Bayliss v Cassidy & Ors [1998] QSC 186

IN THE SUPREME COURT OF QUEENSLAND No 4786 of 1988 Before Mr Justice Muir [Bayliss v Cassidy & Ors] BETWEEN: PETER JOHN BAYLISS Plaintiff AND: ROBERT BERNARD CASSIDY First Defendant AND: NEVILLE JOHN HARPER Second Defendant AND: DESMOND GORDON STURGESS Third Defendant AND: STATE OF QUEENSLAND Fourth Defendant REASONS FOR JUDGMENT - MUIR J. Judgment delivered 18 September 1998 CATCHWORDS: TORT - malicious prosecution - malice - whether arresting and prosecuting officers made proper enquiry - existence of reasonable and probable cause - whether reasonable to believe plaintiff medical practitioner was carrying out terminations of pregnancy for purpose other than for the preservation of mother's life - ss. 224 and 282 of Criminal Code - liability as prosecutor of persons aiding, abetting or procuring a malicious arrest or a malicious prosecution - want of jurisdiction of Magistrate to issue search warrant - operation of s. 69(10 of Police Act 1937 (Qld) - false imprisonment - trespass to goods - seizure of goods during police raid outside terms of search warrant - common law powers of seizure - evidence - application of principle in Jones v Dunkel - s. 11 Limitation of Actions Act 1974 (Qld) - damages - exemplary damages. -- 1 of 104 -- Counsel: Mr R. R. Stitt Q.C., with him Mr G.H. Brandis for the plaintiff Mr C.E.K. Hampson Q.C., with him Ms R.G. Atkinson for the first, second, third and fourth defendants Solicitors: Gadens Lawyers for the plaintiff Crown Solicitor for the first, second, third and fourth defendants Hearing date: 13 July to 17 August 1998 -- 2 of 104 -- IN THE SUPREME COURT OF QUEENSLAND No 4786 of 1988 Before Mr Justice Muir [Bayliss v Cassidy & Ors] BETWEEN: PETER JOHN BAYLISS Plaintiff AND: ROBERT BERNARD CASSIDY First Defendant AND: NEVILLE JOHN HARPER Second Defendant AND: DESMOND GORDON STURGESS Third Defendant AND: STATE OF QUEENSLAND Fourth Defendant REASONS FOR JUDGMENT - MUIR J. Judgment delivered 18 September 1998 Introductory observations On 20 May 1985 police officers, purportedly acting on the authority of search warrants, entered a premises situated at 687 Logan Road, Greenslopes, and an adjoining premises at 8 Ridge Street, in which the plaintiff, in association with a Dr Errey, was carrying on a medical practice under the name “Fertility Control Clinic (Qld)”. The police proceeded to interview the plaintiff, patients and staff and to seize and take away medical records, other documents and various items of equipment. Whilst being interviewed by the investigating officer, the plaintiff revealed that he proposed to carry out further terminations of pregnancy that day. The investigating officer, after speaking to a superior officer and to the Director of Prosecutions, arrested the plaintiff. The plaintiff was taken by police car to the Woolloongabba police station where he conferred with his solicitor. From there he was taken -- 3 of 104 -- 2 to the Holland Park watch house and charged with conspiring with a person or persons unknown unlawfully to use force with intent to procure the miscarriage of women between 30 April 1981 and 21 May 1985 at Brisbane. He appeared before a magistrate at 2.15 pm that day and was granted bail. From about 2.30 pm on 20 May 1985 Mr Desmond Sturgess, then Director of Prosecutions, took over the conduct of the proceedings against the plaintiff pursuant to s.10 of the Director of Prosecutions Act 1984 (Qld). On 25 June 1985 the Full Court of the Supreme Court of Queensland quashed the search warrants. As a consequence, materials seized as a result of the execution of the warrants, which had not already been returned, were returned to the plaintiff. At the next appearance of the plaintiff at the Holland Park Magistrates Court on 14 July 1985, no evidence was offered by the Crown and the plaintiff was discharged. There was no subsequent prosecution. The plaintiff's claims in this action arise out of those events. The plaintiff's claims The principal allegations in the statement of claim are that - (a) the arrest of the plaintiff was caused or effected maliciously and without reasonable and probable cause by the first defendant (Superintendent Cassidy), the second defendant (Mr Sturgess) and the third defendant (Mr Harper); (b) the institution of the prosecution of the plaintiff was caused or effected maliciously and without reasonable and probable cause by the first, second and third defendants; (c) the first, second and third defendants maliciously and without reasonable cause continued to prosecute the charge against the plaintiff; (d) the imprisonment of the plaintiff was unlawful in that the first, second and -- 4 of 104 -- 3 third defendants did not believe on reasonable grounds that the offence charged had been committed; (e) the search warrants were obtained by the first defendant maliciously and without reasonable and probable cause; (f) by virtue of the matter alleged in (e) and as a result of the Full Court of the Supreme Court of Queensland holding on 25 June 1985 that the warrants were unlawful so far as they related to the seizure of documents, the plaintiff was at all times entitled to possession of the material seized purportedly under the warrants; (g) by virtue of the above matters the plaintiff was wrongfully imprisoned and - “he was greatly injured in his credit, character, personal and professional reputation. He suffered invasion of his privacy by being paraded before the media (including camera crews from television stations), fingerprinted, photographed, and being deprived of personal property and professional equipment. He suffered significant and considerable mental pain and anguish, as an eminent medical practitioner in the field of fertility control, and he has been put to considerable trouble, inconvenience, anxiety and expense. He has thereby suffered loss and damage, excluding loss of income. ” 3 The plaintiff claims exemplary damages by reason of the malicious conduct of the first, second and third defendants. The plaintiff's claims, as particularised and as presented, were based on extremely narrow foundations. In the case of the alleged malicious prosecution on the part of Sergeant Cassidy, the thrust of the argument was that, although Sergeant Cassidy may have had available to him at the time of the arrest and commencement of the prosecution of the plaintiff ample evidence to support a belief on his part that the plaintiff was probably guilty of the offence for which he was arrested and charged, Sergeant Cassidy had failed to inform himself of the contents of such material and/or had failed to pursue other enquiries which he ought -- 5 of 104 -- 4 reasonably to have pursued. It followed from this, it was argued, that there was no reasonable and probable cause for the arrest and prosecution of the plaintiff, at least insofar as Sergeant Cassidy was concerned. The case in relation to malicious prosecution against Mr Sturgess is based largely on the contention that Mr Sturgess advised the bringing of the conspiracy charge and continued its prosecution for the illegitimate purpose of curtailing media comment and had no intention of prosecuting that charge to finality. As against Mr Harper, the case was based on the premise that, by authorising and having a general involvement in the charging of the plaintiff, he had rendered himself liable as if he was, in fact, a prosecutor. Something of the flavour of the way in which the plaintiff's case was conducted may be gleaned from the submission that critical events must be viewed in the context of the factual matrix of the case. That matrix was said to include the following - “- its genesis was a political decision, not a policing decision - the raid upon Dr. Bayliss' clinic took place in the absence of any complaint from any person in possession of any material evidence that Dr. Bayliss had acted unlawfully; - the raid took place after Dr. Bayliss had been practising medicine at his clinic, without interference, for many years; - the operation itself, involving some 54 personnel in what was nominally merely the execution of a search warrant, was itself extraordinary; - the Director of Prosecutions was closely and continuously involved in the police planning of the operation and the making of operational decisions; - on the Plaintiff's case, the critical decision, i.e. the decision to charge Dr. Bayliss with conspiracy, was made in the expectation that the raid would generate extensive publicity and media coverage; it was one of the central objectives, in the preparation and execution of the raid, to manage that publicity, in particular by curtailing comment adverse to the defendants, while at the same time displaying the plaintiff in an unfavourable light; -- 6 of 104 -- 5 - that course of action, the deliberate use of the criminal law as a tool of media management, had the express authorisation of the Attorney-General of the day.” The impression sought to be created by the opening of the plaintiff's case was that Mr Harper, following a Cabinet directive, had decided that the plaintiff should be prosecuted and that Mr Sturgess and Sergeant Cassidy, in acting as they did, were responding to political imperatives without giving proper consideration to their respective duties. The plaintiff also sought to make out a case of a deliberate attempt on the part of the defendants to use the media in support of a political agenda by alerting the media to the proposed police operation and by deliberately subjecting the plaintiff to what was described as a “media walk”. The plaintiff's case, as pleaded and particularised, was rather more confined. In broad terms, it was that - (a) there was no “reasonable and probable” cause for the arrest or prosecution of the plaintiff because of “the absence of any fact matter or circumstance reasonably capable of founding a belief that the offence of conspiracy had been committed by the plaintiff”; and (b) the arrest and prosecution were “malicious” as being for the improper purpose, disclosed in the 17 May 1985 memorandum of Mr Sturgess to Mr Harper, of curtailing media comment and because it was not intended to prosecute the conspiracy charge, laid or to be laid, to finality, but to prosecute a substantive charge or charges of procuring a miscarriage or miscarriages. It was thus not part of the plaintiff's pleaded case that either Sergeant Cassidy or Mr Sturgess, in acting as they did, were following some political directive. It was, however, alleged in the statement of claim that the first, second and third defendants arranged the publicity for the police operation. -- 7 of 104 -- 6 The course of the action and identification of the principal protagonists and witnesses The action was commenced by writ of summons on 22 December 1988. A statement of claim was delivered on the same day and the first defendant delivered his defence on 3 March 1989. After that the other defendants were joined and the action had a rather tortured progress involving many interlocutory applications. The trial of the action finally commenced on 13 July 1998. Mr Stitt QC, who with Mr Brandis, appeared for the plaintiff, renewed the application to amend the statement of claim, by inserting proposed new paragraphs 5A through to 5AE inclusive, which had been considered and rejected by me on 16 June 1996. That application failed, but I acceded to an application to make some other amendments to the statement of claim, remarking - “... that I propose to allow the amendments now being dealt with provisionally and to leave the door open to the defendants to make an application in relation to whether the amendments should be disallowed at a subsequent date, if it appears in the course of the trial that it becomes impossible or virtually impossible for the defendants to properly address some or all of the new allegations.” No such application was made. Mr Stitt opened the plaintiff's case on the first day and on the morning of the second day of the trial and, in so doing, tendered some 65 documents and groups of documents. Included in the material tendered were video tapes and an audio tape. The plaintiff's case was closed on the afternoon of the second day of the trial, the plaintiff choosing not to give evidence himself or to call witnesses. Mr Hampson QC, who with Ms Atkinson appeared for the defendants, opened the defendants' case on 16 July and proceeded to call some 31 witnesses, including the defendants themselves. As the evidence in chief of all of the witnesses called, apart from relatively short supplementary oral evidence led from time to time, was in statement form, the great bulk of the time spent during the trial outside of opening, and closing addresses was devoted to cross- -- 8 of 104 -- 7 examination by the plaintiff's counsel of the defendants and witnesses called on behalf of the defendants. Lengthy oral addresses were supplemented by extensive written submissions. The trial occupied some 21 sitting days. For some years prior to 1985 the plaintiff, Peter John Bayliss, had run a clinic located in adjoining buildings at 687 Logan Road and 8 Ridge Street Greenslopes, in conjunction with other medical practitioners. The practice was conducted under the name “Fertility Control Clinic (Qld)”. Records in the office of the Commissioner for Corporate Affairs showed that the proprietors of the business were the plaintiff and a Dr Errey. For the sake of convenience I will refer to the clinic as the “Greenslopes Clinic” or “the Clinic”. The first defendant in the action is Robert Bernard Cassidy, a Chief Superintendent in the Queensland Police Service. At relevant times he was a Detective Sergeant First Class in the metropolitan Criminal Investigation Branch attached to the South Brisbane area office. For the sake of convenience, when referring to him in the context of events in 1985, I will refer to him as “Sergeant” Cassidy. He was appointed principal investigating officer in respect of investigation into the plaintiff's conduct at the Greenslopes Clinic. The second defendant, Neville John Harper, is now retired. He was first elected to the Queensland Legislative Assembly on 29 November 1990. Prior to his election he was the State Vice President of the National Party. He became Minister for Justice and Attorney- General on 19 August 1983 and held that office at relevant times. The third defendant, Desmond Gordon Sturgess, was appointed Director of Prosecutions on 15 January 1985. He held that position at relevant times. Prior to his appointment he had had a great deal of experience in criminal law. He is and was a respected barrister. Brian Patrick Webb retired from the Queensland Police Force on 13 December -- 9 of 104 -- 8 1987. In May 1985 he was a Detective Inspector of Police attached to the Criminal Investigation Branch, Brisbane. By the end of 1984 he had been a detective for about 25 years. He was in charge of the police investigations into the Greenslopes clinic. Marshall Irwin, now an officer of the National Crime Authority, was Deputy Director of Prosecutions stationed in Townsville at relevant times. William John McArthur retired from the Queensland Police Force on 6 January 1986. At relevant times he was Assistant Commissioner (Crime and Services). Graham James Williams, Assistant Commissioner, Queensland Police Service. At relevant times he was a Detective Senior Sergeant stationed at the Criminal Investigation Branch, Cleveland. He executed the search warrant in respect of 8 Ridge Street and acted as “exhibits officer” at that location. Daniel Stanley McDonald, is now Senior Investigator with Queensland Rail. At relevant times he was a Detective Senior Constable of Police stationed at the Criminal Investigation Branch, South Brisbane. He was instructed by Inspector Sommer to assist Sergeant Cassidy in the investigation. James Edward Sommer, who was Chief of the Metropolitan Criminal Investigation Branch at the time of his retirement from the Queensland Police Force on 21 December 1989. At relevant times he was a Detective Inspector of Police stationed at the South Brisbane area office Woolloongabba. Robert Green was the Government Medical Officer at the time of the police operation. He is now retired and was not called as a witness. Narrative of events prior to the commencement of police investigations The fact that abortions were amongst the medical procedures performed at the Clinic was well known in the community and had generated a considerable degree of publicity in the -- 10 of 104 -- 9 print and television media. The plaintiff had given interviews in which he made his views on abortion quite plain. In essence, he had publicly asserted a strongly held belief that the woman concerned should be the sole judge of whether or not there should be a termination of pregnancy and that the State had no right to restrict or interfere with a woman's choice or conduct in that regard. Sections 224 and 282 of the Criminal Code then provided that - “ 224 Attempts to procure abortion. Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment with hard labour for 14 years.” “282 Surgical operations. A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case. The questions of whether abortion was or ought be illegal had attracted considerable community interest and debate, the degree of intensity of which fluctuated. Bodies such as the Right to Life Association were concerned to keep the issue a live one and to exert pressure on politicians and law enforcement authorities to enforce the law or, at least, what they perceived the law to be. For example, on 17 August 1983 solicitors acting for the Right to Life Association Queensland wrote to the then Solicitor-General stating inter alia - “Our client is concerned that an interpretation of the word ‘life’ in the phrase ‘for the preservation of the mother's life’ in section 282 of the Code as extending to serious risk to mental or physical health, is proving to be a serious impediment to the launching of prosecutions against abortionists.” Enclosed with the letter were copies of opinions from three prominent Queen's Counsel. With reference to the contents of the opinions, the letter concluded - “Our clients believe that this interpretation of the law should be prosecuted to the courts by the police as a matter of the gravest urgency in view of the number of abortions being openly performed in the State. ” -- 11 of 104 -- 10 On the same date the solicitors sent a letter to the Premier of Queensland notifying him that they had written to the Solicitor-General. Further copies of the opinions were enclosed with that letter. Those opinions expressed the view that the words “for the preservation of the mother's life” in s.282, being without technical meaning, should be given their normal meaning in everyday speech. Indeed, the conclusion reached in one of those opinions and accepted by another, was that the expression “unborn child” in s.282 probably refers to a case where “a woman is about to be delivered of a child”. On that construction, s.282 would be capable of providing legal protection to medical practitioners performing abortions only in quite limited circumstances. The view was expressed in the third opinion that “unborn child” probably refers “to a child who has moved in the womb, which I understand usually happens in about the 20th week”. That construction, if correct, would also greatly confine the practical application of s.282. There was also a body of opinion that s.282 afforded extensive protection to a medical practitioner performing an abortion. It derived much of its support from R v Bourne [1939] 1 KB 867. In that case McNaughten J, in summing up to the jury, said of the words, “for the purpose of preserving the life of the mother” - “... if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequences of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under the circumstances, and in that honest belief, operates, is operating for the purpose of preserving the life of the mother”. In K v T [1983] 1 Qd R 396 G.N. Williams J made the obiter dictum observation at 398 that - -- 12 of 104 -- 11 “At such a trial [ a prosecution of a medical practitioner accused of a breach of s.224 of the Criminal Code] the jury would be instructed in accordance with R. v. Bourne [1939] 1 K.B. 687, as applied by Menhennitt J in R. v. Davidson [1969] V.R. 667.” It is not necessary for me to determine the correct interpretation of s.282. Sergeant Cassidy swore that as a result of his research (which included reading the three opinions) and discussions with Messrs Sturgess and Irwin, he concluded that abortions were “illegal unless performed to preserve the mother's life”. It was implicit in Mr Sturgess' evidence that he held the same opinion at relevant times. It was not suggested to either of these defendants (and nor could it have been suggested sensibly) that such views were not reasonable. The police had conducted investigations into the Greenslopes Clinic prior to 1985, but these investigations had not resulted in any prosecution. On 30 April 1984 Mr Gunn, the Deputy Premier and Minister assisting the Treasurer, presented a petition signed by some 10,000 persons opposed to abortion to a cabinet meeting at Caloundra. Minutes of the meeting refer to the presentation of the petition and state - “... it was agreed that the Honourable the Minister for Justice and Attorney- General re-examine the police report in connection with the operation of the clinic with a view to having prosecution action initiated if possible.” The clinic to which reference was made was a clinic in Townsville operated by a Dr Grundman. On 7 or 8 February 1985 Mr Sturgess met with Mr Harper in Townsville. Two Townsville police officers were also present at the meeting. In the course of it Mr Harper informed those present that Cabinet had decided that abortion clinics in Brisbane and Townsville should be investigated and that prosecutions should be commenced if the evidence warranted that course. Mr Harper said that he had been asked by Cabinet to take responsibility for the matter and asked Mr Sturgess to provide legal advice on the matter to himself and the police, where necessary. Mr Sturgess told Mr Harper that a Mr Marshall Irwin was in charge of the Townsville prosecutions office and said, in effect, that he would liaise with him in -- 13 of 104 -- 12 respect of the Townsville operation. The police investigations and actions prior to 20 May 1985. On 5 March 1985 Assistant Commissioner McArthur sent a memorandum to Inspector Thompson notifying the latter that the Commissioner - “... has directed that an investigation be made in relation to an abortion clinic which is alleged to be operating at Logan Rd, Greenslopes. He directs that this enquiry be carried out in a manner similar to the one at present in Townsville. Evidence gathered is to be prepared to be passed to the C.I. Branch with a view to prosecution.” As the above narrative suggests, police investigations into the Townsville Clinic were in progress prior to the date of this memorandum. Mr McArthur's notebook records a conversation with another police officer on 11 February 1985 in which the names of Mr Sturgess and Mr Harper were mentioned in connection with police activity relating to that Clinic. In early 1985 Brian Patrick Webb had been a detective for 25 years. He knew Mr Sturgess quite well and had considerable respect for his abilities as a lawyer. He was told by the Assistant Commissioner (Crime) Mr McArthur, in late February 1985 that the Minister wanted an investigation carried out into the abortion clinics operating in Queensland. Assistant Commissioner McArthur instructed him to take appropriate investigative action and to prefer charges if the necessary evidence was forthcoming. Shortly after receiving those instructions, Inspector Webb attended a meeting with Mr Harper at which Mr Sturgess was present. The discussion at the meeting was general in nature. Mr Harper mentioned that at a Cabinet meeting in Caloundra there had been discussion on the subject of abortion clinics. The possibility of criminal proceedings being initiated against persons operating abortion clinics was mentioned. Inspector Webb expressed the opinion that the institution of any such proceedings would give rise to adverse publicity, to which Mr -- 14 of 104 -- 13 Harper responded that he was not concerned about that. Over the ensuing weeks Inspector Webb and Mr Sturgess met fairly frequently to discuss a variety of different matters on which they were working in their respective roles. In the course of such meetings they had a number of discussions relating to the task given to Inspector Webb, including the evidence which would be required to permit successful prosecutions. The investigation into the Greenslopes and Townsville Clinics was far from being the main focus of Mr Sturgess's attention as Director of Prosecutions. He described the matter as being a “side wind” as far as he was concerned. Inspector Webb perused police files and newspaper articles in relation to abortion and abortion clinics. Mr Sturgess arranged for him to meet Mr Kerr, whom he said had information about abortion. In the course of a meeting or meetings with Mr Kerr, Inspector Webb was given a number of documents relating to abortion. Inspector Webb concluded that he should appoint an officer to carry out the investigations and make any arrest which proved to be warranted. Because the Greenslopes Clinic was in the area of responsibility of the South Brisbane area office, he approached Detective Inspector Sommer, the officer in charge. Inspector Sommer recommended Sergeant Cassidy for the role. He was then a detective sergeant and the only sergeant first class stationed in the South Brisbane area office. Inspector Webb had not previously worked with Sergeant Cassidy but knew of him by reputation as a competent police officer. The first meeting between Sergeant Cassidy and Inspector Webb in connection with the investigation was at a meeting at CIB headquarters on 24 April 1985. The meeting was chaired by Inspector Webb. Other persons present included Detective Sergeant Moskwa and Dr Green, Government Medical Officer. In the course of the meeting Inspector Webb told those present that - -- 15 of 104 -- 14 • the Attorney-General had directed or advised that investigations be undertaken with a view to considering the institution of criminal proceedings against abortion clinics in Brisbane and Townsville; • Mr Sturgess, the Director of Prosecutions, was liaising with the police department in relation to the matter; • Mr Sturgess had directed that search warrants be executed simultaneously in Brisbane and Townsville; • Inspector Webb had overall control of the investigation; • Sergeant Cassidy and Sergeant Gorrie were to act as principal investigating officers in relation to any offences detected at the Greenslopes Clinic; • the Bureau of Criminal Investigation was conducting surveillance of the Greenslopes Clinic. There was some discussion at the meeting about the law relating to abortions and difficulties in obtaining evidence on which to base prosecutions. After the meeting Sergeant Cassidy went to Inspector Webb's office in order to further discuss the proposed operation. Inspector Webb then handed Sergeant Cassidy a bundle of papers relating to abortion. Some of them had been given to him by Mr Kerr and some may have been passed on by Mr Sturgess to Inspector Webb. That material included - • a copy of a report in the “Courier-Mail” newspaper of 1 May 1984 concerning, inter alia, the Government's attitude to initiating prosecutions in respect of a “Townsville abortion clinic”; • a number of opinions of Senior Counsel dealing with the provisions of the Criminal Code relating to abortion; • a memorandum in relation to abortion prosecutions. -- 16 of 104 -- 15 Officers of the Bureau of Criminal Intelligence conducted surveillance operations at the Greenslopes Clinic between 10 March 1985 and 20 May 1985. The persons undertaking the surveillance were generally stationed in unmarked police vehicles within view of the premises. One officer took photographs whilst another officer made notes concerning persons entering and leaving the premises. The quality of the note taking improved in the course of the surveillance operations and, eventually, persons entering and leaving were identified by number. It then became reasonably easy to ascertain the time for which a person had remained at the Clinic. On 3 May 1985 Sergeant Cassidy, Inspector Webb and Detective McDonald met with Mr Kerr, a solicitor and office bearer in the Right to Life organisation, and another solicitor for the organisation, Mr Quinn. At the meeting Mr Kerr provided a paper clipping from the “Courier-Mail” of 23 May 1985 and two videos, one of an interview with the plaintiff on “Nationwide” on 24 March 1983 and one of “The Silent Scream”. After the conclusion of the meeting with Messrs Kerr and Quinn, Sergeant Cassidy and Inspector Webb further discussed the execution of a search warrant, and the personnel to be involved in that exercise. Sergeant Cassidy was advised that any women involved would be given indemnification from prosecution. On 5 May Sergeant Cassidy drafted search warrants with a view to seizing patient records and other materials at the Greenslopes Clinic. Separate warrants were prepared for 687 Logan Road and 8 Ridge Street. On a later date, Sergeant Cassidy discussed a draft of at least one of the search warrants with Inspector Webb and Mr Sturgess and received Mr Sturgess' approval of it. On 8 May 1985 Inspector Webb chaired a conference at Criminal Investigation Branch headquarters. Present were Messrs Sturgess and Irwin and various police officers including -- 17 of 104 -- 16 Sergeant Cassidy. In a memorandum to the Detective Superintendent Metropolitan CI Branch dated 13 May 1985, Inspector Webb said of this conference - “The duties of the police in this most delicate matter were clearly spelt out and it was announced by Mr Sturgess that an indemnity against prosecution would be granted to the persons who had been aborted.” In the course of the meeting there was a briefing on the proposed raid which included a discussion concerning the execution of search warrants and the gathering of evidence to support any subsequent prosecution which might be decided upon. Some emphasis was given to the need to maintain confidentiality and the appropriate treatment of women at the Clinic. At the conclusion of that meeting, a further meeting was held between persons including Messrs Sturgess and Irwin, Sergeants Cassidy and Patterson, and Inspector Webb. Inspector Webb said of this meeting in his memorandum of 13 May 1985 - “The matter of prosecution was raised and it was decided that to obviate the huge volume of media coverage which is expected to follow the raid, a decision will be made as soon as practicable for charges to be laid so the matter can be correctly referred to as sub-judice. Both Mr Sturgess and Mr Irwin have placed themselves strategically available to the Principal Investigator following the raids.” It seems that Senior Constable McDonald was also present on that occasion. Sergeant Cassidy raised the possibility of bringing substantive charges should any offences be detected as a result of the raid. The view expressed by Mr Sturgess was that a conspiracy charge was the appropriate one to bring and Mr Cassidy and those present accepted that advice. It is probable that Mr Sturgess gave reasons for his conclusions. Sergeant Cassidy's log book records of this conference - “Informed that cabinet had directed that both abortion clinics @ Greenslopes and T'vlle respectively had to be proceeded against. Mr Des Sturgess, Director of Public Prosecutions, had directed that both jobs had to be done simultaneously. ... Det. Inspt. Webb has the file. -- 18 of 104 -- 17 Myself and Det. Sgt. 2/C Leigh Gorrie, are ultimately to make any arrest.” His diary entries for that date include “discussed poss of ‘conspiracy’ as charge”. Mr Sturgess either wrote out a draft of a proposed conspiracy charge in his own handwriting or dictated words of a draft which were written by another person present. There was discussion of proceeding by way of complaint and summons rather than by arrest. Mr Sturgess advised that it would be better to proceed by way of complaint and summons and that advice was accepted by Inspector Webb and Sergeant Cassidy. On 6, 9, 11 and 15 May, Sergeant Cassidy went to the Bureau of Criminal Investigation (“BCI”) where he spoke to an officer or officers responsible for surveillance at the Greenslopes Clinic and perused materials produced in the course of surveillance activities. On 13 May 1985 operational orders were prepared by Inspector Webb for the proposed operation. Under the heading “GROUNDS FOR SEARCH WARRANT” appeared the following - “Detective Sergeant 1/c R B CASSIDY, S.B.A.O. The grounds for Search Warrant include continuing newspaper reports relating to the termination of pregnancies at the Fertility Control Clinic at Greenslopes with statements alleged to have been made by Dr Peter BAYLISS. Video recordings of various references made by Dr BAYLISS concerning termination of pregnancies at his Clinic including his knowledge of the provisions of Section 282 of the Criminal Code which gives him authority to terminate pregnancies. Also information that the premises are known by repute as a place where abortions can be obtained. Surveillance duties by the B.C.I. showing arrival and departure times of women who remain on the premises for a period of over two hours. Photographs have been taken of these women upon their arrival and departure. No action has been taken against the media for the publication of these reports by Dr BAYLISS.” The body of the orders then stipulated the police officers and others to participate in the operation and their respective roles. Persons who had designated roles included four commissioned officers including Inspectors Webb and Sommer, approximately 40 other -- 19 of 104 -- 18 police officers, Dr Green, the Government Medical Officer, a pathologist Dr Ansford, a biologist, an anaesthetist, a gynaecologist, two nurses and Mr Hawthorn, a police media officer. The orders in respect of the Government Medical Officer stated - “No police officer is to interview any person at the premises until authority has been given by the Government Medical Officer. The G.M.O. will have the responsibility of identifying any surgical instruments or machines to be taken possession of.” Under the heading “General information” the following appeared - “It has been impressed upon all personnel that this exercise is of an extremely delicate nature with the gravest of consequences expected from any display of force or unwarranted behaviour.” Under the heading “MEDIA OFFICER” the orders stated “A Media Officer will be responsible for all press releases.” Other parts of the orders of particular relevance for present purposes are as follows - “The execution of the search warrant for the premises at 8 Ridge Street Greenslopes will be made by Detective Senior Sergeant Williams ... The Exhibit Officers will record and label all property seized as exhibits. No property shall be taken from the premises without reference to the Exhibit Officers.” The list of persons to whom the orders were to be distributed included the Commissioner of Police, the Deputy Commissioner of Police, Inspector Webb, Sergeants Cassidy and Paterson and the police media relations officer. On 14 May 1985 Sergeant Cassidy laid before Mr Webster SM the information in relation to both complaints. The search warrants were subsequently issued. On 15 May Mr McArthur, then Assistant Commissioner (Crime and Services), had a meeting with Mr Hatcher, a media officer employed in the police department, with a view to -- 20 of 104 -- 19 having Mr Hatcher prepare a draft press release in relation to the planned police operation. Assistant Commissioner McArthur and other senior officers involved in the proposed operation, including Inspector Webb, thought it likely that it would attract considerable media attention. Assistant Commissioner McArthur's purpose in preparing a media release was to ensure that an accurate version of events was received by the media and also to facilitate the management of media enquiries, in the event that the expected degree of media interest eventuated. Mr Sturgess' advice to Mr Harper and Mr Harper's approval of the bringing of conspiracy charges On 17 May 1985 Mr Sturgess, in a memorandum to Mr Harper, confirmed that it was the intention of the police to execute warrants in respect of the Greenslopes and Townsville Clinics on 20 May. As the memorandum is a significant one, it is desirable that I quote most of it. “As I have advised orally it is the intention of the police on Monday next to execute warrants to enter and search premises at Brisbane and Townsville. It is anticipated much evidence will be collected and this will have to be carefully examined by this office before we can advise the police what substantive charges should be brought. A great amount of media comment concerning the activities lying beyond the raids can be guaranteed and, consequently, there is the danger such comment might unfairly affect later proceedings in court. To avoid or reduce such danger I have advised the police charges of conspiracy should be laid on the same day as the raids as this will curtail such comment. In all probability I shall later advise that other charges should be substituted for the conspiracy charges. In view of the foregoing I advise that the police be given permission to proceed with such charges and I enclose an appropriate letter for despatch to the Commissioner of Police.” Mr Sturgess probably took the memorandum himself to Mr Harper and discussed its contents. Of his discussion with Mr Harper, Mr Sturgess said in evidence in chief - -- 21 of 104 -- 20 “My concern was to introduce this dispute into the courts with as little public uncontrolled discussion as was possible. I anticipated that there would be a great deal of public discussion and a lot of it ill-informed and I felt it my duty as director of prosecutions to do what I could to moderate that public discussion, to introduce the matter as quickly as I could into the courts.” Mr Harper sought advice on the matter from the then Acting Solicitor-General, Mr Mackenzie (now a judge of this Court), who made the following notation on the foot of the letter - “In my opinion, there would, in principle, be a basis for laying conspiracy charges in the circumstances described.” He signed under his notation on 17 May. Mr Harper then wrote “Approved” at the foot of the document, initialled and dated it, also on 17 May. Mr Harper's approval was sought by Mr Sturgess as a result of a mistaken belief on his part that Cabinet, at an earlier date, had resolved that no conspiracy charges should be brought and prosecuted in Queensland without the prior approval of the Attorney-General. In fact, the requirement was for the prior approval of the Solicitor-General. At the time of noting his approval on the memorandum of 17 May, Mr Harper caused to be sent a letter to the Commissioner of Police in the form of the draft attached to the memorandum. The letter provided - “I have discussed with the Director of Prosecutions the subject of certain investigations into activities at premises at Brisbane and Townsville that will be conducted by your officers on Monday next. I authorise the bringing of a conspiracy charge against each person in charge of the premises. Mr Sturgess will advise Inspector Webb of the details of the charges.” Events on 20 May 1985 prior to the arrest of the plaintiff The majority of personnel to be involved in the operation attended a briefing at Criminal Investigation Branch on the morning of 20 May. After the briefing the police officers and others involved in the raid, numbering 54 in all, departed by bus and other vehicles to the Greenslopes Clinic, arriving at approximately 10.25 a.m. By the time they arrived at the -- 22 of 104 -- 21 premises at least one camera team from a television channel was already in position. The numbers of media personnel present outside both premises increased considerably within the next hour. Sergeant Cassidy, Inspector Webb, Sergeant Paterson, Dr Green, Constable McDonald and Constable Adams entered the premises at about 10.25 a.m. Constables Dickson and Stalley, who had been detailed to record any dealings between Sergeant Cassidy and Dr Bayliss, entered the premises shortly afterwards and operated a video camera. After entering the Logan Road premises, Sergeant Cassidy spoke to Dr Bayliss, explained that the police were there for the purpose of executing search warrants and produced at least one of the warrants to Dr Bayliss who read it. Dr Bayliss told Sergeant Cassidy quite early in the first discussion that took place between them that “therapeutic terminations of pregnancy” were being carried out at the premises “under the law”. He said that five or six such procedures had been carried out that morning. He was asked if he would give the reasons for the operations and replied “No, they were all well documented.” Sergeant Cassidy then asked if Dr Bayliss had “those documents here” and Dr Bayliss responded in the affirmative. This exchange occurred - “Sergeant Cassidy: ... would any of the operations you've done this morning, the therapeutic terminations ... would any of them have been necessary to ... save the woman's life? Bayliss: Yes, all of them. Cassidy ... Bayliss: Under the relevant section of the Criminal Code. Cassidy: All for the preservation of the woman's life. Bayliss: Yes. Cassidy: So there was, the woman's life was in danger. -- 23 of 104 -- 22 Bayliss: Yes. Cassidy: That's what you're saying. In each particular case. Bayliss: That's in my opinion and the opinion of other doctors. Cassidy: Right. Well could you just elaborate on that a little bit. Bayliss: Not at this point in time. I've told you, they were medically indicated, and that, that was my opinion at the time. Cassidy: That the operations were necessary ... Bayliss: Necessary for the ... Cassidy: For the preservation of the woman's life. Bayliss: Under the relevant section of the Criminal Code.” A little later in the interview Sergeant Cassidy came back to the question of why the life of women who had undergone procedures that morning were said to have been in danger. Dr Bayliss responded that he was not prepared to discuss with non-qualified people his actions or reasons for his actions. Dr Green, who was present, commented, “I think he will have that documented on your, on the histories” and Dr Bayliss replied, “Yes, that's right”. Dr Bayliss then said “if, now you wish to charge me, that's fine. If you don't wish to charge me, I'd suggest you carry out the terms of your search warrant.” At about 10.37 a.m. Dr Bayliss gave Dr Green the patient cards of five patients who had had abortions that morning. For purpose of maintaining the privacy of these women they have been identified in evidence as patients one, two, three, four and five. Other patients referred to in the course of evidence were similarly identified by number. At about 10.45 a.m. Dr Bayliss expressed an intention to perform a sterilization operation which he said would take 20 minutes. Sergeant Cassidy said “Well perhaps while he is doing that we can interview these other people, that ah he's indicated to be ... therapeutic terminations”. There was then identification of these women waiting for abortions who were -- 24 of 104 -- 23 said not to be under medication. Between 10.46 and 10.47 a.m. Sergeant Cassidy asked another person, possibly Dr Green, if he could get Inspector Sommer to detail somebody to interview the three women awaiting abortions (they were referred to in evidence as patients 6, 7 and 8). At about 10.48 a.m. Sergeant Cassidy said that Detective Senior Constable McDonald had the cards in respect of the six women who had already had abortions that morning. At about 10.49 a.m. Inspector Sommer allocated one of the patients awaiting abortion to Constable Adams to interview. Constable Adams was requested to get “Johnno” to interview another. The audio tape was turned off at 10.50 a.m. and restarted at 11.12 a.m. Mr Sturgess' advice to Inspector Webb and Sergeant Cassidy. Whilst the audio tape was turned off, Inspector Webb spoke briefly to Mr Sturgess, who was in his office, over the telephone. Inspector Webb informed Mr Sturgess that he was at the Greenslopes Clinic and said words to the effect that - • the plaintiff said he was going to continue to perform abortions; • the women awaiting abortions that day had been spoken to and there was no evidence that the life of any of them was in danger or that any of them would become physical or mental wrecks if the abortion was not carried out; • ample evidence had been found to establish that a large number of abortions were being regularly performed and there was no evidence to suggest that there was a legal excuse for them; • the police, in the view of Inspector Webb, were left in a situation in which they had no choice to arrest the plaintiff. Inspector Webb asked Mr Sturgess what he thought and Mr Sturgess indicated -- 25 of 104 -- 24 agreement with Inspector Webb's views. At the conclusion of the conversation Inspector Webb handed the telephone to Sergeant Cassidy. Mr Sturgess said in the course of his evidence - “... The impression that I was left with as the result of these conversations was it was, your know, a lot of unlawful abortions had been and were being committed over there at Greenslopes.” The question of the arrest of Dr Bayliss was raised. It was said to Mr Sturgess that Dr Bayliss had, in effect, expressed an intention to continue with abortions which the police officers believed to be unlawful. Mr Sturgess gave his approval to the course of conduct proposed by the police officers, namely that Dr Bayliss should be arrested. Of his conversation with Mr Sturgess, Sergeant Cassidy swore - “I informed him that five terminations had been performed that morning and that Dr Bayliss intended to proceed with further terminations. I may have read the information contained in the medical cards to Mr Sturgess. I informed him that none of the terminations were for the preservation of the mother's life and that none of the patients were in immediate danger. I informed Mr Sturgess that I intended to arrest Dr Bayliss and asked him for his advice. Mr Sturgess asked some questions for clarification ...” In cross-examination Sergeant Cassidy was asked “What was the purpose of that consultation?”. He responded - “I provided Mr Sturgess with a summary of what had transpired, of my views of the evidence available and the collective matters that you have referred to. I also advised him of the situation in relation to Dr Bayliss's stated intention to continue with the operations and that I felt that it placed me in a position where I could do nothing else but arrest to prevent the continuation of offences.” That passage followed lengthy cross-examination about the information on the patient record cards. Included in the description “collective matters that you have referred to” was Sergeant Cassidy's perusal of the cards and his interpretation of them. Sergeant Cassidy arrested the plaintiff at about 11.25 a.m. The time is able to be established by a clock shown on the police videotape, made clearer on another videotape by -- 26 of 104 -- 25 application of a digital enhancement technique. Information gained in the course of the police operation prior to the arrest of the plaintiff. Inspector Webb spoke to Sergeant Cassidy from time to time and imparted information to him concerning the investigation and proposed operation. It is now impossible to identify with any degree of precision the full extent and detail of the information imparted but I find that Inspector Webb informed Sergeant Cassidy of the substance of his discussions with some of the police officers interviewing patients and staff. Sergeant Cassidy examined most if not all of the patient cards for patients 1 to 8 with a view to ascertaining whether or not the abortions which had been performed already were for the purpose of preservation of the mothers' lives. In performing the task of interpreting the patient record cards he did not seek the assistance of any of the medical practitioners then present. Sergeant Cassidy also received other information from interviewing police officers. The patient cards Each of the sets of records pertaining to abortions performed or to be performed on 20 May included a card, the front and back of which contained the following printed notations: Front “ D.O.B. AGE PHONE DATE OCCUPATION LN.M.P. P.V. BLEED PREV. PREG M/C/ T.O.P. OBST. HISTORY MED. HIS SURG. HIST. ANAES. PHYS. EXAM URINE PULM HAEM RH.F ASTHMA DIABETES H/T HEPATITIS V.D. DRUGS STEROIDS SMOKE/DAY MEDICARE -- 27 of 104 -- 26 GYNAE ALLERGIES PAP C.V.S B.P. PULSE PULM ABDO PERIPH P.V. H.C.G. GROUP Hb SCAN RESP. E.C.G. PAP SWAB NC Back REFERRAL: POST-OP FOLLOW UP: CONTRA AT INCEPTION: FUTURE CONTRA: 1ST OPINION: 2ND OPINION:” Accompanying each card was: a written report by a social welfare counsellor; generally, a letter of referral from a general practitioner; a printed notice of referral to a specialist or consultant physician; a printed form entitled “Legal status governing therapeutic terminations”; a printed form entitled “Operative and post-operative data”, and a printed form headed “Fertility Control Clinic” which was described in evidence as “pathology”.. Against the words “1ST OPINION” and “2ND OPINION” on each card appeared a handwritten notation by a doctor employed at the Clinic, except that in two cases, only one written opinion appeared. I do not intend to set out the text of all of the opinions or of the letters of referral. Three of them will suffice for the purpose of providing a sufficient understanding for present purposes of the nature of the opinions, counsellors assessments and letters of referral. PATIENT 1 Opinions on patient card “1ST OPINION : ... has 2 very young children. Could not cope with another baby at present I recommend TOP. ...” -- 28 of 104 -- 27 2ND OPINION: . . h a s 2 y o u n g c h i l d r e n . S h e f e e l s u n a b l e t o c -- 29 of 104 -- 28 o p e p h y s i c a l l y o r e m o t i o n a l l y w i t h a n o t h e r c h i l d -- 30 of 104 -- 29 . I r e c o m m e n d T O P . . . . ” Counsellor's report “Pleasant young woman, distressed by circumstances. T.O.P. is indicated to prevent further psychological problems which would adversely affect ... future welfare/Consent/legal/pre and post-op inst. Contra: Pill. Check-up ...”. Letter of referral “14.5.85 Dear Dr Bayliss, Thanks for seeing ... who is six weeks pregnant & would like a termination. Yours faithfully ...”. PATIENT 2 Opinions on patient card “1ST OPINION: ... has two very young children. Could not cope with another. I recommend TOP ...” 2ND OPINION: ... has 2 young children. Youngest 10/12 She feels unable to cope with another child. I recommend TOP. ...” -- 31 of 104 -- 30 Counsellor's report “... is 28, married, and works as a nurse. She feels she couldn't cope with anymore children, she already has two under 3 years of age. She feels that the emotional & financial strain on her & her husband would be very damaging for the family as a whole. They are only just getting on their feet financially at the moment. [indecipherable] would harm the family's ... stability. [indecipherable]. Letter of referral “Greenslopes Clinic. 16/5/82 Dear Doctor ... is about 10 wks pregnant. She has two children ages 2 yrs and 10 months. She is unable to manage another child at this stage and has requested termination. Please have a look at her and help her. Thankyou ...”. PATIENT 7 Opinions on patient card “1ST OPINION: feels unable to cope financially with another child at present. I feel TOP is warranted.” 2ND OPINION: ... has 2 children already and financially would not cope with another. I recommend TOP. ...” Counsellor's report “... is 23 single, has two children and is on the pension. She works part time also to provide for her children. She is... of financial debt at the moment and is finding it difficult to cope with her two children. She doesn't feel she could cope with a 3rd child on her own. The guy involved is an old boyfriend. They had a one night stand and he is not interested in taking any responsibility for a child. In the circumstances, continuation of the pregnancy would have a detrimental effect on ... children and her own future well-being. Procedure, legal, ..., consent, .. 20.5.85. Letter of referral No text of any letter of referral of this patient seems to have been included in the documents tendered. In no case did a medical opinion or letter of referral state that it was the view of a -- 32 of 104 -- 31 medical practitioner that the operation was necessary “for the preservation of the mother's life” or that the purpose of the operation was “for the preservation of the mother's life”. In all cases, in my view, it was possible for a person, acting reasonably, to infer from a combination of what was expressed and omitted in the cards that none of the medical practitioners concerned thought the procedure carried out or to be carried out was for the preservation of the mother's life. The media walk It was submitted on behalf of the plaintiff that the police had subjected the plaintiff to a “media walk” on 20 May and that - “There was no attempt to protect Dr Bayliss's privacy by removing him from the premises by a back door - the police knew that the media were gathered outside, but Dr Bayliss did not. The clinic was gratuitously advertised as a ‘crime scene’, it was Webb's evidence that he had made the decision to have the police tape taken on the raid in advance. The police walked Dr Bayliss in front of the cameras, and in front of the ‘crime scene’ sign, knowing and apparently not caring that he would be displayed in the media in that light.” I do not find that the plaintiff was unaware of the media presence outside the Clinic. I think it more likely than not that he observed it himself or was informed of it by a member of his staff. The media presence was a matter which was likely to provoke comment by Clinic staff. It seems that the term “media walk” is one which has been used in New South Wales to describe the effecting of an arrest by police in the full glare of media publicity arranged in advance by those responsible for, or participating in, the arrest. Part of the process is to “parade” the arrested person before media representatives. The “media walk” allegations were vigorously pursued in the cross-examination of a number of witnesses including Sergeant Cassidy and Inspector Webb. All persons present on the police operation to whom it was put that a media walk had taken place, strongly denied the allegations. I accept their evidence in -- 33 of 104 -- 32 this regard. Before the commencement of the operation, Mr Sturgess, Inspector Webb, Superintendent McArthur and Sergeant Cassidy were all apprehensive about the degree of media attention which they thought the operation was likely to attract. It was not the intention of any of them to encourage such publicity or to expose the plaintiff to any more media publicity than was the inevitable result of the police action against the plaintiff. In the course of the operation the police media officer, Mr Hawthorne, who accompanied the police party to the Greenslopes Clinic, telephoned Assistant Commissioner McArthur and informed him that representatives of the media had been at the Clinic awaiting the arrival of the police. The Assistant Commissioner then decided to issue the press release and gave instructions that that take place. An issue arose in the course of the trial as to when the media release was first made and as to its initial form. Mr Glasson, in a letter to Mr Harper in June 1985 asserted that information on the raids was not released by the police department's media relations officer to media outlets until 10.40 a.m. In a report to the Superintendent of the Metropolitan Criminal Investigation Branch dated 28 June 1985 Inspector Webb recorded - “Inquiries from the police media section establish that the telex was released for media outlets simultaneously in Townsville and Brisbane at 10.40 a.m.” The defendants' contention was that both of these documents contained erroneous information derived from the police media section. To support the conclusion that no release to the media was made until 12.13 p.m., the defendants rely on the evidence of Assistant Commissioner McArthur which is to the effect that the draft telex which became Ex.32 was only a draft and was never released. It has written on it “11.00 released 20/5/85”. The Assistant Commissioner swore that the “11.00” was not in his handwriting but that the other words and figures were. That document contains the paragraph - “No arrests were made during the raids. Any legal action against any person -- 34 of 104 -- 33 will be taken by summons in the near future.” On the exhibit that paragraph has been crossed out and the Assistant Commissioner swears to having done that in the process of creating a final draft document. He also swears to having inserted the words “from police” in the final paragraph which commences “Memo editors”. Exhibit 134 is a telex dated 20 May 1985 from Ian Hatcher, Police Media Officer, Police Hqs addressed to “John Keenan, Minister's Press Secretary”. It contains the words - “Amendment to previous telex - Attn: All News Editors and Chiefs of Staff. Police raids in two cities over alleged abortions.” The text of the document is in the same form as Ex.32 as amended by Assistant Commissioner McArthur. Exhibit 34 is a telex, again signed by Ian Hatcher, Media Officer, Police Hqs, dated 20 May 1985. It has written against the date “12.13 pm” and is addressed - “Attn: All News Editors and Chief of Staff. Police raids in 2 cities over alleged abortions.” The text of that telex is also in the form of Ex.32 as amended. Exhibit 135 supports the defendants' version of events. It is a copy of a telex dated 20 May 1985 from the Department of Justice to Mr Hatcher which sets out a copy of a telex to “News Editors/Chiefs of Staff” which states - “Memo instructions at the foot of Med pol telex in this matter should be disregarded. Any subsequent updated information or comment will be available through the Minister for Justice and Attorney-General of Queensland ...” The telex was expressed to be from Mr Glasson and Mr Harper. On balance, I am inclined to think that the conclusions arrived at by police media officers in June 1985 in response to enquiries of a serious nature are likely to be more accurate than an attempt to piece together a sequence of events some 13 years after the event with the aid of some surviving documents and Assistant Commissioner McArthur's recollection. I -- 35 of 104 -- 34 should add that I do not doubt that the Assistance Commissioner gave his evidence honestly and carefully. Whether a document in the form of Ex.32 was sent to media outlets at 10.40 a.m. or whether the first communication received by media outlets on 20 May was Ex.34, in my view, does not matter a great deal either way. As I have observed earlier, there was no sinister purpose behind the press release whenever its publication was first authorised. That was certainly after police were aware of a media presence at the Greenslopes Clinic. It is true that the plaintiff, after his arrest, was ushered out of the Greenslopes Clinic by the front door and across the front yard of the Clinic to the police car parked in a driveway in the full view of members of the media present. It may have been possible to have effected the plaintiff's departure in a less obtrusive way by leading him out through the Ridge Street part of the premises. However, the evidence does not clearly establish what the practicalities were in this regard and the evidence is that there was also a media presence outside Ridge Street. At all times the police behaved with courtesy. There was no attempt at “posing” or scene setting for the benefit of the media. Quite early in the course of the operation, the police had secured the site, inter alia, by placing a chain across the driveway of 687 Logan Road. It was a matter of complaint that the chain had a sign on it bearing the words “Crime scene investigation no entry”. At least one television camera operator took footage of the plaintiff in front of the sign and an article in the Telegraph published on 21 May was accompanied by a photograph showing police officers in the vicinity of the sign. I doubt though that any of the police officers engaged in the operation attached any significance to the sign, if they had regard to it at all. I also doubt that any depiction of the sign was likely to have affected the attitude to the plaintiff of those watching television programmes or reading newspapers. The plaintiff put forward no evidence -- 36 of 104 -- 35 in that regard. The appreciation which most persons would be likely to have had, having regard to matters to which I adverted earlier, would be that the police had conducted a raid on the Greenslopes Clinic with a view to attempting to establish that the plaintiff was unlawfully procuring abortions, but that the plaintiff would continue to assert that the activities conducted at the Clinic were lawful and morally justified. There is no evidence to suggest that the plaintiff was averse to media exposure in connection with his medical practice or that he suffered any distress as a result of it. On the contrary, he sought publicity for his Clinic and for his views on abortion. So far as one is able to tell from the evidence, he was composed and seemingly confident throughout the events of 20 May. There is also no evidence to support the allegation that the defendants were responsible for arranging for a media presence at the Greenslopes Clinic. An internal police investigation into the source of the leak to the media could find no evidence implicating any police officer. The decision to issue the police press release on 20 May was taken by Assistance Commissioner McArthur without reference to any of the defendants. The execution of search warrants, the seizure of property and subsequent events on 20 May In accordance with the operational orders, Detective Sergeant Williams acted as Exhibits Officer at 8 Ridge Street and Detective Sergeant Trost acted as Exhibits Officer at 687 Logan Road, Greenslopes. As such, they had the responsibility of recording and securing exhibits seized pursuant to the warrants. Sergeant Williams also executed the search warrant for 8 Ridge Street. Sergeant Cassidy did not enter that part of the premises. As mentioned earlier in these reasons, the plaintiff was taken by police car to the Woolloongabba police station. Sergeant Cassidy, who was driving, entered the building via a side driveway in order to avoid any media representative who may have been positioned at -- 37 of 104 -- 36 the front of the building. Immediately on arrival at the police station, the plaintiff saw his solicitor and remained in his company for virtually the whole of the period of approximately one hour that the plaintiff was there. The plaintiff was then taken to the Holland Park watch house in an unmarked police car. No representatives of the media were present when the plaintiff entered the watch house. The plaintiff was charged by Sergeant Cassidy at the watch house counter at approximately 12.40 pm and left in the custody of the watch house keeper. At the watch house the plaintiff was photographed and fingerprinted. Sergeant Cassidy played no part in these activities. The prosecution of the plaintiff was taken over by Mr Sturgess when the plaintiff was arraigned at the Holland Park Magistrates Court at about 2.30 pm on 20 May. Events after 20 May 1985 At least some of the police officers who participated in the operation on 20 May attended a debriefing on 21 May. On that day Mr Sturgess called at CIB headquarters and obtained from Sergeant Cassidy patient cards which the latter selected from the patient cards seized on 20 May, with a view to using them as evidence that abortions performed or to be performed were based on reasons other than need for preservation of the mother's life. The information on the cards did not suggest that the subject abortions had been performed for the purposes of preserving the mother's life. No direct evidence was given to the effect that Mr Sturgess perused these cards, but I infer that he did. On the following day Sergeant Cassidy spent some time with Mr Sturgess discussing matters which included an application to be made on Thursday 23 May to the Supreme Court by the Director of Prosecutions for an order that conditions of bail granted to the plaintiff be varied to include a condition that the plaintiff cease the performance of all surgical operations with intent to procure the miscarriage of women. Sergeant Cassidy swore -- 38 of 104 -- 37 an affidavit in support of the application. Exhibited to his affidavit were copies of the cards in respect of patients 1 to 8 inclusive and copies of six further patient cards, which Sergeant Cassidy swore were “fair samples of the records generally”. On 23 May 1985 Sergeant Cassidy informed the plaintiff's solicitors that records seized relating to matters other than abortions were “available to be returned”. The solicitors intimated they would collect the records on 24 May 1985 but subsequently requested that the records be delivered to 687 Logan Road. On 24 May 1985 the application to vary bail conditions was dismissed. On 29 May 1985 Mr Harper wrote to the Premier stating inter alia - “Following detailed discussion by Cabinet at its Caloundra meeting last year I was given the task of closing any so-called ‘abortion clinics’ if they were operating illegally - of ‘giving effect to the law as it exists’. This responsibility fell to me possibly because our colleague the Minister for Police was absent from the meeting, overseas attending to the Forestry element of his portfolio. On his return, I discussed the decision with Mr. Glasson who assured me of his co-operation and authorised me to speak with his police officers as necessary. ... Several discussions were held by me with senior police officers in Townsville. Dominant was concern that any action taken should not endanger the health of patients at the clinic. As a result it was agreed that an effort should be made to obtain evidence of possible illegal practices other than by entering the premises under authority of a search warrant. Police, at one stage, believed they were close to achieving such evidence but a spate of media publicity deprived them of the evidence on that occasion. Accordingly, it was finally decided to seek evidence of alleged breaches of the Criminal Code by way of search warrants. Paramount in the planning of those searches was the need to ensure that no patient's health suffered in the exercise. ... The files of patients who underwent pregnancy terminations are held in a -- 39 of 104 -- 38 private vault under conditions of extremely strict security. Two experienced police officers are checking the files as part of the police investigations but those investigations have no interest in patients' names. ... It was a matter of great concern to me, and to the Police Minister as well as his senior officers, that the media was made aware of the police operation in advance. I have asked Mr. Glasson to take action which would seem appropriate in this regard. ... When police investigations into the Fertility Clinics are completed a brief will be considered by the Director of Prosecutions after which decisions will be taken in regard to action appropriate to the circumstances disclosed by those investigations. I suggest there is a need for balanced assessment of the Cabinet decision and resultant action in an atmosphere divorced from emotionalism and misconception engendered by ‘headline grabbing’ media stories.” On 25 June 1985 the Full Court of the Supreme Court of Queensland ordered that the “search warrant be quashed” and that “the medical files seized” by Sergeant Cassidy “at the appellant's premises” be delivered up to the plaintiff. On 26 June 1985 Mr Sturgess, in a memorandum to Mr Harper, advised - “With the return of the records [ie. records seized in the course of the police operation on 20 May] I am of the opinion it will not be possible to proceed with the conspiracy charges and on the 4th July at Brisbane and the 8th July at Townsville the charges will be withdrawn; in my opinion on the information and material collected by the police, which will be unaffected by the return of the documents, there are very good prospects of presenting a strong prima facie case or strong prima facie cases of unlawful abortion against Bayliss. ... The police advised they can deliver full briefs to me by ... 1st July. ...” On 27 June 1985 the plaintiff signed an acknowledgement of receipt of “all medical files removed from” Greenslopes Clinic. On 28 June 1985 Mr Harper wrote to Mr Glasson requesting him to ensure that copies of any records seized on the police operation “and any details or notes which may have been taken from them be destroyed forthwith”. On 1 July 1985 Mr Sturgess, in a memorandum to Mr Harper, recommended that -- 40 of 104 -- 39 prosecutions be instituted against the plaintiff in respect of three specified abortions. The memorandum noted that Mr Irwin agreed with the opinion. On 1 July 1985 Mr Harper wrote to the Commissioner of Police stating that, although Mr Sturgess had advised that there was a prima facie case against the plaintiff, it was his intention that, if the plaintiff were committed to trial, the trial should not proceed. The letter stated inter alia - “However, he [Mr Sturgess] has also advised me that it is his opinion that it will be impossible for any trial to be conducted in a calm and dispassionate manner having regard to the extent and degree of publicity and comment that has been given to the question. You will know about the views expressed by both sides in the debate indicate a wide division of opinion amongst the public. It is a fundamental requirement that any trial be fair both to the accused and the Crown. As things stand at present, it would in my opinion, be impossible to ensure a fair trial. ...” RELEVANT PRINCIPLES OF L AW The elements of malicious prosecution The elements of the tort of malicious prosecution which a plaintiff is required to prove are- 1. the prosecution of the plaintiff by the defendant; 2. that the proceedings complained of terminated in the plaintiff's favour; 3. that the prosecution was instituted without any reasonable and probable cause; 4. that the defendant instituted or continued the proceedings maliciously: 45 Halsbury's Laws of England 4th ed. para. 1371; Little v The Institute of Vic [1990] VR 257 at 262; Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 at 350-1 per Starke J. The defendants concede that the proceedings terminated in the plaintiff's favour. Malice in this context was said Gibbs v Rea [1998] 3 WLR 72 at 80 to have the special -- 41 of 104 -- 40 meaning common to other torts and covers not only spite and ill-will but also improper motive. Similarly, in Arbrath v North Eastern Railway Co (1883) 11 QBD 440 Bowen LJ equated malice with the initiation of a prosecution “from an indirect and improper motive, and not in furtherance of justice”. The tort of malicious prosecution developed out of the medieval law of conspiracy. This has been traced to the Statue of Conspirators, an Act of the Parliament of Edward 1 (21 Ed. 1), Winfield, “The Writ of Conspiracy” (1917) 23 LQR 28. The conspiracy, which was civilly actionable as both a species of trespass upon the case, and punishable as a crime, consisted of combining with others in order to set the law falsely into motion against an innocent man. A second statute of Edward 1 (33 Ed.1) outlawed conspiracies of two kinds: the laying of false and malicious indictments (i.e., wrongly setting the criminal law into motion); (2) falsely moving or maintaining pleas (i.e., wrongly setting the civil law into motion). See Winfield, The History of Conspiracy and Abuse of Legal Procedure (1921), p. 60. By Tudor times, the former of the two classes of case had become the action upon the case for malicious prosecution, while the latter had developed into the tort of maintenance, ibid, pp. 112, 118-9; Winfield, A Text-Book of the Law of Tort, 4th ed (1948), p. 427. See also Harrison, Conspiracy as a Crime and as a Tort in English Law (1924), p. 52; Stephen, The Law Relating to Actions for Malicious Prosecution (1888), pp. 20ff.; Ramamoorthy, Law of Malicious Prosecution and Defamation (1976), pp. 1-3. In Gibbs v Rea (supra) the view was expressed in the Judgment of the Court that the true foundation of the torts of malicious prosecution and maliciously procuring an arrest was “intentional abuse of the processes of the court”. In Mohammed Amin v Jagendra Kumarbanner Jee [1947] AC 322 (PC) it was put this way - -- 42 of 104 -- 41 “The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose.” It is also an essential element of an action for malicious legal proceedings that the plaintiff suffer damage: Davis v Gell (1924) 35 CLR 275 at 285 and Little v Law Institute of Victoria (supra) at 265. Malicious prosecution - reasonable and probable cause Jordan CJ, in Mitchell v John Heine & Son Ltd (1938) 38 SR NSW 466 at 469, asserted that for a person to have reasonable and probable cause for prosecuting another, the following conditions should exist: “(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.” In Glinski v McIver [1962] AC 726 at 768 Lord Devlin said - “Six points are settled about the question of reasonable and probable cause. First, the question is a double one: did the prosecutor actually believe and did he reasonably believe that he had cause for prosecution? Secondly, provided that the defendant has made sufficient enquiry, the facts on the basis of which the question has to be answered are those, and only those, known to the defendant at the material times.” The remaining four “points” have relevance only to trials by jury. It will be seen that Lord Devlin's points one and two correspond generally with Jordan CJ's conditions (1) (2) (3) -- 43 of 104 -- 42 and (4). Although Jordan CJ's formulation provides a useful check list or starting point for an enquiry into the existence of reasonable and probable cause, resort to the authorities, both earlier and later, demonstrates that some of the six conditions require qualification or further elaboration. Lord Devlin, in Glinski v McIver (supra) pointed out at 766-767 that, in considering the question of the prosecutor's belief in the guilt of the accused, the prosecutor is not required to believe in the probability of conviction. He said - “The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried.” He then went on to quote the following passage from the judgment of Dixon J (as he then was) in Sharp v Biggs (1932) 48 CLR 81 -. “... the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted.” That passage, which was preceded by the words “reasonable and probable cause does not exist if the prosecutor does not at least believe that”, was approved by Evatt and McTiernan JJ in Commonwealth Life Assurance Society Ltd v Brain (supra). In Glinski v McIver, Lord Denning expressed a similar concept at 758 saying - “In the first place, the word ‘guilty’ is apt to be misleading. It suggests that, in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict, whereas in truth he has only to be satisfied that there is a proper case to lay before the court, or in the words of Lord Mansfield, that there is a probable cause ‘to bring the [accused] ‘to a fair and impartial trial’.” It seems to be implicit in Jordan CJ's condition (2), when read in conjunction with condition (3), that any relevant belief on the part of the prosecutor must be based on material in the possession of the prosecutor to which the prosecutor adverted in forming any relevant state of mind. The preponderance of authority clearly supports that conclusion. In Herniman v Smith [1938] AC 305 at 317, Lord Atkin said - -- 44 of 104 -- 43 “The facts upon which the prosecutor acted should be ascertained; in principle, other facts upon which he did not act appear to be irrelevant. When the judge knows the facts operating on the prosecutor's mind, he must then decide whether they afford reasonable or probable cause for prosecuting the accused.” See also Glinski v McIver [1962] AC 726 at 772. Although absence of reasonable and probable cause does not establish malice, the commencement of a prosecution without reasonable and probable cause is evidence from which malice may be inferred: Hicks v Faulkner (1878) 8 QBD 167, at 175 and Glinski v McIver at 752 and 765. A prosecutor is justified in acting on information about the facts given to him by a reliable witness and may accept advice on the law given by a competent lawyer. The extent to which a prosecutor derives protection from reliance on legal advice will depend on the extent to which the prosecutor has put all relevant facts known to him or her before the person giving the legal advice. Glinski v McIver at 745. Malicious prosecution - the requirement of taking reasonable care by the prosecutor to inform himself The role and the sufficiency, or otherwise of the prosecutor's enquiries in determining the existence of reasonable and probable cause is one which often gives rise to difficulties of application. In Arbrath v North Eastern Railway Company (supra) Brett MR expressed the view at 450-51 that whether reasonable care has or has not been taken by a prosecutor to inform himself of the real state of the case was - “... a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want or reasonable and probable cause”. -- 45 of 104 -- 44 Brett MR had earlier observed - “But it signifies not what statements were laid before those who instituted the prosecution, if they received them carelessly, or if they did not take reasonable care to inform themselves of other facts with which they might have made themselves acquainted. It has been decided that the question whether reasonable care has been taken by those who instituted the proceedings, to inform themselves of the true state of the case, must be determined one way or the other, in order to enable the judge to give his opinion. Therefore, it becomes a necessary part of the question whether there was an absence of reasonable cause, to determine whether reasonable care was taken by the defendants to inform themselves of the true state of the facts. The question, whether reasonable care has or has not been taken by a prosecutor to inform himself of the real state of the case, is not merely a piece of evidence to prove some fact, but it is a question which is itself to be decided by evidence, and upon which evidence to prove and disprove it may be given. It is a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want of reasonable and probable cause.” Jordan CJ in Birchmeier v Rockdale Municipal Council (1935) 51 WN (NSW) 201 at 202 stated a somewhat similar proposition to that expressed by Brett MR - “It is well established that to be justified in prosecuting upon a criminal charge, the prosecutor must have information which leads him to believe, and which would lead a reasonable and prudent man to believe, that the accused is probably guilty of the offence. The prosecutor should consider the whole of the information at his disposal which throws any light on the crime and its probable perpetrator ... and if that information suggests to him or would suggest to a reasonable and prudent man that it would not be prudent to assume the probable guilt of the accused without further enquiries, then a prosecution cannot be regarded as reasonable unless such further enquiries are made.” In Perryman v Lister LR 3 Ex 197 Byles J observed - “Where there is a ready and obvious mode of ascertaining truth, and that mode is neglected, we think that here is an element in determining the question of reasonable and probable cause. ” However, the mere omission to resort to such a mode of ascertaining the truth does not conclusively determine the question of reasonable and probable cause: Lister v Perryman (1870) LR 4 E & Ir Ap, at 534 and Persse v Dockery (1891) 17 VLR 420 at 423. Nor does the -- 46 of 104 -- 45 mere fact that there were further enquiries not made which could have been made, of itself, show an absence of reasonable and probable cause. Taylor v The President etc of the Shire of Eltham (1922) VLR 1 at 5. As Lord Atkin pointed out in Herniman v Smith [1938] AC 305 at 319 - “It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution.” In Glinski v McIver at 745, Viscount Simonds observed that it was not possible to generalise in relation to the question - “... whether the prosecutor has acted with too great haste or zeal and failed to ascertain by enquiries that he might have made facts that would have altered his opinion upon the guilt of the accused.” After referring to the above quoted passage from the judgment of Lord Atkin in Herniman, he said - “Nor can the risk be ignored that in the case of more complicated crimes, and particularly perhaps of conspiracy, enquiries may put one or more of the criminals on the alert. ” It is well established that a prosecutor is not bound to accept every plausible explanation which an accused puts forward: Liebo v Buckman Ltd 1952 2 All ER 1057 at 1068 (CA) and Herniman at 319. In Bourke v Robinson (1935) SASR 78, Napier J said at 84 - “... a reasonable man is not bound to do everything that a reasonable man might do. In Lister v Perryman (1870) LR 4 HL 521, at p. 533, Lord Hatherly speaks of ‘the very sensible view ... that it would have been a very reasonable thing to have done so, but it does not, therefore, follow that it was not reasonable not to have done so’, and I think that the same observation might be made in this case ... It is easy to be wise after the event; but I think that the question has to be considered upon the circumstances as they appeared to the appellants at the time ...” In McArdle v Egan (1933) 150 LT 412, Lord Wright, after noting that in determining -- 47 of 104 -- 46 whether or not to arrest, police officers “are not finally to decide the guilt or innocence of the man. Their functions are not judicial, but ministerial ...” said - “... the police officer is not bound, as I understand the law, to hold his hand in order to make further enquiries if all that is involved is to make assurance doubly sure.” Malicious prosecution - the admissibility of evidence as to what results further enquiries of medical practitioners concerning the patient cards may have achieved. Professor Ansford, the Director of the John Tonge Centre for Forensic Sciences, gave evidence on behalf of the defendants. He examined the patient cards for patients 1 to 8 inclusive and expressed the opinion that there was nothing in any of these records to suggest that the lives of the patients were in danger. He further expressed the opinions that - “The medical records describe eight women in good physical health. There is no indication in the records shown to me that the continuation of the pregnancy was a threat to the life of the patient ... In my view the opinions expressed in the records are weak and do not express the existence of any life threatening condition.” The defendants' purpose in calling Professor Ansford was to meet an anticipated submission on behalf of the plaintiff that Sergeant Cassidy had failed to act reasonably in not pursuing further enquiries which he could easily have made of medical practitioners present at the Greenslopes Clinic on the day of the police operation. The enquiries which the plaintiff’s counsel suggested were obvious and which should have been made were - (a) explanations of the terms printed on the front of each patient card; (b) an explanation of the significance of what was handwritten on the front of each patient card; (c) an explanation of the handwritten notes made by Dr Bayliss on a form headed “Operative and Post-Operative Data” and of notations on the pathology cards. Objection was made on behalf of the plaintiff to the admissibility of Professor -- 48 of 104 -- 47 Ansford’s evidence. It was submitted that what such enquiries may or may not have revealed was not something known to Sergeant Cassidy prior to the arrest of the plaintiff and was thus irrelevant. I admitted the evidence provisionally, intimating that I would entertain submissions on admissibility in the course of final addresses. The plaintiff's counsel supported their submission by reference to Delegal v Highley (1837) 3 Bing (NC) 951 and Clerk and Lindsell on Torts 16th ed. para. 1924. The case does not appear to me to be authority for the plaintiff's proposition. Relevantly, it concerned a demurrer which succeeded on the grounds that the defendant relied on facts and circumstances in order to show “a reasonable and probable cause” without alleging - “... that the defendant at the time he caused the charge to be made, had been informed of, or knew, or in any manner acted on those facts and circumstances.” There are references in the authorities which suggest that a consideration relevant to whether or not further enquiries should have been made is the fact of what would have been revealed by those enquiries had they been pursued. In Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432, Upjohn LJ said at 457-458 - “On the other hand, one has to consider whether, had further enquiries been made, they would have produced any further evidence. ... I do not think that any other investigations would have produced any evidence which would throw any light upon the alleged felony.” In Bradshaw v Waterlow & Sons Ltd [1915] 3 KB 527 (CA), Pickford LJ, in dealing with a submission that the defendants failed to take reasonable care to inform themselves of the facts before instituting the prosecution, observed at 533 - “I do not think it was at all necessary for them to do so (make enquiries of an expert) but if they had, the only result would have been that he would have confirmed the information that the skins were wrongly marked as to measurement, and that the marks on the Russian skins had been tampered -- 49 of 104 -- 48 with. ... It is to be noticed that in Arbrath v North Eastern Ry Co there were facts to suggest that further enquiries might have led the defendants to a different conclusion, i.e., enquiries from persons who knew the man who was said to have made a fraudulent claim, and it was in relief of the defendants that Cave J. put the question about reasonable care, i.e., he asked the jury whether even though they had not enquired from those persons they had done what was reasonable. In the same way the question as to the honest belief of the defendants should not be left to the jury unless there is evidence of the absence of such belief; and the same reasoning applies to this question as to the other.” In Uhr v Stevens (1886) 20 SALR 127 Boucaut J (who was in the minority) said at 139 - “Before we can hold that the defendant did not make proper enquires it must be proved that there was some enquiries which, if made, would have shown that the prosecution was without reasonable cause.” Whilst I doubt that this passage states a universally correct proposition, it does support the defendant's contentions as to the admissibility of the evidence of Professor Ansford as does the judgment of Viscount Simonds in Glinski v McIver at 745. Even without the support of authority (which appears to me to be quite strong) I would have been reluctant to conclude that such a question should be decided in a factual vacuum. Accordingly, I overrule the plaintiff's objection to the admissibility of this evidence. Malicious procuration of the issue and execution of a search warrant It is an actionable wrong, akin to the tort of malicious prosecution, to procure the issue of a search warrant without reasonable cause and with malice. Hope v Evered (1886) 17 QBD 338 at 340 and Gibbs v Rea (supra). The above discussion of “malice” and “reasonable cause” are generally applicable to -- 50 of 104 -- 49 this tort. In Gibbs v Rea, Gault J delivering the judgment of the majority, observed at 81 - “The statement of Hawkins J. in Hicks v. Faulkner (1878) 8 Q.B.D. 167, 171, approved in the House of Lords in Herniman v. Smith [1938] A.C. 305, 316, made with reference to malicious prosecution can be adapted for present purposes (although not necessarily for all purposes: Glinski v. McIver [1962] A.C. 726, 758, per Lord Denning). It must be shown that the defendant lacked any bona fide belief that he or she was placing before the issuing judge material sufficient to meet the conditions for issue of the warrant sought. In this case the relevant conditions are, inter alia, reasonable suspicion that the specified person has carried on or has benefited from drug trafficking and that material valuable to the investigation might be on the designated premises. That encompasses the subjective belief in good faith that material grounds for suspicion exist and the objective requirement that the belief is reasonably held. 3. That the defendant acted with malice, and 4. That the damage resulted from the issue or execution of the warrant.” At 80 Gault J expressed the view that the true foundation of the tort of wrongfully procuring the issue of a search warrant without reasonable cause and of malicious prosecution was “intentional abuse of the process of the court”. A plaintiff alleging an abuse of process must show that the predominant purpose of the defendant in using the legal process was one other than that for which it was designed: Williams v Spautz (1992) 174 CLR 509 at 529 and Metall & Rohstoff A.C. v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 469. The plaintiff has the onus of proof and the onus has been described as “a heavy one”: Goldsmith v Sperrings Ltd [1977] 2 All ER 566 at 582 and Williams v Spautz (supra) at 529. -- 51 of 104 -- 50 A person who fairly and honestly lays the facts on which he relies and on which he bases his suspicions before a magistrate who then orders the issue of a search warrant is not liable for the exercise of the magistrate's discretion: Hope v Evered (supra) at 340. Malicious arrest The plaintiff's counsel concentrated on the tort of malicious prosecution in addresses. No separate oral or written submissions were directed to this matter. The actionable wrong of malicious arrest is committed when a person maliciously and without reasonable and probable cause procures the arrest of a person. The arrest constitutes sufficient damage to ground such an action. The principles discussed above in relation to “malice” and “reasonable and probable cause” are generally applicable to this tort. See Halsbury's Laws of England 4th ed, vol 45 para. 1375. False imprisonment The elements of this tort are described as follows in Halsbury para 1325 - “The gist of the action of false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification.” The defendants concede that the plaintiff was imprisoned, in the sense of having his liberty restrained, between his arrest and the time when he was taken before the Magistrate. It is stated in Halsbury para 1338 - “The defendant in an action for false imprisonment is entitled to succeed if he pleads and proves that the imprisonment was legally justified.” It is good defence to an action for false imprisonment if the defendant proves that he had reasonable and probable cause for his actions. Reasonable and probable cause is established by proving that the defendant, with reasonable cause, suspected the person arrested of having committed an offence: Bales v Parmeter (1935) 35 SRNSW 182 at 186. The -- 52 of 104 -- 51 liability of any of the defendants is in respect of the period when the plaintiff was in the custody of Sergeant Cassidy and not for any period whilst he was in the custody of any other person such as the watch house keeper: Holgate - Mohammed v Duke [1984] 1 AC 437 and Dallison v Caffery [1965] 1 QB 348. “In an action for false imprisonment the plaintiff is entitled to recover general damages for the imprisonment. He may also recover, by way of special damages, compensation for earning loss which he has incurred, although it is possible that to be recoverable such loss must be reasonably foreseeable. He may rely in aggravation of the general damages on the circumstances attending the imprisonment and on any facts in the conduct of the defendant at the time of or before or after the imprisonment which show malice.” Halsbury (supra) para. 1337. Trespass to goods The tort consists in committing, without any lawful justification, any act of direct physical interference with a chattel in the possession of another person. Such a trespass is actionable per se without any proof of actual damage: Salmond and Heuston on the Law of Torts 18th ed 89. The plaintiff in an action of trespass to goods must prove that, at the time when the unlawful act was committed, he had actual possession, or a right to the immediate possession, of the chattel in question: Halsbury para 1494 and Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 226-227. The plaintiff's full submission on this point was as follows - “The cause of action arises in respect of goods seized beyond the terms of the search warrants. The interest which the law protects is possession of the goods, not ownership: Penfolds Wines v Elliott, per Dixon J. Hence, it is immaterial whether or not the goods seized may have been owned by a partnership or the clinic's service company - they were in Bayliss' possession. Trespass to goods is actionable per se in respect of any direct physical interference with goods in the plaintiff's possession.” No submission on the point was made in the document delivered on behalf of the plaintiff to the court and to the defendants pursuant to the a pre-trial direction by me that the “parties deliver to the court a brief outline of the issues of substance -- 53 of 104 -- 52 considered by each party to be in issue on the pleadings which sets out the relevant principles of law and authorities proposed to be relied on by that party on or before midday on 3 July 1998.” Nor did the submissions on behalf of the plaintiff specifically address damages under this head of claim. The right of an arresting police officer to seize and take possession of articles in the possession or under the control of an accused person is not entirely dependent on the holding of a warrant by the police officers. There is power at common law, which exists as an incident of the power to arrest, to seize and take possession of articles as evidence tending to show the guilt of the person being arrested: Field v Sullivan [1913] VLR 70 at 80 (FC); Levine v O'Keefe [1930] VLR 70 at 72 and Reynolds v Commissioner of Police [1985] 2 WLR 93 at 98. Consequently, the power to seize property exists in the absence of a search warrant. It may also be used by a police officer armed with a warrant to seize items which do not come within the scope of the search warrant if those items are reasonably believed to be material evidence in relation to the crime for which the arrest is being effected: Reynolds at 104 and Ghani v Jones [1970] 1 QB 693 at 706. Reynolds is also authority for the proposition that the seizure by a police officer of goods which do not fall within the terms of the warrant may be justified if there are reasonable grounds for thinking, in relation to any particular document or group of documents, that they may fall within the terms of the warrant or within the common law power of seizure, and if it is reasonable that they be taken elsewhere for a further detailed examination. In Baker v Campbell (1983) 153 CLR 52 Mason J stated that “practical considerations” must be kept “steadily in mind”, and that: “It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, or probative value or privileged status -- 54 of 104 -- 53 of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation, following seizure of the documents that informed consideration can be given to the documents and assessment made of their worth or significance ...” Circumstances in which a person other than the arresting officer or prosecutor may become liable for the torts of malicious arrest or malicious prosecution It was submitted on behalf of the plaintiff that - “An action for malicious prosecution is maintainable not merely against the nominal prosecutor (the officer in whose name the prosecution is brought), but against the person or persons who were ‘actively instrumental’ in causing the prosecution to be brought. ... The plaintiff also refers to the decision of the Privy Council in Corea v Peiris, where Lord Atkinson stated that the prosecutor was the person who ‘institutes or authorises the prosecution’, and Brooke v Grimpel (1987) Aust Torts Reports 80-108, at 68,766 where Dowsett J applied those authorities.” In Corea v Peiris (1909) AC 549 the defendant was the person who preferred the charge against the plaintiff. No question arose as to whether some other person might have committed the tort of malicious prosecution. The reference, on which the plaintiff relies, to the prosecutor's instituting or authorising the prosecution was made in the course of identifying the time at which the state of mind of the prosecutor fell to be assessed. In Brooke v Grimpel there was a question as to whether a defendant other than the defendant prosecutor should also be regarded as a prosecutor for the purposes of the proceedings. The first mentioned defendant, as Dowsett J explained at 68,766-7- “... was really the informant pursuant to whose information the charge was laid. Grimpel (the other defendant) made it very clear in his evidence that he relied heavily upon the fact that Costello asserted that he had seen the incident in question. There can be no sensible basis for treating Costello as other than the prosecutor for all practical purposes.” His Honour found it unlikely that a prosecution would have proceeded in the absence of assertions made by Costello. Dowsett J's reasoning relied heavily on the following passage -- 55 of 104 -- 54 from the judgment of Dixon J in Commonwealth Life Assurance Society Ltd v Brain (supra) at 379, which he described as “perhaps the best statement” of the relevant principle - “It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of independent discretion on the part of that authority ... but, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible ... Further, the Privy Council has said in a judgment delivered by Lord Dunedin: ‘In any country where, as in India, prosecution is not private an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie ...” After the passage from his judgment quoted above, Dixon J summarised the position as follows - “The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.” In Commercial Union Assurance Co of N.Z. Ltd v Lamont (1989) 3 NZLR 187, Richardson J, after a careful review of English, Canadian, Australian and other Commonwealth authorities, expressed the opinion that, in determining whether a person other than the actual prosecutor should be liable as a prosecutor, particular weight should be given to the considerations that - • In New Zealand the police have the training and experience to investigate possible offences with impartiality and skill and, as part of that process, to assess whether the evidence justifies the invoking of the criminal process; • Members of the community should be encouraged to carry out this civic responsibility to support police in their function of investigating and prosecuting of current breaches -- 56 of 104 -- 55 of the criminal law. In so doing they should be secure in the knowledge that in providing the police with information they are not exposing themselves to allegations of malicious prosecution. His Honour concluded - “What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff.” McMullen J concluded at 207-208 that - “A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels an officer to lay on information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute.” Barker J, whilst adopting the “comprehensive reviews of the authorities” by the other members of the Court, expressed a preference for Dixon J's formulation of principle in Brain at 379. In Martin v Watson (1994) 2 WLR 500 (CA) Ralph Gibson LJ who, with McCowan LJ comprised the majority, referred to and expressed approval of the reasoning in Commercial Union Assurance Co of NZ v Lamont. McCowan LJ concurred with the views expressed by Dixon J at p. 379 of Brain and by McMullen J at 207-208 of Lamont. Hobhouse LJ, the dissentient, considered that the majority view placed insufficient weight on the role of the police officer who “was under no obligation to lay the information. He had to form his own view and to decide whether or not he would swear the necessary oath”. In my view there is much force in the reasoning of Richardson J in Lamont. I now turn to an application of the above principles to the facts of this case. -- 57 of 104 -- 56 Facts specifically relevant to Sergeant Cassidy's state of mind at the time of issue and execution of the search warrants At the time of the complaint to ground search warrant on 14 May 1985, Sergeant Cassidy had knowledge of the matters adverted to in the complaints to grounds search warrants. Those matters included - • The fact that the plaintiff alone, or in conjunction with another or others, was carrying out a medical practice at the Greenslopes Clinic under the name or style of “Fertility Control Clinic (Qld)”. • Considerable numbers of women attended the Clinic daily. Some of those women, in the normal course of the Clinic's operation, stayed for periods in excess of two hours. • The plaintiff made no secret of the fact that abortions were being carried out at the Clinic. • The contents of an article by Drena Parrington in the “Sunday Mail” of 28 April 1985 which purported to be based substantially on an interview with the plaintiff. • Knowledge that the plaintiff had stated in a television interview on 24 March 1983 which was conducted, at least in part, at the Greenslopes Clinic that - “I feel very strongly that no other person has the right to interfere with control of any human being's body or fertility.” • The contents of the “State Affair” television programme screened on 4 April 1983 in which a barrister stated that abortion on demand was illegal in Queensland and in which the plaintiff appears saying inter alia - “I think the main issue here we are looking at the right of any human being to have untrammelled control of their own fertility free of let or hindrance by friends who are politicians, bureaucrats, lawyers.” • The contents of a news programme on Channel O screened in March or April 1983 -- 58 of 104 -- 57 which reported that the plaintiff said he had been challenging the State Government for five years to make a test case of a pregnancy termination at his Clinic, but that so far the State Government had refused to act. The plaintiff is shown as saying - “Therapeutic termination or abortion in Queensland if carried out under section 282 of the Criminal Code is lawful despite what learned counsel and leaders of the legal profession say about other causes.” • None of the plaintiff's television interviews had remarks or views attributed to him suggesting that he was or was purporting to carry out abortions only in circumstances in which the performance of the operation was for the purpose of preservation of the mother's life. That observation is also true of newspaper reports of interviews with the plaintiff. The report in the “Sunday Mail” 28 April 1985 was strongly suggestive of a practice by the Greenslopes Clinic of abortions for a variety of reasons not connected with the saving of the mother's life. The tenor of the plaintiff's public comments and of views attributed to him was that medical practitioners performing abortions were protected by s.282 in circumstances other than those in which an abortion was necessary for the preservation of the mother's life. Sergeant Cassidy was also aware of - • Advice from Mr Sturgess, Mr Ryan QC, Mr Hampson QC and Mr Pincus QC to the effect that the correct interpretation of the relevant provisions of the Criminal Code was that, in Queensland, abortion was illegal unless the operation was reasonable and for the purpose of preservation of the mother's life. The plaintiff's case in this regard relies heavily on the submission that the surveillance evidence could not have supported the assertion “made in the body of the complaint, as to what that evidence revealed [i.e. that an average of 15 women per day remained at the Clinic for periods in excess of two hours]”. -- 59 of 104 -- 58 A considerable amount of time was devoted in the course of cross-examination to attempting to show that the surveillance operations could not have yielded much in the way of useful information and, in particular, could not have supported the conclusion contained in the complaints to ground search warrants that - “Over recent weeks an average of 15 women visit the Clinic each day and remain for periods in excess of two hours.” None of the witnesses cross-examined on the point, including Superintendent Cassidy, was able to advance an explanation, which I regarded as acceptable, for the selection of the two hour period. Reference to the two hour period also appeared in the operational orders. I have concluded that the two hour period was probably selected by Inspector Webb and/or Sergeant Cassidy on the basis of an understanding that a patient on whom an abortion had been carried out would probably remain in the Clinic for at least two hours. In relation to the stated “average of 15 women”, the plaintiff's counsel in cross-examination and in final submissions made the point that Sergeant Cassidy's evidence was to the effect that he prepared draft grounds for the search warrants on 5 May and that those grounds did not change after this time. Yet, it was pointed out, the surveillance results available on and prior to 5 May did not disclose anything like an average of 15 women per day remaining for periods in excess of two hours. It was said to follow from this that Superintendent Cassidy swore “falsely in order to secure the issue of the warrants”. I do not accept that the criticism is well founded. Probably Sergeant Cassidy's and/or Inspector Webb's conclusion was derived from an estimate after discussion with the officers taking part in the surveillance operation. It is not surprising that, at this distance in time, there is uncertainty as to how these figures were derived. In the “complaints to ground warrant” Superintendent Cassidy was not purporting to swear that a precise mathematical average was taken of all the women who attended the Clinic over all days on which the Clinic operated during a given time. In my view any reasonable -- 60 of 104 -- 59 person reading the complaints would conclude that he was stating a more general proposition. That proposition was capable of being substantiated by a relatively limited amount of written data in conjunction with oral information disclosing on certain days the presence of 15 or more women at the Clinic for periods in excess of two hours. Sergeant Cassidy was in contact with officers of the BCI. He would have been aware that the initial record-keeping by surveillance officers was poor and that on some days they did not maintain surveillance sufficiently long enough to produce worthwhile results. Nevertheless, from what he was told by surveillance officers and from his own perusal of the surveillance materials he could well have formed the view that about 15 women a day were attending the Clinic and staying for two hours. I conclude that he did so. If , when he prepared the draft “complaint to ground search warrant”, it initially contained the reference to “an average of 15 women” he was in the position of knowing that he would be able to obtain further data which, by the time he laid the information in relation to the complaints, would either verify or cast doubt on the estimate. The surveillance records in respect of 15 April, 18 April, 26 April and 7 May (the four days closest to 14 May for which records were kept) disclosed 9, 24, 22 and 19 women staying longer than two hours. I find that Sergeant Cassidy had a bona fide belief in the truth of the matters placed before the issuing Magistrate and that he entertained a reasonable suspicion that the plaintiff had committed or was committing the offence referred to in the warrant. The written surveillance evidence, as I have noted, was only part of the material available to Sergeant Cassidy and only a minor part at that. It was also only part of the material on which he relied in the “complaint to ground search warrant”. The plaintiff's case in this regard becomes even more tenuous once regard is had to the fact that the plaintiff, who had knowledge of the numbers of women attending the Clinic for -- 61 of 104 -- 60 abortions at relevant times, failed to give evidence in that regard. It was not suggested in cross-examination or in the plaintiff's counsel's final address that evidence gained as a result of the police operation did not support a conclusion that 15 women a day attended the Clinic and remained for periods in excess of 2 hours during the surveillance period. In fact, one of the medical practitioners at the Clinic told Constable Adams on 20 May 1985 that an average of 15 abortions a day were being performed. Malicious arrest - the plaintiff's case The plaintiff's contentions may be summarised as follows - (i) The decision to charge the plaintiff with the crime of conspiracy was made at the second of the two meetings at the CIB Headquarters on 8 May 1985. (ii) By the time of that meeting Mr Sturgess had already concluded that there was sufficient evidence to support a conspiracy charge. (iii) Mr Sturgess directed the police at that meeting to bring a conspiracy charge. (iv) From the time of that “direction” Sergeant Cassidy did nothing more than act in accordance with the direction. (v) Critical events must be looked at in the light of the “factual matrix” set out earlier. Facts of particular relevance to the allegation of malicious arrest At the time Sergeant Cassidy effected the arrest of the plaintiff, he had knowledge of : (i) the matters set out earlier under the heading “Facts specifically relevant to Sergeant Cassidy's state of mind at the time of issue and execution of the search warrants”. (ii) The information obtained by him in the course of interviewing the plaintiff on 20 May 1985 prior to the arrest. (iii) The information on most, if not all, of the patient cards in respect of patients -- 62 of 104 -- 61 1 to 8 inclusive. (iv) Such information as was provided to him by police officers who had interviewed patients on 20 May 1985. (v) The advice and information given to him by Mr Sturgess over the telephone. (vi) The advice given to him by Inspector Webb on 20 May. In the course of the interview with the plaintiff, he said that the abortions performed by him that day had been performed under the relevant section of the Criminal Code and that all had been necessary for the preservation of lives of the women concerned. He declined to elaborate on why the operations were necessary for the preservation of life beyond saying that “they were medically indicated, and that ... was my opinion at the time.” But, as noted above, when asked again for reasons for the operations he declined any explanation, confirming that “the reasons were all documented”. That was a reference to the patient cards. At 10.37 a.m. the plaintiff gave Sergeant Cassidy the patient cards for patients 1 to 5. He glanced through them but his perusal was too fleeting to enable him to form any useful appreciation of their contents for relevant purposes. At about 10.43 a.m. Sergeant Cassidy was given the patient cards for the three women awaiting abortions that morning. The location of those patients was identified by the plaintiff at 10.45 a.m.. At 10.49 a.m. Sergeant Cassidy remarked that Dr Green had given permission for these patients to be interviewed and he had Inspector Sommer then assign Constable Adams and Patterson to interview the women. Inspector Sommer said “... We've run out of men. We've got two men to start on them.” By this time it is apparent from the transcript of the tape-recording that Dr O'Sullivan had already been interviewed. It is not apparent though from the audio tape or the video tape that anyone else had been interviewed. -- 63 of 104 -- 62 The question of whether Sergeant Cassidy had regard to records of interview prior to arresting the plaintiff. Sergeant Cassidy gave evidence that before arresting the plaintiff, he was given and perused statements obtained from patients 1 to 8 inclusive. He also swore that before the arrest he had been given information by interviewing police officers concerning the interviews conducted with patients 15, 16 and 17; Dr O'Sullivan; Dr Singh; Dr Cullen; counsellors Hamilton, Williams and Clark and a number of nurses and receptionists. His evidence in this regard was supported by the evidence of the interviewing police officers. Many of the statements obtained from patients provided strong evidence of abortions having been performed or proposed to be performed at the Greenslopes Clinic for purposes unconnected with the preservation of the mother's life. Examples of relevant passages from statements taken from patients are as follows - Patient 1 “I told both female doctors [on the first visit to the Clinic] that I wanted to have an abortion as my youngest child was only 4½ months and I didn't think I could cope with another child as I would have three children under the age of three. They said they understood.” Patient 2 “As my two children were aged 2½ and ten months, I informed the Doctor [her general practitioner] that I felt I couldn't cope with another child. I am working as we are in financial difficulties ... I spoke to a female counsellor and then I saw two female Doctors [at the Clinic]. I had informed these Doctors that I felt I couldn't cope with having three young children under four years of age.” Patient 3 “I am a single lady, 17 years of age ... The reason for this abortion to-day was that of my age and I would like to advance my career before becoming involved in motherhood. I was also ill at the time - vomiting continually all day.” -- 64 of 104 -- 63 Patient 5 “I am a single lady, 21 years of age ... The reason I came today for this abortion was that I am not old enough to look after and support a child.” It was contended on behalf of the plaintiff that at the time of the plaintiff's arrest Sergeant Cassidy did not have either - (a) the statements of any of patients 1 - 8, or relevant information as to the substance and effect of those statements; or (b) the statements of any of the other doctors or staff, or relevant information as to the substance and effect of those statements. The written submission by the plaintiff's counsel on this point occupied some 31 pages of single space type. I do not make is observation critically - the plaintiff's submissions were meticulously and skilfully prepared. Key submissions made on behalf of the plaintiff were as follows - (a) The evidence of interviewing officers Lutton (patients 3 and 5), Rapp (patient 2) and O'Sullivan (patients 1 and 7) was that they did not commence to interview any patients until Dr Green had given his permission. (b) Dr Green gave no authority to interview any patients before, at least 10.49 a.m. (c) The evidence of Rapp and Butler (patient 8) is that their respective interviews did not commence until they had been handed patient record cards. (d) The videotape shows that the record cards of none of patients 1 to 8 left the hands of Sergeant Cassidy or the plaintiff prior to the video being turned off at about 10.47 a.m. No conversation is recorded on the audiotape which suggests that the cards left the possession of either of those persons prior to its being turned off at 10.50 a.m. The submission, obviously, contained a great many other points. However it is -- 65 of 104 -- 64 possible, I think, to make necessary findings in relation to these records of interview without canvassing the evidence in minute detail. The plaintiff's case in this regard is carefully constructed by a process of identifying and assembling pieces of evidence favourable to the plaintiff's contention and by disregarding evidence which is not. The strongest body of evidence against the plaintiff's version of events is the evidence of Sergeant Cassidy, corroborated by that of many police officers, to the effect that Sergeant Cassidy was receiving records of interviews and speaking to police officers about the fruits of their enquiries as the operation progressed. Police officers who provided such corroborative evidence were: O'Sullivan (patients 1 and 7), Rapp (patient 2), Lutton (patients 3 and 5), Adams (together with Patterson, patients 4 and 6), and Butler (patient 8). Constable McDonald, who accompanied Sergeant Cassidy on the police operation on 20 May, also professed a recollection that statements taken from patients and staff by police officers were provided to Sergeant Cassidy in the course of the operation. Inspector Webb gave similar evidence of speaking to interviewing police officers and informing Sergeant Cassidy that “there was no female there who had been aborted or was about to be aborted; that they had gone there because their life was in danger”. The operational orders contemplated that no patients would be interviewed unless Dr Green had seen them and had given his approval. It was the evidence of some of the interviewing officers that they were also given to understand this at the pre-operation briefing. Dr Green's role in the operation is thus of some importance. There is evidence, however, that patients were in fact interviewed without Dr Green's prior approval. Sergeant Butler, for example, had no conversation with Dr Green. He received his instructions to interview a patient or patients from Inspector Webb. The recollection of Adams was that one of the -- 66 of 104 -- 65 doctors at the Clinic, Dr O'Sullivan, gave him approval to commence an interview with a patient. There were other medical practitioners present who also could have been called upon to perform such a function. Support for the conclusion that police officers had commenced interviewing patients is provided by the audiotape quite early in the operation. When discussing at 10.48 a.m. with Sergeant Cassidy the need to interview the patients awaiting abortions Inspector Sommer makes the comment “... we've run out of men. We've got two men to start on them”. Inspector Sommer's recollection was, that at that time, interviews with patients were in fact being conducted. The video shows that Dr Green had opportunities to see patients before having an involvement in the interview of the plaintiff by Sergeant Cassidy and it also shows him leaving the company of those persons on occasions. I consider it reasonably likely that Inspector Webb and Sergeant Cassidy would have wished the experienced officers available for the purpose to commence interviews with patients as early as was reasonably practicable. They are likely to have thought that useful evidence of illegality was more likely to be obtained from patients than from staff members. Those officers would also have wanted to avoid inconveniencing patients by detaining them any longer than was strictly necessary. They were concerned not to create any unnecessary opportunities for unfavourable publicity as a result of the police operation. The evidence of the defendants' witnesses on this point was not without its difficulties. Witnesses were called on to give a recollection of events which had happened about 13 years ago. Some of those witnesses had not been asked to search their recollections until comparatively recently. A number of them appear to have been given little or no useful assistance by way of reference to matters which could be used to refresh memories, or used as objective criteria against which to check the accuracy of recollections. For example, -- 67 of 104 -- 66 Constable Lutton swore that he interviewed patient 5, then patient 3 and gave both statements to Sergeant Cassidy at the same time. Patient 3's statement, towards the foot of its first page, read “at approximately 11.15 a.m. on Monday the 20.5.85 I remember giving a statement to Det Lutton”. Counsel for the defendants submitted that Constable Lutton was provided with the wrong time by the patient and simply wrote it down. That explanation does not strike me as plausible. There was no reference to this time in the body of Constable Lutton's statement or in his oral evidence and I infer that his attention was not directed to this problem with his evidence. I conclude also that he did not take the elementary step of checking his recollection against an obvious contemporaneous record. The video recording does not show Sergeant Cassidy speaking to any police officers concerning results of interviews with patients or staff and it does not show him perusing any records of interview. That, however, is not surprising. The role of the video tape, essentially, was to show the interview with the plaintiff, to record that the police had behaved properly and to provide some evidence of the interior of its Clinic and its contents. The tape was switched off for 22 minutes between 10.50 a.m. and 11.12 a.m. In that time Sergeant Cassidy spoke to Mr Sturgess over the telephone. That conversation was fairly brief. Sergeant Cassidy thus had about 20 minutes within which to peruse patient cards, receive and peruse statements and speak to Inspector Webb and to other police officers concerning interviews with patients and staff. There is no evidence that Sergeant Cassidy was otherwise occupied during this period. If I am right in concluding that some patient interviews started between 10.30 and 10.35 a.m. it is probable that those interviews finished in time for the records of interview to be shown to Sergeant Cassidy between 10.50 a.m. and 11.12 a.m. The interviews with patients 6, 7 and 8 (the patients awaiting abortions) are likely to have commenced after 10.46 a.m. -- 68 of 104 -- 67 when Sergeant Cassidy mentioned speaking to Inspector Sommer to detail somebody to interview these patients. There is only four minutes between that time and when the tape was turned off, and 26 minutes between that time and when it was turned back on. That leaves very little time for these records of interview to have been prepared in time for Sergeant Cassidy to have turned his mind to them. The record of interview in respect of patient 6 could easily have been taken in the space of 15 minutes but, as I have said, it contained no useful information. Those in respect of patients 7 and 8 are very brief also. They do contain relevant information and it was possible for them to have been completed in time for Sergeant Cassidy to see them prior to the arrest. The weight of the evidence, in my view, favours the conclusion that Sergeant Cassidy saw some of the records of interview prior to the plaintiff's arrest and that he discussed the results of some of the interviews with interviewing police officers and also had a synopsis of the results of some interviews conveyed to him by Inspector Webb. I find that Sergeant Cassidy read some records of interview, probably including those in respect of patients 1, 2, 4 , 6, 7 and 8 prior to the arrest. The records of interview in respect of patients 4 and 6 yielded no relevant information to Sergeant Cassidy beyond confirming that the persons concerned had or were awaiting abortions. Their principal relevance for present purposes is that the evidence relating to their preparation assists in tending to show that interviews with patients were taking place at a time earlier than submitted on behalf of the plaintiff. I do not accept that either Constable Adams or Sergeant Patterson provided Sergeant Cassidy with any useful oral information in respect of these patients. It is not probable that either of these officers would omit from written statements information concerning reasons for a patient having an abortion and matters relevant to the health of the patient, yet provide such critical information orally to Sergeant Cassidy. -- 69 of 104 -- 68 Did Sergeant Cassidy peruse the patient cards for patients 1 to 8 inclusive before the arrest? There is evidence which tends to corroborate Sergeant Cassidy's account that he had recourse to the patient cards before effecting the arrest. He was clearly conscious of the need to establish more than the mere fact that abortions were being performed by the plaintiff. That may be seen from the list of instructions to interviewing officers which accompanied the operational orders. It can also be seen from instructions which Sergeant Cassidy issued in the course of the operation. The transcript of the audio tape reveals Sergeant Cassidy saying the words recorded earlier under the heading “Events on 20 May 1985" in which he made enquiries of the plaintiff as to whether the operations performed on the morning of the 20th were necessary for the purpose of saving the patient's life. At 10.49 a.m., addressing Detective Adams with reference to the women awaiting operations, he said - “We basically want to know ... the reason why they want the operation performed. ... Is it necessary for the preservation of their life or not.” He set about obtaining the patient cards from the plaintiff. That discloses, in itself, that he attached some significance to them. They are likely to have been seen by him as the most obvious and immediate source of relevant information in the course of the operation. Mr Sturgess's recollection also supports the conclusion that Inspector Webb and Sergeant Cassidy, in the course of the police operation, were focusing on obtaining evidence to show that there was no legal excuse for the abortions being performed. His evidence, although not referring to the patient cards specifically, thus provides some indirect support for the conclusion that Sergeant Cassidy made reference to patient cards in order to form the views which were expressed to Mr Sturgess. In a memorandum dated 27 June 1985 addressed to Detective Superintendent of -- 70 of 104 -- 69 Police Metropolitan C.I. Branch, Sergeant Cassidy stated - “Following an interview I conducted with Dr Bayliss on 20 May 1985 ... I arrested him ... This decision was taken on the advice of STURGESS, Director of Public Prosecutions and of my superiors following Dr Bayliss informing me that he intended to continue conducting abortions on that date, which, having regard to information before myself and others by way of medical cards relating to these proposed operations, were illegal operations. (The medical cards I refer to were ones which were indicated to me by Dr Bayliss and which relate to three women who were present at the clinic at that time awaiting abortions, and which Dr. Bayliss had indicated ... as being the operations he intended to conduct in our presence.) In taking this action I acted on the instructions of my superiors, and on the basis that there were reasonably grounds for suspecting that the offence alleged had been committed.” (emphasis supplied) I do not take the words emphasised as revealing that Sergeant Cassidy did not refer to other cards in the course of the police operation. He was there addressing the events which caused the arrest to be made. Having regard to the limited time available to him it is obvious that Sergeant Cassidy did not dwell at length on the contents of the patient cards. But the format was consistent and once one or two had been read, it would have been possible for him to go quickly to the medical opinions, letters of referral and counsellor's reports in the remaining cards and digest their contents. His recollection is that he perused all eight of patient cards 1 to 8. I find that Sergeant Cassidy perused most, if not all of the cards, with a view to ascertaining whether they revealed that the life of the patient would be endangered if an abortion were not to be performed. Conclusion on the allegations of malicious arrest in relation to Sergeant Cassidy For the reasons given below in respect of the allegations of malicious prosecution I find that the plaintiff has not established that Sergeant Cassidy acted maliciously or without reasonable and probable cause in arresting the plaintiff. Conclusions on the allegation of malicious prosecution against Sergeant Cassidy It was submitted on behalf of the plaintiff that if Sergeant Cassidy did not bring an -- 71 of 104 -- 70 independent mind to bear on the issue of the plaintiff's guilt or innocence at the time of the police operation, the question of whether he had reasonable grounds for having a belief that the offence of conspiracy, as then charged, had been committed, stood to be decided at the date on which he decided to arrest Bayliss. That date, it was submitted, was “after Sturgess' instruction of 8th May 1985 to bring a conspiracy charge” when “Cassidy was merely acting as Sturgess' instrument”. I do not accept that Sergeant Cassidy merely acted as Mr Sturgess' instrument. I find that he turned his mind to a consideration of the plaintiff's guilt during the police operation on 20 May and concluded that the plaintiff had probably committed the offence with which he was ultimately charged. I also find that Mr Sturgess did no more than “advise” as to possible courses of action. He did not “direct” police officers. Although that expression was used by some police officers, when the matter was raised with them, they conceded that “direction” was not an appropriate characterisation of Mr Sturgess' conduct. It is true that there were fairly obvious enquiries which Sergeant Cassidy could have made before arresting and initiating the prosecution of the plaintiff and which he failed to make. I refer in particular to the seeking of advice of experienced medical practitioners present at the Greenslopes Clinic in respect of the contents of the patient cards. Sergeant Cassidy, to his knowledge, was somewhat handicapped in the interpretation of the cards, being able to make, at best, a rudimentary assessment of the import of the front page of each set of cards and of the plaintiff's post-operative notations. However, one must be careful not to fall victim to the temptation to judge his conduct with the benefit of hindsight. Sergeant Cassidy believed himself to be faced with a decision of some urgency when confronted with the plaintiff's desire to perform further abortions which Sergeant Cassidy believed to be unlawful. He had not embarked on the police operation intending to arrest the plaintiff. Curiously, there is no direct evidence from Sergeant Cassidy on the point at which he intended -- 72 of 104 -- 71 that a complaint and summons be issued. It is reasonable to conclude though that, had the plaintiff not revealed that he intended to do acts which Sergeant Cassidy regarded as unlawful, Sergeant Cassidy would have proceeded by way of complaint and summons after duly considering the material gathered in the course of the police operation and after having discussed that material at greater length with Inspector Webb and Mr Sturgess. As matters turned out he was denied that facility. Major parts of the contents of the patient cards which, it will be recalled, were said by the plaintiff to contain the relevant medical histories, were capable of being readily understood by a lay person of reasonable intelligence. The opinions accompanying each set of patient cards were short and to the point as were the reports of the counsellors and the letters of referral. I do not consider that Sergeant Cassidy was acting unreasonably or failing to take reasonable care in concluding that there was sufficient evidence before him to warrant arrest and prosecution. The evidence obtained in the course of the operation did not stand alone. It was additional to a body of evidence which had earlier caused Sergeant Cassidy to suspect that the plaintiff was committing the relevant offences. His duty was not to ascertain whether the plaintiff had a defence but whether there was “reasonable and probable cause for a prosecution”. Nor am I able to set any store by Sergeant Cassidy's rejection of the plaintiff's assertions that he was acting within the law. Perusal of the patient cards, with or without the past history of which I have spoken, would have been sufficient to justify Sergeant Cassidy's treating the plaintiff's assertions with scepticism. It is likely that Sergeant Cassidy regarded those assertions as merely re-affirming the plaintiff's expansive interpretation of the scope of s.282 of the Criminal Code. The plaintiff's case concerning lack of reasonable enquiry is put in perspective when regard is had to the fact the plaintiff adduced no evidence calculated to show that further -- 73 of 104 -- 72 enquiries in relation to the contents of the patient cards would or could have altered Sergeant Cassidy's conclusions in relation to the plaintiff's guilt. And, of course, the only expert medical evidence on the point was to the effect that further expert elucidation of the contents of the cards would not have revealed the existence of any life threatening condition in any of the patients. In my view it would be a rather curious result if Sergeant Cassidy were to be found to have acted without reasonable and probable cause as a consequence of not having made enquiries, which if made, would have served to confirm his opinion as to the guilt of the plaintiff. The reasonableness of the course taken by Sergeant Cassidy is further assisted by the fact that he acted on the advice of Inspector Webb and Mr Sturgess. Inspector Webb was a very experienced police officer who had intimate knowledge not only of the police investigations but of information gleaned in the course of the police operation. Mr Sturgess was an experienced and respected barrister and held the senior office of Director of Prosecutions. He, also to the knowledge of Sergeant Cassidy, had a good knowledge of the progress and results of the police investigations prior to 20 May. On 20 May Sergeant Cassidy and Inspector Webb had the conversations with Mr Sturgess which I have described earlier. It is probable that Sergeant Cassidy did not put all relevant facts known to him before Mr Sturgess and, perhaps, even Inspector Webb, as it is likely that he did not canvass with either of them the indecipherability (to him) of parts of the patient cards, or the fact that he had failed to seek expert advice. However, the fact that such advice was sought, given and taken is a matter of relevance. It was submitted on behalf of the plaintiff that Sergeant Cassidy had either directed his mind to an irrelevant issue or had failed to direct his mind to a critical issue upon which the culpability of the plaintiff depended in that - -- 74 of 104 -- 73 “... The evidence suggests that the decision to charge the plaintiff with conspiracy was made without any consideration of the likely existence of the elements of that offence; and . Sergeant Cassidy, was concerned only with the plaintiff's intention to proceed to carry out ‘further terminations of pregnancy that morning’. (That it was submitted,) ‘was irrelevant to the issue of whether the offence of conspiracy, as charged, had been committed; it provided no reasonable basis for Cassidy to reach a conclusion that the offence had been committed and, as the transcript reveals, Cassidy himself did not direct his mind to that issue.” I do not accept these submissions. There had been debate with Mr Sturgess over the appropriate charge to be brought at an earlier date. Sergeant Cassidy had expressed a preference for bringing substantive charges, but he accepted Mr Sturgess' advice that the charge should be one of conspiracy. Nothing occurred prior to the arrest which necessarily negatived that advice. As to the second point, Sergeant Cassidy was prompted to act by the plaintiff's disclosure that he would do acts which Sergeant Cassidy considered were illegal. Sergeant Cassidy did not, as the plaintiff submits, use the plaintiff's intention to proceed with further abortions as a basis for concluding that offences had already been committed. However, he was quite entitled to use the fact of the plaintiff's announced intention, coupled with the information on the three patient cards in respect of the planning operations, to assist his conclusion that the plaintiff was persisting in a long established pattern of illegal activity. I conclude that Sergeant Cassidy acted with reasonable and probable cause. I also find an absence of malice on his part. He had no indirect or improper motive in arresting the plaintiff or in commencing the prosecution. Was Mr Harper's conduct such as to require him to be considered as a participant in the arrest and/or prosecution of the plaintiff? The central submission by the plaintiff in this regard is - “In this case, the plaintiff alleges that the prosecution was instituted upon the instructions of Sturgess, as approved by Harper. Sturgess caused the -- 75 of 104 -- 74 prosecution to be brought, at least in the sense of having counselled and procured the bringing of the charge, not later than 8th May 1985 and that Harper authorised the bringing of the charge by his approval on 17th May 1985. Furthermore, Sturgess took over and continued to prosecute the plaintiff on the charge after his arrest and presentation at Holland Park Magistrates Court, with the approval of Harper.” As disclosed in the narrative of events leading up to the police operation, Mr Harper's role in matters, once having set investigations in train, was of a peripheral nature. In the absence of the Police Minister he, consequent upon a direction or intimation of Cabinet, was instrumental in causing the police to commence investigations into the Greenslopes Clinic. There is no credible evidence which supports a conclusion that Mr Harper interfered in the police investigations or brought any direct or indirect pressure to bear on police to commence any prosecution. Indeed, it is not part of the plaintiff's allegations in the statement of claim that Mr Harper acted in any such manner. If Mr Sturgess had not been of the mistaken view that Mr Harper's approval, as Attorney-General, was necessary to enable conspiracy charges to be brought against the plaintiff, it is probable that Mr Harper's consent to the bringing of charges would not have been sought. It is likely though that Mr Harper would have been kept informed of the intention of the police in relation to the operation and of the general nature of any charges to be laid. The matter was one of obvious political sensitivity and Mr Harper had made his interest in it plain to Mr Sturgess and Inspector Webb. The fact that Mr Harper gave his approval on 17 May to the bringing of conspiracy charges does not seem to me to be sufficient, either of itself or in conjunction with any other extraneous circumstances, to make Mr Harper potentially liable as a prosecutor. The decision to prosecute was that of Sergeant Cassidy acting upon the advice of Mr Sturgess. In no relevant sense did Mr Harper “practise upon”, “counsel” or “persuade” Sergeant Cassidy to institute proceedings or “procure” him to do so. Nor did he fulfil any such role in relation to Mr Sturgess after Mr Sturgess took over the prosecution of the plaintiff on 20 May. Mr -- 76 of 104 -- 75 Harper, properly, was content to leave any decisions in relation to whether or not the plaintiff should be prosecuted to police officers acting on Mr Sturgess' advice. Somewhat ironically, having regard to his joinder as a defendant in the action, it was Mr Harper, who at a later date intervened to thwart the intended prosecution of the plaintiff on a number of charges. It was not suggested to Mr Harper that he exceeded his authority in taking that action. There is even less basis for concluding that the plaintiff's arrest, in any relevant sense, was caused or effected by Mr Harper. As I have earlier explained, it was not intended prior to the police operation on 20 May that the plaintiff be arrested. Mr Harper did not know of the arrest until after it happened. Throughout the events leading to the arrest and prosecution of the plaintiff and whilst his prosecution was current, Mr Harper had an expectation that Inspector Webb, Sergeant Cassidy and Mr Sturgess would perform their respective duties and take no action against the plaintiff without lawful justification. He relied on their respective skill and judgment and also on the skill and judgment of other law officers of the Crown. He was justified in so doing. These allegations also fail as a result of my conclusions that there was no malicious arrest by sergeant Cassidy and no malicious prosecution by Sergeant Cassidy and/or Mr Sturgess. Was Mr Sturgess' conduct such as to require him to be considered as a participant in the arrest and/or prosecution of the plaintiff? In view of my earlier findings that there was no wrongful arrest, Mr Sturgess cannot be liable for the tort of malicious arrest. But I also find that there is no substance in the allegation that Mr Sturgess “caused or effected” the plaintiff's arrest. Mr Sturgess knew of the arrest before it was effected and was consulted about it. Mr Sturgess advised, in effect, that the plaintiff's arrest which was then being contemplated by Sergeant Cassidy and which was -- 77 of 104 -- 76 also favoured by Inspector Webb, was appropriate. Mr Sturgess, in no relevant sense, “practised upon” Sergeant Cassidy or “counselled or procured” the arrest. There is no support in the authorities which I have reviewed above for the proposition that a person in Mr Sturgess' position can become liable for malicious arrest merely by giving advice which supports or sanctions the proposed arrest. I have not found it necessary to explore in any detail the question of whether Mr Sturgess, by his conduct, could be treated as a prosecutor from the time the prosecution was instituted at about 12.40 pm on 20 May. The information available to him and upon which he acted when taking over the prosecution was materially the same as that within his knowledge at the earlier time. Facts specifically relevant to Mr Sturgess' state of mind at the time he took over conduct of the proceedings Mr Sturgess swore that at the time he took over the conduct of the proceedings and during the currency of the prosecution he held the belief that the plaintiff had committed the offence with which he had been charged. The matters which he said formed the basis for his belief were - • matters passed on to him by Inspector Webb and Sergeant Cassidy in the course of investigations including the matters contained in the complaints to ground search warrants. Included in such information was information to the effect that a substantial part of the plaintiff's practice consisted in carrying out abortions, that he was assisted by others in that work, that so many women were resorting to the Greenslopes Clinic for such purpose that it was not possible that the abortions being carried out were all for the preservation of the mother's life and that the plaintiff had made public statements to the effect that he believed he was entitled to perform such operations, -- 78 of 104 -- 77 although there was no claim or suggestion that they were being done for the preservation of the patient's life. • The matters revealed in the telephone conversations between Mr Sturgess, Inspector Webb and Sergeant Cassidy at the time of the police operation. • From some time during 21 May, information contained on patient cards which Mr Sturgess believed showed that the abortions performed were not being performed for preservation of the patient's life. There was no challenge in cross-examination to Mr Sturgess' evidence concerning his telephone conversations with Inspector Webb and Sergeant Cassidy on 20 May. Conclusions in relation to the allegations of malicious prosecution against Mr Sturgess Like the case against Sergeant Cassidy, the case against Mr Sturgess is a very narrow one. There is little doubt in my mind that Mr Sturgess had access to and considered patient cards on 21 May. A consideration of those cards, coupled with the matters to which I have referred earlier in relation to the allegations against Sergeant Cassidy, would have served to ground a reasonable belief that a charge against the plaintiff was warranted. The plaintiff, however, can succeed if it is established that Mr Sturgess lacked “reasonable and probable cause” and acted maliciously at the time of taking over the prosecution at 2.30 pm on 20 May. But, in my view, the plaintiff has not made out such a case. As well as being acquainted with the results of the police investigations prior to 20 May, Mr Sturgess had been informed by two experienced police officers that investigations had revealed that there was no suggestion that operations at the Clinic were being performed for the purpose of preserving the patient's life. Mr Sturgess was entitled to rely on such information, particularly against a background which provided sufficient evidence to ground a strong suspicion of the plaintiff's guilt. In these circumstances, it is difficult to conclude that -- 79 of 104 -- 78 Mr Sturgess acted without reasonable and probable cause in assuming the conduct of the prosecution. In my view, there is a degree of artificiality in the notion that a Crown prosecutor in such circumstances would incur liability before having had an opportunity to review available evidence. In Mr Sturgess' case the evidence available to him after 20 May only tended to confirm the appropriateness of the prosecution. The plaintiff's counsel used the memorandum of 17 May 1985 as the basis for the following submissions - “Here, the evidence suggests that the decision to charge the plaintiff with conspiracy was made without any consideration of the likely existence of the elements of that offence. Indeed, insofar as Sturgess and Harper were concerned, the charge appears to have been decided upon merely as a convenient device to manage the media and, in particular, to deal with questions from the media ... The plaintiff submits that the only reasonable construction of the memorandum is that the charge which was laid was a charge of convenience, or a ‘holding charge’, for the collateral purpose of media management. ... On 17th May 1985, there were no objectively available grounds to believe that the offence of conspiracy had been committed.” Mr Sturgess held the belief on 17 May that the plaintiff was probably guilty of the offence referred to in the memorandum. However, it is not necessary for me to consider whether there was reasonable and probable cause for any arrest or prosecution as at that date. The memorandum of 17 May must be viewed against the background of the knowledge possessed by both Mr Harper and Mr Sturgess on 17 May that the police had no intention of bringing a prosecution until after the police operation to take place on 20 May. What the memorandum sought was permission for the police to proceed with conspiracy charges. It was not a direction that they do so. On 17 May Mr Sturgess thought that the police operation would yield much material which, when duly assessed, would provide cogent evidence -- 80 of 104 -- 79 against the plaintiff in relation to offences under s.224 of the Criminal Code. He considered that such evidence would support a conspiracy charge in the terms settled by him on 8 May. As the letter notes, he also thought that the evidence gathered on the police operation would permit the laying of substantive charges. He expected that, upon consideration of such evidence, he would advise that substantive charges be substituted for the conspiracy charge. He said in the course of his evidence - “Later information might reveal greater particularity that would lead one to charge a different offence, you see, as long as, you know, the gravamen of the allegation that was made initially would result in proceedings, it is not beyond contemplation ... that a person might be charged with one offence and then when more became known about the circumstances of the offence the charge would change, but would encompass ... the original criminality that concerned one.” His state of mind on 17 May and later at the time he took over the prosecution on 20 May was that a conspiracy charge was appropriate unless and until, upon due consideration of the evidence gathered, he concluded that other substantive charges should be substituted for the conspiracy charge. He observed that there are circumstances in which a conspiracy charge should be preferred where that represents the overall criminality. The memorandum of 17 May 1985 and Mr Sturgess' oral evidence make plain that one of his objectives, in recommending the laying of conspiracy charges, was to attempt to curb media comment so that untrammelled publicity did not prejudice a fair trial. Having regard to those considerations, it does not seem to me that Mr Sturgess can be said to have lacked “reasonable and probable cause” for prosecuting the plaintiff. The essence of the plaintiff's criticism of Mr Sturgess is not that it was inappropriate or unlawful for a conspiracy charge to be laid but that it was an abuse of process to prefer and prosecute such a charge if there was no intention of prosecuting it to finality. It was also contended that the preferring of the conspiracy charge for the alleged collateral purpose of -- 81 of 104 -- 80 media management constituted an abuse of process. The material obtained in the course of the police operation, when duly considered, would have permitted the laying of a substantive charge or charges on 20 May in respect of an abortion or abortions. The laying of such a charge may well have achieved Mr Sturgess' objective of restricting publicity which might prejudice a fair trial. That course, one might think, was preferable to the laying of a conspiracy charge with a view to substituting a substantive charge or charges in the likely event that a review of all relevant facts confirmed the appropriateness of such a course. However, Mr Sturgess' conduct involved no “malice”. His conduct did not proceed from any “indirect and improper motive”. It was not “a perversion of the machinery of justice for an improper purpose”. Nor did he have “some motive other than that of bringing a wrongdoer to justice”: Trobridge v Hardy (1955) 94 CLR 147 at 155. His purpose was the proper one of ensuring a fair trial of whatever charges were prosecuted to finality. To that end he advised the bringing of a conspiracy charge, believing on reasonable grounds that such a charge was sustainable, even though it might later be thought preferable to prosecute other charges. The conspiracy charge laid and the other charges in contemplation all related to the plaintiff's procuring a miscarriage or miscarriages unlawfully at the Greenslopes Clinic. Moreover, his deputy, Mr Irwin and the acting Solicitor General concurred in the approach which he advised. Consequently, the plaintiff has failed to make out a case against Mr Sturgess. Trespass to goods - the defence provided by s.69(1) of the Police Act 1937 The defendants sought to rely on s.69(1) of the Police Act 1937 which relevantly provides- “Where an action is brought against any member of the police force for any act done in obedience to the warrant or order of a Magistrate or Justice, such -- 82 of 104 -- 81 member shall not be responsible for any irregularity in the issue of the warrant or order or for want of jurisdiction in the Magistrate or Justice issuing the same; and upon producing such warrant or order, and on proof that the signature thereto is in the handwriting of the person whose name appears subscribed thereto, that such person is reputed to be and acts as a Magistrate or Justice possessing jurisdiction in the case, and that the acts complained of or done in obedience to such warrant, the Tribunal trying the said issue shall find a verdict for such member and such member shall recover his costs of suit.” It was submitted on behalf of the plaintiff that - “Nevertheless s.69(1) does not afford protection to Cassidy in respect of acts done by him in obedience to the warrants, because s.69(1) only protects officers from the consequences of ‘any irregularity in the issuing of the warrant or order or ... want of jurisdiction in the Magistrate or Justice issuing the same.” However, in Hedges v Grundmann: ex parte Grundmann, the Full Court quashed these warrants not on the basis of either irregularity in the issuing of the warrants, or want of jurisdiction, but because the warrants were ex facie invalid for they did not show that the statutory requirements for their issue had been satisfied, i.e. the formation by the Magistrate (Mr Webster S.M.) of the requisite belief under s.679 of the Criminal Code. That defect was not a jurisdictional matter. ... It follows that the jurisdictional requirement was, as the defendants have demonstrated, in fact satisfied. The defect in the warrants was that they did not themselves demonstrate that jurisdictional fact which, having regard to the strict construction of s.679 adopted by the Full Court, was held to be fatal: see in particular the judgment of Moynihan J at 268-9. Further, the defect was a defect in the warrants themselves, not a mere irregularity in the issue, which was held to be of sufficient gravity to be fatal. In short, the warrants were on their face invalid because they did not satisfy the requirements of the statute; not because of want of jurisdiction in the issuing Magistrate or irregularities in the issuance.” It is submitted on behalf of the defendants that the irregularity in the issue of the -- 83 of 104 -- 82 warrants was the failure to state on the face of the warrants the requisite belief of the issuing Magistrate. That is only partly correct. The basis of the reasoning of Moynihan J was that, under s.679 of the Criminal Code, a search warrant could be issued only where it appeared to a Justice that there were reasonable grounds for suspecting, inter alia, an offence had been committed. His Honour concluded that on the face of the warrants, the issuing Justice was acting, not on his own belief of the existence of reasonable grounds, but on the stated belief of a police officer. At p.7 of his reasons he said - “In my view each of the warrants in issue in these proceedings not only make no reference to the statutory requirements for the issue of a warrant having been satisfied but are on their face expressed to be founded on considerations which cannot satisfy the requirements of s.679 of the Criminal Code.” D.M. Campbell J agreed with Moynihan J's reasons. The other member of the Court, Connolly J, agreed with the reasons of the other members. In George v Rockett (1990) 170 CLR 104 the Court concluded that the Full Court in Hedges v Grundmann [1982] 2 Qd R 263 erred in concluding that the issuing justice must not only be satisfied that there are reasonable grounds for suspicion and belief but that the justice must also personally entertain the relevant suspicion and belief. It follows from the observations in George v Rockett at 112 that Hedges v Grundmann was wrongly decided. There was, however, no appeal from the decision of the Full court in that case with the result that, as between the plaintiff and Sergeant Cassidy, the warrants must be treated as invalid. I note that Moynihan J, in his reasons, held the warrants to be “invalid”. As the other defendants were not parties to Hedges v Grundmann, it is not binding on them. The question of the invalidity of the search warrants, even in relation to Sergeant Cassidy, is not a matter of much practical significance on the facts as I have found them. That is because, in my view, Sergeant Cassidy and other police officers had power at common law to seize the items within the terms of the search warrants. -- 84 of 104 -- 83 I have also concluded that s.69(1) of the Police Act operates to absolve Sergeant Cassidy from any liability which may have resulted from the invalidity of the warrant which he executed. The Full Court concluded in Hedges v Grundmann that it was a condition for the issue of a valid warrant that the issuing Magistrate himself held the relevant suspicion on reasonable grounds. They found that the issuing Magistrate did not apply his mind to the pre- condition for the issue of the warrant, but had regard to an irrelevant consideration. The reasoning in the Full Court, which must be accepted for present purposes, leads to the conclusion that there was “a want of jurisdiction in the Magistrate”. The issuing Magistrate was exercising a judicial function in considering the applications for the search warrants. In Ex Parte Hebburn Ltd (1947) 47 SR (NSW) 416 at 420 Jordan CJ said in a passage cited with approval by Aickin J in R v Toohey; Ex Parte Northern Law Council (1981) 151 CLR 170 at 267-8 and by Brennan J in Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 143-4 - “Yet it appears from the learned magistrate’s report that he regarded the problem set for him by the section as that of determining whether any part of the land the subject of an appeal would derive benefit from the lighting, it following, if it would, that the whole of it must necessarily be included in the scheme, whether the rest of it would derive any benefit or not. In so doing, I think, with all respect, that he misunderstood the question which the section invested him with jurisdiction to decide, which was whether any, and if so what part, of the land the subject of an appeal would derive benefit and should therefore be included in the lighting district, and whether any, and if so what part of it, would not derive benefit, and should therefore be excluded. It was contended, however, that even if this be so, at the worst all that the magistrate had done was to make a mistake of law in construing the section, and the fact that a tribunal has made such a mistake in exercising its jurisdiction does not amount in law to a constructive failure to exercise it. I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R. v. Minister of Health (94). But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to -- 85 of 104 -- 84 misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’: Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (95); or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’: R. v. War Pensions Entitlement Appeal Tribunal (96); or to misunderstand ‘the nature of the opinion which it is to form’: R. v. Connell (97), in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R. v. Board of Education (98). This is, I think, the predicament of the learned magistrate in the present case.” For acceptance of the proposition that a tribunal which addresses itself to the wrong issue may act without or in excess of jurisdiction, see also R v Gray - Ex Parte Marsh (1981) 157 CLR 351 at 371-2 per Gibbs CJ, 377 per Mason J and 395 per Dawson J; R v Dunphy Ex Parte Maynes (1977-1978) 139 CLR 482 at 496 per Mason J, with whose reasons Barwick CJ agreed, and Craig v South Australia (1994-1995) 184 CLR 163 at 177. In this instance, on the basis of the reasoning in the Full Court, the issuing Magistrate “did not apply (himself) to the question which the law prescribed” and applied “a wrong and ... inadmissible test”. The Magistrate, on such reasoning, purported to act in circumstances in which a requirement which was an essential condition of the existence of jurisdiction had not been satisfied. According to the Oxford English Dictionary, “irregularity” relevantly means “want of conformity to rule, deviation from or violation of a rule, law, or principle ... deviation from what is usual or normal”. The word “irregularity” thus seems apt to describe a failure on the part of the issuing Magistrate to observe a requirement of the legislation providing for the issue of the warrant. However, in view of the conclusion I have just reached, it is not necessary for me to express a concluded view on whether there was also “an irregularity in the issue of the warrant” for the purposes of s.69(1). The question of trespass to goods, however, is not fully decided against the plaintiff -- 86 of 104 -- 85 by the foregoing. Trespass to goods - the extent to which property seized was outside the scope of the warrants and common law powers of seizure In my view, property was seized on the police operation on 20 May 1985 which was outside the scope of the warrants and outside the common law power to seize and take possession of articles as evidence tending to show the guilt of the person being arrested. The allegations in the statement of claim, however, concern only “patient records, surgical instruments and equipment”. The relevance, if any, of the unlawful seizure of other property rests in the light it sheds on the conduct of police officers. That is relevant to the claim for exemplary damages. It is argued on behalf of the defendants that items which clearly do not come within the scope of the warrants or the common law power were lawfully taken on the basis that they were in boxes or filing cabinets which contained materials lawfully seized and that it was reasonable that they be taken to enable a more detailed examination and process of sorting to take place elsewhere. For example, the “indemnity receipt”, dated 19 June 1985 and signed by Dr Errey, listed on five pages a great many items, including the following - “One small portrait wrapped in brown paper. One orange coloured plastic key holder - one key. Labelled Generator cage. One green coloured plastic key holder - no key. Labelled Hot Water System, Logan Road. Two keys on metal ring. - Both Stamped B. 6. One blue plastic coloured key holder - two keys labelled ‘Storeroom rear of car park 687’. One silver key. One yellow plastic key holder - one key stamped B.9. One metal key holder - three keys. Quantity of blank forms. Quantity of National Bank $10.00 plastic coin bags.” It was submitted on behalf of the defendants that these could have been in the bottom of a drawer or drawers in a filing cabinet. I would have more sympathy with these submissions -- 87 of 104 -- 86 if there was evidence before me that a checking, culling or sorting process had been undertaken on 20 May. Other examples of materials which appear on their face to be unlikely to come within the warrants or common law terms of the warrants or within the common law principle are as follows - “One pink coloured Manilla folder containing Insurance Documents (JARDINES Insurance Brokers and Mercantile Credits Limited). One (1) yellow coloured Manilla folder with green coloured label ‘Dr Peter BAYLISS’ containing correspondence. One (1) cream coloured Manilla folder containing documents. Folder labelled with writing ‘Partnership’. One (1) yellow coloured Manilla folder containing documents words ‘178 Hyde Road, Yeronga’ on folder. Four (4) Green Manilla Envelope containers (foolscap size) each labelled ‘4th Annual Conference AUSTRALIAN ASSOCIATION OF VOLUNTARY STERILISATION - BRISBANE 3-6 Oct. 1980.’ One (1) cardboard envelope (foolscap size) with words ‘JANSSEN PHARMACEUTICA’. Also words ‘HICKS’ in red biro. Envelope contains travel documents. One bundle of loose documents bound with red tape; documents of varying nature. One (1) black plastic brief case containing correspondence. (Four (4) Letters). One (1) green plastic wallet labelled SECURITY PERMANENT BUILDING SOCIETY containing documents and Bank of Queensland Customer Identification Card No. 057898. One (1) plastic envelope containing Insurance Documents (Royal Globe Life Assurance Co. Ltd.) in name of ERREY.” One (1) plastic folder containing Insurance Documents (The Colonial Mutual Life Assurance Society Limited), document in name of Bruce Benjamin ERREY. One booklet of National Australian Bank Credit Summary Slips re Chillon Pty. Ltd. as trustee for the Global Trust (no cover on booklet -- 88 of 104 -- 87 One book of Deposit Slips - National Commercial Banking Corporation of Australia Limited, 308 Queen Street, Brisbane, relating to Chillon Global (Account name). Eight Beta Video Cassettes labelled ‘Teenage Sexuality and Contraception’, ‘Contraceptive Methods 11’, T.O.P., T.O.P., ‘Gynecological Discharges’, ‘Lower Urinary Tract Infections in Women’, ‘The Diaphragm’ and ‘Sexually Transmitted Diseases’, respectively.” Of the above selection only the video cassettes labelled “Contraceptive Methods 11", “T.O.P.”, “T.O.P”. could reasonably be thought to be within the scope of the seizure powers. I doubt that the materials on the list which are concerned with wages, debt collection, income tax, bankings, petty cash and trade and other creditors come within the warrants or common law seizure powers. The materials listed in the 19 June 195 indemnity receipt were all seized in reliance on the authority of the search warrant executed by Sergeant Cassidy. That indemnity receipt though made reference to only three patient cards. I find that these were not seized unlawfully. These three cards come within the principle expressed by Mason J in Baker v Campbell (supra). Their seizure may also be justified on the basis discussed in Propend Finance Ltd v Australian Federal Police Commissioner (1995) 128 ALR 657. Another major category of materials seized is the patient cards relating to procedures or matters other than abortions. An indemnity receipt signed by Dr Errey and dated 17 June 1985 records the return of 3 cardboard boxes containing “old general cards”, 2 cardboard boxes containing, respectively, 73 and 115 sterilisation cards, a metal cabinet drawer containing 30 sterilisation cards and 125 vasectomy cards, metal cabinet drawer containing 405 vasectomy cards and a metal cabinet drawer containing 502 and 529 vasectomy cards. That material was seized in reliance on the authority of the search warrant executed by Sergeant Williams. On 23 May 1985 Sergeant Cassidy, in a telephone conversation with the plaintiff's -- 89 of 104 -- 88 solicitors, offered to return the material I have just described. Although I entertain some misgivings on the matter, I conclude that the patient cards the subject of the receipt dated 17 June 1985 were unlawfully seized. I appreciate that the police officers seizing documents were confronted with a very large quantity of material but there was no evidence that any attempt was made on the part of the exhibits officers or anyone else to distinguish between records which related to abortions and those relating to other medical procedures or matters. The evidence does not suggest that any instructions in this regard were given prior to the police operation, or that some attempt at sorting was made during the police operation which was abandoned as being too difficult. I doubt that “the practical considerations” to which Mason J referred in Baker v Campbell (supra) can serve to justify the conduct of the police officers in the circumstances just outlined. Nor is this a case in which the conduct of the seizing officers can be justified on the basis of the relatively small number of items seized which fell outside the scope of the warrant: Propend Finance Ltd v Australian Federal Police Commissioner (supra) at 682 and IRC v Rossminister Ltd [1980] AC 952 at 1006. Those observations also apply generally to the documents and materials listed in the 19 June 1985 indemnity receipt which I have identified individually or by class. Trespass to goods - conclusions on liability It is not clear that liability in respect of the wrongful seizure of property, however, can be sheeted home to Sergeant Cassidy or, through him, to the State of Queensland. He executed the search warrant at 687 Logan Road but not at 8 Ridge Street. With the exception of a number of patient cards which were within the scope of the warrants and his common law powers, he took no property from the Greenslopes Clinic. Sergeant Cassidy, in fact, issued no orders concerning the seizure of property by other -- 90 of 104 -- 89 police officers. The warrants were directed to “The Principal Police Officer at Brisbane and all other Police officers in the said State”. The officers who took possession of property were acting pursuant to the operational orders which applied to Sergeant Cassidy also. Sergeant Trost was the exhibits officer at Logan Road and Sergeant Williams was the exhibits officer at Ridge Street. They respectively recorded and took possession of the materials seized at the premises for which they were responsible. Paragraph 6C of the Statement of Claim provides - “Pursuant to (the) warrants, the first defendant caused to be seized patient records, surgical instruments and equipment on 20 May 1985, from both 687 Logan Road and 8 Ridge Street.” (emphasis supplied) The pleaded allegations thus extend, not only to seizure by Sergeant Cassidy, but to seizures caused by him. However, as I remarked earlier, they are limited to patient records, surgical instruments and equipment.” I find that no surgical instruments or equipment was taken which fell outside the terms of the search warrant or Sergeant Cassidy's common law powers. Other paragraphs in the pleading allege that the State of Queensland is vicariously liable for wrongs committed by the other defendants. Alternatively, it is alleged that the conduct and state of mind of each of the defendants was that of the State of Queensland. No allegation is made in the pleadings in respect of police officers other than Sergeant Cassidy. Accordingly, if there is no good claim in relation to trespass to goods against Sergeant Cassidy, the claim against the State of Queensland in this regard must fail. In my view, Sergeant Cassidy has not been shown to be responsible for the patient cards wrongfully seized from Ridge Street and the plaintiff's claim for trespass fails. In view of the foregoing findings it is not necessary for me to express a view on the question, which was not dealt with in counsels' addresses, of whether Sergeant Cassidy, as the officer who executed the warrant at the Logan Road premises, should be regarded as having committed acts of trespass to goods. -- 91 of 104 -- 90 It will be recalled that a necessary element of the tort is an “act of direct physical interference with a chattel in the possession of another person”. If the plaintiff had succeeded against a defendant in respect of this claim, any award of damages would have been modest and would not include any component of exemplary damages. The basis for awarding exemplary damages was explained in the judgment of the Court in Lamb v Cotogno (1987) 164 CLR 1 at 8 as follows - “Exemplary damages, ..., go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’: Wilkes v. Wood (1763) Lofft 1, at p. 19 [98 E.R. 489, at pp. 498-499].” In XL Petroleum (N.S.W.) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 Brennan J said - “As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v. Harvey (1814) 5 Taunt. 442 [128 E.R. 761] substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs C.J. saying :‘I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain hm except large damages?’ The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v. Cassell & Co. [1972] A.C. at p. 1130, ‘to teach a wrong-doer that tort does not pay’.” The relevant conduct of police officers did not show a conscious and contumelious disregard for the plaintiff's rights. In my view, the conduct of the police officers in seizing materials not within the scope of the warrants stemmed from a lack of proper care and, probably also, from insufficient instructions as to what part of materials likely to be encountered would have no probative value. In seizing the cards under consideration it is also possible that officers were overly cautious, not wishing to exclude materials which others at -- 92 of 104 -- 91 a later date might think had some relevance. As for compensatory damages, there is no evidence that any conduct which exceeded the lawful authority of police officers caused the plaintiff any loss of earnings. I doubt that it can be inferred in the absence of evidence as to title to the seized materials and the payment of solicitors' accounts, that the plaintiff, personally, was put to expense by the seizure of goods. Even if such an inference could be drawn there is no evidence of quantum. If the plaintiff's claim had succeeded, I would have assessed damages in the sum of $500. The following statement in Crossley Vaines on Personal Property fifth ed, 22 is relevant to this discussion: “An allegation of trespass arising out of the mere touching or moving of a chattel will seldom be made (a), for though trespass, unlike conversion and detinue, is probably actionable per se, that is, without any proof of damage (b), it is unlikely that the damages awarded for such an interference with possession will be worth recovering unless the circumstances call for aggravated damages (c) ...”. Other findings in relation to damages generally There is nothing in the conduct of any of the defendants in relation to the arrest, imprisonment and prosecution of the plaintiff which involved a conscious and contumelious disregard of his rights. There is no evidence of any injury to the plaintiff's feelings or reputation - the plaintiff elected not to call any. As I have remarked earlier, there is reason to think that the plaintiff was not averse to the publicity and notoriety which accompanied the police action. He may well have considered that the publicity benefitted his cause. That Mr Harper, at least, considered that the Government had the worst end of the publicity following the police action may be inferred from his determination, against the advice of Messrs Sturgess and Irwin, (as Mr Sturgess colourfully described it) to give any prosecution the “clammer”. The principle in Jones v Dunkel -- 93 of 104 -- 92 The plaintiff's counsel submitted - “A remarkable feature of this case was the unexplained failure of the Defendants to call several key witnesses. The most significant of those witnesses are: Dr. Green, Dr. Carroll & Dr. Marrinan Mr. MacKenzie (as he then was) Moskwa, Barham and Weightman Inspector Smith & Inspector Thompson Patterson & Clohesy Insp. Zerner & Det. Hedges Hatcher, Hawthorne & Keenan As well, the Crown relies upon two statements (those of Racine and Mitchell), the authors of which have never been identified. The Plaintiff renews his application for the reception under s. 92 of the Evidence Act of the Affidavit of Dr. Green, and for the reception of the Affidavit of Mr. Rodgers setting out the circumstances in which Dr. Green gave his Affidavit.” In Jones v Dunkel (1959) 101 CLR 298 Windeyer J said at 321 - “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except under certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.” The basis for the rule is “plain commonsense”: Jones v Dunkel (supra) and Payne v Parker (1976) 1 NSWLR 191 at 194 per Hutley JA. The principle is not negatived merely because a party calls one or more witnesses on a particular issue: Earle v Castlemaine District Community Hospital [1974] VLR 722. But a party is not obliged to call, as a witness, every person who had some connection with the matter in question. As Glass JA noted in Payne v Parker (supra) at 201, the conditions for the operation of the principle are - -- 94 of 104 -- 93 “(a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.” In my view, there are obvious explanations as to why some of these witnesses were not called. I refer in particular to Dr Carroll, Dr Marrinan, Mr MacKenzie (as he then was) Officers Barham and Weightman, Inspectors Smith and Thompson, Inspector Zerner, Det. Hedges and Messrs Hatcher, Hawthorne and Keenan. Their respective connections with events in question was of a peripheral nature; if called they would be giving evidence 13 years after events which would not have assumed great consequence to them at the time those events took place; other witnesses have been called to give evidence on matters which these witnesses may have been able to give some evidence and, in matters such as this, commonsense dictates that a party employ some degree of discrimination in the selection of witnesses so as to keep the duration and cost of the trial within reasonable confines. The absence of Dr Green from the witness box was explained adequately by his physical and mental condition about which his general practitioner, Dr Doolan gave evidence. I accept Dr Doolan's evidence. The plaintiff attempted, after the close of the defendants' case, to tender a sworn statement by Dr Green in reliance on s.92 of the Evidence Act. I refused the application. The plaintiff was aware from the exchange of witness statements prior to the trial that the defendants did not propose calling Dr Green. The plaintiff could have called him as a witness in his case if he so desired. Dr Green's evidence went squarely to issues on which he had the burden of proof. The potential importance of his evidence was obvious from a perusal of the statements provided by potential witnesses for the defendants. It is likely that Dr Green was not called as part of a forensic decision to call no oral evidence and to rely on the defendants' calling a great many witnesses who would thus be exposed to cross- -- 95 of 104 -- 94 examination. No submissions were made to me which suggested that the principles under which a plaintiff would be permitted to call fresh evidence in reply had been met. I refuse the renewed application for the same reason. Detective Sergeant Clohesy and Detective Sergeant Pease took statements from Dr Singh and Dr Cullen. The evidence reveals that Sergeant Pease took the more active role in this exercise. His police note book shows that he started taking notes at 10.35 a.m. Sergeant Pease made notes of the interviews in his official police note book. He also recorded relevant times. In my view, no inference adverse to the defendants should be drawn from the fact that Sergeant Clohesy was not called as a witness. Sergeant Patterson and Constable Adams took statements from patients 4 and 6 and also from Dr O'Sullivan. Sergeant Patterson (who was designated the investigating officer in relation to Dr Errey) was thus a witness of some potential importance. Constable Adams (now a Sergeant) said that Patterson now lived “around Sunnybank somewhere” and that he had seen him recently. Sergeant Patterson's absence was unexplained, except on the broad basis of selectivity. I am prepared to draw the inference that his evidence would not have assisted the defendants' case. Detective Sergeant Moskwa was the senior officer at the Bureau of Criminal Intelligence whilst the surveillance of the Greenslopes Clinic prior to the raid took place. Evidence revealed that Sergeant Moskwa was no longer a member of the police force but was living in the Ipswich area and there was no reason to suspect that he could not have been called by the defendants to give evidence had they so desired. Instead, the defendants called the more junior police officers who participated in surveillance. The plaintiff's counsel made it plain that the central cause of action was that of malicious prosecution. Sergeant Moskwa's evidence went more to the obtaining of the search warrant than to the malicious prosecution issue. The defendants were entitled to regard his evidence as being less than -- 96 of 104 -- 95 central and, in making any decision about whether or not to call him, to have regard to the fact that there were other witnesses available through whom relevant records could be tendered and explained. His importance as a witness lies in the fact that Sergeant Cassidy swore to relying on the written records and on oral communications from surveillance officers. I infer that Sergeant Cassidy's principal point of contact with the surveillance officers was Sergeant Moskwa. Although I regard the question as a somewhat marginal one, I am prepared to draw the inference that Sergeant Moskwa's evidence would not have assisted the defendants. The further application to amend the statement of claim I refuse the application on generally the grounds set out in my reasons given on 15 June 1998. In summary, those grounds are - 1. The claims sought to be added have been statute barred for many years. 2. The prejudice which arises from permitting an action to be brought against a defendant long after the circumstances which gave rise to it have passed: cf. Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 at 552 per McHugh J. 3. The prejudice which flows from deterioration in recollections and loss of possible sources of information and avenues of enquiry as a result of delay. 4. The fact that the action has been on foot for about 10 years and no evidence was placed before me show that the plaintiff, who now seeks an indulgence, has prosecuted his case with reasonable diligence. The fact that the case has taken so long to come to trial suggests the contrary. The plaintiff's counsel made the point that the claim sought to be added centred upon the memorandum of 17 May 1985. That is correct but in the course of the trial there was lengthy cross-examination of circumstances surrounding the memorandum, including cross- examination on the respective understandings of Mr Sturgess and Mr Harper. I have no doubt -- 97 of 104 -- 96 that recollections of important witnesses in relation to the contents of the memorandum and events surrounding it have dimmed considerably with the passage of time. Explanations, which once may have been able to be given as to why a relevant course of conduct was adopted or rejected, may now be lost through memory lapse or other reasons. It is now impossible to tell the extent to which the defendants may be prejudiced by considerations such as this. Limitation of Actions Act defences The defendants plead that the whole of the plaintiff's action is statute-barred by reason of the fact that it is “an action ... in which damages claimed by the plaintiff consist of or include damages in respect of personal injury” within the meaning of s.11 of the Limitation of Actions Act. The argument depends upon characterising the “mental pain and anguish” component of the plaintiff's claim for damages as a claim for damages for personal injuries. No submissions in support of the allegation were made on behalf of the defendants. Accordingly, I do not propose to devote much space in these reasons to the matter. I reject the contention for the following reasons. Section 11 of the Limitation of Actions Act 1974 provides - “Actions in respect of personal injury 11. Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not brought after the expiration of three years from the date on which the cause of action arose.” The expression “personal injury” is defined in s.5: “‘Personal Injury includes a disease and an impairment of a person's physical or mental condition.” -- 98 of 104 -- 97 The plaintiff's claim, properly understood, is not that he suffered from any recognisable psychiatric illness as a result of the matters alleged in the statement of claim. The emotions alleged by him are normal responses of a person with an unimpaired mental condition. They do not constitute or evidence an impaired physical or mental condition. The law has not tended to regard such matters as falling within the scope of physical injury or personal injuries. See, for example, Page v Smith (supra) at 188-189; West v Morrison (CA 266 of 1995, 6 September 1996, unreported) per Macrossan CJ at 4 and Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 at 394 per Windeyer J. The forgoing conclusion is supported by Graham v Robinson [1992] 1 VR 279. Remarks on credibility It is desirable that I make some findings on the credibility of witnesses. I do not consider it necessary, however, to remark on the credibility of each of the 31 witnesses. I have no difficulty in excepting Mr Sturgess' evidence. He was one of the few witnesses who displayed a full understanding of the fragility and inherent limitations of human memory and who bore those considerations in mind when giving his evidence. I consider that Superintendent Cassidy endeavoured to give a truthful account of events in accordance with his recollection. I doubt though whether, in many respects, he is now truly able to distinguish between an actual recollection and a recollection derived from a long and close involvement with the events of May 1985. I think it unlikely that he has a true recollection of all the matters he swore to in considerable detail. There is an inherent improbability in Superintendent Cassidy's recalling the mass of detail contained in his statement (Ex. 90). I also regard it as most improbable that he had time in the space of 20 or so minutes to: read and digest the contents of patient cards 1 to 8; read records of interview for each of patients 1 to 8; have a brief discussion in relation to each of these records of -- 99 of 104 -- 98 interview with the police officers who conducted the interview; have a discussion with Sergeant Patterson and Constable Adams about what Dr O'Sullivan had told them; hold discussions with Sergeants Pease and Clohesy about their interviews with Dr Singh and Dr Cullen; be informed in detail of what a nurse (Monica Hamilton) had said in an interview with Constable Kenny; be informed of things said by a counsellor (Williams) in an interview with Constable Dunn; be informed of things said by a counsellor (Clark) in an interview with Constable Kemp; be informed of the results of interviews with receptionists; be informed in detail of the things said in the course of an interview with a medical technologist by Sergeant Glancy; be informed of what was said by 5 registered nurses in the course of separate interviews; have a general conversation with Sergeant Trost; consult with Inspector Webb and consult with Inspector Sommer. What seems to have happened is that those concerned in the preparation and settling of Superintendent Cassidy's statement identified all the statements taken in the course of the police operation and other significant pieces of information then obtained. They were then listed as matters to which Superintendent Cassidy turned his mind without sufficient thought being given to considerations such as: the matters which Superintendent Cassidy actually recalled with some clarity; the matters of which Superintendent Cassidy thought he retained an imperfect memory; matters which he did not recall at all but which, on the balance of probabilities, took place having regard to a course of conduct followed by him and others in the course of the police operation. It seems likely also that the accuracy of Superintendent Cassidy's recollection in relation to the matter now under discussion was not subjected by him or by others to critical analysis before his statement was delivered. Despite these not inconsiderable difficulties, I consider his evidence as to the general substance and sequence of what occurred at relevant times to be broadly accurate. He made a favourable impression -- 100 of 104 -- 99 on me as a witness. Similar observations may be made of the evidence of some other police officers or former police officers. When referring earlier to Sergeant Lutton's evidence I mentioned that he and a number of other police witnesses appear to have been asked to provide a recollection of events 13 years old without much, if anything, being done to check the accuracy of the recollection against objective criteria and without much (or anything) being done to aid the witnesses' recollection. Because of matters such as these, and the staleness of relevant events, I have approached the oral evidence of things said and done in 1985 with caution. This is not to say though that I regard witnesses as having been untruthful. As might be expected, some witnesses appeared to have a better recollection than others, some had only a vague recollection of events and others had none at all. I do not find that any witness was deliberately untruthful. Costs I will entertain submissions on costs and as to any orders which ought be made as a result of my findings. -- 101 of 104 -- INDEX Page No. Introductory observations ..................................................................................................1 The plaintiff's claims...........................................................................................................2 The course of the action and identification of the principal protagonists and witnesses...............................................................................................................................6 Narrative of events prior to the commencement of police investigations ......................8 The police investigations and actions prior to 20 May 1985 .........................................11 Mr Sturgess' advice to Mr Harper and Mr Harper's approval of the bringing of conspiracy charges ............................................................................................................19 Events on 20 May 1985 prior to the arrest of the plaintiff ............................................20 Mr Sturgess' advice to Inspector Webb and Sergeant Cassidy ....................................23 Information gained in the course of the police operation prior to the arrest of the plaintiff ...................................................................................................................24 The patient cards...............................................................................................................25 The media walk .................................................................................................................28 The execution of search warrants, the seizure of property and subsequent events on 20 May..........................................................................................................................32 Events after 20 May 1985 .................................................................................................33 Relevant Principles of Law...............................................................................................36 The elements of malicious prosecution............................................................................36 Malicious prosecution - reasonable and probable cause ...............................................38 Malicious prosecution - the requirement of taking reasonable care by the prosecutor to inform himself....................................................................................................................40 Malicious prosecution - the admissibility of evidence as to what results further enquiries of medical practitioners concerning the patient cards may have achieved .................42 Malicious procuration of the issue and execution of a search warrant........................45 Malicious arrest.................................................................................................................46 -- 102 of 104 -- False imprisonment........................................................................................................... 46 Trespass to goods .............................................................................................................. 47 Circumstances in which a person other than the arresting officer or prosecutor may become liable for the torts of malicious arrest or malicious prosecution .................... 49 Facts specifically relevant to Sergeant Cassidy's state of mind at the time of issue and execution of the search warrants ..................................................................................... 52 Malicious arrest - the plaintiff's case .............................................................................. 56 Facts of particular relevance to the allegation of malicious arrest............................... 56 The question of whether Sergeant Cassidy had regard to records of interview prior to arresting the plaintiff........................................................................................................ 58 Did Sergeant Cassidy peruse the patient cards for patients 1 to 8 inclusive before the arrest? ................................................................................................................................ 64 Conclusion on the allegations of malicious arrest in relation to Sergeant Cassidy .... 65 Conclusions on the allegation of malicious prosecution against Sergeant Cassidy .... 65 Was Mr Harper's conduct such as to require him to be considered as a participant in the arrest and/or prosecution of the plaintiff? ..................................................................... 69 Was Mr Sturgess's conduct such as to require him to be considered as a participant in the arrest and/or prosecution of the plaintiff? ..................................................................... 71 Facts specifically relevant to Mr Sturgess's state of mind at the time he took over conduct of the proceedings ............................................................................................................. 72 Conclusions in relation to the allegations of malicious prosecution against Mr Sturgess........................................................................................................................ 73 Trespass to goods - the defence provided by s.69(1) of the Police Act 1937 ................ 76 Trespass to goods - the extent to which property seized was outside the scope of the warrants and common law powers of seizure ................................................................ 80 Trespass to goods - conclusions on liability .................................................................... 84 Other findings in relation to damages generally............................................................ 87 The principle in Jones v Dunkel....................................................................................... 87 The further application to amend the statement of claim............................................. 90 -- 103 of 104 -- 3 Limitation of Actions Act defences ...................................................................................91 Remarks on credibility .....................................................................................................92 Costs ...................................................................................................................................95 -- 104 of 104 --