Self that Mr Mergard had a hard drive containing further relevant material and that she would arrange for Mr Mergard to deliver a copy of that hard drive to Officer Self. [40] Ms O’Connell told Officer Self that Mr Mergard’s wife, Katrina Mergard, also wished to make a complaint about Mr Brookfield. Officer Self telephoned Mrs Mergard to confirm that she was also making a complaint. Officer Self asked Mrs Mergard to explain her version of events over the telephone. Mrs Mergard subsequently attended Bundaberg police station and Officer Self took a statement from her in support of her complaint. [41] After the meeting on 22 May 2019, Mr Mergard attended the Bundaberg police station and provided Officer Self with the hard drive which had been discussed at the meeting. Officer Self reviewed that hard drive and found that it contained numerous emails, text messages, Facebook posts and other material which appeared to Officer Self to have been created by Mr Brookfield. Officer Self copied the relevant material and downloaded it onto a QPS hard drive before returning the original hard drive to Mr Mergard. The material which Officer Self downloaded onto the QPS hard drive comprised 2,256 pages. [42] Officer Self printed out approximately 50 documents from the material he had downloaded onto the QPS hard drive for the purpose of referring to those documents if Mr Brookfield agreed to be interviewed about the matters raised by Mr Mergard’s complaint. [43] Between 22 May 2019 and 25 May 2019, Officer Self reviewed the documents downloaded onto the QPS hard drive and the statements he had taken from Mr -- 9 of 65 -- 10 Mergard and Mrs Mergard. I accept Officer Self’s evidence that it was after reviewing this material that the volume, content and frequency of Mr Brookfield’s communications became apparent to him, and he formed the view that there was sufficient evidence to arrest Mr Brookfield and charge him with the offences of stalking and using a carriage service to menace, harass or cause offence to Mr Mergard and Mrs Mergard. Fraud investigation [44] On 8 April 2019, a Mr Carlisle made a complaint to the QPS that Mr Brookfield had advertised a motor vehicle for sale on Gumtree when he did not have title to the vehicle. Mr Carlisle claimed that (at Mr Brookfield’s direction) he had transferred money into a bank account in the name of “Lady Musgrave Eco Tours & Reef Cruises” as payment for the vehicle, but that Mr Brookfield had failed to transfer ownership of the vehicle. [45] On 15 May 2019, Officer May was tasked with investigating the fraud complaint against Mr Brookfield. Arrest of Mr Brookfield on 25 May 2019 [46] At approximately 11:05 am on 25 May 2019, Officer Self attended Mr Brookfield’s residence with two other QPS officers. An audio recording of what occurred was captured on Officer Self’s electronic recording device. [47] After introducing himself, Officer Self explained that he wished to speak to Mr Brookfield about a complaint made by Mr Mergard. He asked whether Mr Brookfield would go to the station for that purpose. Mr Brookfield indicated that it would be more convenient for him to attend the station on another day. Officer Self then explained that if Mr Brookfield did not come to the station voluntarily, he would be arrested. [48] Mr Brookfield expressed surprise when Officer Self told him that the complaint was about using a telecommunications device to threaten or menace, and stalking. He said that he had not communicated with Mr Mergard for more than five months and the Bundaberg police station had already dealt with Mr Mergard’s complaint. Officer Self explained that a fresh complaint had been made to the QPS. [49] Officer Self then informed Mr Brookfield that he intended to seize any mobile phone or computer in Mr Brookfield’s possession. Officer Self explained that, as he did not have a warrant to seize those items, Mr Brookfield had the choice to either consent to provide those items or Officer Self would arrest him and hold him in the watchhouse while he obtained a warrant. Mr Brookfield eventually agreed to provide his mobile phone and computer to Officer Self. Officer Self informed Mr Brookfield that he could withdraw his consent to the QPS officers taking those items at any time. [50] Before Mr Brookfield left his residence with the QPS officers, Officer Self told him that he had not been arrested. Officer Self asked if Mr Brookfield wanted to drive to Bundaberg police station and meet the officers there. Mr Brookfield said he was happy to go in the QPS vehicle with Officer Self and the other officers. Officer Self cautioned Mr Brookfield before he got into the QPS vehicle and explained his right to silence. Officer Self suggested to Mr Brookfield that he would be better off not -- 10 of 65 -- 11 talking during the drive. As they drove to the Bundaberg police station, Officer Self asked Mr Brookfield to confirm that he was in custody voluntarily. Mr Brookfield confirmed that to be the case. [51] Once at the Bundaberg police station, Officer Self explained that the complaint was about Mr Brookfield sending emails and text messages, and publishing social media posts, from 2016 up to as recently as April 2019, which were threatening, menacing, or harassing towards Mr and Mrs Mergard, including communications about Real Estate Now Pty Ltd and the 1770 Reef business. He informed Mr Brookfield he was investigating the offences of stalking and using a telecommunications device to menace. Officer Self repeated the caution he had previously given to Mr Brookfield about his right to silence, including his right to refuse to take part in an interview, and his right to have a lawyer present if he did take part in an interview. Mr Brookfield confirmed he was happy to take part in an interview and did not wish to contact a lawyer or anyone else. [52] Officer Self conducted an electronic record of interview with Mr Brookfield. A video and audio recording of that interview was captured on a QPS recording device. [53] At the commencement of the interview, Mr Brookfield again confirmed he understood that he was not under arrest and that he had come to the Bundaberg police station voluntarily in the QPS vehicle. Officer Self repeated the cautions he had previously given to Mr Brookfield a second time, and Mr Brookfield confirmed that he understood his rights. [54] During the interview, Mr Brookfield: (a) described the history of his relationship with Mr Mergard, including his role in approaching Mr Mergard in June 2015 about the purchase of the rent roll from Blue Prop. He stated that he had attended on Mr Mergard with his friend, Ms Nightingale, to sign the contract for the sale of the rent roll. He stated that Mr Mergard failed to pay the purchase price for the rent roll within the 60-day period required by the contract. In late 2016, Ms Nightingale caused Blue Prop to assign the debt owed by Real Estate Now under the contract to Mr Brookfield. Mr Brookfield then immediately commenced proceedings to recover the debt from Real Estate Now; (b) provided his mobile phone number and email address to Officer Self and confirmed that he was the only person who used that number and that email address; (c) confirmed that he had created a Facebook profile under the name “1770reef”, which he knew to be the name of the business operated by Mr and Mrs Mergard, but stated that he had since removed that profile; (d) agreed that he had sent the emails and text messages, and published the Facebook posts, that were the subject of Mr Mergard’s complaint. [55] The emails which Officer Self referred to during the interview were sent to Mr and Mrs Mergard, Rhonda Hansen (who Mr Brookfield identified as being Mr Mergard’s office manager and a director of Real Estate Now), Katherine Reid (who Mr Brookfield identified as having previously been married to Mr Mergard’s brother and -- 11 of 65 -- 12 as having used her position at Bundaberg Burnett Tourism Board to promote Mr Mergard’s 1770 Reef business over local Bundaberg tourism operators) and various other persons working for local government and the media. [56] Mr Brookfield described some of the emails he had sent as having gone over the top. He agreed he had been harsh and aggressive in the way he had gone after Mr Mergard. He did not accept, however, that the emails were harassing or menacing. He justified the aggressive nature of the emails on the basis that he and Ms Nightingale had been “conned” by Mr Mergard. He said Mr Mergard had a reputation of being a crook and that he deserved to be driven out of Bundaberg. He said he was angry at the way Mr Mergard had behaved in connection with the sale of the rent roll. [57] Officer Self asked Mr Brookfield about an email which he sent to Mrs Mergard on 22 July 2016. Mr Brookfield agreed he sent the email, and that it referred to Mr Mergard cheating on Mrs Mergard. The email also stated that Mr Mergard’s conduct would see Mrs Mergard lose her home, cars, and everything of value as Mr Mergard had tried to “rip off” the wrong person. When Officer Self asked what the allegation of cheating had to do with the commercial dispute, Mr Brookfield justified it on the basis that he was explaining the big picture to Mrs Mergard in circumstances where Mr Mergard had a history of marital infidelity. Mr Brookfield said most people would wish to know if their spouse was cheating but accepted that Mr Mergard would find such communications harassing. [58] Mr Brookfield said he had sent such a large volume of emails to Mr and Mrs Mergard because he was very angry with them; he was getting stuck into them. He accepted that emails he sent to Mr and Mrs Mergard, and to other people, raised issues that had nothing to do with the dispute about the rent roll. To the extent Mr Brookfield had sent communications to people other than Mr and Mrs Mergard, he said they were people who had financial issues with Mr Mergard. He claimed he had acted in the public interest to prevent Mr Mergard from “ripping off” other people. [59] Officer Self referred Mr Brookfield to an email he sent to Mrs Mergard and others on 15 November 2016. It stated that Mr Mergard’s days as a local business were numbered. It also stated that Mr Mergard had chosen the wrong person to lie to and rip off and that he would pay dearly for his deceit. Mr Brookfield denied that this statement could be considered threatening. He said it was a statement of fact. [60] Mr Brookfield described an email he sent to Mrs Mergard and Ms Hansen on 30 November 2016, referring to Mr Mergard’s stupidity for sourcing a boat which would not be allowed to take passengers to Lady Musgrave Island, as a smart-arse comment. He said his conduct in sending emails like that was not professional and a waste of time, but denied the email was harassing. [61] Officer Self referred Mr Brookfield to an email he had sent to Mrs Mergard on 8 December 2016, stating she needed to get herself a lawyer as she would end up losing everything. Mr Brookfield said he was simply putting Mrs Mergard on notice so that she could get some independent advice rather than believing what Mr Mergard was telling her. Mr Brookfield agreed he had commenced legal proceedings by the time he sent that email. [62] Mr Brookfield accepted he should not have sent some of the emails. He sent them because he was angry at Mr Mergard, who he knew to be a “lying crook”. He said -- 12 of 65 -- 13 he ceased sending those sorts of communications after he had been spoken to by someone from Bundaberg CIB. I infer this was a reference to his discussion with Officer Murray (see [8] to [13] above). He said that since that discussion, the only communications he had sent were approximately six emails to Real Estate Now related to the civil proceedings. [63] Officer Self then asked Mr Brookfield about Facebook posts which he had published under the 1770reef profile and his own personal profile. Those posts criticised the Mergards’ tour business, described Mr Mergard as a criminal, referred to a forthcoming prosecution of Mr Mergard by the Office of Fair Trading and to forthcoming liquidation proceedings against him. Mr Brookfield said he published those posts in the public interest because Mr Mergard was trying to raise money. [64] At the conclusion of the interview, Mr Brookfield said he was satisfied with the way the interview had been conducted and the way he had been treated by the QPS. He described that treatment as being very professional. [65] Once the interview had been completed, Officer Self arrested Mr Brookfield for the offence of stalking. He took him to the watchhouse so that he could be charged and released on bail conditions. Officer Self charged Mr Brookfield with the following offences: (a) using a carriage service to menace, harass or cause offence under s 474.17(1) of the Commonwealth Criminal Code, with the particulars of the charge being that between 20 January 2016 and 30 April 2019 he used email, internet and text message service in such a way that reasonable persons would regard that use as being menacing, harassing or offensive; (b) unlawful stalking under s 359E(1) of the Criminal Code, with the particulars of the charge being that he unlawfully stalked Mr Mergard between 1 January 2015 and 25 May 2019; (c) unlawful stalking under s 359E(1) of the Criminal Code, with the particulars of the charge being that he unlawfully stalked Mr Mergard between 1 January 2015 and 25 May 2019. [66] An audio recording of what occurred after the interview had finished and Mr Brookfield was taken to the watchhouse was captured on Officer Self’s electronic recording device. [67] Officer Self informed Mr Brookfield that, in his view, there was sufficient evidence to charge Mr Brookfield with stalking because (as Mr Brookfield had accepted during the interview) some of his emails went too far. He explained that Mr Brookfield would be released on bail conditions which prohibited him from having any contact with Mr Mergard, or approaching within a specified distance of him unless for the purpose of attending court for civil proceedings. Officer Self informed Mr Brookfield that if he posted anything on Facebook about Mr Mergard or Mrs Mergard, sent any email or text messages, or approached Mr Mergard or Mrs Mergard then he would breach his bail. [68] In response to a question from Mr Brookfield about why he had not been charged when Officer Murray had spoken to him about the communications the previous year, -- 13 of 65 -- 14 Officer Self explained that a fresh complaint had been made and that new material had been provided which Officer Self did not believe had been provided to the QPS previously. [69] Officer Self then told Mr Brookfield that Officer May wished to speak to him about another matter. Officer May located Mr Brookfield in the watchhouse and explained the substance of the fraud complaint which had been made by Mr Carlisle. I accept Officer May’s evidence that he asked Mr Brookfield if he was willing to take part in a recorded interview in relation to the fraud complaint, but that Mr Brookfield declined to be interviewed about that complaint. Officer May then charged Mr Brookfield with the offence of Fraud – Dishonestly gain benefit/advantage under s 408C(1)(d) of the Criminal Code. [70] Mr Brookfield was then released on bail on all four charges. As had been foreshadowed by Officer Self, one of the bail conditions imposed on Mr Brookfield prohibited him from approaching or being within 50 metres of Mr Mergard or Mrs Mergard “unless for the purpose of attending court”. Evidence of charges against Mr Brookfield used in Federal Court proceedings [71] On 26 May 2019, Officer Self sent an email to Ms O’Connell which: (a) informed Ms O’Connell that he would be on leave for a month from the following day; (b) asked if Mr Mergard’s statement could be updated to include the effect that Mr Brookfield’s communications and the civil proceedings were having upon Mr Mergard’s business interests, finances, health and mental state; (c) informed Ms O’Connell of the three offences which Mr Brookfield had been charged with the previous day; (d) notified Ms O’Connell of the bail conditions imposed on Mr Brookfield and said she could report any breach of those bail conditions on the policelink telephone service; (e) set out a summary of facts which the email stated would be “read to the court if and after the defendant is found guilty.” The email also stated that the summary of facts might be edited after plea negotiations. [72] On 5 June 2019, an application by Mr Brookfield to wind up Real Estate Now was heard by Justice Derrington in the Federal Court of Australia. In opposing that application, Real Estate Now relied on Officer Self’s email to Ms O’Connell in support of a submission that the winding up application should be dismissed as an abuse of process. Justice Derrington’s decision dismissing the winding up application contained the following passage:1 “[45] [Real Estate Now] also sought to support its claim that the winding up application was part of a concerted and orchestrated scheme of intimidation by Mr Brookfield, by adducing evidence of a series of emails, texts and internet 1 Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641, 653-654 [45]-[47]. -- 14 of 65 -- 15 posts which Mr Brookfield had sent or uploaded to the internet. [Real Estate Now] also relied on an email from an officer of the Queensland Police Service in relation to charges which have been preferred against Mr Brookfield. The two matters appear to be related. As mentioned above, to the extent to which it is possible to ascertain, the internet posts and emails appear to have been sent or posted in the period between 2015 and 2017. For reasons which are not immediately clear, the Queensland Police appear to have only now sought to charge Mr Brookfield with various offences relating to the misuse of a carriage service and stalking. That said, the correspondence produced might suggest that the charging has occurred as a result of the intervention of the company’s solicitors. On 26 May 2019, a person described as Andrew Self, Detective Acting Senior Sergeant of the Bundaberg Criminal Investigation Branch, sent an email to the solicitors acting for [Real Estate Now] and Mr Mergard. It has Mr Self’s official Queensland Police footer on it. The purpose of the email is not immediately apparent but it has the appearance of a statement purportedly setting out the conduct of the police investigation, the arrest of Mr Brookfield and the bail conditions. Mr Self identifies a number of charges which he says are brought against Mr Brookfield. The statement of the offences are remarkable for the lack of any reference to the dates on which the alleged offences occurred. That is important, as the email of Mr Self was sent only a few days prior to the hearing of this application and, it might seem, to assist [Real Estate Now] and Mr Mergard in this litigation. One must wonder why, if the harassment occurred or at least commenced a number of years ago, the police have only recently arrested Mr Brookfield and why full details of police operations and the manner of the investigation were disclosed as they were. Given the historical practice of police forces in Australia not to disclose their methods of investigation and processes it is a remarkable document indeed. Even disclosing to alleged victims of crime the conduct of investigations and the steps taken to prosecute could not be thought to be common amongst police forces. [46] Given the long history of hostilities between the parties I pay little attention to the unsworn allegations made by Mr Self in his email. Regardless of what the circumstances are in the present case, it would be a matter of great regret to find that members of the police force would involve themselves in assisting particular parties in civil litigation. Not in the least is that it tends to undermine the confidence that the public might have that the police undertake their tasks in an unbiased and dispassionate manner. [47] The arrest of Mr Brookfield shortly before the hearing gives cause for concern. It may well have been coincidental. If, however, there was evidence that it had been arranged for the purposes of this matter, reference to the proper authorities would be required. Fortunately, there is no such evidence.” Arrest of Mr Brookfield for breach of bail [73] On 17 June 2019, Mr Mergard was to appear at the Bundaberg Magistrates Court in a prosecution brought against him by the Office of Fair Trading. Ms O’Connell was present in the courtroom instructing counsel who appeared for Mr Mergard. -- 15 of 65 -- 16 [74] When that matter was called on before Magistrate Duroux, Mr Mergard’s counsel said the following: “There is a gentleman in the back of the court who is charged with two counts of stalking and menacing – using a carriage service to cause threats – the offence under the Crimes Act. Again – and with Mr Mergard as the complainant in relation to those matters. He has bail conditions that prevent him from being within 50 metres of Mr Mergard. Despite that, he has chosen in violation of those bail conditions to attend the court hearing this morning. That’s Mr Brookfield ---" [75] Magistrate Duroux responded by saying to those present: “If there’s somebody in my court who’s in the – presently committing an offence, I advise you very quickly desist and remove yourself very quickly, otherwise I’ll be calling police over here to investigate a possible breach of bail. I don’t know anything about it. I really don’t know, and I don’t care. I’m just putting people on notice that if that is an issue, and if there is a bail condition, there might be an issue – I’m not going to take it any further at this stage.” [76] Mr Mergard’s counsel indicated to Magistrate Duroux that the police had already been contacted. The matter was then adjourned for a short period. When it resumed, Mr Mergard’s counsel complained to Magistrate Duroux that Mr Brookfield had not left the court building. Magistrate Duroux stated that his jurisdiction was limited to the courtroom and suggested that police should be called. During that exchange, Magistrate Duroux made the following statement: “… Do I think that – if there’s a bail condition there, do I think it’s a live issue? You bet I do. Do I think that – do I think it’s sort of – well, someone’s here and they shouldn’t be here – intimidation – call it what you will. … In my view, police should be called, and police should be brought over here urgently. I don’t know whether you can – the sergeant up the back can give you some assistance ---” [77] The person referred to by Magistrate Duroux as “the sergeant up the back” was Sergeant Dean Burgess who was conducting prosecutions for the QPS at the Bundaberg Magistrates Court that day and was present in the courtroom when Magistrate Duroux made the statement extracted in the preceding paragraph. Magistrate Duroux then engaged in a discussion with Officer Burgess and indicated that he did not have any issue with a person being arrested in the court building. Officer Burgess then spoke to Mr Mergard’s counsel. [78] In addition to having counsel raise Mr Brookfield’s presence in the courtroom with Magistrate Duroux, Ms O’Connell telephoned Officer Self and told him that she thought Mr Brookfield was breaching his bail conditions by being present in the courtroom. Officer Self, who was not working that day, told Ms O’Connell to tell the QPS prosecutor on duty that day about her concern. -- 16 of 65 -- 17 [79] Officer Self then spoke to Officer Burgess on the telephone. Officer Burgess does not have any specific recollection of what was said during that telephone call. I address Officer Self’s evidence later in these reasons. [80] Officer Burgess’ evidence was that, after speaking with Mr Mergard’s counsel and Officer Self, he understood that Mr Brookfield:2 (a) was subject to a bail condition that he not approach within 50 metres of Mr Mergard unless it was for a court purpose; (b) was not involved in any court matter that day; (c) had come within 50 metres of Mr Mergard without a court purpose and was therefore in breach of his bail conditions. [81] Officer Burgess telephoned Senior Constable Michael Sellars at the Bundaberg police station and told him that there was a person at the court building in breach of bail conditions. Officer Burgess asked Officer Sellars to come to the court building to transport the person to the watchhouse. [82] Officer Burgess then spoke to a person outside the courtroom who confirmed that he was Mr Brookfield. After a brief discussion, Officer Burgess informed Mr Brookfield that he was under arrest for having breached his bail conditions. Officer Burgess then took Mr Brookfield to the holding cells in the court building. [83] Officer Sellars arrived at the court building, with Constable Lucy Buchanan, while Officer Burgess was speaking with Mr Brookfield. Officer Sellars heard Officer Burgess tell Mr Brookfield that he was under arrest for breaching his bail conditions and observed Officer Burgess escort Mr Brookfield to the back of the court building. [84] Officer Sellars’ evidence was that Officer Burgess told him:3 (a) the person he had arrested was Mr Brookfield; (b) Mr Brookfield was not allowed to be within 50 metres of Mr Mergard unless he was attending court; (c) he had checked with court staff and they had advised him that Mr Brookfield had no matters before the Court and was not required to be at the court building that day; (d) Mr Brookfield had gone within 50 metres of Mr Mergard. [85] Officer Sellars and Officer Buchanan then took Mr Brookfield from the holding cells and transported him to the watchhouse. Mr Brookfield told Officer Sellars that he had a lawful purpose for attending the court building that day but did not provide any further information to support that statement. [86] Officer Sellars then undertook checks on QPRIME which indicated that one of Mr Brookfield’s bail conditions required that he not be within 50 metres of Mr Mergard 2 Exhibit 28, [13]. 3 Exhibit 29, [9] and [16]. -- 17 of 65 -- 18 unless for the purposes of attending court. After conducting these checks, Officer Sellars charged Mr Brookfield with having breached a condition of his bail undertaking. Mr Brookfield was then released from custody on his own undertaking. Dismissal of the fraud charge [87] On 5 July 2019, Officer May was tasked with preparing a brief of evidence in relation to the fraud charge he had laid against Mr Brookfield. He then attempted to obtain a formal statement from Mr Carlisle. [88] Sometime before 30 August 2019, Mr Carlisle telephoned Officer May and advised him that the money he had paid as a deposit for the vehicle had been returned to him. Mr Carlisle did not wish to continue with the prosecution of the fraud charge against Mr Brookfield. [89] In preparing the brief of evidence, Officer May also identified a deficiency in the prosecution case which was not apparent to him when he laid the fraud charge. After reviewing data obtained from Mr Brookfield’s mobile phone, Officer May discovered that Mr Brookfield had not always been present in Queensland when he dealt with Mr Carlisle. This raised a jurisdictional issue with respect to the fraud charge. [90] Given Mr Carlisle’s position, the fact that the money Mr Carlisle had paid at Mr Brookfield’s direction had been returned and the jurisdictional issue with the charge, Officer May decided that it was no longer in the public interest to proceed with the prosecution of Mr Brookfield for the fraud charge. Officer May requested that the charge be withdrawn. That request was approved by Officer Bishop. [91] On 30 August 2019, the fraud charge was dismissed in the Bundaberg Magistrates Court with no evidence having been offered. Dismissal of the breach of bail charge [92] On 9 August 2019, Officer Sellars prepared a brief of evidence in relation to the breach of bail charge and submitted it to the Bundaberg Brief Manager for QPS prosecutions. Officer Sellars later supplemented the brief of evidence with statements he obtained from Mr Mergard and Officer Burgess, as well as the transcript of proceedings before Magistrate Duroux. [93] On 17 September 2020, the breach of bail charge was dismissed in the Bundaberg Magistrates Court with no evidence having been offered. The reason that course was taken was explained in evidence given by Sergeant Grant Klaassen, the QPS prosecutor responsible for prosecuting the breach of bail charge, who was called as a witness by Mr Brookfield. [94] Officer Klaassen made the decision not to proceed with the prosecution, and to formally offer no evidence in relation to the charge, based upon his consideration of the sufficiency of the evidence and the public interest. Officer Klassen considered that the wording of the bail condition which Mr Brookfield was alleged to have breached could be interpreted as permitting Mr Brookfield to attend court for any purpose, not only for matters to which he was a party. On that basis, Officer Klaassen concluded that it was not in the public interest to continue to prosecute the breach of bail charge. -- 18 of 65 -- 19 Arrest of Mr Brookfield for failure to appear [95] On 27 January 2021, Mr Brookfield attended the Bundaberg police station and spoke to Sergeant Timothy Lowth. Mr Brookfield advised Officer Lowth that he had been to the Bundaberg courthouse that day and court staff had told him that he was wanted on a warrant for having failed to appear on an earlier date. The court staff had told him that he needed to go to the police station to rectify the problem. [96] Officer Lowth conducted checks on QPRIME and confirmed that a warrant had been issued following Mr Brookfield’s failure to appear in the Bundaberg Magistrates Court on 21 January 2021 in relation to a variety of maritime safety offences. [97] Officer Lowth arrested Mr Brookfield and took him to the watchhouse to be charged. Mr Brookfield was placed in a holding cell while Officer Lowth completed the relevant paperwork. Officer Lowth then charged Mr Brookfield with failure to appear in accordance with the undertaking he provided when released on bail for the maritime safety offences. Mr Brookfield was then released from custody on his own undertaking. [98] On 15 June 2021, Mr Brookfield was found guilty in the Bundaberg Magistrates Court on the failure to appear charge. He was sentenced to no further punishment and no conviction was recorded. Progress of the prosecution of the carriage service and stalking charges [99] By about 30 August 2019, Officer Self had completed a brief of evidence in relation to the carriage service charge and the stalking charges. [100] On 12 February 2020, Mr Brookfield applied to the Bundaberg Magistrates Court to exclude evidence obtained from his mobile phone from the trial of the carriage service charge and the stalking charges. Officer Self gave evidence on the hearing of that application and was cross-examined by Mr Brookfield about the basis for the change in position from January 2019 (when Officer Self agreed with Officer May’s assessment that Mr Mergard’s complaint was a civil matter – see [24] to [28] above) to Mr Brookfield being charged with stalking on 25 May 2019. During that cross- examination, Officer Self explained that he made his assessment that there was evidence of criminal offending by Mr Brookfield after Ms O’Connell provided him with documents, and Mr Mergard provided him with the hard drive which contained a large volume of material which Officer Self had not seen before. He further explained that all this material had been provided to Mr Brookfield in the brief of evidence in relation to the carriage service charge and the stalking charges. [101] At the conclusion of the hearing that day, Officer Klaassen informed Magistrate Duroux he had been instructed to seek a further bail condition which would prevent Mr Brookfield from making any further applications or commencing any civil proceedings against Mr Mergard or his family or business interests without the leave of a magistrate. Magistrate Duroux expressed concern about imposing such a condition which would have the effect of preventing Mr Brookfield from seeking to exercise his legal rights in respect of his civil dispute with Mr Mergard. Given that concern, Officer Klaassen did not press the application to add a further bail condition. -- 19 of 65 -- 20 [102] On 27 October 2021, the committal hearing for the carriage service charge and the stalking charges was conducted in the Bundaberg Magistrates Court. Acting Magistrate Milburn concluded that the evidence offered in support of those charges was not capable of supporting a guilty verdict on any of the charges. All three charges were dismissed. After addressing aspects of the civil dispute between Mr Brookfield and the Mergards, including the decision of Justice Derrington referred to in [72] above, Acting Magistrate Milburn described the evidence of Mr Brookfield’s communications as follows: “In terms of the actual communications that were referred to by Justice Derrington, and considered by me as part of the overall brief, I do categorise them as robust, and to some eyes, potentially rude. But at no stage do they reach the level where a properly instructed jury could reasonably consider that they are menacing, harassing or offensive, or in relation to the charge of stalking, of a nature of [sic] kind to constitute the stalking charge. The matter has not, in my view, become personal. This is not a typical allegation of stalking. And, in my view, the communications, albeit robust and numerous, relate to commercial matters. But commercial communications are robust. They are meant to be decisive, and to some degree, tough. It is not uncommon for communication of open court civil matters to be reported elsewhere beyond the court. There is no evidence of any privilege attaching to any communications. The specific details and digital communications were no [sic], in my view, sufficient to warrant the matter proceeding as a criminal charge. In my view there are substantial remedies [sic] in the Crown case that cannot be remedied. In those circumstances, I have formed the view that there is not sufficient evidence, even evidence that is tenuous or inherently weak or vague, to justify committing the defendant upon trial for any one of the three charges.” Further complaint by Mr Mergard [103] On about 5 July 2021, Mr Mergard attended the Bundaberg police station and provided Officer Self with copies of affidavits which Mr Brookfield had sworn in proceedings relating to the disputed debt. Mr Brookfield had previously sworn that Mr Mergard did not sign the contract for the sale of the rent roll by Blue Prop to Real Estate Now. Mr Mergard complained that Mr Brookfield’s position had changed and that he had sworn a subsequent affidavit which exhibited a copy of the contract for the sale of the rent roll which had a signature which purported to be that of Mr Mergard. Mr Mergard said he had not signed that contract and complained that Mr Brookfield had forged his signature on the copy of the contract which he was then relying upon in his claim to recover the debt from Real Estate Now. [104] On 3 August 2021, Officer Self assigned the task of investigating this further complaint to another officer in the Bundaberg CIB, Detective Sergeant Zanco. At that time, Officer Bishop was on leave and Officer Self was acting in Officer Bishop’s position as Officer in Charge of Bundaberg CIB. It was in that role that Officer Self assigned the investigation of Mr Mergard’s complaint about the forgery of his signature to Officer Zanco. [105] By 17 August 2021, Officer Bishop had returned from leave. Upon his return, Officer Zanco informed Officer Bishop that she did not wish to undertake the investigation -- 20 of 65 -- 21 of Mr Mergard’s complaint about the forgery of his signature. Officer Zanco expressed concern that by undertaking that investigation she would become the subject of complaints by Mr Brookfield. By that stage Mr Brookfield had already made several complaints to the Crime and Corruption Commission and the Ethical Standards Command of the QPS about Officer Self’s conduct in investigating Mr Mergard’s previous complaints, and in laying the carriage service charge and the stalking charges. Officer Bishop shared Officer Zanco’s concerns. Officer Self and Officer Zanco were the only two detective sergeants in the Bundaberg CIB working underneath Officer Bishop. Officer Bishop determined that if the investigation of Mr Mergard’s forgery complaint was to result in further complaints by Mr Brookfield it would be better that only one of his detective sergeants, Officer Self, be the subject of such complaints. For that reason, and because of Officer Self’s existing knowledge of the dispute between Mr Brookfield and Mr Mergard, Officer Bishop decided to reallocate the task of investigating Mr Mergard’s forgery complaint from Officer Zanco to Officer Self. Arrest of Mr Brookfield for forgery, uttering, perjury and attempted fraud [106] On 15 October 2021, Officer Self obtained a warrant for the arrest of Mr Brookfield for the offences of forgery, uttering, perjury and attempted fraud. He then attended Mr Brookfield’s residence with two other QPS officers at about 11:34 am that day to execute the arrest warrant. A recording of what occurred was captured on the body worn camera of Officer Johnson, one of the other officers who attended the residence with Officer Self. [107] Upon locating Mr Brookfield, Officer Self informed him that, pursuant to the warrant, he was placing Mr Brookfield under arrest for the offences of forgery, uttering, perjury and attempted fraud. Officer Self cautioned Mr Brookfield and informed him of his rights. Officer Self encouraged Mr Brookfield not to say anything. He then provided Mr Brookfield with a copy of the arrest warrant and informed him that he would not be objecting to Mr Brookfield being released on bail after he had been charged. [108] Officer Self informed Mr Brookfield that Mr Mergard had made a complaint about the forgery of his signature on the contract for the sale of the rent roll. [109] After Mr Brookfield had told another occupant at the residence that he had been arrested and would be taken to the Bundaberg police station, Officer Self showed Mr Brookfield the original stamped copy of the arrest warrant. He said was doing this because Mr Brookfield had a habit of making vexatious complaints. [110] Before Mr Brookfield was taken to the QPS vehicle, Officer Self asked him if he wanted to call a solicitor. Mr Brookfield declined that invitation. [111] The officers then commenced walking with Mr Brookfield to the QPS vehicle which was parked on the street in front of the residence. Officer Self led the others out. Mr Brookfield walked slowly and fell a distance behind Officer Self. Officer Johnson waited to walk beside Mr Brookfield. One of the officers who stayed with Mr Brookfield encouraged him to increase his walking pace by saying “C’mon”. By that stage Officer Self had turned near the entrance to the driveway of the property and was waiting for Mr Brookfield to catch up. Officer Self and Mr Brookfield then exchanged the following words: -- 21 of 65 -- 22 Officer Self: C’mon, move. Mr Brookfield: Excuse me? Officer Self: I said move. You’re under arrest mate. Mr Brookfield: Yeah. I’m walking, alright? Officer Self: Let’s go. [112] The officers then placed Mr Brookfield in the QPS vehicle and drove him to Bundaberg police station. [113] Upon arriving at the station, Officer Self took Mr Brookfield through to the watchhouse. An audio recording of what occurred at the watchhouse was captured on Officer Self’s electronic recording device. [114] Before Mr Brookfield was placed in one of the cells, the following exchange took place between Officer Self and Mr Brookfield: Mr Brookfield: Have you got a copy of the evidence which you are using to charge me for this? Because each and every one of these charges has been investigated here by five coppers. Officer Self: Rubbish. Mr Brookfield: No, it’s not rubbish … [indistinct as Officer Self begins to talk over him] Officer Self: Ian, I am not arguing with you. Lower your voice. Lower your voice. You are under arrest. Do not even speak to me. I warn you not to speak to me, okay? Mr Brookfield: Why? Because you try to charge me again with no evidence? Officer Self: Yeah, I’ve got all the evidence … I’ve even got your evidence mate. [115] There was then a brief interlude where Mr Brookfield was given instructions about where to leave certain items before he was placed in a cell. Mr Brookfield’s exchange with Officer Self then continued: Mr Brookfield: So what are you going to type up now, another set of bail conditions? Officer Self: No. I don’t answer to you Ian. … Yeah, well I’ve seen your vexatious complaints and the same thing will happen with your future ones which you will no doubt put in. Absolutely nothing. Mr Brookfield: Exactly, and that’s what you’re banking on. Officer Self: Because they are completely vexatious and lies. -- 22 of 65 -- 23 Mr Brookfield: They’re not. Officer Self: Yeah, well prove them. Prove them. Mr Brookfield: We’ll let the CCC handle them. Officer Self: Yeah, that’s alright. You prove them. You can’t just make wild allegations mate and then have nothing to substantiate them with. It’s called making a false complaint against police, and that’s coming too. … Just so you know, I have all the affidavits signed and, actually, the evidence against you is from your own affidavits, which is very interesting. So, it’ll be good. So, anyway, do you wish to be interviewed in relation to these matters? Mr Brookfield: No, it’s all more malicious prosecution. Officer Self: Okay. No worries. That’s good. I won’t bother interviewing you. … Mr Brookfield: Every time I take Mergard to court, you guys are involved. Officer Self: Just before you go, you’ll be placed on bail conditions similar to that of Judge Porter, right, where you are not to commence any action whatsoever against Mergard until the finalisation of criminal proceedings. Mr Brookfield: I haven’t got an action against Mergard. Officer Self: All the civil matters. You will not commence any more … you will be on bail and not to commence any more civil actions without the permission of the court. Understand that? Mr Brookfield: Against Mark Mergard, yeah. Officer Self: Yeah, or his business. Mr Brookfield: No, you can’t do that. Officer Self: Absolutely I can. Mr Brookfield: Right. You can try that. Officer Self: Yep. That’s fine. You make your complaints, Ian. You make your complaints mate. See you later. [116] Officer Self’s reference to Judge Porter related to orders which were made by that judge on 27 May 2021 in a District Court proceeding brought by Mr Brookfield -- 23 of 65 -- 24 against Real Estate Now and Mr Mergard.4 Judge Porter referred to the condition of Mr Brookfield’s bail which prevented him from contacting Mr Mergard and the practical and procedural difficulties that had caused for the efficient conduct of the District Court proceeding. In those circumstances, Judge Porter considered that it was in the interests of justice to stay the District Court proceeding until the completion of the committal process for the carriage service charge and the stalking charges against Mr Brookfield. [117] Officer Self referred to Judge Porter’s order in the application he had made for the arrest warrant he obtained on 15 October 2021. In that application, Officer Self also referred to the QPS having attempted to have a condition placed on Mr Brookfield to cease all civil matters against Mr Mergard until the carriage service charge and the stalking charges had been finalised, but that the Bundaberg Magistrates Court did not impose that condition. I infer that this was a reference by Officer Self to the unsuccessful application made to vary the conditions of Mr Brookfield’s bail at the conclusion of the hearing on 12 February 2020 (see [100] to [101] above). [118] Officer Self charged Mr Brookfield with the following offences: (a) forgery under s 488(1)(a) of the Criminal Code, with the particulars of the charge being that on an unknown date between 5 July 2015 and 20 July 2018 he had forged a document, namely the rent roll contract, with intent to defraud; (b) uttering under s 488(1)(b) of the Criminal Code, with the particulars of the charge being that on an unknown date between 5 July 2015 and 20 July 2018 he had uttered a forged document, namely the rent roll contract; (c) perjury under s 123(1) of the Criminal Code, with the particulars of the charge being that on various dates between 29 June 2016 and 15 October 2021 he had, for the purpose of instituting a judicial proceeding, knowingly given false testimony to the effect that Mr Mergard signed the rent roll contract and that false testimony touched a matter which was material to a question then intended to be raised in the proceeding; (d) attempted fraud/dishonestly gaining a benefit or advantage under s 408C(1)(d) and s 535 of the Criminal Code, with the particulars of the charge being that between 5 July 2015 and 15 October 2021 he attempted to dishonestly gain a sum of money for himself. [119] After he was charged, Mr Brookfield was released on bail, including the following condition: “You are not to commence any proceeding, in any court, regarding the dispute over the Rent Roll and Purchase Agreement, or any other related matter, with Mark Mergard or Real Estate Now without the permission of a court. You are to advise any court, where you seek to amend bail conditions, of Judge Porter’s order made 27 May 2021, in the Brisbane District Court [BD 868/21].” Variation of Mr Brookfield’s bail conditions 4 Brookfield v Real Estate Now Pty Ltd [2021] QDC 95. -- 24 of 65 -- 25 [120] On 19 October 2021, Mr Brookfield applied to the Bundaberg Magistrates Court to vary his bail conditions. Magistrate McGarvie allowed that application and described Officer Self’s conduct in imposing a bail condition which restrained Mr Brookfield from commencing civil proceedings without the permission of the court as inappropriate and a significant overreach. Dismissal of the forgery, uttering, perjury and attempted fraud charges [121] On 31 March 2022, Magistrate McGarvie dismissed each of the forgery charge, the uttering charge, the perjury charge and the attempted fraud charge in circumstances where the evidence offered in support of those charges, in the form of court documents, were not copies of documents obtained from a court file. Instead, they were copies of documents provided to Officer Self by Mr Mergard. Magistrate McGarvie concluded that those documents would not be admissible in a trial of the forgery, uttering, perjury and attempted fraud charges and, on that basis, was not satisfied that a prima facie case existed at that time in relation to any of those charges. Consideration of the claim for false imprisonment [122] In McFadzean v Construction, Forestry, Mining & Energy Union,5 the Victorian Court of Appeal observed that the essence of the action for false imprisonment is the compelling of a person to stay at a particular place against his or her will. It is not sufficient that conduct of the defendant has contributed to or influenced the plaintiff’s decision to remain at the place unless the conduct has overborne the plaintiff’s will. It must be shown that, but for the defendant’s conduct, the plaintiff would not have yielded to the restraint on his or her liberty to leave the place.6 [123] There is no requirement, however, that the imprisonment be given effect by force.7 It is a question of fact in each case whether a restriction is so severe as to be characterised as false imprisonment.8 If a person accedes voluntarily and without constraint to a request that the person accompany a police officer there is no interference with the person’s liberty. That person’s liberty is not under restraint simply because the police officer would or might arrest the person if he or she were to exercise the right to refuse to accompany the police officer. It is only if the circumstances are such as to convey that the person has no real choice that his or her liberty is under restraint and the act of accompanying the police officer cannot be regarded as voluntary.9 [124] The restraint on the plaintiff’s liberty must be intentional on the part of the defendant,10 but it is not necessary for a plaintiff to establish malice or any improper motive to succeed in the action.11 [125] If a plaintiff proves that he or she has been imprisoned, the onus passes to the defendant to establish that the imprisonment was lawful.12 5 (2007) 20 VR 250 (McFadzean). 6 McFadzean, 264 [41]; Irving v Pfingst [2020] QSC 280 (Irving), [48]. 7 Ferguson v State of Queensland [2007] QSC 322 (Ferguson), [13]; Irving, [49]. 8 McFadzean, 264-265 [42]. 9 R v Lavery (No 2) (1978) 19 SASR 515, 516. 10 Ferguson, [13]; Irving, [49]. 11 Irving, [49]. 12 Ferguson, [14]. -- 25 of 65 -- 26 Was Mr Brookfield falsely imprisoned on 25 May 2019? At what point was Mr Brookfield first detained on 25 May 2019? [126] Mr Brookfield did not make any submission during his closing address as to what point in time he claims to have first been detained by Officer Self on 25 May 2019. He did suggest, however, in an answer he gave during cross-examination that he was not given any choice by Officer Self as to whether to accompany the officers to the station.13 This was a reference to Officer Self’s statement that Mr Brookfield would be arrested if he did not come to the police station voluntarily (see [47] above). [127] This raises the question whether, having regard to the principles discussed at [123] above, Mr Brookfield’s liberty was restrained from the point at which he indicated he would go to the police station, or whether that was something he agreed to do voluntarily despite the indication that if he did not agree he would be arrested. [128] The defendant accepted that, considered in isolation, Officer Self’s statement that Mr Brookfield would be arrested if he did not come voluntarily might be construed as an ultimatum which afforded Mr Brookfield no real choice such that his going with the QPS officers might not be regarded as voluntary. However, the defendant submitted that when the whole of the interaction leading to Mr Brookfield going with the QPS officers is considered it becomes apparent that Mr Brookfield did go voluntarily. I accept that submission. [129] Before Mr Brookfield left his residence with the QPS officers, Officer Self confirmed to him that he had not been arrested. Mr Brookfield said that he was happy to go to the station in the QPS vehicle rather than travel in his own car. He then confirmed, both during the drive to the police station and at the commencement of his interview with Officer Self, that he was there voluntarily (see [50], [50] and [53] above). Mr Brookfield’s contemporaneous confirmations to Officer Self are consistent with his acceptance under cross-examination that he was keen to provide his version of events to Officer Self once he had been told what the complaint was about.14 It is also consistent with his statement, made before he was told he was being arrested, that the way Officer Self had treated him was very professional (see [64] above). When the whole of the circumstances in which Mr Brookfield went with the QPS officers on 25 May 2019 are considered, I am satisfied that he did so voluntarily. [130] Having gone to the police station voluntarily, Mr Brookfield then took part in the interview with Officer Self voluntarily. His right not to answer questions was explained to him and he confirmed that he understood that he had that right. When Officer Self asked if he wished to take part in an interview, he confirmed he was willing to do so. Again, this is consistent with Mr Brookfield wishing to provide his version of events to Officer Self. [131] It follows that Mr Brookfield was only detained once the interview with Officer Self had concluded and Officer Self arrested him. Was the arrest of Mr Brookfield by Officer Self on 25 May 2019 lawful? 13 Transcript 2-21:43-46; 2-23:16-41. 14 Transcript 2-22:9-17. -- 26 of 65 -- 27 [132] Given that Mr Brookfield was imprisoned from the time that Officer Self arrested him until he was released on bail, the defendant must establish that the arrest of Mr Brookfield was lawful. To do so, the defendant relies on the power of QPS officers to arrest a person without a warrant that is conferred by s 365(1) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). [133] That power exists if two conditions are met. First, the officer reasonably suspects that the person has committed or is committing an offence. Secondly, it is reasonably necessary for the officer to arrest the person for one or more of a number of prescribed reasons. Those prescribed reasons include: to prevent the continuation or repetition of an offence or the commission of another offence – s 365(1)(a); to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence – s 365(1)(e); because of the nature and seriousness of the offence – s 365(1)(k). [134] The term “reasonably suspects” is defined in Sch 6 of the PPRA to mean “suspects on grounds that are reasonable in the circumstances”. This concept was summarised by Dalton J (as her Honour then was) in R v Bossley:15 “There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett. A suspicion and a belief are different states of mind. A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. …” [135] A suspicion is a state of mind informed by circumstances as they appear to the holder to be at the relevant time rather than the circumstances as they actually are at that time.16 The requirement that the officer who purports to exercise power under s 365(1) reasonably suspect that a person has committed or is committing an offence means that the officer must personally hold the suspicion at the time the decision is taken to exercise the power of arrest and that the suspicion be objectively reasonable in the sense that it is based on facts which would create such a suspicion in the mind of a reasonable person. [136] Officer Self’s evidence was that, when he arrested Mr Brookfield, he was satisfied there was sufficient evidence to charge him with the carriage service and stalking offences.17 Based on that evidence, I accept that when Officer Self charged Mr Brookfield following the interview, he held a subjective suspicion that Mr Brookfield had committed the offences he was charged with. 15 [2015] 2 Qd R 102, 105 [14] (citations omitted). 16 R v Kovacevic [2020] QSC 399, [19] (Kovacevic) citing Commissioner of Police v Flanagan [2019] 1 Qd R 249, 254 [45]. 17 Exhibit 37, [40] and [51]-[58]. -- 27 of 65 -- 28 [137] I am further satisfied that Officer Self’s suspicion was reasonably based. In addressing Mr Brookfield’s claim for malicious prosecution below, I have concluded that the material available to Officer Self at the time he arrested and charged Mr Brookfield provided reasonable and probable cause to bring the unlawful stalking charges and the carriage service charge against Mr Brookfield. For the same reasons as set out there, I am satisfied that the material available to Officer Self provided a reasonable basis to suspect that Mr Brookfield had committed the offences which were the subject of the charges Officer Self laid against him. [138] I am also satisfied that it was reasonably necessary for Officer Self to arrest Mr Brookfield. That is because Officer Murray had warned Mr Brookfield during their discussion on 7 November 2017 that his conduct amounted to stalking and he would be charged if he continued to engage in such conduct (see [10]-[11] above). Mr Brookfield ignored that warning. That can be seen from the consideration below of the material contained on the hard drive provided to Officer Self by Mr Mergard. In those circumstances, it was reasonably necessary for Officer Self to arrest Mr Brookfield to prevent him from continuing to engage in further conduct of that type. [139] Consequently, I consider that Officer Self’s arrest of Mr Brookfield on 25 May 2019 was lawful. Was the arrest of Mr Brookfield by Officer May on 25 May 2019 lawful? [140] Officer May’s evidence was that when he charged Mr Brookfield with fraud on 25 May 2019, he honestly believed it was appropriate for him to do so based on the information available to him.18 Based on that evidence, I accept that when Officer May charged Mr Brookfield with fraud, he held a subjective suspicion that Mr Brookfield had committed that offence. [141] I accept Officer May’s evidence about the information provided in Mr Carlisle’s complaint, namely that: (a) Mr Brookfield had advertised a vehicle for sale; (b) Mr Carlisle had paid a deposit of $3,186 into a bank account in the name of “Lady Musgrave Eco Tours & Reef Cruises” at the direction of Mr Brookfield; (c) Mr Carlisle had discovered that the vehicle was encumbered to 14 financial institutions and Mr Brookfield was not entitled to sell the vehicle; (d) despite having taken Mr Carlisle’s deposit, Mr Brookfield continued to advertise the vehicle for sale; (e) Mr Brookfield had refused to engage with Mr Carlisle or to return the deposit. [142] I also accept Officer May’s evidence that, when he charged Mr Brookfield with fraud, he was not aware of any evidence which might undermine Mr Carlisle’s complaint. [143] Having accepted Officer May’s evidence about those matters, I am satisfied that the information available to him on 25 May 2019 provided a reasonable basis for him to suspect that Mr Brookfield had committed the offence of fraud. 18 Exhibit 34, [22]. -- 28 of 65 -- 29 [144] I am also satisfied that, in circumstances where the information Officer May had was that Mr Brookfield continued to advertise the vehicle for sale, it was reasonably necessary for him to arrest Mr Brookfield to prevent a repetition of the fraud offence. [145] Consequently, I consider that Officer May’s arrest of Mr Brookfield on 25 May 2019 was lawful. [146] I am therefore satisfied that the imprisonment of Mr Brookfield on 25 May 2019 was lawful and cannot found an action for false imprisonment. Was Mr Brookfield falsely imprisoned on 17 June 2019? [147] There is no doubt that Mr Brookfield was imprisoned when Officer Burgess arrested him for breach of his bail conditions. The defendant submits this arrest was lawful, relying upon s 367(3)(a)(i)(B) of the PPRA which provides that it is lawful for a police officer to arrest a person, without warrant, if the police officer reasonably suspects that the person is likely to contravene, is contravening or has contravened a condition of the undertaking on which the person was granted bail. [148] Officer Burgess’ recollection of the events of 17 June 2019 was hampered by the fact that since January 2021 he has undergone radiation therapy to treat skin cancers on his head. That treatment has affected his memory and his ability to recount specifics of events. Despite those difficulties, I accept Officer Burgess’ evidence as to what he understood the position to be when he arrested Mr Brookfield (see [80] above). That evidence is consistent with Officer Sellars’ evidence about what Officer Burgess said when Officer Sellars and Officer Buchanan attended the courthouse (see [84] above). [149] Based on Officer Burgess’ evidence, I am satisfied that when he arrested Mr Brookfield he held a subjective suspicion that Mr Brookfield had breached a condition of his bail. [150] As to whether there was a reasonable basis for that suspicion, Officer Burgess accepted that he did not see Mr Mergard in the court building that day. His understanding that Mr Brookfield had gone within 50 metres of Mr Mergard must have come from something he was told after Magistrate Duroux spoke to him and sought his assistance (see [76]-[77] above). [151] Mr Brookfield submitted that Officer Self directed Officer Burgess to arrest him for breach of bail. He relied on Officer Burgess’ evidence in cross-examination that he made the decision to arrest Mr Brookfield based on the telephone call with Officer Self.19 Although Officer Burgess said in re-examination that he arrested Mr Brookfield because of what was said to him in three conversations – first with Magistrate Duroux, secondly with Mr Mergard’s counsel and Ms O’Connell, and thirdly with Officer Self – he ultimately said that the arrest was the result of his conversation with Officer Self.20 [152] Officer Self’s evidence was that he was at home on leave on the day Mr Brookfield was arrested for breach of bail. He received a telephone call from Ms O’Connell that 19 Transcript 2-85:5-27. 20 Transcript 2-87:6-40. -- 29 of 65 -- 30 morning. She told him that she was at the Bundaberg Magistrates Court for a matter involving Mr Mergard which did not involve Mr Brookfield. She said that Mr Brookfield was in the courtroom and she thought that, by being in the courtroom, Mr Brookfield was in breach of his bail conditions. Officer Self’s evidence was that he told Ms O’Connell that he could not do anything on his day off and she should advise the QPS prosecutor who was on duty at the court. [153] Although Officer Self’s affidavit refers to him receiving a separate telephone call from Officer Burgess a short time after his conversation with Ms O’Connell, in cross- examination he said that he spoke to Officer Burgess during the same telephone conversation.21 I infer that while Ms O’Connell remained on the telephone to Officer Self, she located Officer Burgess and provided her telephone to him so that he could speak to Officer Self. Officer Self’s affidavit evidence was that Officer Burgess asked if Mr Brookfield was on bail. Officer Self confirmed to Officer Burgess that Mr Brookfield was on bail and that he could be arrested if he was in breach of his bail conditions. In cross-examination, Officer Self expanded on his account and said that he told Officer Burgess the content of his conversation with Ms O’Connell: that is, Ms O’Connell had just told him that Mr Brookfield was in court in breach of his bail conditions. He said he told Officer Burgess that he would let Officer Burgess deal with it.22 [154] Officer Self said that no police officer could direct another officer to arrest a person. It was up to the arresting officer to determine if there was a reasonable basis to suspect that, in this case, Mr Brookfield was likely to contravene, was contravening or had contravened his bail conditions. Officer Bishop gave evidence to the same effect.23 [155] I am satisfied that Officer Burgess decided to arrest Mr Brookfield because of his understanding about the matters set out at [80] above. [156] I am further satisfied that Officer Burgess came to understand that Mr Brookfield had gone within 50 metres of Mr Mergard because he was told this by either Ms O’Connell or Mr Mergard’s counsel. The statement by Mr Mergard’s counsel to Magistrate Duroux that Mr Brookfield was present in the back of the courtroom in violation of the bail condition preventing him from being within 50 metres of Mr Mergard (see [74] above) shows that was his understanding of the position that morning. Ms O’Connell’s statement to Officer Self that she thought Mr Brookfield’s presence in the courtroom breached his bail conditions shows she had the same understanding. I am satisfied that one of them, or both, conveyed that position to Officer Burgess when they spoke after Magistrate Duroux sought Officer Burgess’ assistance. [157] I do not accept that Officer Self told Officer Burgess that Mr Brookfield had come within 50 metres of Mr Brookfield. He was not present at the courthouse and had no way of knowing whether that was the case. Nor do I accept that Officer Self directed Officer Burgess to arrest Mr Brookfield for breach of bail. Officer Burgess’ evidence does not support such a finding and I accept Officer Self’s evidence that he informed Officer Burgess of what Ms O’Connell had said to him during their telephone 21 Transcript 4-52:17 to 4-53:31. 22 Transcript 4-53:26-30. 23 Transcript 3-74:25-35. -- 30 of 65 -- 31 conversation, but that he left Officer Burgess to deal with the complaint that Mr Brookfield had breached his bail conditions. [158] Ultimately, I am satisfied that Mr Brookfield’s presence at the courthouse and the statement made to Officer Burgess, by either or both of Mr Mergard’s counsel or Ms O’Connell, that Mr Brookfield had gone within 50 metres of Mr Mergard provided a reasonable basis for Officer Burgess to suspect that Mr Brookfield had breached his bail conditions. [159] Consequently, I am satisfied that Officer Burgess’ arrest of Mr Brookfield on 17 June 2019, and Mr Brookfield’s detention until he was released on bail, was lawful. It cannot found an action for false imprisonment. Was Mr Brookfield falsely imprisoned on 15 October 2021? [160] Officer Self arrested Mr Brookfield on 15 October 2021 pursuant to a warrant (see [106] above). [161] Section 369 of the PPRA provides that it is lawful for a police officer acting under a warrant issued under any Act or law to arrest the person named in the warrant. [162] Consequently, I am satisfied that Officer Self’s arrest of Mr Brookfield on 15 October 2021, and Mr Brookfield’s detention until he was released on bail, was lawful. It cannot found an action for false imprisonment. Conclusion on the claim for false imprisonment [163] I have found that Mr Brookfield’s arrest and subsequent detention, on each occasion about which he complains, was lawful. Accordingly, his claim for false imprisonment must be dismissed. Consideration of the claim for malicious prosecution [164] To succeed in an action for malicious prosecution Mr Brookfield must establish: (1) that criminal proceedings were initiated against him by the defendant; (2) that the proceedings terminated in Mr Brookfield’s favour; (3) that the relevant QPS officer who initiated or maintained the proceedings acted maliciously in doing so; and (4) that the relevant QPS officer acted without reasonable and probable cause.24 [165] The first two elements are not in issue in this proceeding. It is the third and fourth elements, malice and the absence of reasonable and probable cause, that fall to be considered. [166] As to the third element, establishing malice on the part of any QPS officer requires that Mr Brookfield show that the officer’s purpose in bringing or maintaining the charge was a purpose other than the proper invocation of the criminal law. The improper purpose must be shown to be the sole or dominant purpose actuating the relevant QPS officer. This requires that Mr Brookfield identify the improper purpose and prove its existence. Such proof can be a matter of inference, but conjecture or suspicion is not sufficient.25 In considering whether Mr Brookfield has proved that a 24 A v New South Wales (2007) 230 CLR 500, 502-503 [1]. 25 A v New South Wales (2007) 230 CLR 500, 531-532 [91]-[93]. -- 31 of 65 -- 32 police officer laid a charge predominantly for a purpose other than the proper invocation of the criminal law, the seriousness of such a finding should be kept in mind.26 [167] As to the fourth element, Mr Brookfield may seek to establish the negative proposition that any of the relevant QPS officers acted without reasonable and probable cause in either or both of two ways: first, that the relevant QPS officer did not honestly believe Mr Brookfield might be found guilty of the charge that the officer brought and maintained against him; secondly, that there was no sufficient basis for such a belief.27 [168] The first issue raises a subjective inquiry as to what the relevant officer made of the material which was available when the decision was made to bring or maintain the charge. Mr Brookfield would succeed on this first issue if the relevant QPS officer could be shown not to have honestly concluded that the available material was such as to warrant setting the processes of the criminal law in motion. That might be done by showing that the relevant officer was 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.28 [169] The second issue involves an objective assessment to ascertain what the relevant QPS officer should have made of the available material. That is, whether that material would have led a reasonable person to the conclusion that Mr Brookfield might be found guilty of charge brought against him. The charges brought by Officer Self on 25 May 2019 Unlawful stalking [170] The offence of unlawful stalking, intimidation, harassment or abuse is defined in s 359B of the Criminal Code. To find Mr Brookfield guilty of the offence, the prosecution would have to prove four elements. [171] First, that Mr Brookfield engaged in conduct that was intentionally directed at the complainant: that is, conduct directed at Mr Mergard for the purposes of one of the first stalking charge and conduct directed at Mrs Mergard for the purposes of the second stalking charge. It is immaterial whether that conduct consisted of conduct carried out in relation to another person or property of another person: s 359C(2). [172] Secondly, that Mr Brookfield engaged in that conduct on more than one occasion. [173] Thirdly, that the conduct consisted of one or more acts of a prescribed type, or a similar type to those which have been prescribed. Not all of the prescribed types of act, in the form set out in s 359B at the time the stalking charges were laid, are relevant in this case. The most relevant of the prescribed acts are: (a) contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology: s 359B(c)(ii); and 26 Irving v Pfingst [2021] QCA 280, [107]. 27 A v New South Wales (2007) 230 CLR 500, 527 [77]. 28 A v New South Wales (2007) 230 CLR 500, 528 [80]. -- 32 of 65 -- 33 (b) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence: s 359B(c)(vi). [174] Fourthly, that the conduct has the effect of causing detriment, reasonably arising in all the circumstances, to the stalked person or another person. The offence is intended to include a course of conduct consisting of more than one of the prescribed types of act, even if it is not established that each act, taken in isolation, would cause detriment.29 [175] The prosecution would also have had to exclude the operation of s 359D of the Criminal Code which, at the relevant time, provided that unlawful stalking did not include acts done for the purposes of a genuine public dispute or issue carried on in the public interest (s 359D(c)) or reasonable conduct engaged in by a person to give information that the person has a legitimate interest in giving (s 359D(e)). Using a carriage service to menace, harass or cause offence [176] The offence of using a carriage service to menace, harass or cause offence is defined in s 474.17 of the Commonwealth Criminal Code. To find Mr Brookfield guilty of the offence, the prosecution would have to prove four elements. [177] First, Mr Brookfield used a carriage service.30 [178] Secondly, Mr Brookfield intended to use the carriage service. [179] Thirdly, Mr Brookfield used the carriage service in a way that reasonable people would regard, in all the circumstances, as menacing, harassing, or offensive.31 This is an objective standard.32 [180] Fourthly, Mr Brookfield intended his conduct to be menacing, harassing or offensive, or was reckless as to whether reasonable people would regard the use in all the circumstances as having that character (fault element). A person will be reckless if they are at least aware of a “substantial risk” that a reasonable person would regard the use of the carriage service as offensive, menacing or harassing and that it was unjustifiable to take that risk.33 [181] “Offensive” refers to conduct that is likely to have a serious effect on the emotional wellbeing of an addressee.34 [182] “Menacing” refers to a threat and should be construed liberally so as to encompass more than just the threat of physical violence.35 It would not have been necessary for the prosecution to prove that Mr Brookfield threatened the commission of actual harm. Instead, what would have to have been established is that a recipient of 29 R v Conde [2016] 1 Qd R 562, 574-575 [43]-[46]. 30 A service for carrying communications by means of guided or unguided electromagnetic energy: s 7 Telecommunications Act 1997 (Cth). 31 Wood v Commissioner of Police [2023] QCA 41, [15]. 32 Monis v The Queen (2013) 249 CLR 92, 195-196 [287]. 33 Crowther v Sala [2008] 1 Qd R 127, 135-137 [44]–[48]. 34 Monis v The Queen (2013) 249 CLR 92, 202-203 [310]. 35 Pellegrino v Harman [2016] ACTSC 366, [138]-[140]. -- 33 of 65 -- 34 menacing conduct who is of “normal stability and courage” might be “made apprehensive for his or her safety or well-being”.36 [183] The quantity or frequency of communications, not just the content of the communications, is relevant to determining whether conduct is “harassing” – for example, persistent unwanted telephone calls can be described as “harassing”.37 Was there reasonable and probable cause to lay the charges? [184] Officer Self’s evidence was that he honestly believed it was appropriate to charge Mr Brookfield following the interview on 25 May 2019, after Mr Brookfield admitted he sent the communications and published the social media posts which were the subject of the complaint by Mr Mergard and Mrs Mergard. Officer Self’s view was that these communications and social media posts constituted prima facie evidence of the commission of the carriage service offence and the offence of stalking that he charged Mr Brookfield with. [185] I accept that evidence. I am satisfied that when Officer Self charged Mr Brookfield with the carriage service offence and unlawful stalking he honestly believed that the available material warranted setting the processes of the criminal law in motion. [186] Mr Brookfield relies on Officer Self’s acceptance in January 2019 of Officer May’s conclusion that Mr Mergard’s complaint was civil in nature to argue that Officer Self did not hold the requisite belief when he laid the charges on 25 May 2019. I do not accept that submission. It overlooks the fact that Officer Self undertook his own detailed assessment of the material provided by Mr Mergard before he interviewed Mr Brookfield. Officer Self had not given the material any detailed consideration when the complaint was assessed by Officer May. I accept that when he undertook his own detailed assessment of that material, Officer Self reached a different conclusion from that which Officer May had reached (and Officer Self had previously accepted). [187] The objective assessment whether there was a sufficient basis for Officer Self’s belief requires consideration of the material available to him at the time he laid the charges and whether it would have been open to a jury to find that the elements of the charges had been proved based on that material. [188] Mr Brookfield’s admission during his interview with Officer Self that he had sent the emails and published the Facebook posts which were the subject of complaint by the Mergards means that it would plainly have been open to a jury to find that the first two elements of the stalking charges and the first two elements of the carriage service charge were satisfied. The nature of Mr Brookfield’s conduct [189] The real issue in determining whether there was reasonable and probable cause to bring the charges is whether it would be have been open to a jury to find that Mr Brookfield’s communications satisfied the third element of each charge: for the 36 Holland v Cocks (NSWSC, Hidden J, 23 May 1997, unreported), endorsed in Rae v The Queen (1998) 45 NSWLR 546. 37 R v Ogawa [2011] 2 Qd R 350, 384 [128]-[129]. -- 34 of 65 -- 35 stalking charges, conduct of one or more prescribed type or of a similar type; for the carriage service charge, that the content of the communication or the method of sending it was offensive, menacing or harassing, judged from the perspective of the objective reasonable person. [190] The material from the hard drive which Mr Mergard provided to Officer Self (see [41]-[43] above) included: (a) emails which Mr Brookfield sent to one or both of Mr Mergard or Mrs Mergard in which he accused Mr Mergard of criminal conduct, threatened the Mergards and insulted them; (b) communications from Mr Brookfield to members of Mr Mergard’s family complaining about Mr Mergard’s conduct and which, it would be expected, those family members would raise with Mr Mergard; (c) emails which Mr Brookfield sent to people who worked for the Mergards, including Ms Hansen (Mr Mergard’s office manager) and staff of the 1770 Reef tour business, raising matters that, it would be expected, those staff members would convey to the Mergards; (d) Facebook posts which Mr Brookfield published under the 1770reef profile (see [54](c) and [63] above) and which, it would be expected, would come to the attention of Mr and Mrs Mergard; [191] The emails which Mr Brookfield sent to either or both of Mr and Mrs Mergard included: (a) an email to Mr Mergard dated 6 April 2016, copied to Mrs Mergard and Ms Erica Xu (a representative of Hall Chadwick, the administrator under a deed of company arrangement entered into by Real Estate Now). The email stated that Mr Mergard had provided a document to his administrator which was fraudulent; that Mr Mergard had forged signatures on the document and, in doing so, committed a crime. Mr Brookfield threatened to make a complaint to police about the forged document;38 (b) an email to Mrs Mergard dated 14 April 2016, copied to Ms Hansen, in which Mr Brookfield stated that Mrs Mergard would be subject to a criminal investigation for misappropriating the income from the rent roll;39 (c) an email to Mr Mergard dated 25 May 2016, copied to Mrs Mergard, Ms Xu and Ms Hansen, which repeated the allegation that Mr Mergard had forged documents in order to misrepresent his financial position;40 (d) an email to Mr Mergard dated 2 June 2016, copied to Mrs Mergard, which referred to Mr Mergard’s financial impecuniosity; stated that Real Estate Now would be placed into liquidation in the coming weeks (Mr Brookfield having, by this time, filed an application to wind up the company) and that any shortfall 38 Exhibit 24, vol 1, page 88. 39 Exhibit 24, vol 5, page 1497. 40 Exhibit 24, vol 1, page 90. -- 35 of 65 -- 36 in the amount owing in respect of the rent roll would be claimed from Mr and Mrs Mergard personally;41 (e) an email to Mr Mergard dated 7 June 2016 in which Mr Brookfield referred to having been contacted by persons who thought Mr Mergard was an “impecunious fool”;42 (f) a further email to Mr Mergard dated 7 June 2016, copied to Mrs Mergard, Ms Hansen and Ms Xu, which described Mr Mergard as being delusional and stated that Mr and Mrs Mergard would be bankrupted if payment for the rent roll was not recovered from the liquidation of Real Estate Now;43 (g) an email to Mr Mergard dated 4 July 2016, copied to Mrs Mergard, which attached a copy of a statutory demand addressed to Real Estate Now. In the body of the email, Mr Brookfield stated that both Mr and Mrs Mergard appeared to operate outside the law;44 (h) an email to Ms Xu dated 5 July 2016, copied to Mr and Mrs Mergard and Ms Hansen, in which Mr Brookfield asked what action Ms Xu proposed to take in response to Mr Mergard having breached his obligations as a director by creating documents which referred to Real Estate Now without identifying that the company was subject to a deed of company arrangement. The email also stated that Mr Brookfield had raised his concern about Mr Mergard’s failure to comply with his obligations with ASIC;45 (i) an email to Mr Mergard dated 5 July 2016, copied to Mrs Mergard, Ms Xu and Ms Hansen, in which Mr Brookfield asserted that Mr Mergard had acted illegally by producing a document bearing the name of Real Estate Now without identifying that the company was subject to a deed of company arrangement;46 (j) an email to Mr Mergard dated 19 July 2016, copied to Mrs Mergard, Ms Xu and Ms Hansen, in which Mr Brookfield stated that Mr Mergard had the reputation in Bundaberg as being “one of the biggest crooks in town”. Mr Brookfield stated that he had contacted several real estate agents in Bundaberg to inform them of the application to wind up Real Estate Now and that their services might be required once a liquidator took control of the company. He claimed that those people were not surprised that Mr Mergard was “in the shit again” because he did not pay his bills. Mr Brookfield concluded by stating that he would ensure that Mr and Mrs Mergard “cough up” every dollar they have to their name;47 (k) an email to Mr Mergard dated 21 July 2016, copied to Mrs Mergard and Ms Hansen, in which Mr Brookfield accused Mrs Mergard of misappropriating the income from the rent roll for the benefit of the Mergards or Real Estate Now. 41 Exhibit 24, vol 1, page 107. 42 Exhibit 24, vol 1, page 110. 43 Exhibit 24, vol 1, page 111. 44 Exhibit 24, vol 1, page 114. 45 Exhibit 24, vol 1, page 156. 46 Exhibit 24, vol 1, page 158. 47 Exhibit 24, vol 1, page 166. -- 36 of 65 -- 37 He stated that the real estate licences held by Mr and Mrs Mergard would be revoked because of their conduct, and that the Mergards had “created this mess with your lies and deceit and will now feel the result of your actions”;48 (l) an email to Mr Mergard dated 21 July 2016, copied to Mrs Mergard and Ms Hansen, in which Mr Brookfield set out reasons why Mrs Mergard was personally liable for the debts of Real Estate Now. These reasons included the previous assertion that Mrs Mergard knowingly misappropriated monies belonging to Blue Prop for her own benefit. Mr Brookfield also claimed that Mrs Mergard knowingly failed to pay superannuation contributions and underpaid employees wherever she could. Mr Brookfield concluded the email by saying: “When you are honest with people, they will help you, when you bullshit all the time and deceived [sic] people, you can only expect the worst to happen”;49 (m) an email to Mr Mergard dated 22 July 2016, in which Mr Brookfield stated that Mr Mergard “should spend less time being a crook and pay your bills”. He also referred to Mr Mergard having forged documents. Mr Brookfield concluded the email by saying: “Spend less time cheating on your wife and pay your bills and all will be fine”;50 (n) an email to Mrs Mergard dated 22 July 2016, in which Mr Brookfield stated that cheating on his wife was not strange to Mr Mergard, and neither was “bullshitting around town”. He said that Mr Mergard’s conduct would see Mrs Mergard lose her home, cars and anything else of value because Mr Mergard had “tried to rip off the wrong person this time”;51 (o) an email to Mrs Mergard dated 5 August 2016, copied to Ms Hansen, in which Mr Brookfield stated that “[e]veryone in Agnes Water and 1770 thinks you and Mark are joke [sic] because they all know how broke you are …”;52 (p) an email to Mr Mergard dated 13 September 2016, copied to Mrs Mergard, Ms Hansen and others, including Ms Annett, a reporter from the Gladstone Observer newspaper, stating:53 “Just thought I’d let you know that the local theatre company are going to do a play about Mark and Katrina Mergard. It’s about how they are delusional about their plans for a tour operation and how they have left a trail of people they owe money too [sic], it’s basically a comedy!! There will be appearances from all the staff they have promised jobs to and those they have interviewed to pick their brains about how to run and operate a tourism business. These staff are being told to start work yet amazingly there is no boat and never will be because too many people are watching your every move, your every lie and your every story about when a boat is coming. Funny thing is, everybody gives each other 48 Exhibit 24, vol 1, page 172. 49 Exhibit 24, vol 1, page 173. 50 Exhibit 24, vol 1, page 174. 51 Exhibit 24, vol 5, page 1540. 52 Exhibit 24, vol 5, page 1543. 53 Exhibit 24, vol 1, page 176. -- 37 of 65 -- 38 updates every night and we all have a laugh about the excuses Mark comes up with as to why the boat hasn’t turned up and the marina’s not finished; you see all these people talk to the people who own the boats. What happened to the boat you paid 2 million dollars for, that’s right, you imagined it. As to your winding-up application, I haven’t forgotten you, we are just sharpening the axe, so when it comes down, your days in the region will be finished, you will both pay every dollar you owe. As to a boat, be assured that you will never get a boat while you owe people money, how do I know this, being an investigator for over 20 years gives me good standing with credit authorities and the marine industry so pay your debts then you can go get a boat. You chose the wrong person to rip off!!” (q) an email to Mr Mergard dated 5 October 2016, copied to Mrs Mergard, with the subject heading “More lies to staff” and which described Mr Mergard as “the laughing stock of Agnes Water”;54 (r) an email to Sarah Keegan (a solicitor who acted for Mr Mergard) dated 14 October 2016, copied to Mr Mergard, Mrs Mergard, Ms Hansen and others, including Ms Annett, the reporter for the Gladstone Observer, which stated:55 “Whilst it appears that your client Mark Mergard is uncomfortable with the truth and is reluctant to have people hear the truth, I pride myself in exposing crooks and preventing others falling victim to business dealing [sic] that will never get paid for. Mark Mergard chose the wrong person to rip off and will continue to be pursued to the full extent of the law until he and his wife Katrina Mergard have paid back every dollar they owe.” (s) an email to Steven Gladman (who appears to have worked for Hall Chadwick, the administrator of the deed of company arrangement for Real Estate Now) dated 26 October 2016, copied to Mr Mergard, Mrs Mergard and Ms Xu, in which Mr Brookfield stated, among other things, that there were no lengths to which Mr Mergard would not go in order to “scam money” but that, fortunately, many people were watching his every move because the Bundaberg region had had enough of his lies and deceit;56 (t) an email to Mark Mergard dated 30 November 2016, copied to Ms Annett, which described Mr Mergard as being “Bundaberg’s number one petty crook”. The email concluded:57 54 Exhibit 24, vol 1, page 177. 55 Exhibit 24, vol 1, page 179. 56 Exhibit 24, vol 1, page 182. 57 Exhibit 24, vol 1, page 183. -- 38 of 65 -- 39 “Please be reassured that your business will be wound up and every asset you and Katrina own will be used to pay your debts. As I told you, you chose the wrong person to rip off.” (u) an email to Mrs Mergard dated 30 November 2016, copied to Ms Hansen, forwarding his email to Mr Mergard of the same date;58 (v) an email to Mrs Mergard dated 30 November 2016, copied to Ms Hansen, in which Mr Brookfield stated:59 “Just doing a survey about the new name for the boat Mark sourced. ‘Wishful Thinking’ comes to mind. As it will never be allowed to take passengers to Lady Musgrave and will only be allowed to carry 35 people in sheltered waters, you might want to change your website. We all knew that ‘Emilie’ only had a D classification before you took delivery of it, that’s why everyone was laughing at the stupidity of taking a boat you could never use. So pleased you are providing ongoing humour for those in the region!!” (w) an email to Mr Mergard dated 8 December 2016, copied to Ms Hansen, which stated that Mr Brookfield had Mr Mergard’s every move covered and that the whole of Bundaberg, Agnes Water and 1770 was watching Mr Mergard like a hawk and sharing his every spoken word as nobody trusted him. The email referred again to Real Estate Now inevitably going into liquidation with bankruptcy to follow for Mr and Mrs Mergard if there was a shortfall from the liquidation;60 (x) an email to Mrs Mergard dated 8 December 2016, which forwarded the email Mr Brookfield to Mr Mergard the same day and stated that Mrs Mergard needed to get herself a lawyer because she would end up losing everything;61 (y) an email to Mr Mergard dated 18 December 2016, copied to Mrs Mergard, Ms Hansen, Mr Gladman and Ms Xu, in which Mr Brookfield stated, among other things, that Mr Mergard had lied to the administrator of Real Estate Now. He said that lying to an officer of the court is a serious offence for which Mr Gladman would have the power to prosecute Mr Mergard;62 (z) an email to Mr Mergard dated 21 December 2016, copied to Mrs Mergard and to Ms Pidgeon, another reporter at the Gladstone Observer newspaper, in which Mr Brookfield stated:63 58 Exhibit 24, vol 5, page 1544. 59 Exhibit 24, vol 5, page 1547. 60 Exhibit 24, vol 1, page 190. 61 Exhibit 24, vol 5, page 1548. 62 Exhibit 24, vol 1, page 192. 63 Exhibit 24, vol 1, page 216. -- 39 of 65 -- 40 “You see when you lie and deceive people, only bad can come of it. You lied to me about being able to pay for the rent roll, you lied to Angela and you lie to every person you come into contact with even your own family. So don’t try and blame everyone else for what is about to implode on you because each and every problem that exists is of your own doing; your liquidation is imminent. This time you will pay up each and every dollar you owe to the people of Bundaberg.” (aa) an email to Mr Mergard dated 23 December 2016, copied to Mrs Mergard, in which Mr Brookfield stated, among other things, that there was a groundswell of support in Bundaberg for Mr Mergard to be run out of town, and that “[w]hen your own family doesn’t trust you that is saying something”;64 (bb) an email to Mr Mergard dated 28 January 2017, copied to Mrs Mergard and others including Ms Annett, which relevantly stated:65 “Whilst you both may think you have been smart using other people’s money to set up 1770reef, what you didn’t factor in was it is illegal to do this and as a consequence, you will both be held accountable. I now understand why the name ‘Mergard’ in the region is not a name associated with honesty and integrity. … So in all, when you continually rip people off in the region, ultimately you will come unstuck so all the lies you have told your families and bank about you [sic] financial position will be uncovered for the scam that you have perpetrated.” (cc) an email to Mr Cliff dated 1 February 2017, copied to Mr Mergard and Mrs Mergard, in which Mr Brookfield relevantly stated:66 “It is widely known here in Bundaberg that Mark Mergard would be one of if not the biggest crook in town so please feel free to ring around. So don’t request that I back off from pursuing Mergard, he will pay every dollar he owes as he chose the wrong person to rip off and deceive. As to your clients [sic] rights, when you’re a fraudster you don’t have any rights.” (dd) an email to Mr Mergard dated 17 March 2017, forwarding an email sent to Mr Jellyman the previous day in which Mr Brookfield described Mr Mergard as a crook and said he had forged documents; (ee) an email to Mr Mergard dated 21 March 2017, copied to Mrs Mergard, Mr Cliff and Mr Jellyman, in which Mr Brookfield accused Mr Mergard of committing perjury in an affidavit filed in the Federal Court proceedings and again referred to Mr Mergard forging documents;67 64 Exhibit 24, vol 1, page 221. 65 Exhibit 24, vol 1, page 222. 66 Exhibit 24, vol 1, page 224. 67 Exhibit 24, vol 1, page 232; see also the email to Mr Cliff dated 7 April 2017, copied to Mr Mergard and Mr Jellyman in Exhibit 24, vol 1, page 234. -- 40 of 65 -- 41 (ff) an email to Mrs Mergard dated 2 August 2017, which stated:68 “Are you the same Katrina who kicked Betty Mergard out of her home?? Are you the same Katrina who claims to have booked 6000 people on your boat?? Are you the same Katrina who is about to lose her home!! Are you the same Katrina who is about to get what she deserves, financial ruin!!” (gg) an email to Mr Mergard dated 4 September 2017, copied to Mrs Mergard, in which Mr Brookfield relevantly stated:69 “You fail to grasp that every single business person who has had dealings with you in Bundaberg holds the view that you are Bundaberg’s biggest crook so if you are going to lie to people be prepared to be caught out. You chose the wrong person to rip off so be prepared to pay very [sic] last cent you owe with every last assets [sic] your family owns.” (hh) an email to Mr Mergard dated 9 May 2018, in which Mr Brookfield referred to four charges laid against Mr Mergard by the Office of Fair Trading and the penalties for those offences, including custodial sentences;70 (ii) an email to Ms Hansen dated 9 May 2018, copied to Mrs Mergard, forwarding the email Mr Brookfield sent to Mr Mergard on the same date;71 (jj) an email to Mr Mergard dated 16 August 2018, copied to Mrs Mergard, in which Mr Brookfield stated that Mr Mergard had attempted to sell secured assets and that this conduct would “definitely result in jail time”;72 (kk) an email to Mrs Mergard dated 16 August 2018 in which Mr Brookfield stated that she and Mr Mergard were unable to sell assets while court proceedings were on foot. Mr Brookfield then continued:73 “Fortunately the entire business community of the region is on Mergard watch to ensure you don’t rip off any more people so my advice to you is you take control because Mark’s future is looking pretty grim!! I respectfully request that you stop trying to sell assets that are secured to other people, it is illegal.” (ll) an email to Mr Jellyman dated 3 October 2018, copied to Mr Mergard, in which Mr Brookfield stated that Mr Mergard had a reputation across the Wide Bay and greater region for being a criminal who does not pay his debts and to the 68 Exhibit 24, vol 5, page 1551. 69 Exhibit 24, vol 1, page 235. 70 Exhibit 24, vol 2, page 295. 71 Exhibit 24, vol 6, page 1904. 72 Exhibit 24, vol 2, page 639. 73 Exhibit 24, vol 5, page 1604. -- 41 of 65 -- 42 likelihood that Mr Mergard would receive a custodial sentence at the hearing of charges brought against him by the Office of Fair Trading;74 (mm) an email to Mr Mergard dated 26 October 2018, copied to Mr Jellyman, in which Mr Brookfield stated that Mr Mergard was likely to be jailed in December and that Mr Mergard’s days of freedom were coming to a close;75 (nn) an email to Mr Mergard dated 1 November 2018, in which Mr Brookfield referred to Mr Mergard as having a reputation as “Bundaberg’s biggest ‘Bullshit Artist’ and crook”;76 (oo) an email to Mr Jellyman dated 6 November 2018, copied to Mr Mergard and Ms Hansen, in which Mr Brookfield stated that Mr Mergard had sworn a false affidavit in Federal Court proceedings;77 (pp) an email to Mr Jellyman dated 21 January 2019, coped to Mr Mergard, in which Mr Brookfield referred to Mr Mergard’s every move being monitored across the region by those who have an interest in seeing justice done;78 (qq) an email to Ms O’Connell dated 13 February 2019, copied to Mr Mergard, in which Mr Brookfield stated that Mr Mergard was a criminal and that he was facing a custodial sentence on charges brought by the Office of Fair Trading. [192] Mr Brookfield’s communications with members of Mr Mergard’s family included: (a) a letter to Mr Mergard’s brother, John Mergard, dated 4 September 2017, in which Mr Brookfield stated that Mr Mergard had attempted to use his brother’s business to hide assets due to the winding up application. Mr Brookfield described Mr Mergard’s conduct as illegal and said that Mr Mergard might face prosecution. Mr Brookfield stated that Mr Mergard had made his brother responsible for Mr Mergard’s debts as a direct result of his illegal activity;79 (b) an email sent to Mr Mergard’s sister, Desley O’Grady, dated 22 September 2017, in which Mr Brookfield stated that Mr Mergard’s time in Bundaberg had run out and that his family would have to pay for his illegal conduct;80 (c) an email sent to Ms O’Grady (undated, but which she forwarded to Mr Mergard on 13 October 2017), in which Mr Brookfield stated that, as a result of evidence filed in court proceedings, Mr Mergard had exposed his brother to fines from the Australian Taxation Office. Mr Brookfield stated that government inquiries arising from Mr Mergard’s conduct would result in a 2 million dollar fine for his family;81 74 Exhibit 24, vol 2, page 662. 75 Exhibit 24, vol 2, page 667. 76 Exhibit 24, vol 3, page 724. 77 Exhibit 24, vol 3, page 726. 78 Exhibit 24, vol 4, page 1242. 79 Exhibit 24, vol 4, pages 1271-1272. 80 Exhibit 24, vol 4, page 1274. 81 Exhibit 24, vol 4, page 1277. -- 42 of 65 -- 43 (d) an email to Ms O’Grady dated 27 August 2018, in which Mr Brookfield asked her to intervene in affairs which would see Mr Mergard’s family lose their marina facility in 1770 because of Mr and Mrs Mergard’s failure to pay their debts. Mr Brookfield referred to Mr Mergard as being the only criminal in the Mergard family but that, because of evidence filed in civil proceedings, Mr Mergard was handing all of his debts to his family. Mr Brookfield said that Mr and Mrs Mergard were hanging Mr Mergard’s family out to dry financially with their conduct;82 (e) two emails to Ms O’Grady (undated, but which she forwarded to Mr Mergard on 2 September 2018), in which Mr Brookfield again stated that Mr Mergard’s family would lose everything because of Mr Mergard’s conduct and that Mr Mergard thought he was smarter than everyone else by breaking the law;83 (f) an email to Ms O’Grady dated 3 October 2018, in which Mr Brookfield stated:84 “Your brother really is a piece of work hey!! Your family will definitely be losing the marina that your father worked so hard to build and yet you all just stand there watching Mark lie it all away!! Your father would be turning in his grave!!” (g) an email to Ms O’Grady (undated, but which she forwarded to Mr Mergard on 29 October 2018), in which Mr Brookfield stated:85 “Can you please have a chat with your dick-head brother. … The region has had a gut full of Mark Mergard and the debts he leaves behind him. It is well known that Mark is a criminal and will be going to gaol after his next hearing with the Office of Fair Trading. Now as a family, you already know that your marina is on the line here and your father would be ashamed of the way Mark is risking everything he and your Mum worked for. It is already a given that Real Estate Now Pty Ltd will be gone by December with 1770 Marina shortly thereafter. …” (h) an email to Ms O’Grady dated 30 October 2018, in which Mr Brookfield stated that the family name Mergard stinks of debt and lack of ethics and that Mr Mergard was a criminal who prided himself on ripping people off. He said that 82 Exhibit 24, vol 4, pages 1318-1319. 83 Exhibit 24, vol 4, pages 1320 and 1340. 84 Exhibit 24, vol 4, page 1348. 85 Exhibit 24, vol 4, page 1350. -- 43 of 65 -- 44 if Ms O’Grady did nothing to intervene it would make her as bad as her brother;86 [193] The emails Mr Brookfield sent to staff of the Mergards included: (a) an email to Ms Hansen dated 4 July 2016 which forwarded an email sent to Mr Mergard the same day (see [191](g) above) and relevantly stated:87 “Mark is currently facing multiple actions and fines and will end up broke from a business perspective and personally.” (b) an email to Ms Hansen dated 11 July 2016 in which Mr Brookfield criticised her for not telling Ms Nightingale that Real Estate Now was subject to a deed of company arrangement. He stated that Ms Hansen faced losing her real estate licence if she concealed the fact that Real Estate Now was under administration and concluded:88 “Protect your own position as Mark and Katrina won’t give a stuff about you once the liquidators move in.” (c) an email dated 24 April 2017 sent to the email address “[email protected]” in which Mr Brookfield stated that the staff operating boat tours had breached the operating approval for the tour vessel and had risked people’s lives. He said that the 1770 Reef business was “regularly breaking the law” and that an investigation was under way. Mr Brookfield told the tour staff that “Mark and Katrina Mergard cannot force you to break the law”;89 (d) an email dated 3 October 2017 sent to “[email protected]” which stated:90 “… you have your tourism tick but more importantly do you have registration for the Emilie along with a current certificate of operation, general insurance and public liability insurance?? As a legal warning, don’t process peoples [sic] booking payments to provide your business with cash-flow as this practice is highly illegal. Prepayments must be held separate in order to refund customers within three business days where applicable should a trip be cancelled due to weather. Your list of customer complaints is getting longer by the day from people who are waiting weeks and months to get their refunds. You are being watched from within!!” (e) an email dated 14 October 2017 sent to “[email protected]” which stated:91 “BREAKING NEWS; PUBLIC ANNOUNCEMENT 86 Exhibit 24, vol 4, page 1359. 87 Exhibit 24, vol 6, page 1862. 88 Exhibit 24, vol 6, page 1786. 89 Exhibit 24, vol 5, pages 1549-1550. 90 Exhibit 24, vol 5, page 1560. 91 Exhibit 24, vol 5, page 1561. -- 44 of 65 -- 45 Due to the sworn affidavit of Mark Mergard, he has confirmed that he and Katrina Mergard don’t own or manage 1770 reef or the marina. Contrary to what has been told before, all previous statements by Mark and Katrina Mergard were false, they don’t own anything to do with 1770 reef or the marina. They only work there part time.” (f) an email to Ms Hansen dated 7 November 2018, which forwarded an email from Mr Jellyman and stated:92 “The email below from Mark’s lawyer confirms that you are providing an affidavit in regard to my dispute with Real Estate Now Pty Ltd. Should this be the case, please ensure that it reflects your memory not what Mark wants you to say because this matter is now reaching a very dangerous stage. Mark is already looking at gaol time with the Office of Fair Trading and you do not want to join him by swearing a false affidavit.” [194] The Facebook posts which Mr Brookfield published under the 1770reef profile included: (a) a post bearing the date 22 August (which I infer was made on 22 August 2017 based on Mrs Mergard having emailed a screenshot of the post to Mr Mergard on 5 September 2017) which stated:93 “It appears that Mark and Katrina Mergard’s businesses still owe many people money dating back to three years. If you are owed money by these people please feel free to contact me [number redacted] and you can be included in the liquidation proceedings.” (b) a post bearing the date 22 December (which I infer was made on 22 December 2017 from the fact that Mrs Mergard emailed a screenshot of the post to Mr Mergard on 24 December 2017) which stated:94 “To my special friends, enjoy this Christmas with your loved ones because next year [sic] one will be in Gaol. Merry Christmas from Karma!!” (c) a post bearing the date 2 January (which I infer was made on 2 January 2018 from the fact that Mrs Mergard received a screenshot of the post in an email sent on 10 August 2018) which showed a picture of a man wearing a business shirt and tie standing in a jail cell and had the following caption:95 “This man misappropriated trust monies and falsified documents. Happy New Year from Karma!!” 92 Exhibit 24, vol 6, page 1908. 93 Exhibit 24, vol 5, pages 1557-1558. 94 Exhibit 24, vol 5, pages 1564-1565. 95 Exhibit 24, vol 5, page 1601 (forwarding email at page 1595). -- 45 of 65 -- 46 (d) a post bearing the date 31 August which showed a picture of Mr and Mrs Mergard under the following text:96 “Both these people own 1770reef, both are being sued and prosecuted for un-paid debts. Check the local papers for details as they have a well documented history of taking peoples [sic] money, its [sic] on the public record …” (e) a post bearing the date 28 October which stated that the “Mark Mergard going to gaol party” would be announced shortly;97 (f) a post bearing the date 30 November which stated:98 “11 December 9am Bundaberg Court house. Come and watch justice be done!!” (g) a post bearing the date 13 December which showed a picture of Mr and Mrs Mergard with a red line drawn through it and overlaid text saying “If we owe you money line up because 17 cents in the dollar is all we pay but we do drive new cars!!” The altered photograph appeared under the following statement:99 “There is a wind up application before the Federal Court for these two; if you are owed money you can register your debt.” (h) a post bearing the date 30 January which showed a picture of Real Estate Now’s office under the following statement:100 “Remeber [sic] these dates: February 7 prosecution of Mark Mergard by Office of Fair Trading. February 15th winding up of Mark Mergard!!” (i) a post bearing the date 24 April which stated:101 “Public safety warning for people wanting to go to Lady Musgrave. All operators have a wind limit to take their boats out in the open ocean. 1770reef who operate out of 1770 regularly break the law and put peoples [sic] lives at risk by taking their boat out in above 17 knot winds. Recently, they made two trips in 22 knot winds which is not only illegal, it is putting people’s lives at risk …”. [195] The material from the hard drive also included a request from Mrs Mergard for Mr Brookfield to stop contacting her. On 2 June 2016, Mrs Mergard replied to an email which Mr Brookfield had copied to her (see [191](d) above), stating that she had previously emailed in the middle of March 2016 requesting that Mr Brookfield not contact her because the dispute about the rent roll was none of her business. She 96 Exhibit 24, vol 7, page 2117. 97 Exhibit 24, vol 7, page 2148. 98 Exhibit 24, vol 7, page 2148. 99 Exhibit 24, vol 7, page 2149 100 Exhibit 24, vol 7, page 2153. 101 Exhibit 24, vol 7, page 2163. -- 46 of 65 -- 47 stated that Mr Brookfield was harassing her and told him not to contact her in any form ever.102 [196] Having reviewed this material, I am satisfied that it would have been open to a jury to conclude that Mr Brookfield’s conduct towards Mr and Mrs Mergard went beyond what might be considered reasonable in the context of the dispute over payment for the rent roll. [197] In the context of the two stalking charges, I am satisfied that it would have been open to a jury to conclude that the communications I have set out above consisted of acts of a type prescribed by s 359B(c), or a similar type. It would plainly have been open to find that sending emails to Mr Mergard and Mrs Mergard directly amounted to contacting them (s 359B(c)(ii)). It would also have been open to find that sending those emails amounted to a series of harassing acts against Mr Mergard and Mrs Mergard (s 359B(c)(vi)). Likewise, it would have been open to find that sending emails to members of Mr Mergard’s family and to staff of the Mergards, as well as publishing the Facebook posts described above, in circumstances where it would be expected that those communications would come to the attention of Mr Mergard and Mrs Mergard, were also a series of harassing acts. [198] As to the potential operation of s 359D, I am satisfied that it would have been open to a jury to find that Mr Brookfield’s acts did not meet the description of those excluded from the scope of the offence of unlawful stalking. That is, it would have been open to a jury to conclude that Mr Brookfield’s acts were not done for the purpose of a genuine public dispute or issue carried on in the public interest. Likewise, it would have been open to a jury to conclude that Mr Brookfield’s conduct was not reasonable conduct and that it concerned information which Mr Brookfield did not have a legitimate interest in giving. [199] As to the carriage service charge, I am satisfied that, having regard to the nature and quantity of Mr Brookfield’s communications disclosed by the material set out above, it would also have been open to a jury to find that Mr Brookfield used the carriage service in a way that reasonable people would regard as harassing. The effect of Mr Brookfield’s conduct (fourth element of the stalking charges) [200] I am also satisfied that it would have been open to a jury to conclude from the nature of Mr Brookfield’s communications, and the Mergards’ persistence in complaining to the QPS about them, that his conduct had the effect of causing detriment to them in all the circumstances. Intention or recklessness (fourth element of the carriage service charge) [201] Mr Brookfield’s acceptance during his interview with Officer Self that some of the emails he sent to Mr and Mrs Mergard went too far means that it would have been open to a jury to find that he was at least aware that there was a “substantial risk” that a reasonable person would regard the use of the carriage service as offensive, menacing or harassing and that it was unjustifiable to take that risk. Conclusion on the question of reasonable and probable cause 102 Exhibit 24, vol 5, page 1609. -- 47 of 65 -- 48 [202] Mr Brookfield has not succeeded in establishing the negative proposition that Officer Self acted without reasonable and probable cause in laying the stalking charges and the carriage service charge on 25 May 2019. I am not persuaded that Officer Self did not honestly believe Mr Brookfield might be found guilty of those charges. Nor am I persuaded, having considered the material available to Officer Self when he laid the charges, that there was not a sufficient basis for that belief. [203] I am conscious that my conclusion differs from that reached by Acting Magistrate Milburn at the committal hearing for the carriage service charge and the stalking charges (see [102] above). For the reasons I have given, I respectfully disagree with the conclusion that a jury would have been compelled to conclude that the communications set out above amounted to nothing more than robust commercial communications. Did Officer Self act maliciously in laying the charges? [204] Officer Self’s evidence was that, when he charged Mr Brookfield with stalking and the carriage service offence, his purpose was to enforce the criminal law. [205] Mr Brookfield submitted that I should reject that evidence. He based that submission on a number of matters. [206] First, Mr Brookfield relied on the change in Officer Self’s position on the question whether there was sufficient evidence to charge Mr Brookfield with criminal offences from January 2019, when he accepted Officer May’s conclusion that Mr Mergard’s complaint was civil in nature, to 25 May 2019 when he arrested and charged Mr Brookfield. As I have already explained at [186] above, at the time he accepted Officer May’s conclusion, Officer Self had not undertaken a detailed review of the material considered by Officer May. I am not satisfied that Officer Self’s change of position after he had personally undertaken a detailed review of the material provided by Mr Mergard provides any basis to find that, in bringing or maintaining the charges he laid against Mr Brookfield on 25 May 2019, he acted for a purpose other than the proper invocation of the criminal law. [207] Secondly, Mr Brookfield relied on Officer Self’s failure to identify the new material he referred to when, after Officer Self had arrested him, Mr Brookfield asked why he had not been charged when Officer Murray had spoken to him about the communications the previous year (see [68] above). Mr Brookfield placed particular emphasis on a police statement which Officer Self made on 25 August 2019, in which he said that Ms O’Connell sent additional material to him, after their discussions in early May 2019, which he had not seen previously. He further stated that the additional material, in combination with the material he already had in his possession, provided a sufficient basis to charge Mr Brookfield.103 On 15 March 2024, in circumstances where Mr Brookfield had filed an application for disclosure of the new or additional material which Officer Self received, Officer Self corrected that earlier statement. He swore an affidavit in which he deposed that his previous reference to material which he had in his “possession” was, in fact, a reference to the two folders of material which he had previously returned to Mr Jellyman at Mills Oakley (see [28] above). He stated that he should have referred to this as the material he had 103 Exhibit 38, [6]-[7]. -- 48 of 65 -- 49 already seen.104 While the time taken to correct Officer Self’s statement made on 25 August 2019 is regrettable, I nevertheless accept that his subsequent affidavit sets out the true position. That is, the two folders of material initially provided by Mills Oakley were returned and Officer Self did not retain possession of any of the material from those folders. It follows that when, in May 2019, Ms O’Connell provided documents to Officer Self and Officer Self downloaded documents from Mr Mergard’s hard drive, there was no means by which Officer Self could check to confirm which documents he had previously seen in the original Mills Oakley folders. In the end, I am not satisfied that Officer Self’s mistake in referring to documents being in his “possession”, the length of time before that mistake was corrected, or Officer Self’s ultimate inability to separate the materials upon which he based his decision that there was a sufficient basis to charge Mr Brookfield into documents which he had seen previously and those which he had not seen previously, provides any basis to conclude that, in bringing or maintaining the charges he laid against Mr Brookfield on 25 May 2019, Officer Self acted for a purpose other than the proper invocation of the criminal law. [208] Thirdly, Mr Brookfield relied on the decision of Acting Magistrate Milburn to dismiss the charges at the committal stage (see [102] above). As I have already explained, I have reached a different conclusion about the sufficiency of the evidence supporting the charges. Accordingly, I am not satisfied that the dismissal of the charges provides any basis to find that, in bringing or maintaining the charges he laid against Mr Brookfield on 25 May 2019, Officer Self acted for a purpose other than the proper invocation of the criminal law. [209] Fourthly, Mr Brookfield relied on the comments which Derrington J made about Officer Self’s email to Ms O’Connell which was used by Real Estate Now in opposing Mr Brookfield’s winding up application (see [72] above). Officer Self’s evidence was that he sent the email to ensure that his summary of the facts of the complaint was accurate. Although the email did not expressly ask Ms O’Connell to advise him of any inaccuracies, Officer Self explained in cross-examination that he had spoken to Ms O’Connell by telephone shortly before he sent the email.105 Officer Self’s email also provided details of the charges laid against Mr Brookfield and the bail conditions which had been imposed. He deposed that he did this to comply with the requirements of cl 2.12 of the QPS Operational Procedures Manual.106 That clause states that investigating officers are to, as far as reasonably practicable, keep victims appropriately informed about the progress of the investigation of the crime, including by informing the victim about the charges brought against an accused person and the outcome of a bail application made by an accused person. Officer Self’s evidence was that, when he sent the email to Ms O’Connell, she had not told him that she intended to exhibit it to an affidavit to be filed in the Federal Court.107 He denied the propositions that he had acted to assist Mills Oakley and Mr Mergard in the rent roll dispute or that he had acted maliciously in bringing the charges he laid against Mr Brookfield.108 104 Exhibit 39, [4]-[6]. 105 Transcript 4-30:1-18. 106 Exhibit 33. 107 Transcript 3-88:1-2. 108 Transcript 4-106:26 to 4-108:13. -- 49 of 65 -- 50 [210] I accept Officer Self’s explanation for sending the email. I also accept that, when he sent the email, he did not know it would be used in the winding up application. I am not satisfied that Officer Self’s email provides any basis to conclude that, in bringing or maintaining the charges he laid against Mr Brookfield on 25 May 2019, Officer Self acted for a purpose other than the proper invocation of the criminal law. [211] Finally, Mr Brookfield led evidence from Guy Baxendale about a telephone call he received from Officer Self on 27 June 2019. On Mr Baxendale’s account,109 Officer Self stated that he was investigating Mr Brookfield and understood that Mr Baxendale had previously worked with Mr Brookfield at PKF Chartered Accountants. Officer Self said that he was looking for information on any criminal activity involving Mr Brookfield while he was at PFK with Mr Baxendale. Mr Baxendale told Officer Self that he was surprised to receive his call because he had read the decision of Justice Derrington, which had been delivered that day, and he asked Officer Self if he had read Justice Derrington’s comments about police interfering in a civil case. When Officer Self realised that Mr Baxendale did not have any adverse information about Mr Brookfield, he ended the call. [212] Mr Brookfield did not put Mr Baxendale’s account of that telephone call to Officer Self in cross-examination. In any event, I have significant reservations about accepting Mr Baxendale’s evidence. His account of having read Justice Derrington’s judgment in sufficient detail to recognise that the police officer who called him was the same officer referred to in the judgment is inherently implausible. The way Mr Baxendale answered questions seemed to be directed towards assisting Mr Brookfield’s case in circumstances where Mr Baxendale has known Mr Brookfield since at least 2010, agreed to be the liquidator of Real Estate Now in the event the company was wound up, and continued to speak to Mr Brookfield regularly after the winding up application was dismissed, including about the progress of Mr Brookfield’s dispute with Mr Mergard.110 Ultimately, Mr Baxendale’s evidence (even if I was to accept it) went no higher than Officer Self making inquiries into Mr Brookfield as part of his investigation. It does not provide any basis to conclude that, in bringing or maintaining the charges he laid against Mr Brookfield on 25 May 2019, Officer Self acted for a purpose other than the proper invocation of the criminal law. [213] Mr Brookfield has not proved that Officer Self acted maliciously in bringing or maintaining the charges he laid against Mr Brookfield on 25 May 2019. The fraud charge brought by Officer May on 25 May 2019 [214] The offence of fraud under s 408C(1)(d) of the Criminal Code comprises the following elements: (a) the defendant did the act relied on to constitute the offence; (b) at the time when the defendant did the act or omission, he had a particular state of knowledge; (c) at the time when the defendant did the act or omission with that knowledge he acted dishonestly; 109 Transcript 3-6:24 to 3-7:8. 110 Transcript 3-9:4-14. -- 50 of 65 -- 51 (d) by the act, the defendant gained a benefit or advantage, pecuniary or otherwise, for any person. [215] In the circumstances of the fraud charge laid by Officer May on 25 May 2019, this would require proof that: (a) Mr Brookfield advertised the vehicle for sale and took the deposit payment from Mr Carlisle; (b) when he did those things, Mr Brookfield knew that the vehicle he advertised for sale was encumbered to 14 financial institutions and could not be sold free of those encumbrances; (c) the taking of the deposit payment from Mr Carlisle in circumstances where Mr Brookfield knew that the vehicle was encumbered was dishonest by the standards of ordinary honest people; (d) by taking the deposit payment from Mr Carlisle, Mr Brookfield (or the owner of the bank account into which the deposit was paid if that was someone other than Mr Brookfield) gained a pecuniary benefit. [216] Officer May deposed that, when he charged Mr Brookfield with fraud, he believed it was appropriate to do so having regard to the matters set out at [141]-[142] above. I accept that evidence. I am satisfied that when Officer May charged Mr Brookfield with fraud, he honestly believed that the available material warranted setting the processes of the criminal law in motion. [217] I am also satisfied that the information described in [141]-[142] above would have led a reasonable person to the conclusion that Mr Brookfield might be found guilty of the fraud charge. [218] In those circumstances, Mr Brookfield has not succeeded in establishing the negative proposition that Officer May acted without reasonable and probable cause in laying the fraud charge on 25 May 2019. I am not persuaded that Officer May did not honestly believe Mr Brookfield might be found guilty of that charge. Nor am I persuaded that the material available to Officer May when he laid the charge did not provide a sufficient basis for that belief. [219] In any event, there is no evidence that Officer May acted maliciously in bringing the fraud charge. Officer May’s evidence was that his purpose in laying the charge was to enforce the criminal law and there was no evidence that he acted with any other purpose. The suggestion that Officer May acted maliciously is inconsistent with his actions in deciding not to proceed further with the prosecution of the charge when he became aware that the deposit had been returned to Mr Carlisle. [220] I am not persuaded that the laying of the fraud charge by Officer May on 25 May 2019 gives rise to an action for malicious prosecution. The breach of bail charge brought on 17 June 2019 [221] The breach of bail charge was laid by Officer Sellars (see [83]-[86] above). -- 51 of 65 -- 52 [222] Officer Sellars deposed that, when he charged Mr Brookfield with breach of his bail conditions, he believed it was appropriate to do so having regard to what he had been told by Officer Burgess at the courthouse (see [84] above) and Mr Brookfield’s inability to provide a reason for having attended the courthouse. I accept that evidence. I am satisfied that when Officer Sellars charged Mr Brookfield with breach of bail, he honestly believed that the available material warranted setting the processes of the criminal law in motion. [223] I also accept that the information which Officer Sellars received from Officer Burgess would have led a reasonable person to the conclusion that Mr Brookfield might be found guilty of the breach of bail charge. [224] In those circumstances, Mr Brookfield has not succeeded in establishing the negative proposition that Officer Sellars acted without reasonable and probable cause in laying the breach of bail charge on 17 June 2019. I am not persuaded that Officer Sellars did not honestly believe Mr Brookfield might be found guilty of that charge. Nor am I persuaded that the information available to Officer Sellars when he laid the charge did not provide a sufficient basis for that belief. [225] In any event, I am not satisfied that the breach of bail charge was brought maliciously. [226] Mr Brookfield did not submit that Officer Sellars acted for any improper purpose when he laid the breach of bail charge. To the contrary, in his closing address Mr Brookfield went as far as submitting that Officer Sellars had not done anything wrong. He said:111 “… But – so Officer Sellers [sic, Sellars] is basically – is a – as a senior constable, he’s followed the director [sic, direction] for the senior officer, which – you know, he was required to do. He couldn’t challenge or question his senior officer. And it would be my respectful suspicions [sic, submission] that Officer Sellers personally hasn’t done anything wrong, in light of – in light of the evidence that we’ve now got before the court, is that because he was the lowest ranked officer in this chain of events, he has an obligation to follow direction of senior officers.” [227] This submission reflects Mr Brookfield’s case that Officer Self: (a) directed Officer Burgess and (through Officer Burgess) Officer Sellars in the process by which Mr Brookfield was charged with breach of bail; and (b) acted for an improper purpose when he did so. [228] If I am not satisfied that Officer Self directed the arrest and charging of Mr Brookfield for breach of bail then Officer Self would not have acted as a prosecutor in relation to that charge. A “prosecutor” for the purposes of a claim for malicious prosecution is a person who plays an active role in the conduct of the criminal proceeding, such as by instigating or setting in motion that proceeding.112 [229] I have explained at [151]-[157] above my reasons for rejecting Mr Brookfield’s submission that Officer Self directed Officer Burgess to arrest or charge Mr 111 Transcript 5-48:3-9. 112 A v New South Wales (2007) 230 CLR 500, 512 [34]. -- 52 of 65 -- 53 Brookfield on 17 June 2019. Accordingly, I am not satisfied that Officer Self was a prosecutor of the breach of bail charge. His conduct cannot form the basis of a claim for malicious prosecution in respect of that charge. [230] In summary, I am not satisfied that any QPS officer acted maliciously in charging Mr Brookfield with breach of bail. The failure to appear charge brought on 27 January 2021 [231] Mr Brookfield did not ultimately pursue a claim for malicious prosecution in respect of the failure to appear charge brought by Officer Lowth on 27 January 2021. [232] In circumstances where Mr Brookfield was found guilty of that charge (see [98] above), that part of Mr Brookfield’s claim could not have succeeded. The second element of the tort of malicious prosecution could not have been made out. It is unnecessary to consider that aspect of Mr Brookfield’s claim further. The charges brought by Officer Self on 15 October 2021 [233] The offence of perjury under s 123 of the Criminal Code comprises the following elements: (a) the defendant gave testimony that was false; (b) the defendant knowingly gave that false testimony; (c) the false testimony was given in, or for the purpose of instituting, a judicial proceeding; (d) the false testimony touched (in the sense of being relevant or related to) a matter that was material to any question in the proceeding. [234] The offences of forgery and uttering under s 488 of the Criminal Code comprises the following elements: (a) the defendant forged or uttered a document; (b) the forgery or uttering was done with intent to defraud. [235] To forge a document means to make, alter or deal with the document so that the whole of it or a material part of it: (a) purports to be what, or of an effect that, in fact it is not; or (b) purports to be made, altered or dealt with by a person who did not make, alter or deal with it or by or for some person who does not, in fact exist; or (c) purports to be made, altered or dealt with by authority of a person who did not give that authority; or (d) otherwise purports to be made, altered or dealt with in circumstances in which it was not made, altered or dealt with. -- 53 of 65 -- 54 [236] “Utter” means and includes using or dealing with, and attempting to use or deal with, and attempting to induce any person to use, deal with, or act upon, the thing in question [237] The word “document” includes: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols, codes, perforations or anything else having a meaning for a person qualified to interpret them; and (c) a record. [238] “Intent to defraud” means an intent to practise a fraud on another person, it being sufficient if anyone may be prejudiced by the fraud. If, therefore, there is an intention to deprive another person of a right or to cause him or her to act in any way to his or her detriment or prejudice or contrary to what would otherwise be his or her duty, an intent to defraud is established notwithstanding that there is no intention to cause pecuniary or economic loss. It is not necessary to prove an intent to defraud any particular person. Was there reasonable and probable cause to lay the charges? [239] Officer Self’s evidence was that, once he read the affidavits of Mr Brookfield which Mr Mergard provided (see [103] above), he realised that, although Mr Brookfield had previously sworn Mr Mergard had never signed the rent roll agreement, he later sought to rely on a copy of the rent roll agreement purportedly signed by Mr Mergard. [240] Officer Self deposed that, when he charged Mr Brookfield on 15 October 2021, he believed it was appropriate to do so because: (a) Mr Mergard had made a complaint that in the civil proceedings Mr Brookfield was relying on a copy of the rent roll agreement which purported to have Mr Mergard’s signature on it, but which Mr Mergard had not in fact signed; (b) the affidavits of Mr Brookfield provided by Mr Mergard demonstrated that Mr Brookfield knew that Mr Mergard had not signed the rent roll agreement; (c) despite that knowledge, Mr Brookfield was now relying on a document which purported to have Mr Mergard’s signature on it. [241] I accept that evidence. I am satisfied that when Officer Self charged Mr Brookfield on 15 October 2021, he honestly believed that the available material warranted setting the processes of the criminal law in motion. [242] I turn now to consider whether the material available to Officer Self would have led a reasonable person to the conclusion that Mr Brookfield might be found guilty of the charges laid on 15 October 2021. [243] The material provided to Officer Self included: (a) an originating application dated 19 July 2018 which Mr Brookfield filed in the Federal Court against Real Estate Now, Mr Mergard and Mrs Mergard seeking -- 54 of 65 -- 55 (among other things) recovery of the debt he claimed to be owed under the rent roll agreement;113 and (b) a statement of claim, signed by Mr Brookfield as applicant, and filed in that Federal Court proceeding on 8 August 2018.114 [244] In that statement of claim, Mr Brookfield pleaded the discussion by which he alleged Mr Mergard confirmed his wish to purchase the rent roll from Blue Prop. The statement of claim contained the following paragraphs: “18. A standard Queensland rent roll sale and purchase agreement was prepared by [Mr Brookfield] in order to facilitate the sale and transfer of ownership to Mr Mergard’s company, the seller signed the contract on the 6th day of July 2015. 19. Upon giving [Mr Mergard] a signed copy of the sales and purchase agreement, Mr Mergard advised [Mr Brookfield] that he would prepare his own rent roll sale and purchase agreement to conduct the transfer and [sic] as he was a registered real estate agent in the State of Queensland. 20. [Mr Mergard] never produced a ‘rent roll’ sale and purchase agreement.” [245] Mr Mergard provided Officer Self with a copy of an affidavit accompanying a statutory demand (issued by Blue Prop) which Mr Brookfield had signed on 30 June 2016.115 In that affidavit, Mr Brookfield relevantly stated: “16. … I told him I would prepare a sales and purchase agreement so he could take control of the properties commencing 1 July 2015. Annexed hereto and marked with the letters ‘IWB1’ is a true copy of the sales and purchase agreement as prepared and signed by ‘the seller’. 17. Mark Mergard said ‘he could prepare one as he had done hundreds of them’, to date there has been no sales and purchaser agreement supplied by ‘the purchaser’. … 22. Despite numerous requests to Mark Mergard he repeatedly advised me he would get around to preparing the contract, to date no such contract has been prepared by ‘the purchaser’. … 24. [Real Estate Now] ‘the purchaser’ took control of the rent roll properties as of 1 July 2015 however did not purchase the business as a going concern. 25. The rent roll properties were amalgamated into the rent roll properties currently managed by the purchaser with the remaining company assets of 113 Exhibit 25, pages 460-464. 114 Exhibit 25, pages 465-471. 115 Exhibit 25, pages 450-453. -- 55 of 65 -- 56 [Blue Prop] ‘the seller’ being excluded from the sale and purchase agreement. 26. To date, the ‘purchaser’ has neither signed and or provided a sale and purchase agreement nor has paid to ‘the seller’ any of the income generated by the rent roll acquired by the purchaser as of 1 July 2015 or the capital purchase of the rent roll.” [246] The material also included affidavits to which Mr Brookfield exhibited what he described as a signed copy of the rent roll agreement, as to which see: (a) paragraph 2 of an affidavit dated 31 October 2018 which accompanied a statutory demand Mr Brookfield served on Real Estate Now;116 (b) paragraph 5 of an affidavit dated 15 January 2019 which Mr Brookfield filed in his application in the Federal Court to wind up Real Estate Now.117 [247] The copy of the rent roll agreement exhibited to those affidavits had a signature for Mr Mergard as director of Real Estate Now.118 The witness to Mr Mergard’s signature is identified as being Mr Brookfield. [248] Mr Mergard provided a signed statement dated 15 October 2021 in which he said that he never signed the rent roll agreement which Mr Brookfield relied on.119 [249] If a jury had accepted Mr Mergard’s evidence about never having signed the rent roll agreement, it would have been open to them on the material set out above: (a) to find that Mr Brookfield set out the true position in the statement of claim and the affidavit of 30 June 2016 extracted at [244] and [245] above, namely that Mr Mergard never signed the rent roll agreement; (b) to infer from Mr Brookfield’s subsequent reliance upon the signed version of the rent roll agreement that: (i) he forged Mr Mergard’s signature on the rent roll agreement in order to rely on a signed agreement in the civil proceedings in which he sought to recover the debt he claimed to be owed by Real Estate Now; (ii) he filed the affidavit dated 15 January 2019, exhibiting the “signed” rent roll agreement, in the winding up application in the knowledge that Mr Mergard had not signed the rent roll agreement; (iii) in doing so, he acted dishonestly or with the intent to defraud Real Estate Now; (c) the existence of a signed rent roll agreement touched a matter that was material to the winding up application, namely the existence of the debt which Mr Brookfield claimed to be owed by Real Estate Now; 116 Exhibit 25, pages 477-478. 117 Exhibit 25, pages 489-490. 118 Exhibit 25, pages 1964-1986 119 Exhibit 25, pages 111-117. See paragraph 8. -- 56 of 65 -- 57 (d) by seeking to rely upon the “signed” rent roll agreement, Mr Brookfield was attempting to obtain a pecuniary benefit, namely payment of the debt he claimed to be owed by Real Estate Now. [250] In those circumstances, I am satisfied that the material available to Officer Self would have led a reasonable person to the conclusion that Mr Brookfield might be found guilty of the charges laid on 15 October 2021. [251] As explained at [121] above, the charges were dismissed because the documents relied upon at the committal hearing were copies which had been provided to Officer Self by Mr Mergard.120 It was not established that the evidence was in admissible form, being copies of documents produced upon a search of court files. That deficiency in the form of the evidence presented at the committal hearing does not alter my conclusion about the substance of the documents. [252] In those circumstances, Mr Brookfield has not succeeded in establishing the negative proposition that Officer Self acted without reasonable and probable cause in laying the charges on 15 October 2021. I am not persuaded that Officer Self did not honestly believe Mr Brookfield might be found guilty of those charges. Nor am I persuaded that the material available to Officer Self when he laid the charges did not provide a sufficient basis for that belief. Did Officer Self act maliciously in laying the charges? [253] Officer Self’s evidence was that, when he charged Mr Brookfield on 15 October 2021, his purpose was to enforce the criminal law. [254] Mr Brookfield relied upon Officer Self’s imposition of a bail condition which sought to prevent him from commencing any further civil proceedings against Mr Mergard and Real Estate Now (see [119] above), and Magistrate McGarvie’s description of that bail condition as inappropriate and a significant overreach (see [120] above), as matters from which I should infer the existence of a malicious purpose. [255] I agree that the bail condition was not appropriate. However, I do not accept that the imposition of that condition proves that Officer Self acted maliciously. That is because, in circumstances where Officer Self believed there was sufficient evidence to charge Mr Brookfield with forging Mr Mergard’s signature on the rent roll agreement which underpinned his civil claims to recover the debt from Real Estate Now (and I have found that there was a reasonable basis for that belief), I am satisfied that Officer Self’s purpose in imposing the bail condition was to prevent Mr Brookfield from making any further claim in reliance on the “signed” rent roll agreement. That is consistent with his purpose, in laying the charges on 15 October 2021, being to enforce the criminal law. [256] Mr Brookfield submitted that I should conclude from Officer Self’s conduct that he acted as “judge, jury and executioner” in laying charges against him and ceased to act with objectivity.121 He further submitted that I should find Officer Self had an axe to grind against him; that Officer Self does not like losing.122 I do not accept those 120 Exhibit 22. 121 Transcript 5-64:15-19. 122 Transcript 5-72:40 to 5-73:5. -- 57 of 65 -- 58 submissions. It was plain from the way Officer Self answered Mr Brookfield’s questions in cross-examination, and the comments he made to Mr Brookfield after charging him on 15 October 2021 (see [114]-[115] above), that Officer Self felt a degree of frustration arising from complaints Mr Brookfield has made about his conduct in the investigation. Officer Self considers those complaints to be baseless. However, I am not satisfied that Officer Self’s feelings towards Mr Brookfield caused him to act maliciously in laying charges on 15 October 2021. Officer Self’s attempt to have another officer investigate Mr Mergard’s complaint about Mr Brookfield having forged his signature on the rent roll agreement (see [104]-[105] above) is not consistent with him having an axe to grind against Mr Brookfield or seeking to act as “judge, jury and executioner” by laying charges against him. [257] Ultimately, I am not persuaded that, in bringing or maintaining the charges he laid against Mr Brookfield on 15 October 2021, Officer Self acted maliciously. Conclusion on the claim for malicious prosecution [258] For each of the charges that the QPS brought against him, Mr Brookfield has not established the third and fourth elements of the action for malicious prosecution. Accordingly, his claim for malicious prosecution must be dismissed. Misfeasance in public office [259] The tort of misfeasance in public officer is constituted by:123 (a) an invalid or unauthorised act; (b) done by a public officer; (c) in the purported exercise of the officer’s powers or the purported discharge of the officer’s public duties; (d) maliciously, in that the officer: (i) intends to cause harm to the plaintiff; (ii) knows that the act is invalid or in excess of power and knows it would cause, or be likely to cause, harm to the plaintiff; or (iii) acts with reckless indifference or wilful blindness to the invalidity or lack of power and the likely harm; (e) loss or harm being caused to the plaintiff by the act. [260] I turn now to consider the acts of the various officers. Conduct of Officer Self on 25 May 2019 [261] Officer Self’s request that Mr Brookfield provide his mobile telephone and computer to the QPS officers (see [49] above) was neither an invalid act nor an unauthorised act. I am satisfied that, notwithstanding Officer Self’s advice that if Mr Brookfield 123 Northern Territory v Mengel (1995) 185 CLR 307, 345-347 and 370-371. -- 58 of 65 -- 59 refused to provide those items he would be arrested and detained while a warrant was obtained, Mr Brookfield provided those items to Officer Self voluntarily. It is clear from the whole of the interaction between Officer Self and Mr Brookfield, prior to the conclusion of the interview on 25 May 2019, that Mr Brookfield was happy to provide those items because he considered he had nothing to hide. [262] Likewise, Officer Self’s request that Mr Brookfield accompany the officers to the police station and participate in an interview was neither an invalid act nor an unauthorised act. I have already explained at [128]-[130] above my reasons for concluding that Mr Brookfield went to the police station voluntarily and agreed to participate in the interview with Officer Self. [263] Finally, I have already explained my reasons for concluding that: (a) Officer Self’s arrest of Mr Brookfield on 25 May 2019 was lawful; (b) there was reasonable and probable cause for Officer Self to lay the charges he laid against Mr Brookfield upon his arrest; (c) Officer Self did not act maliciously in laying those charges. [264] None of Officer Self’s actions on 25 May 2019 amounted to misfeasance in public office. Conduct of Officer May on 25 May 2019 [265] I have already explained my reasons for concluding that: (a) Officer May’s arrest of Mr Brookfield on 25 May 2019 was lawful; (b) there was reasonable and probable cause for Officer May to lay the fraud charge against Mr Brookfield; (c) Officer May did not act maliciously in laying that charge. [266] None of Officer May’s actions on 25 May 2019 amounted to misfeasance in public office. Conduct of Officer Self on 17 June 2019 [267] I have not accepted the submission that Officer Self directed Officer Burgess to arrest Mr Brookfield and charge him with breach of bail. Instead, I have accepted that Officer Self conveyed what he had been told by Ms O’Connell to Officer Burgess but left it to Officer Burgess to deal with the breach of bail complaint. [268] Nothing which Officer Self did on 17 June 2019 could properly be described as an invalid or unauthorised act. Nor could Officer Self’s conduct in speaking to Ms O’Connell and Officer Burgess be regarded as malicious. That conduct did not amount to misfeasance in public office. Conduct of Officer Burgess on 17 June 2019 -- 59 of 65 -- 60 [269] I have already explained my reasons for concluding that Officer Burgess’ arrest of Mr Brookfield for breach of bail was lawful. On that basis, Officer Burgess’ conduct on 17 June 2019 did not amount to misfeasance in public office. Conduct of Officer Sellars on 17 June 2019 [270] I have already explained my reasons for concluding that there was reasonable and probable cause for Officer Sellars to charge Mr Brookfield with breach of bail on 17 June 2019, and that, in laying that charge, Officer Sellars did not act maliciously. On that basis, Officer Sellars’ conduct on 17 June 2019 did not amount to misfeasance in public office. Conduct of Officer Self on 15 October 2021 [271] I have already explained my reasons for concluding that: (a) Officer Self’s arrest of Mr Brookfield on 15 October 2021 was lawful; (b) there was reasonable and probable cause for Officer Self to lay the charges he laid against Mr Brookfield upon his arrest; (c) Officer Self did not act maliciously in laying those charges. [272] Although I have agreed that Officer Self’s imposition of a bail condition which sought to prevent him from commencing any further civil proceedings against Mr Mergard and Real Estate Now was not appropriate, I have explained why I do not accept that Officer Self acted maliciously in imposing that bail condition. Even if I was satisfied that Officer Self had acted maliciously in imposing that bail condition, Mr Brookfield did not identify any harm which he suffered as a consequence of Officer Self’s conduct in imposing the bail condition, particularly in circumstances where Magistrate McGarvie removed that condition shortly after it had been imposed by Officer Self. [273] None of Officer Self’s actions on 15 October 2021 gave rise to an action for misfeasance in public office. Conduct of Officer Bishop [274] In response to complaints Mr Brookfield made about his having been arrested and charged on the various occasions addressed above, Officer Bishop reviewed the conduct of Officer Self and the other officers. Mr Brookfield was unhappy with the outcome of those complaints. He cross-examined Officer Bishop about various factual errors which he had detected in reports Officer Bishop had prepared setting out his assessment of the complaints. [275] Although it can be accepted that Officer Bishop’s reports contained some factual errors, Mr Brookfield has not established that anything Officer Bishop did could be properly characterised as an invalid or unauthorised act, or that Officer Bishop acted maliciously. I am not satisfied that any of Officer Bishop’s actions amounted to misfeasance in public office. Conclusion on the claim for misfeasance in public office -- 60 of 65 -- 61 [276] Mr Brookfield has not established that any conduct by any QPS officer gave rise to a cause of action for misfeasance in public office. That part of Mr Brookfield’s claim must be dismissed. Perverting the course of justice [277] Mr Brookfield’s amended statement of claim identified the following matters as the basis for his claim in respect of conduct which, on his case, perverted the course of justice: (a) Officer Self assisting Mills Oakley in the conduct of civil proceedings in the Federal Court (paragraphs 26, 33 and 131); (b) Officer Self directing Officer Burgess to arrest and charge Mr Brookfield for breach of bail (paragraph 56); (c) Officer Self’s imposition of a bail condition which sought to prevent Mr Brookfield from commencing any further civil proceedings against Mr Mergard and Real Estate Now (paragraphs 67 and 73). [278] Conduct by which a person attempts to pervert the course of justice constitutes a criminal offence.124 [279] Mr Brookfield did not identify the source of any private right of action for damages which is available to him in respect of conduct which might fall within the criminal offence of attempting to pervert the course of justice. [280] It might be argued that the claim could be framed as a claim for breach of statutory duty. If that is the way Mr Brookfield sought to frame this aspect of his claim, I would reject it. [281] In Young v Crime and Corruption Commission,125 McMurdo JA (with whom Fraser and Morrison JJA agreed) said that more than a breach of a duty imposed by a statute is required for the existence of a right of action for damages for such breach. A right of action only exists where a statute imposes a duty for the protection or benefit of a particular class of persons, from which it can been seen that, upon its proper construction, the statute intends to provide a ground of civil liability when the breach of the duty causes injury or damage. [282] That requirement is not satisfied in respect of this aspect of Mr Brookfield’s claim. As Crow J observed in Dickson v Cubela,126 the provisions of the Criminal Code do not give rise to any right of action which may form the basis of a claim for breach of statutory duty. [283] In any event, for the reasons already given, I accept the defendant’s submission that there is no evidence which could support a finding that any of the QPS officers who dealt with Mr Brookfield attempted to pervert the course of justice. Intimidation 124 Criminal Code, s 140. 125 [2019] QCA 189, [18]. 126 [2018] QSC 34, [11]. -- 61 of 65 -- 62 [284] The elements of the tort of intimidation are:127 (a) the defendant must threaten to use unlawful means to compel the person threatened to obey the defendant’s demand; (b) the person threatened must comply with that demand; (c) the plaintiff must suffer damage as a consequence of that compliance; and (d) the defendant must have acted with the intention of harming the plaintiff. [285] As Jagot J explained in Jack Brabham Engines Ltd v Beare,128 ill-considered actions, inflammatory words, unfortunate and inappropriate conduct do not constitute the tort of intimidation. To establish that the tort has occurred a plaintiff bears the onus of proving each element of the cause of action. [286] Mr Brookfield did not address his case to the elements of the tort. [287] The amended statement of claim pleaded the following conduct as acts of intimidation: (a) Officer Self attending Mr Brookfield’s residence on a Saturday (25 May 2019) with two other officers who were armed, taking Mr Brookfield into custody and placing him in the watchhouse cells for several hours (paragraph 34); (b) Officer Self arresting Mr Brookfield and laying charges against him on 25 May 2019 for matters which had previously been investigated by QPS officers with no findings made (paragraph 100); (c) Officer May abusing and threatening Mr Brookfield in the watchhouse on 25 May 2019 and then charging him with fraud without any caution being given or any formal interview being conducted (paragraphs 41 and 101-104); (d) the manner in which Officer May directed officers at the charge desk on 25 May 2019 to get Mr Brookfield back into the cells (paragraphs 42 and 101); (e) Officer Self instructing that Mr Brookfield be arrested publicly at the courthouse on 17 June 2019 (paragraphs 53, 56 and 110); (f) Officer Burgess taking Mr Brookfield into custody and marching him through the courthouse to be placed in the court cells on 17 June 2019 (paragraphs 57 and 109); (g) Officer Sellars handcuffing Mr Brookfield and taking him to the Bundaberg police station in a marked police car on 17 June 2019 (paragraph 58). [288] The claim for damages must be dismissed because the findings I have made in considering the claims for false imprisonment and malicious prosecution mean I am 127 Ballard v Multiplex [2012] NSWSC 426, [88]; Jack Brabham Engines Ltd v Beare [2010] FCA 872, [303]. 128 [2010] FCA 872, [304]. -- 62 of 65 -- 63 not satisfied that any of the QPS officers acted unlawfully. The difficulty with this aspect of Mr Brookfield’s claim is, however, more fundamental. [289] Mr Brookfield’s pleading did not characterise any of the alleged acts of intimidations as a threat by the relevant QPS officer which was intended to compel Mr Brookfield to comply with a demand made by the officer. No demand was identified. Compliance with any demand was not pleaded. It was not alleged that any of the QPS officers had the intention of harming Mr Brookfield when they made a relevant threat. Nor was it alleged that Mr Brookfield suffered damage as a consequence of complying with any demand by a QPS officer (as distinct from the officers’ conduct in a general sense). Nor was there any evidence of any of those material facts. [290] The claim for intimidation must be dismissed. Conspiracy [291] In Lee v Abedian,129 Bond J (as his Honour then was) set out the following statement of the principles regarding the tort of conspiracy: [68] There are two torts of conspiracy to injure – the first is a conspiracy to injure by lawful means and the second is a conspiracy to injure by unlawful means. [69] The elements of the tort of conspiracy to injure by lawful means are: (a) there was a combination or agreement between two or more persons; (b) the sole or dominant purpose of the combination or agreement was to injure the plaintiff; (c) the combination or agreement was carried into effect by the defendants’ conduct; (d) the defendants’ conduct in carrying the combination or agreement into effect caused damage to the plaintiff. [70] The elements of the tort of conspiracy to injure by unlawful means are: (a) there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means; (b) a purpose of that combination or agreement was to injure the plaintiff; (c) the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and (d) those unlawful acts caused damage to the plaintiff. [71] It can be seen that the two torts have in common the need to prove the conspiracy; that the conspiracy involved an intention to injure; that the conspiracy was carried into effect; and that so doing caused damage to the plaintiff. And it may also be observed in relation to both torts, that in a case based on a clandestine 129 [2017] 1 Qd R 549, 567-568 [68]-[75] (citations omitted, underlining in original). -- 63 of 65 -- 64 arrangement or arrangements between conspirators, a plaintiff, who can be expected to be unable to plead the terms of an express agreement in the usual way, must at the least be able to plead and particularise the overt acts it intends to rely on to justify the inference that the agreement on which it relies was in fact made as it alleges. [72] There are three key distinctions between the two torts. [73] The first lies in the prominence of the required purpose of injuring the plaintiff. Both torts require the plaintiff to prove that a purpose of the conspiracy was to injure the plaintiff. For a lawful means conspiracy, however, the plaintiff must prove that the purpose of injuring the plaintiff was the sole or predominant purpose of the conspiracy. That is not required for an unlawful means conspiracy where it will suffice for a plaintiff to prove that causing injury to the plaintiff was a purpose of the conspiracy. [74] The second lies in the nature of the means agreed to be used to injure the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the combination or agreement was to engage in conduct which amounted to unlawful means. In other words, the unlawful means aspect must exist at the time the combination or agreement was made. That is not required for a lawful means conspiracy. [75] The third lies in the nature of the means in fact used to carry the conspiracy into effect and cause injury to the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the conspiracy was carried into effect by commission of the agreed unlawful acts and those agreed unlawful acts caused damage to the plaintiff. That is not required for a lawful means conspiracy where the plaintiff does not have to show that it was the unlawful part of the conspiracy that caused loss to the plaintiff. [292] Mr Brookfield’s amended statement of claim identified the following matters as the basis for his claim for conspiracy: (a) between 10 January 2019 and 25 May 2019, Officer Self conspired with solicitors from Mills Oakley to bring criminal charges against Mr Brookfield to assist Mr Mergard in civil proceedings (paragraphs 20-26); (b) on 17 June 2019, Officer Self conspired with solicitors from Mills Oakley to have Mr Brookfield arrested for breach of bail (paragraphs55-56); (c) between 6 October 2021 and 15 October 2021, Officer Self conspired with Mr Mergard to have Mr Brookfield arrested and charged in respect of matters already dealt with by the QPS and found to amount to a civil complaint (paragraphs 62-65). [293] As to the first of these allegations, there is no evidence of any agreement between Officer Self and Mr Mergard’s solicitors to the effect that criminal charges would be brought against Mr Brookfield with the intention of assisting Mr Mergard, and hindering Mr Brookfield, in civil proceedings. Nor am I prepared to draw an inference that such an agreement existed. Mr Mergard, through his solicitors, complained that Mr Brookfield’s conduct was criminal. Officer Self investigated that conduct and, notwithstanding the conclusion previously reached by Officer May and Officer Self previously having accepted that conclusion, formed the view that the -- 64 of 65 -- 65 material provided to the QPS warranted Mr Brookfield being arrested and charged. I have already found that the arrest of Mr Brookfield on 25 May 2019 was lawful and that there was reasonable and probable cause for bringing the charges which were laid against him on that occasion. I have also accepted that Officer Self did not send the email to Ms O’Connell on 26 May 2019 for the purpose of assisting Mr Mergard in opposing the application to wind up Real Estate Now. When Officer Self sent that email, he did not know it would be used in the winding up application (see [209]- [210] above). [294] As to the second allegation, there is no evidence that Officer Self agreed with Mr Mergard’s solicitors that he would cause Mr Brookfield to be arrested for breach of bail on 17 June 2019. Nor am I prepared to draw an inference that such an agreement existed. I have accepted Officer Self’s account of his telephone conversations with Ms O’Connell and Officer Burgess that morning. On that basis, I have already found that Officer Self did not direct Officer Burgess to arrest or charge Mr Brookfield for breach of bail (see [152]-[157] above). I have also found that the arrest of Mr Brookfield on 17 June 2019 was lawful and that there was reasonable and probable cause for him to be charged with breach of bail. [295] As to the third allegation, there is no evidence that Officer Self agreed with Mr Mergard that Mr Brookfield would be further charged with offences arising from his reliance on the rent roll agreement bearing Mr Mergard’s (allegedly forged) signature. Nor am I prepared to draw an inference that such an agreement existed. Officer Self’s attempt to allocate the investigation of Mr Mergard’s complaint about the allegedly forged signature to another QPS officer is inconsistent with the existence of any such agreement. As is the case with the first two allegations, I have already found that the arrest of Mr Brookfield on 15 October 2021 was lawful and that there was reasonable and probable cause for bringing the charges which were laid against him on that occasion. [296] In those circumstances, Mr Brookfield has failed to establish the elements of the tort of conspiracy. That part of his claim must be dismissed. Conclusion on Mr Brookfield’s claims [297] For the reasons set out above, the amended claim filed on 21 July 2022 is dismissed. [298] I will hear the parties as to costs. -- 65 of 65 --