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Supreme Court of New South Wales |
Last Updated: 28 April 2023
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Supreme Court New South Wales
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Case Name:
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Murphy v The State of New South Wales
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Medium Neutral Citation:
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Hearing Date(s):
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29 August 2022 - 7 September 2022
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Date of Orders:
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27 April 2023
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Decision Date:
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27 April 2023
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Jurisdiction:
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Common Law
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Before:
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Davies J
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Decision:
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The plaintiff should bring in Short Minutes to reflect these reasons
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Catchwords:
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TORTS — trespass to the person — false imprisonment —
wrongful arrest — where plaintiff arrested on two occasions
— in
relation to two sexual encounters with two separate women — ss 61J and
59(1) of the Crimes Act 1900 (NSW) — BDSM including acts of sex and
violence — whether arrests lawful — ss 99 and 202 of the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police
officers suspected on reasonable grounds that it was necessary to arrest the
plaintiff — where
failure to provide reasons for arrests — whether
arrests became lawful when reasons provided later — materiality —
where no satisfactory reason offered for failure on two occasions of
non-compliance — where breach not technical but a failure
to appreciate
statutory obligations — where plaintiff falsely imprisonment for 2 hours
in relation to first arrest —
24 hours in relation to second arrest
— plaintiff entitled to damages for the two arrests
TORTS — malicious Prosecution — elements — where proceedings terminated in favour of plaintiff in relation to both complaints — whether defendant acted with malice — whether absence of reasonable and probable cause — objective and subjective tests — where relevant police officers suspected on reasonable grounds that plaintiff had committed offences of sexual assault in relation to first complainant — where police did not have reasonable grounds for suspicion in relation to offence alleged against second complainant — where failure to identify evidence relied upon to hold suspicion and justify second arrest — absence of contemporaneous WhatsApp messages and where police knew missing messages important — where, in relation to each arrest, no evidence of malice — claim for malicious prosecution fails |
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Legislation Cited:
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Crimes Act 1900 (NSW)ss 59, 61J
Criminal Procedure Act 1986 (NSW) Crown Proceedings Act 1988 (NSW) s 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99, 102 Law Reform (Vicarious Liability) Act 1983 (NSW) ss 6, 8 |
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Cases Cited:
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A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318; 213 LGERA 1 Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 Lule v State of New South Wales [2018] NSWCA 125 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 Michaels v The Queen [1995] HCA 8; (1995) 184 CLR 117 Nye v State of New South Wales [2003] NSWSC 1212 R v Rondo [2001] NSWCCA 540 Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 State of New South Wales v Abed [2014] NSWCA 419 State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v Smith [2017] NSWCA 194 |
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Texts Cited:
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Nil
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Category:
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Principal judgment
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Parties:
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Liam Murphy (Plaintiff)
State of New South Wales (Defendant) |
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Representation:
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Counsel:
J Sheller SC (Plaintiff) M S Spartalis & D Hume (Defendant) Solicitors: Greg Walsh & Co (Plaintiff) Sparke Helmore Lawyers (Defendant) |
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File Number(s):
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2019/376155
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Publication Restriction:
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Nil
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JUDGMENT
Background
Events involving SH
51. Sometime in May 2015, I had a conversation with Liam [the plaintiff] via WhatsAapp about whether I was bisexual. During this conversation, he asked me if I'd been with a female. I confirmed that I had not. Liam suggested that we have a threesome.52. Initially, Liam tried to set up a threesome between myself, him and a person named Esther or another female who's [sic] name I can't remember. Esther uses the FetLife username of Eliva_Hancock. However, for some reason, neither of these worked out.
53. Due to this not working out, Liam suggested that we have a threesome with a female named [GBC]. She used the FetLife username of 'goodgirlgg’. She messaged me on FetLife to introduce herself and I saw that she was aged 21 and from New South Wales. We had a short conversation on FetLife private messages but I no longer have access to that conversation with [GBC].
54. I discussed the suggested threesome further with Liam via WhatsApp instant messenger.
55. We all agreed to meet at the Rydges Hotel, located at 9 Missenden Road, Camperdown. When I arrived, I entered the lobby and saw Liam with a female in the lift. I now know this female to be [GBC] (I don't know her surname). He looked at me and held the lift. The lift is directly opposite the front door and the reception desk is to the left.
56. I would describe her as Caucasian and tall with dark brown shoulder length hair. She was very attractive and slim. I thought that she was 21 due to her profile, but when I first saw her, I would have guessed she would be about 26 years old.
57. The doors to the lift shut and Liam placed his hand over my mouth before saying to me, “Isn't she cute?”
58. A short time later, we went to one of the rooms in the hotel. Liam must have already booked the room as he opened the door for us all.
59. Once Inside, Liam instructed me to take all of my clothes off. [GBC] and Liam were talking in the kitchen area while I was in the bedroom, taking my clothes off. I was always nervous around Liam but with there being another girl there, I was even more nervous.
...
60. Liam entered the bedroom area and I was still partially clothed. He said, “What are you doing?” I continued to take my clothes off until I was completely naked.
61. Liam got me to lay face down on the bed. I'm not sure if he told me to do this or guided me into this position. Once on the bed, Liam placed zip ties around my wrists and feet. I watched him zip-tie my hands before he moved me to a position where I was laying face down on the bed. I could hear and feel Liam link my hands together behind my back using a further zip tie. I could also feel the zip ties being placed on my ankles and could hear them as they were being tightened. Liam placed a zip tie on each wrist and each ankle. He tied my ankles together using a further zip tie and then connected my feet to my wrists. Once these were all connected, I was laying on my stomach, face down on the bed. I would describe this position as being “hogtied”.
62. I could hear Liam and [GBC] talking. I heard [GBC] say, “Why have you tied her up like that?” I then heard Liam reply, “Cause it’s funny.”
63. I'm not sure how long I was tied up, but it wasn't too long - maybe minutes. Liam untied me and took all of the zip ties off of me.
64. Once he had done this, Liam hit me with a belt across my butt on several occasions. While he did this, I was on all fours on the bed, facing away from him. I heard Liam talk to [GBC], I can’t remember exactly what he said but he was telling her to hit me.
65. I remained on all fours on the bed and was hit a few more time across the butt. I started to cry due to the pain I was experiencing and shouted, “No, no, no” while I tried to crawl away from them, up to the other end of the bed. I felt Liam hit me on one more occasion. I continued to cry due to the pain.
66. A short time later, Liam placed me on the ground in a kneeling position on the floor in front of him. Liam guided my head towards his penis and I gave him oral sex.
67. A short time later, Liam guided me towards [GBC], who was standing next to him. He pushed my head towards [GBC]'s vagina and I started to give her oral sex. This only lasted for a few seconds as I was uncomfortable doing this because she was a female.
68. We all got onto the bed where Liam had penile-vaginal sexual intercourse with me and [GBC]. He alternated between us but used the same condom to have sex with us both.
69. At one stage, Liam was having penile-vaginal sexual intercourse with me and I began to feel severe pain in my vagina. I was lying on my back on the bed and Liam was on top of me in the missionary position, it felt like something had ripped inside my vagina. I pulled away due to pain, I said, “No, no, no. stop, don’t do it.” I heard Liam say, "Should I hurt her?" A short time later, I heard [GBC] say, "Yes."
70. Liam then said, "Say it." A short time later, [GBC] replied, “I want you to hurt her."
71. At this stage, Liam pushed his erect penis, hard Inside my vagina. I screamed in pain and started crying. I immediately pulled away from Liam and got off of the bed a short time later.
72. I started to dress myself before Liam moved me back onto the bed and hugged me. I was shocked by what had happened and automatically got ready to leave. I can remember just thinking that I wanted to go home but my head wasn't working properly. My natural instinct was to leave.
73. Liam continued to hug me on the bed. He continued to talk to me but I was still crying. He was trying to calm me down and make me stay. I’m not sure why I decided to stay, I felt panicked.
74. After I had stopped crying, Liam stopped hugging me and started to have sexual Intercourse with [GBC]. While he was doing this, I was kissing [GBC]. I felt obligated to join in as they were having sex right next to me.
75. Liam tried to convince me to have sexual intercourse with him again by motioning towards him. I pulled away and refused to take part any further.
76. After he had finished having sexual intercourse with [GBC], he hugged me again. Liam kept changing the subject to different topics. He kept trying to talk to me about music, as this is what I'm studying. I'm not sure why I decided to stay. At this stage, I was unable to process what had happened. I was still feeling panicked and I was in pain from what had happened. We stayed for another twenty minutes before all leaving together.
77. Liam drove me home in a black convertible - the back seat is so small that I struggled to fit into it. I talked to Liam on the way home but we didn’t discuss what had just happened. Liam acted as if everything was okay.
78. When I got out of the car, near my unit, Liam said, “Sorry for hurting you.” I said, “That's okay.”
79. Due to what had happened, I didn't want to talk to anyone. I don't think I was able to process what had happened. I was fully aware that Liam had continued to have sexual intercourse with me after I had withdrawn consent. I just didn’t want to discuss it with him or anyone else as I felt numb about the whole incident. Also, it didn’t occur to me to talk to someone about it. I understood that what he had done was wrong, but I felt responsible in a way due to being aware of all of his writings on FetLife. I deliberately blocked out what had happened as I felt traumatised by the incident.
80. A short time later, I received a message via WhatsApp from Liam apologising for what had happened. At no stage did he admit that it was his fault. I again told him that it was fine and told him I was okay. I said this because I didn’t want to deal with what had happened. I was aware that I was hurt physically, but I didn't recognise at the time, that I was hurt mentally by what had happened.
22. About May 2015, I became aware of a female profile on FetLife with the username 'madteaparty'. Initially, I didn't know her name but I remember that in her profile picture she had colourful hair. I had noticed her because she was getting a lot of likes for her photos on an area of the FetLife website called, 'Kinky and Popular'.23. About May 2015, Liam contacted me via text message and said, something Iike, “I want to fuck up, use and degrade a girl with you." He told me that he was seeing a girl from FetLife and described her as petite and ‘child like'. He told me that she was naive enough to do this. He told me to look at the profile 'madteaparty'. I had a look at the profile and saw that The_Wolf_ was listed as a friend and had liked some of her posts. I sent 'madteaparty’ a message on FetLife and we exchange [sic] messages about looking forward to meeting each other.
24. Liam made all of the arrangements and told me to be at Rydges Hotel, located at 9 Missenden Road, Camperdown. I remember one of these messages specifically telling me, “No safe words with [SH].” I also remember that he said that [SH] had never had sexual intercourse with a female before.
25. This would have been in May or June 20151. It was about 3:30pm or 4:00pm. I remember that it was around this time, as I finished school at Dulwich Hill Visual Arts and Design School and had to rush to get to the hotel in time. I took a bus from near my school to near Missenden Road in Newtown and walked up to the hotel. I used a school Opal Card registered in my name.
26. When I arrived, I couldn’t see Liam so I waited In the lobby of the hotel. After about five minutes, Liam arrived in the lobby. He sat down with me and we waited for a few more minutes for 'madteaparty' to arrive.
27. As [SH] wasn’t there, we walked towards the lift. As we were walking towards the lift, Liam told me that [SH] was the real name of the FetLife Identity 'madteaparty’. As we entered the lift, I turned around and saw a female, that I now know to be [SH], running into the lobby with several bags.
28. [SH] got into the lift where Liam and I were standing. As soon as [SH] entered the lift, Liam grabbed [SH] by the throat with his right hand. His actions were very forceful and [SH] began to make small whimpering noises. Liam squeezed [SH]’s throat. I felt very uncomfortable about this and was shocked at the force that he used when he grabbed her throat. I was also shocked that there was no introduction in the lift as I had never met [SH] before.
29. When the lift reached the floor, I left the lift first. Liam was a few paces behind me and he was dragging [SH] by the neck. We arrived at the room and Liam let go of [SH]'s neck to open the door. I can't remember the number of the room that we went to but I have drawn a picture of the layout. I remember being in the lift for a bit so I think it would have been one of the higher levels.
...
30. Once we were all inside the room, Liam closed the door and put his phone, keys and chewing gum on the counter above the bar fridge. We all put our bags down on the floor near the door.
31. I’m not sure where Liam got them from, but he had some zip ties in his hand. He looked at [SH] and instructed her to go to the bed. [SH] sat on the bed. Liam then zip tied her hands and ankles and hog tied her. [SH] was left facing down towards the bed sheets with her ankles and feet hog tied together behind her back. I think at this stage, when she was hog tied, [SH] was completely naked.
32. I was still standing near the door by the bar. Liam walked back towards me and he said, “Should we have a drink?” He then opened the bar fridge and got a bottle of champagne out. He poured the champagne into two glasses. We drank champagne while [SC] remained on the bed.
33. We chatted for a bit but didn’t discuss the fact that [SH] was tied up on the bed. Liam asked me about my day and we made small talk. We drank champagne for a few more minutes in the bar area. I knew that this ignoring of [SH] and the drinking/small talk was a form of degradation to show that she wasn’t included.
34. I put my glass down on the table top area and we walked over to the bed where [SH] was still tied up. Liam began to touch [SH] while she was still hog tied. He was touching her around her vagina but also over her body and boobs. He did this for about five minutes.
35. While this was happening, I sat on the edge of the queen bed. At this stage, I was fully clothed. Liam said to me, “Take your clothes off.” I took my clothes off, but kept my bra and undies on. At this stage Liam took the zip ties of off [SH]. I don’t remember how he removed them but I remember seeing some scissors on the bedside table later on.
36. Liam instructed me to touch [SH]. I started to masturbate [SH] with my fingers. I only did this for a couple of minutes because she looked uncomfortable. She was tense and her face screwed up and the noises that she was making didn't seem to suggest she was enjoying what I was doing.
37. I did as I was told and was happy to do this but I still felt uncomfortable. I didn’t want to have sexual intercourse with [SH] as I wasn’t attracted to her in that way. I felt obliged to participate to make Liam happy. The experiences that I had with Liam were designed to fulfil his fantasies/desires.
38. I can’t remember if I had sexual intercourse with Liam on this occasion. I remember kissing [SH] at some point during the meeting but I don't think that we did anything else other than what I have described in this statement.
39. I stopped touching [SH]. After I had stopped, Liam attempted to have sexual intercourse with [SH]. [SH] was still laying on her front on the bed, facing down. Liam was laying on top of her on the bed. He was trying to put his penis in her vagina but it didn’t go in very well. [SH] said, “Ow” and seemed to tense up again. She said, “Wait, wait, wait” as Liam kept trying to put his penis in her vagina. After a couple of minutes of trying, Liam managed to get his penis inside her vagina and started to have sex. He thrust himself backwards and forwards while he was inside her for about 30 seconds. At this point. [SH] kept repeating, “Wait” and “Ow” in between making whimpering noises. While he was doing this, he also touched me on my vagina for a brief time.
40. I was sitting at the top of the bed at this stage and Liam kept looking at me. At some point, I had taken all of my clothes off. I was making faces towards Liam to try and convey my concern about what he was doing to [SH]. I tried to mouth the words, “Slow down.”
41. Liam continued to have sexual intercourse with [SH] for another couple of minutes. While Liam continued to have sexual intercourse with [SH], I heard her say, “No please, stop, stop". Liam carried on having sexual intercourse with [SH] for another 15 seconds after she asked him to stop. After this time, Liam stopped thrusting himself but remained inside [SH] and on top of her. Liam looked towards me and said, “Should I stop or keep going?” I paused for about 10 seconds and said, “Keep going.”
42. I was thinking about how I could make Liam happy and knew that this would be the response he was looking for. I felt uncomfortable to say no and was hesitant with my response as I thought that he should stop. Due to our relationship I knew that this wouldn't please him.
43. Liam continued to have sexual Intercourse with [SH], in the same position as before. Liam continued for another couple of minutes and [SH] didn't say anything. All of a sudden, [SH] said, “Stop” very loudly but Liam continued to have sexual intercourse with her. As Liam didn’t stop, [SH] slid to one side to get away from him. This would have been after about five seconds.
44. [SH] went to get her clothes and started to get dressed. I remained sitting on the bed with Liam. No one spoke for about 10 to 15 seconds. The atmosphere was very tense. At this point, Liam stood up and grabbed hold of [SH]. He started calling her 'baby' and attempted to convince her to stay. Liam made her sit on the bed but she stood up again. Liam eventually convinced her to come back to the bed. Throughout this whole process, [SH] was crying a lot. Liam placed [SH] on his lap and began to cradle her. After about 10 minutes or so [SH] stopped crying.
2/6/15, 7:56:56 pm: P-q: Thanks again. Maybe not really your thing and I'm sorry I hurt you a little much. But it was nice to see you anyway. :)2/6/15, 7:58:14 pm: [SH]: Thanks for having me. I enjoyed it but yeah probably not an every weekend kinda thing for me. :)
2/6/15, 8:07:14 pm: P-q: Haha, na. Being bi isn't a part time thing.
2/6/15, 8:09:22 pm: [SH]: Haha yeah kinda the definition of bi lol
10/6/15, 7:34:41 pm: P-q: Hey, not sure if you're keen but I would like to see you again. Just the two of us?
10/6/15, 7:34:59 pm: [SH]: Yes please :)
10/6/15, 7:35:34 pm: P-q: Hurrah!! You been banging the regulars through? (No offence haha)
10/6/15, 7:35:39 pm: P-q: *though
10/6/15, 7:35:53 pm: [SH]: Huh?
10/6/15, 7:36:04 pm: P-q: Meh, nothing. ;)
10/6/15, 7:36:12 pm: [SH]: Okies lol
10/6/15, 7:36:46 pm: P-q: Sweet. Maybe we can catch up next week? I loved the first time we met, as I'm sure you noticed. Haha.
10/6/15, 7:37:06 pm: [SH]: Me too. And yeah :)
10/6/15, 7:37:13 pm: P-q: Cool.
...
11/6/15, 11:40:34 am: P-q: Maybe you can help me out a bit, and give some insights into what you like about me and the way we fuck... And what you'd love it to look like in an ideal world. (I'm fully aware that it might well be that asking that question might be exactly what you don't want, as I know girls usually like me because I don't ask.)
11/6/15, 12:59:23 pm: [SH]: Its hard for me to answer because a lot of things about my sexuality are changing because of medication
...
But part of what I like is I don't know what to expect... You take complete control and I like that. I was really excited about the message you sent me on fet. That is really sexy. I've always hated making decisions in sex because of fear of judgement. And I've felt a bit worried about judgement with you because of all these amazing beautiful women you see.
I like the way you bring out a different aspect of me kind of a victim... Which I'm not but its a good release from my mind... Idk If any of that is what you meant lol
Events involving AC
Chat Room (Empty) 22/08/15 5:46 PMe: Wanna catch up next week? Do it properly?
8:09 PM
+XXXXXXXX677 Oh I would love to, it would need to be Monday though because I fly to Perth on Thursday to see my partner and he doesn't want me bruised or sore when I see him
+XXXXXXXX677 lf not I'll be back on the 1st
8:41 PM
e: You're not free now are you?
8:45 PM
+XXXXXXXX677 Nope I'm at my sisters tonight
e: Pah.
8:52 PM
+XXXXXXXX677 I know..
+XXXXXXXX677 I'm really looking forward to doing it properly though
e: Yeah me too.
e: I'll sort something out.
+XXXXXXXX677 For Monday or after I get back?
e: Let me let you know please. Hopefully Monday after work.
+XXXXXXXX677 Yea of course
Chat Room (Empty)23/08/15 11:44 AM
e: This is weird but... Your gangbang video... I watch that a lot! I love your suffering. Lets meet tomorrow at 5:30.
12:32 PM
+XXXXXXXX677 I don't think i even have the link to it anymore haha
Ok sounds good
11:11 PM
e: People really like your pictures. Top of K&P.
11:17 PM
+XXXXXXXX677 Yea I know I saw!!
Chat Room (Empty)24/08/15 11:11 AMe: get a cab here after work. What time do you think you’ll be ready? Mercure Sydney Potts Point 4.0 out of 5 226 Victoria Rd Potts Point NSW 2011 Australia
11:18 AM
+XXXXXXXX677 Ok, I'm pretty swamped today so probably 5:30-5:45ish
e: Ok.
1:56 PM
e: https://fetlife.com/users/3291687/pictures/41191609
+XXXXXXXX677 https://fetlife.com/users/3099273/pictures/41191825
+XXXXXXXX677
2:18 PM
e: https://fetlife.com/users/3291687/pictures/41192284
2:28 PM
+XXXXXXXX677 Yea I saw
e: Hahaha.
+XXXXXXXX677 Ugh what a tool
5:39 PM
+XXXXXXXX677 Leaving the office now
5:55 PM
e: Great. Go to reception. I've left a key for you for room 133.
Go to the room, shower and snuggle up in bed like a good little girl.
+XXXXXXXX677: 3 ok, shall I text you when I'm there?
e. Yeah.
6:13 PM
+XXXXXXXX677: Showered and in bed
e: Good girl.
9:07PM
e: Great to see you.
Thanks.
+XXXXXXXX677 Yea likewise x
(emphasis added)
13. ...He came into bed and started kissing my shoulder and neck, in a very out of character, affectionate way. He told me that I was a good girl for waiting for him and I recognised Liam's voice. This continued for about five or ten minutes before he suddenly grabbed my hair with one hand and dragged me by my hair out of the bed and into the bathroom. I was surprised by this, and it hurt, but I was fine with it. He dragged me into the bathroom, making me kneel on my knees in front of the bathtub. The lights were off, but there was streetlight coming in from the open window, and I recognised it was Liam as he dragged me. He was still naked from his shower.14. When I was kneeling down I felt him wrap a cord around my neck twice. This cord felt thick and heavy, about twice as thick as my fingers. He grabbed me by the back of the head and pushed my head forward, under the water in the bathtub. I can hold my breath pretty well, and while I was surprised, I was fine with it. He held me under for about ten seconds before pulling me up. I faked gasping, because I wanted him to think he had scared me. He did this again, forcing my head under water for another ten seconds, I could feel his fingers enter my vagina, but it was very hard for him as I was not lubricated. This was scary for me, but consensual. He pulled my head up out of the water, and after about a minute took his fingers out my vagina. He used the cable, which was still wrapped around my neck, to Iead me out the bathroom and onto the bed, still on my knees.
15. He pushed me down onto the bed, face down, with my head pointing towards the window and my feet pointing towards the bathroom. He unwrapped the cord from my neck and doubled it over and stood next to me at the foot of the bed. He hit me with this cord, across my back, from my lower shoulder to my middle lower back. He hit me very, very hard, and it immediately hurt me a lot. I screamed and started crying because it hurt so much. I automatically brought my feet up in the foetal position and scooted to the corner of the bed, at the head of the bed to get away from him. I screamed at him; “Liam, don’t hit me! Please don't hit me again! Please don’t touch me! Stop! Red!.” He made shushing sounds and put down the cord, walked over to me and grabbed my right arm. He pulled me by my arm over to the foot of the bed, again on my stomach. He grabbed my legs and pulled them straight, so I was lying in the same position in which he had originally hit me. All this time I was crying and whimpering and he was still making shushing sounds. He hit me twice more in the same way, with the doubled up cord. This was in quick succession, with the second blow hitting the same place the original one had, and the third blow hitting me lower down, on my lower back across my bum and thighs. I screamed and cried and just lay there crying. Again, this hurt me a lot. He dropped the cord, walked around to my feet and grabbed me by my ankles. He pulled me towards him, so I was standing bent over the bed. He forced himself on top of me, I think that he had a condom on but I can’t remember him putting one on. I just laid there and let him do it. He forced his erect penis inside my vagina and it hurt, as his penis is quite thick. At one point he took his penis out of my vagina and tried to put it inside my anus, but as I was tensing he could not fit inside. He went back to putting his penis inside me, and moved it in and out. I don't how long exactly for, but it felt like about twenty minutes or so. While he was doing this I didn't say anything, but just lay on the bed crying. He made me climax, and it was horrible. He ejaculated inside the condom. He pulled his penis out and got into bed. I climbed into bed next to him and continued to cry. He pulled me close and hugged me while I was crying. I calmed down and just laid there and then I thought about him hitting me, and I started sobbing and hyperventilating. He kept hugging me until I stopped crying and he asked me why I was crying. I told him “Why didn't you stop? I begged you to stop hitting me and you hit me again? You always told me you knew when to stop and you didn't and It was really scary”. He said, “I thought you wanted to be scared though”. I said, “Not like that”. He said: “Sorry” and I said, “that doesn't make it better”. I think we laid in bed for another five minutes, before he got up and started getting dressed. I got I up too and started getting dressed. As I was getting dressed I saw that the cord that he had strangled me with was black and red, with large pincers. I asked him what this was, and he said it was a jumper cable that he had gotten from his garage. We got our things and we went back down to the lobby together. He didn’t check out, but left both key cards in the room.
11. Liam and I had a conversation about safe words the first time I met him at the Civic Hotel. I remember saying to him, “Why don’t you use safe words" He said to me, “I like to have full control. If girls use safe words they opt out when they think they're about to reach their limits.” l don't remember exactly his words but it was similar to, “I don't like to use safe words because I like to push people to their limits to see how far they can go.” I asked him, “How do you know how they’ve reached their limit?” Liam said, “I am able to tell.” I had absolutely no doubt that he was aware of what safe words were including, green, orange and red but he chose not to use them for his own reasons. He definitely knew red as the safe word to stop, everyone in our community does. Besides safe words there are not really any other universal words that we use in the BDSM community.12. When I made my initial statement I forgot one meeting between Liam and I. I think this happened on the 24 April 2016. I had booked a hotel room for the night at the QT Hotel in Sydney. I had planned to go to the Hell Fire Club in Oxford Street which happens once a month. Liam had messaged me to meet up after I had finished dinner with a friend. I had left a key card at Reception with his first name and he said he would wait in my room for me. After dinner I went up to my room and all the lights were off. Liam was hiding behind the door when I walked in, he was naked. He put his hand around my mouth and closed the door and pushed me against the wall. He grabbed my hair and dragged me into the bathroom. He pushed my face up against the wall and pulled my hips out and stripped me. Once I was naked he started whispering degrading things to me but I can’t remember the specifics of what he said to me. I think he was saying he was going to beat me if I didn’t behave. Liam told me to stay still then walked out of the bathroom and walked back in holding his belt. He then hit me across my back and lower thighs with his belt. It hurt a lot and left red marks across my body. I think by that point I was crying because it hurt a lot. He wrapped his belt around my neck pushed me to my knees and made me crawl out of the room to the bed. Then as I was on my knees he made me perform oral sex on him. Five or ten minutes of that later he grabbed me by my hair and dragged me to my feet. He didn't ejaculate at this time. He bent me over the bed and penetrated me in the vagina with his penis. He was wearing a condom at the time. About twenty minutes later he ejaculated and then afterwards we lay on the bed cuddling for about ten minutes. All of this was consensual.
13. We then went upstairs to the bar at the Hotel and sat and talked for about an hour and a half maybe two hours. He bought all my drinks and I remember Liam ordering tequila. I only had one (1) tequila but maybe four (4) or five (5) other drinks as well. By then I was really drunk and Liam helped me back to my room then he stripped me again and took me over to the bed. He bent me over it and put a condom on and penetrated my arse hole. I told him to “stop" because it hurt so he pulled out, and then started again but slower. Once he managed to fit in he then started to move his penis in and out faster and faster which I found quite painful. I started crying and then he ejaculated in the condom then sent me into the bathroom to have a shower. I never told Liam to stop as such but I was really drunk and was struggling to walk, I didn't have any Issues with it the next day so it was consensual. When I came out he was already dressed. He just hugged me goodbye and he left. l didn't end up going out after this I just went to sleep.
14. On the night I was assaulted by Liam in the Vibe Hotel in Rushcutters Bay (sic) he hit me with jumper cable that he had doubled over. When he hit me the first time he hit me with such force that It was unbearable. I screamed out in pain and started crying out I was absolutely terrified and it went past wanting to “be scared” to complete terror. I had never been hit so hard by Liam before and previously he had only ever used his belt or his hand. So even though we had previously had a relationship where he had hit me it had never been to this degree and I wanted him to stop touching me altogether and for the scene to end. I yelled at him, “Liam don’t hit me! Please don't hit me again! Please don’t touch me. Stop! Red! I beg you, please don’t”. I had never previously said his name in our other scenes; it's not something that I would do in general. I never say the person's name generally if I am speaking to someone. It's in the first person. If I was comfortable in a scene I would not say the person's name or the safe word Red. So I was trying desperately to end the scene and Liam should have known that given I said his name, I said Stop, I said Red and I physically tried to get away and curl up. I don't know what else I could have done to show him I was not consenting to any further role play. I wanted the scene to end and him to stop but he didn’t.
15. When he hit me a further two times I eventually just gave up and lay there. I lay there terrified because I was worried he would hit me again and it had been unbearable. He had sex with me and although I didn’t run away it was because I had gone numb and it was like I was in shock. Whilst Liam had sex with me I lay there and did nothing. In every other scene we have had I have participated in it actively but this time I was just so terrified I lay there hoping it would end. I think I faked an orgasm to get him stop and make it all end. Liam should have noticed I was not aroused; he had to provide lubrication which he has never had to do before. I was not aroused because I was so terrified. I did not consent to Liam having sex with me and I was terrified the whole time which is why I have now stopped speaking to him.
16. After the whole incident happened and Liam texted me, “That was fun”. I replied, “Yeah it was." I replied in this way because I just wanted to dismiss the whole thing from my mind. It was not because I had had fun, or because I had wanted this. I didn’t. I just didn’t want to speak to Liam anymore about it. I didn’t want to think about it at all.
Chat Room (Empty)25/08/15 10:58 AMe: Ha. Now your video is on K&P...
+XXXXXXXX677 Haha jeez!
Chat Room (Empty)27/08/15 8:21 AM+XXXXXXXX677 I like the photo set
e: Me too. You look amazing.
+XXXXXXXX677 Thanks
I like and I don't like the one of my face over your shoulder.. I like it because I remember the moment perfectly
But I also don't think it looks like me. What do you think?
8:31 AM
e: No it doesn’t look much like you. It's weird... but it’s still pretty and still and great pic.
+XXXXXXXX677 Ok I'm glad it's not just me that thinks so! Like its a good photo but it somehow doesn't look like me.. Haha
e: Na it doesn’t. haha
e: Fits the story really well though.
+XXXXXXXX677 was a nice moment though
+XXXXXXXX677 Yea it really does
5:56 PM
e: Haha, drama on your punching pic.
(emphasis added)
18. I met [AC] at the cafe. We spoke generally at first because it was our first proper meeting. She told me that her meeting with Liam wasn’t all consensual. Specifically she mentioned jumper cables and screaming 'no!’ curling into a ball and sobbing while he continued. She never told me exactly where this had taken place but as she described it to me she appeared anxious and shaken. She was crying throughout our meeting and was crying heavily. She was visibly distressed. She took me through the whole encounter. I remember her saying something similar to, “He started by putting my head under water in a bathtub. I had asked him to scare me. This did scare me but wasn't too far. He dragged me onto the bed on my stomach and hit me once with the jumper cable which I immediately reacted to and cowered away. She motioned that she had moved away and said, “I went to the other side of the bed and curled into a ball.” She said she was crying and in a lot of pain. She said she told him no when it became clear he was going to strike her again. She said she screamed “No!” I Interpreted what she had said to mean that no person would have taken her actions to being consent. We chatted for close to two hours. She was anxious at the start of the meeting but became much more distressed when she actually talked about what had happened. Her face was red and blotchy when she cried and she really couldn’t stop crying.19. Once she had calmed down she asked me why I had posted “The Footballer” and whether I had gone or was planning to go to the police about these stories. I told her that the reason I posted the article was to act as a warning to other girls but not to go to the police with other people's stories. She told me I was brave for posting online and I said to her that she should consider posting her story online. I said I was just the mouth piece for other people’s stories.
20. We left the cafe and by the next day she had sent me a draft of what she was going to post on Fetlife and then she posted her story online. The story that she had written was called, “It’s all fun and games until someone gets hurt.” Her story was pretty much exactly what she had described to me when we met in the cafe.
Chat Room (Empty)5/12/15 1:03 PM+XXXXXXXX677 Hey, did you know that there's still a photo of me on your book website?
Could you do me a favour and take it down, my partner is getting riled up and it would just be easier..
Thanks
1:06 PM
e: Shit!!! Sorry no I didn't know. Yes of course I'll remove it.
+XXXXXXXX677 I figured as much, I didn't know either but since my partner is obsessed with hating you he found it ....(sorry about that btw)
No worries, thank you x
e: Haha. Is he? He should come for a beer with me.
Everything good otherwise?
+XXXXXXXX677 Haha oh god that is such an awful idea!
Yea aside from that everything is really good with me. How about you?
e: Haha. Yeah probably.
Not great. Business associates of mine and the parents of my god daughter have heard rumours I'm a rapist and a peodophile.
+XXXXXXXX677 Oh shit! I'm so sorry that's happened!! God I don't think you're a rapist, you've had some no so-bright moments but you don't mean to.
+XXXXXXXX677 Maybe it's time to take a break from all this?
e: Yeah, it's pretty bad.
When I took a break from it, it made it worse. It left JD to tell people that shit and no one to shut him up.
+XXXXXXXX677 lt's died down a bit now. If you're not on there for a while then I doubt he'll keep going. It will kick up for a while but people will move on, it’s in our nature. (Posting via your friends probs didn't help though)
e: He will. He's obsessive. He's no job and nothing else to do.
e: This was yesterday.
+XXXXXXXX677 Is staying on fet really worth all of this though?
I would've thought it would just be better to cut it all out of my life if I were you..
+XXXXXXXX677 Fucking hell...
e: No, as I said. I don't want to be on FL. But I left for two weeks and he just got louder and louder. At least if I'm there I can counter him when he lies like that.
+XXXXXXXX677 I suppose so.. Well it's your choice anyway.
e: Meh.
Anyway, glad you're well. I can't access that site until I'm home. I do it later.
+XXXXXXXX677 Yea that's alright, as long as you do then I'm not too fussed
2:06 PM
e: Gone.
e: Oh. Haha. You've FL blocked me!
+XXXXXXXX677 Thanks x
Haha yea I blocked you when everything turned to shit. I didn't need to see all of the posts n crap. I've got a fair few people blocked now haha
+ XXXXXXXX677 Plus I figured if I needed to contact you or vice versa I'd just text you
2:17 PM
e: Haha, yeah I figured. That's cool.
(emphasis added)
She said, “Daddy, I've got to say that I've actually been assaulted by Liam. It was another meet after the professional photos had been out. We went to a hotel room and he grabbed me and forced me into the bathtub. He played with me and carried me into the other room. He beat me with jumper cables and as I was screaming NO he forced himself upon me. Up until the point with the jumper cables it was consensual. The jumper cables stopped me but I couldn’t stop him. I became quite angry and said, “I didn’t want you to play with him again.” I was previously worried because the plays had been getting rougher and rougher and it was getting to the point where I was concerned he wouldn't stop. [AC] just broke down and cried. She said, “I hope you're not going to break up with me.” I said, “No I'm just worried about you.”I just tried to comfort her over the phone and calm her down. I couldn't do much because I was in a different state. I said to her, “Do you want to press charges?” She said, “No I don't want to. I just don’t want to fight it out in Court.” I asked her to write down her account of things and she said she would. She said she would do it that night and might post it online the next day
There have been a lot of accusations shooting around on here lately about a certain someone and incidents where he has mistreated women he has been with.I'm not one to normally get involved and before yesterday I had no intention of doing so this time. I have had a very rough few days and for readers to fully understand where I am coming from, I will start from the beginning.
The last time I saw him was back in August. I had asked him to really scare me that night.
After work I went to the hotel and following his instructions, showered and got comfy in the bed. He enters and has a shower. Leaving the water running into the bath he comes back into the room, climbs on to the bed and begins gently kissing me all over. After a few minutes of this he violently grabs my hair, drags me out of bed into the bathroom and kneels me before the bathtub. Turning off the tap he forces my head under the water, I struggle (to no avail) to come up for air. As I run of of [sic] breath he pulls me back up for a breath and sends me back under as he starts to play with me.
(I just have to point out that at this point it is all still consensual)
After a few minutes of up and under he picks up a jumper cable and wraps it around my neck and chokes me. I'm scared and I love it. Loosening the cord he leads me into the bedroom and up onto the bed. He unwraps the cord from my neck as I lay on my stomach.
He lands the first hit across my thighs.
(This is where things stop being fun.)
I wail as the cord makes contact with my flesh. I burst into a violent sob and instantly curl up. The line still burning in my legs as he lines up for another. I scramble away to the corner of the bed and curl into the foetal position, attempting to protect myself I say no, not again. "Please no!" I call his name as I beg him not to hit me again.
He hushes me and says one more.
At the thought of being hit again I become frantic. "Please no no! Don't hit me again I beg you!"
He grabs my ankle, pulls me over to him again and stretches me out.
I am not ok. I am terrified.
Laying there frozen, sobbing into the bed, he hits me again twice in quick succession, from my shoulder, across my back to my ass. The marks that were left lasted for weeks afterwards, a constant reminder.
I scream, curl up and cry harder into the sheets.
He pulls my legs out from under my limp body and climbs on top of me, gently hushes me as he enters me.
At the end of the scene he lets me cuddle up to him. I think about what has just happened to me and I begin to cry again. He lets me get it all out and asks me what’s wrong, unaware of my distress.
I tell him it was really scary to which he responds, it was meant to be.
I then try to explain to him that I didn't mean that in a good way. I was genuinely terrified and I hated it. "I begged you to stop and you kept going. You are supposed to know when to stop and it was pretty damn clear."
On my way home that night I couldn't help but think back to that terrifying moment. It made my skin crawl. I decided to push it down and ignore it. I get a follow up text from him saying Great to see you. Thanks.
I lie and reply likewise.
NOTE: Quote from Wolf: I don't disagree. Unlike all the other rubbish I've been reading this one is 100% true. It doesn't happen often but I do sometimes make mistakes. We‘ve played a lot and this is the first with you. I misjudged how much “scared” you could handle this time and I agree that when playing this close to the edge, there should be a safe word.
The first arrest – 25 October 2016
She said: Mr Murphy, my name is Constable Scantlebury from Kings Cross Detectives. I am advising you that you are under arrest for sexual assault. You do not have to say or do anything you do not want to. Do you understand that?The plaintiff said: Yes.
Constable Scantlebury said: Anything you do say or do I will record. I can use this recording as evidence in court. Do you understand that? Please step out of the car and approach that officer in the blue jumper.
Constable Scantlebury said: My name is Constable Scantlebury from Kings Cross Detectives. As I mentioned earlier you are under arrest for sexual assault. You do not have to say or do anything you do not wish to. Do you understand that?The plaintiff said: You didn’t say that earlier.
Constable Scantlebury said: I did but to be clear you have a right to silence. You do not have to say or do anything you don’t want to. Do you understand that?
The plaintiff said: Yes.
Constable Scantlebury said: Anything you do say or do I will record. I can use this recording as evidence in court. Do you understand that?
The plaintiff said: Yes.
Constable Scantlebury said: We will take you back to Kings Cross Police Station where your rights will be further explained to you by the custody manager. After this we will offer you the chance to be interviewed. You have the right to silence if you wish or you may choose to speak with us.
The plaintiff said: Okay.
Liam, as you know my name is Detective Sergeant Hamilton and this is Detective Scantlebury. We are both from Kings Cross Detectives and we are investigating the sexual assault of AC at the Mecure Hotel here in Kings Cross on the 24 August last year. Do you understand that?The plaintiff said: Yes.
Sergeant Hamilton said: You have been arrested in relation to that offence. You are not obliged to say or do anything unless you wish to do so. Do you understand that?
The plaintiff said: Yes.
DETECTIVE SERGEANT HAMILTONQ9 Yeah. O.K. All right. As I said earlier we are investigating the sexual assault of [AC], um, on the 24th of August last year. You are not obliged to say or do anything unless you wish to do so. Do you understand that?
A Yes, sir.
CONSTABLE SCANTLEBURY
Q35 Ah, no, just, um, when the allegation, um, about sexual assault was put to you I think, um, the good sergeant mentioned the 24th of October, it’s actually the 24th of August, 2015, just an error there. And the time that we started was 10.17am, for the record, not 9.17.
DETECTIVE SERGEANT HAMILTON
Q36 Right.
CONSTABLE SCANTLEBURY
Q37 ...
DETECTIVE SERGEANT HAMILTON
Q38 ...
CONSTABLE SCANTLEBURY
Q39 Do you agree that...
DETECTIVE SERGEANT HAMILTON
Q40 [10:25] ...
CONSTABLE SCANTLEBURY
Q41 Do you agree that it was 10.17 rather than...
A Yeah.
Q42 Yeah.
A Yeah.
CONSTABLE SCANTLEBURY
...
Q45 Yeah. All right. O.K. What I want to, um, the reason, what I want to discuss with you is the allegation of a sexual assault against, ah, made by [AC], ah, on the 24th of August last year.
A Yes.
Q46 Yeah...do you know [AC]?
A I think I do but I don't know.
Q47 O.K. Would it, would it help you if I, um, ah, told you that she is the, ah Fetlife user name of Willing Pet.
A Yes.
Q48 Yes, so who is that person?
A I, I assume it’s [AC].
Q49 O.K. What is, what is your relationship with her?
A Ah, we were friends, um, and we had some, um, play sessions together.
Q50 [10:26] Yeah. When you say play sessions what, what do you mean?
A Um, would you be able to describe the, the allegations before I answer any further questions?
Q51 Well, I’ll, um...
A Would that be O.K.?
Q52 I can do that. The, the allegation is that, ah, you and [AC], or you and [AC], ah, met in a hotel room...
A Yes.
Q52 ...ah, on the 24th of August...
A Yes.
Q52 ...and, ah, during that meeting, ah, that she was sexually assaulted by a, by a person...
A Ah hmm.
Q52 ...and that person is, ah, you, or you’ve been arrested because that person is you.
A Yeah, O.K.
Q53 ...
A I got you, O.K.
Q54 Urn, so getting back to, to my question, ah, play, you were saying, when you say you met with [AC] for play sessions...
A Yeah.
Q54 ...what do you mean by that?
A So, um, I will say that, ah, the person you describe and I met, um, a number of times previously.
Q55 Yeah.
A Um, played in exactly the same way.
Q56 Yeah.
A Um, I have full documented evidence of text messages from her...
Q57 Yeah.
A ...um, saying that she enjoyed it...
Q58 Yeah.
A ...and asked me to do it again and again and again.
Q59 Yeah.
A Um, this, that time, I think, nothing was, was really different. Um, and, um, as far as I, I, I don't know for sure but I think, um, the issue is that she hadn’t told her new boyfriend that she was seeing me that time and he got very upset so I assume, and he's been, sort of, harassing me ever since, and I assume that these allegations are borne out of that. Um, like I said, [AC] and I, ah, did the same thing a number of times. She asked me specifically for, for what we did.
Q60 [10:28] Yeah.
A Um, if she didn’t enjoy it that time then, um, then I’m extremely upset about that and, ah, I apologise to her profusely about it but I think she needs to take some responsibility that we both agreed to do it and she, she specifically asked me for it, asked me for it repeatedly over and over again, um, and it’s, it’s disappointing that, that she seems I'm at fault. Um, like I said if she didn’t enjoy it then, ah, I'm extremely upset...
Q61 Yeah.
A ...um, but all I was doing is what she specifically asked me to do.
Q62 Yeah.
A Um, further from that if, if you don’t mind. I’d prefer not to answer any further questions today. Um, It’d be great if I could, um, ah, grab a lawyer. Ah, I need to talk to a few, um, find out who the best person is, um, and then, and then go from there so, ah, hopefully that's O.K. Yeah.
Q63 Yeah.
A Um...
Q64 We, we can, um, would you like to know some more about the allegations, ah, first before you do that?
A Ah, if, yeah, please,
Q65 O.K. All right. So the, um, can you tell us what it was that you, um, you did on that occasion?
A No. As I’ll say, at this stage, if I could...
Q66 Yeah.
A I’d prefer to, um, to not go any further into it without a lawyer present...
Q67 Yeah.
A ...and some advice from a lawyer.
Q68 Yeah.
A Um, yeah, I really don't want to go into details, at this stage, if that's O.K.
Q69 O.K. Well, then, um, are you prepared to tell us, um, some background about your relationship with [AC] and, ah, the agreements and things prior to, ah, or after that, that particular day?
A Ah, look...
Q70 [10:29] We won't talk about the allegation itself.
A Yeah, look, I need you, only what I just said, like I said. Um, we didn’t know each other particularly well, we were just friends...
Q71 Yeah.
A ...and I thought quite good friends...
Q72 Yeah.
A ...and we'd met a number of times, did the same thing a number of times. Um, she always really enjoyed it. She, she wrote to me in text messages, which I still have, saying that she really enjoyed it and....
Q73 So do you have those text messages still?
A Yeah. I have, ah, after her boyfriend started harassing me...
Q74 Yeah.
A ...I, um, I, I kept a document of, um, I, I used, on MAC you can just, um, record the whole thing...
Q75 Yeah.
A ...so I just kept a file of...
Q76 So you, you, that, is that, where is that, ah, file?
A It's on the MAC that I think you guys have.
Q77 O.K.
A And so messages from the very start until, till today and everything she’s ever said. Um, she seemed to really enjoy it. After, ah, that, that particular date she didn’t seem to have any problem. Um, I drove her home, she was very happy, um, and she seemed to be fine. Ah, if only came out later that she wasn't and I apologise profusely and very upset if she wasn’t fine and, ah, I’m very sad about it and, but she specific, and she specifically said afterwards, and I have the text messages that said, um, you know, you are not a rapist, I don’t think you’re a rapist, I just think, you know, it’s a bad idea. Um, and again, I apologise profusely so it’s, you know. I’m very sad that we’re, we’ve reached this stage, um, but I just can’t see how it's a crime if someone specifically asks for something and then decides they don’t enjoy it.
Q78 And, um, those text messages that you spoke about...
A Yeah.
Q78 ...where are, where are they?
A On the MAC.
Q79 They’re on the MAC.
A Yeah.
Q80 [10:31] Yeah. Is there a file name, a file name or how, what to identify that particular file?
A Oh, I’d have to find it for you. Like, it’s old now.
Q81 O.K.
A I'm not sure, I’m sorry but...
Q82 All right. When was it last accessed, for example? When did you last modify that file?
A The particular file?
Q83 Yeah.
A It would have been a year ago.
Q84 O.K. Like, twelve months ago?
A I think, I don't know.
Q85 O.K.
A I don't know.
Q86 O.K.
A Um, she, ah, I don't know if she’s told you but she's, she also wrote specifically about what happened that evening and in that, in that writing she, she said that she specifically asked for what happened and she didn’t enjoy it. Um, so I, yeah, I just don’t know why I’m here.
Q87 Yeah. O.K. And the, um, can I just confirm then, urn, ah, you and [AC] met through a website called Fetlife?
A Correct.
Q88 F-E-T-L-l-F-E, dot.com.
A Correct.
Q89 And what is, and, oh, we’ve been told that she uses the, um, the user name, if you like, of Willing Pet. Urn, what is your user name, or would you agree that that’s [AC’s], um, user name that she uses?
A I think so. At this stage, though. I'd prefer not to answer any questions if that’s O.K.
Q90 [10:32] Right. O.K. What about, um, so you met, but you agree that you met [AC] through Fetlife?
A Yes.
Q91 Yeah, O.K. And there was a series of, do you agree that there’s a, a series of, um, what you might call play scenes um, between yourself and [AC] prior to the events of the 24th of August?
A Yeah, but as I said, I'd prefer not to answer any further questions...
Q92 Yeah.
A ...at this point, if that's O.K.
Q93 O.K. All right. Um, are you prepared to answer, ah, questions, just some background about the, um, the BDSM community and that sort of thing?
A I'd prefer not to, please.
Q94 O.K. All right.
A I just don’t know if that's a good idea for me.
Q95 O.K. All right. Um, have you got any questions at this stage?
CONSTABLE SCANTLEBURY
Q96 Um...um, the document that you have on your MAC is it screen shots of the text messages or how have you, sort of, recorded...
A Ah, both, um, I took screen shots and then I think I worked out a way when you can actually export the whole file.
Q97 Oh, O.K.
A With the whole, the whole text message conversation from start to finish.
Q98 O.K.
A So I'm pretty sure I have both.
Q99 O.K.
DETECTIVE SERGEANT HAMILTON
Q100 [10:33] Did you say you put Fetlife messages as well through their messaging system?
A Text messages, no.
Q101 Oh, O.K.
CONSTABLE SCANTLEBURY
Q102 O.K, Um, why, why, why did you do that? Why did...
A Because I was being harassed by her boyfriend who kept accusing me of, of things and, and obviously, and he said I’d be here at some point.
Q103 Oh, O.K.
A So it made sense for me to, to just, to just keep the evidence.
Q104 O.K. Yeah. O.K. Um, and you’ve said that, sorry, you mentioned that she said specifically in, in some sort of writing that I don't think you’re a rapist, where did she...
A In a text message.
Q105 Ah, oh, in one of the ones you’ve...
A Yeah.
Q106 Oh, O.K.
A After the fact, yeah.
Q107 O.K. All right. Um, and did your, did you continue to correspond with her for some time?
A Briefly afterwards, um, we seemed to still be friends. Um, she said we were still friends, um, and then later on she asked me not to contact her again to which I said, "Of course, I won’t.”
Q108 O.K. So how long, roughly, afterwards, after the 24th do you think you were...
A Ah, maybe a month.
Q109 A month?
A I'm not sure.
Q110 [10:34] O.K.
A Yeah.
Q111 Um, and she never mentioned to you that she, um, felt like what had happened was, wasn’t, was non-consensual?
A Yeah. Ah, no not not non consensual at all.
Q112 Yeah.
A And she mentioned that, that she hadn’t enjoyed it and she didn’t think it was, was good and, um, like I said...
Q113 Mmm.
A ...I was very apologetic.
Q114 But on the night was, did she express something different?
A Absolutely not.
Q115 Ah hmm. So on the night she didn't say anything about not enjoying it?
A Absolutely not.
Q116 Oh, O.K.
A No.
Q117 All right. Um, so on the night of the 24th do you remember what she did say?
A Afterwards, um, I drove her to the, to the station,
Q118 Ah hmm.
A Um, she was happy, jovial, the way she always is, didn't mention it at all.
Q119 O.K, But during, what, sorry, ah, during the scene. I mean, did she mention anything then, like, did she express...
A I'd prefer not to go into details of, of any of that...
Q120 [10:35] O.K.
A ...at the moment if that’s O.K.
Q121 Yeah,
A But, um, nothing that she hadn’t done every, all the other times that we’d seen each other.
Q122 O.K. Yeah. Um, um, no. I don’t think. Sergeant, there’s...
DETECTIVE SERGEANT HAMILTON
Q123 All right. Um, just a couple of, you know, I know that you, you know, you don’t want to, ah, go into any further detail or any sort of thing until you’ve spoken to some legal representative, something like this.
A Yes, please. Just because I’m, I’m worried that I might incriminate myself...
Q124 Yeah.
A ...and I don’t know how, um, yeah, please.
Q125 Yeah. For sure.
(emphasis added)
Liam, are you still not prepared to tell us anything about what happened that night?The plaintiff said: No. I need to speak to a lawyer in case I say something that hurts me. Is that all right?
Sergeant Hamilton said: Liam, you are now going to be charged with two counts of aggravated sexual assault and attempted sexual assault.
The second arrest – 8 June 2017
Stillwell: Hi Liam, my name is Constable Stilwell from Kings Cross detectives. At this point in time you are under arrest for a sexual assault and ten counts of filming a person engaged in a private act.Plaintiff: What was that?
Stillwell: Ten counts of filming a person engaged in a private act. You do not have to say or do anything if you do not want to. I will record what you say or do. I can use that recording in court. Do you understand?
Plaintiff: Yes.
Stillwell: I don’t have to put handcuffs on you do I?
Plaintiff: No
Stillwell: Okay. It’s this way. I’ll remind you that any attempts to get away will result in further charges.
Stillwell: Hi Liam, my name’s constable Stillwell from Kings Cross Detectives. Just so you know, I am making an audio recording of this conversation.Plaintiff: No worries.
Stillwell: Okay, the time is 1.07 on Thursday the 8th of June 2017. I would like to remind you that you do not have to say or do anything if you don’t want to. Do you understand that?
Plaintiff: Yep.
Stillwell: I would like to offer you the opportunity to make an electronically recorded interview regarding an allegation of sexual assault on the 2nd of June 2015 at the Rydges Hotel, 9 Missenden Road, Camperdown. This allegation was made by [SH]. Do you have anything to say?
Plaintiff: No.
Committal proceedings
• The first complaint made by AC was to LNP on 24 October 2015. The complaint did not make it plain that sexual intercourse was not consented to. The magistrate was of the view that a jury might find that a fair reading of paragraph 18 of the statement of LNP was a description of a withdrawal of consent to an assault rather than to sexual intercourse.
• The lack of consent to sexual intercourse appears explicitly for the first time in the second last paragraph of AC’s second statement to police made on 3 April 2016.
• There was a text exchange between the parties following the incident on 24 August 2015 which the jury might find on its face was inconsistent with a situation where someone had been raped. This was the exchange where the plaintiff sent a text to AC saying, “Great to see you, thanks”. And AC replied, “Yes likewise x”.
• Although AC attempted to explain this in her second statement at par 15 by saying that she wanted to dismiss the whole thing from her mind and did not want to speak to the plaintiff anymore about it, the evidence was that she did speak to the plaintiff about it by text on 22 October 2015. The magistrate said that it seemed to her that a jury would conclude that the complaint in that exchange was about the striking with the cables. Nothing suggested withdrawal of consent to the subsequent sexual activity, and no concern about that was raised in the exchange.
• There was no mention in LNP’s statement or in the complaint that AC made to QD, that she used the word “red” when she related what occurred between her and the plaintiff.
• The clearest indication about whether AC had actually withdrawn consent for the act of sexual intercourse is to be found in the message exchange on 5 December 2015 ( at [39] above) where AC says she is sorry to hear that people were suggesting the plaintiff was a rapist, and she said, “God, I don’t think you’re a rapist”.
Given the prior relationship of these parties as described in the complainant’s statements and as shown on the video excerpts played at committal, the fact that the complainant had specifically asked the accused to “really scare her” during the encounter, the assertion by the accused, when interviewed by police that his encounters with the complainant had been consensual and, in particular, the complainant’s evidence that immediately after the incident the accused was unaware of her distress I do not believe that a reasonable jury properly instructed would find the element outlined above made out beyond reasonable doubt and accordingly the accused is discharged with respect to sequence 4.
• A reasonable jury would be unlikely to accept SH’s evidence that she would not accept that she was a party to three WhatsApp messages of 2, 10 and 11 June 2015 (at [19] above) because the Crown had conceded that the first of the messages was one that SH had told the prosecution in January 2018 was her message. SH’s credibility would be significantly damaged as a result of her evidence in that regard.
• A jury would find that the behaviour and writings of SH after the incident complained of were inconsistent with someone who had actually withdrawn consent. Those matters included SH continuing to participate in the sexual activity at the time after the alleged withdrawal of consent and she allowed the plaintiff to take her home. SH sent a text message later the same day saying, “Thanks for having me. I enjoyed it but yeah probably not an every weekend kind of thing for me:)”; text messages on 10 June 2015 arranging to meet again; the text message on 11 June 2015 where SH tells the plaintiff what she likes about having sex with him; the fact that the parties met again on a couple of occasions for BDSM sex; a WhatsApp exchange on 12 August 2015 where SH said that she did not regret “in the slightest” meeting the accused; her Fetlife post on 22 October 2015 where SH said that “something close to rape happened to her when she was 16” but that “I don’t believe anything like this has happened to me since”; her Fetlife post on 24 October 2015 where SH said that she did not feel like a victim of the plaintiff; and a WhatsApp exchange on 25 October 2015 where SH said to the plaintiff that she had not taken sides because he knew that she did not enjoy it but he did not try to push it on her again.
Legislation
99 Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)(1) A police officer may, without a warrant, arrest a person if -
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons -
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.
Note -
A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer - see section 105.
(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
(7) In this section -
arresting police officer means the police officer arresting a person under this section.
202 Police officers to provide information when exercising powers(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power -
(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.
(2) A police officer must comply with this section -
(a) as soon as it is reasonably practicable to do so, or
(b) in the case of a direction, requirement or request to a single person - before giving or making the direction, requirement or request.
(3) A direction, requirement or request to a group of persons is not required to be repeated to each person in the group.(4) If 2 or more police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.
...
The arrests
(1) Whether the failure to provide information to the plaintiff about the details of the offences (victims, dates and places) means that the arrest was unlawful;
(2) If the arrests were unlawful for those reasons, whether they later became lawful when the details were provided;
(3) Whether the police officers had suspicion on reasonable grounds to arrest the plaintiff within the meaning of s 99(1)(a) of LEPRA;
(4) If the provisions of s 202(1)(c) and/or s 99(1)(a) of LEPRA were not complied with, did the non-compliance have to be material.
Offences concerning AC
(a) The making of the arrest
(a) Pursuant to s 99 (2) of LEPRA, PCC Scantlebury was directed to arrest the plaintiff by Sergeant Hamilton;(b) Pursuant to s 99 (1)(a) of LEPRA, Sergeant Hamilton suspected on reasonable grounds that the plaintiff had committed the following offences:
(i) Two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW);
(ii) One count of attempting an aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW);
(c) Pursuant to s 99 (1)(b) of LEPRA, Sergeant Hamilton was satisfied that the arrest was reasonably necessary:
(i) To preserve evidence of the offence;
(ii) To prevent harassment of, or interference with, the victim and/or witnesses in relation to the offence;
(iii) Because of the nature and seriousness of the offence.
[I]t is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The ‘charge’ ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary...This is I think, the fundamental principle, viz., that a man is entitled to know what, in the apt words of Lawrence LJ, are ‘the facts which are said to constitute a crime on his part’ [see [1947] UKHL 2; [1946] KB 124 at 147].”
[7] There is a difference in the words used by Viscount Simon and Lord du Parcq on the one hand and Lord Simonds on the other. The former require the arrested person to be told the “charge” or the “crime” or the “offence” for which the arrest is made. The latter states that, while the arrested person must know the “reason of arrest”, the arresting police officer need not “formulate any charge at all, much less the charge which may ultimately be found in the indictment”. Lord Simonds points out that the “charge” will depend on a “view” that is taken at a later time. According to his Lordship, arrested persons are entitled to know what are the facts said to constitute the crime for which they are arrested.[8] Both approaches accommodate the proposition that it is not the law that an arrested person must be given detailed particulars of the case against him or her. “He must be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others”: Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858; [2004] 1 WLR 3155 (at 3166, [35]) per Clarke LJ (with whom Sedley LJ and Sir Andrew Morritt VC agreed). In Abbassy v Commissioner of Police of the Metropolis [1989] EWCA Civ 7; [1990] 1 WLR 385, Woolf LJ (with whom Mustill and Purchas LJJ agreed) said (at 392):
“Whether or not the information which is given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer...[Doing what a reasonable person would have done in the circumstances] involves informing the person who is arrested in non-technical and not necessarily precise language of the nature of the offence said to constitute the crime for which he is being arrested.”
[9] The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591 to 592) per Lord Simonds; Taylor (at 3162, [21]) per Clarke LJ.
[10] For my part, I prefer the approach of Lord Simonds. The notion that the lawfulness of the arrest depends on the police officer specifying the charge (and not on informing the person being arrested of the facts which have given rise to the arrest) goes further than is necessary to protect the position of the person arrested. Further, in my view, the notion is impractical and ignores the practical reality that the arresting officer may not be qualified or in a position to formulate the appropriate charge.
[11] The rationale for the rule is to enable arrested persons to know in substance what acts they are alleged to have perpetrated so that they can explain their conduct. That rationale is satisfied by Lord Simonds’ requirements. The exception recognised by Viscount Simon, namely, that arrested persons need be given no information when the circumstances of the arrest are such that they should know why they are being arrested, is consistent with the notion that the particular offence need not be specified (as is implied by Lord Simonds’ observations). In practice, moreover, the charge on which the arrested person faces trial is often formulated long after the arrest.
[12] The approach of Lord Simonds has been followed in R v Kane [2001] NSWCCA 150. In that case a police officer informed the person he arrested:
“Mr Kane, as I have already told you, I am Detective Sergeant Smith and this is Detective Perry. We are attached to the Major Crime Squad North at Chatswood. We are investigating the death of Mr Wayne Tonks, a 35 year old high school teacher who was murdered at his home unit in Artarmon on the weekend of the 19th, 20th May 1990. We have received information that you may have some knowledge of the death of Mr Tonks.”
In my judgment in that case (with which Handley JA and Greg James J agreed), I said (at [28]):
“Accordingly, Smith made it quite plain to Kane that the deceased had been murdered, that the police had received information that Kane might have some knowledge as to his death (and, implicitly, the murder) and in view of that information Kane was being arrested. That being so, Kane knew, in substance, that he was being arrested on a charge of murder.”
[13] The same approach was expressed by Weinberg CJ of the Supreme Court of Norfolk Island in R v McNeill (Ruling No 1) [2007] NFSC 2 (at [205]) when he said:
“The right to be told of the reasons for arrest exists at common law: Christie v Leachinsky [1947] UKHL 2; [1947] AC 573. At the same time, common sense dictates, and the authorities make clear, that the police are not required to use technical or precise language when informing a suspect of the reasons for arrest. It has never been necessary at common law to identify, in strict legal terms, the offence for which the person is being arrested. It has only been necessary to inform the person, in general terms, for what act he or she is being arrested.”
See also the remarks of Martin CJ in Clark v Trenerry [1996] NTSC 2; (1996) 125 FLR 260 (Supreme Court of the Northern Territory).
[88] The rationale for the principle stated in Christie v Leachinsky was explained by Ipp JA in State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9] as follows:"The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591-592) per Lord Simonds; Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858; [2004] 1 WLR 3155 (at 3162, [21]) per Clarke LJ."
[89] Further, as Beazley JA noted in Johnstone v State of New South Wales at [43], Ipp JA's observation that persons are entitled to know why they are being arrested, itself has an underlying rationale, namely, that a person is not to be deprived of her or his liberty without lawful cause.
[90] Both parties referred to the decisions of State of New South Wales v Delly and Johnstone v State of New South Wales. It is sufficient to refer to two matters which those judgments may be taken to establish, as confirmed in Hamod v State of New South Wales (Hamod) [2011] NSWCA 375 at [425].
[91] First, it is not necessary for the arrested person to be told the precise charge at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person's liberty has been restrained. This requirement is sometimes described in terms that the arrested person be told the "true reason" for the arrest, or the "substance of the reason" for the arrest.
[92] Secondly, what is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is: Johnstone v State of New South Wales at [56]. As this Court said in Hamod at [425]:
"The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case."
[15] The following propositions, adapted by reference to s 3W [of the Crimes Act 1914 (Cth)], can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind:(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett [(1990) 170 CLR 104; [1990] HCA 26] (at 112);
(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;
(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);
(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
(5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116);
(6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116);
(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;
(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;
(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may' "; see also Bales v Parmeter [1935] NSWStRp 8; (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ.
[16] The primary judge referred (at [15]) with apparent approval to a statement in Purchas LJ's reasons in Castorina v Chief Constable of Surrey [1988] NLJR 180; Times, 15 June 1988, to the effect that "courses of inquiry which may or may not be taken by an investigating police officer before arrest are not relevant to the consideration whether on the information available at the time of the arrest he had reasonable cause for suspicion."
[17] It is not apparent that Purchas LJ's proposition is consistent with the statement in George v Rockett (at 112, see [15](2) above) to the effect that the arresting officer may not merely act as a cipher, or with the plurality's reasons in Ruddock v Taylor (at [40], see [15](7) above) that what constitutes reasonable grounds for forming a suspicion or a belief must be judged, inter alia, against what was "reasonably capable of being known at the relevant time". Prima facie, in my view, it will be a matter of fact in each case as to whether the materials the relevant person was considering were such as to prompt other inquiries before the relevant state of mind could be formed. This question was not argued and need not be finally decided.
[18] The point made in [15](8) above deserves some elucidation in the context of the appellant's complaints. As Lord Hope pointed out in O'Hara v Chief Constable of Royal Ulster Constabulary (at 301 - 302), it is frequently the case that:
"[an arresting officer's] action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."
[19] Lord Hope's remarks emphasise that the question of identifying the material sufficient to support an objective finding that, for relevant purposes, an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind.
[31] Having expounded the contemporary understanding of jurisdictional error in substantially those terms, Kiefel CJ, Gageler and Keane JJ, who constituted the plurality in Hossain, proceeded to enunciate a common law principle of statutory interpretation. The principle enunciated is that a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”.[32] The principle of statutory interpretation enunciated in Hossain reflects what was there described as a “qualitative judgment about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary”. The principle might equally be described as “a common sense guide to what a Parliament in a liberal democracy is likely to have intended”. The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that “[d]ecision-making is a function of the real world” by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no “practical injustice” will deprive a decision of statutory force. Having been enunciated, and subject always to being revisited, the principle can be treated as “a working hypothesis ... upon which statutory language will be interpreted”.
[33] The qualification “ordinarily”, and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.
(citations omitted)
The notion of a detention which is unlawful but which may become lawful is to be found in R v Banner [1970] VicRp 31; [1970] VR 240 at 249. The appellant had been arrested without reasonable cause but, while in custody, gave the police information which justified his arrest on the ground that there was cause to suspect him of having committed a felony. The Full Court (Winneke CJ, Smith and Gowans JJ) held that when the appellant made a confessional statement “the legal situation was changed”. ...While the idea that the lawfulness of a detention may fluctuate with he circumstances has the support of authority (R v Kulynycz [1971] 1 QB 267 at 371; Lewis v Chief Constable of South Wales [1990] EWCA Civ 5; [1991] 1 All ER 206 at 210-211), in the present circumstances it cannot be divorced from the question of arrest. It has been said in a number of decisions that arrest is a situation or a continuing act and that whether there has been an arrest is a question of fact....If a person has been lawfully arrested and the detention of that person ceased to be lawful, then if nothing more occurs the person can hardly be guilty of escaping from lawful custody merely by walking out of the police station. As soon as the person left the police station, he or she could be arrested again for the offence for which the person was originally arrested, but there would be no justification for a charge of escaping from lawful custody. Something must happen to make it clear to the person that he or she is not free to leave.
(b) The basis for the arrest
[U]nlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or “arbitrary, capricious, irrational or not bona fide”, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [131]- [137].
(a) they had been consensual sexual partners on a number of occasions;
(b) the consensual sexual activity included or followed on BDSM activities including acts of consensual violence;
(c) all the encounters which they had were for the purposes of sexual activity and involved sexual activity; and
(d) contemporaneous and subsequent material available to the officers demonstrated that the complaints made by AC in her two police statements were directly contrary to her communications with the plaintiff and third parties. In relation to this point, the plaintiff submitted that at best, police were entitled to ask the plaintiff whether he could assist them with their enquiries concerning the complaint made by AC, or they were required to go back to AC with the glaring inconsistencies between the contemporary documents and her accounts to determine where the truth might lie.
[52] In Streat v Bauer; Streat v Blanco (16 March 1998, CLD, unreported) I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects", namely Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1996) 115 CLR 266 at 303 per Kitto J, George v Rocket [1990] HCA 26; (1990) 170 CLR 104 at 115-116, R v Armstrong [1989] SASC 1999; (1989) 53 SASR 25 at 27; O'Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] 2 WLR 1 at 5 and 11 and Anderson v Judges of the District Court (1992) 27 NSWLR 701.[53] These propositions emerge:
(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
On 22/10/2016 DSGT Hamilton made the investigative decision to arrest Liam Gordon Murphy for the aggravated sexual assault of [AC] on 24/08/2015, due to the following considerations:• The statements of the victim provide reasonable grounds for suspicion that MURPHY has committed the offence (ST-1, ST-3)
• The victims (sic) version is corroborated by SMS between victim and MURPHY, and SMS contain partial admissions to the event described by the victim (OD-7)
• The victim is also partially corroborated by the statements of [LNP] and [QD] (ST-4)
• The victim has been fully briefed on court process and is motivated to give evidence in the matter.
He forced his erect penis inside my vagina and it hurt, as his penis is quite thick. At one point he took his penis out of my vagina and tried to put it inside my anus, but as I was tensing he could not fit inside. He went back to putting his penis inside me, and moved it in and out. ... While he was doing this I didn’t say anything, but just lay on the bed crying. He made me climax, and it was horrible.
He had sex with me and although I didn’t run away it was because I had gone numb and it was like I was in shock. Whilst Liam had sex with me I lay there and did nothing. ...Liam should have noticed I was not aroused; he had to provide lubrication which he has never had to do before.
NOTE: Quote from Wolf: I don’t disagree. Unlike all the other rubbish I’ve been reading this one is 100% true. It doesn’t happen often but I do sometimes make mistakes. We’ve played a lot and this is the first with you. I misjudged how much “scared” you could handle this time and I agree that when playing this close to the edge there should be a safe word.The_Wolf_ has apologised when I confronted him about my thoughts on this night and after as well. But this still doesn’t exercise his poor lack of judgement.
I want you to have this in case it all goes pear shaped. On it is every text message I’ve had between [AC] and myself. I don’t think she realises that I’ve kept every message; it proves her to be a liar. If it all goes pear shaped I want you to give this to the press.
Offences concerning SH
(a) The making of the arrest
At 1.04pm Wednesday 7 April 2017 DSGT Hamilton phone Omar Juweinat (0447481195), solicitor acting for Liam Murphy. DSGT Hamilton requested that Mr Murphy attend Kings Cross Police Station on the 8 June 2017. Mr Juweinat stated that he would arrange this with his client.
(b) The basis for the arrest
On Wednesday, 7 April 2017 [scil. 7 June 2017] DSGT Hamilton reviewed the statement of facts as written by PCC Stillwell regarding the sexual assault of [SH] by Liam Murphy. These have been reviewed by DINSP Hancock. There is deemed to be sufficient evidence to arrest Murphy with sexual assault and filming a person engaged in a private act.
In the High Court’s decision in Ruddock v Taylor, Gleeson CJ, Gummow, Hayne and Heydon JJ held that “what constitutes reasonable grounds for suspecting” a matter (in that case whether a person was an unlawful non-citizen) must be judged against “what was known or reasonably capable of being known at the relevant time”.(citations omitted)
See also Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15(7)].
[33] The period of detention relevant to the cause of action for wrongful arrest and false imprisonment is that which commences with the arrest of the plaintiff and extends at most up to the time he was taken before a Magistrate on 25 July 1991 and remanded in custody. As was said in Diamond v Minter (1941) 1 KB 656 in relation to a claim for damages for false imprisonment:“I think that the periods of detention which I have to consider are the period during which the plaintiff was in the custody of the two defendants... and the period during which he was detained at Bow Street police station before he went into court. What happened after that, with regard to his being remanded in custody, was the result of a judicial act by the learned Chief Magistrate, and no liability can attach to the police officers for that” (supra at 663).
Malicious prosecution
...For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause.
... malice is a broader concept than ill-will or spite, and means an improper purpose.
[11] With respect to the third and fourth requirements, the appellant accepted the statement in Fleming in the following terms:
“Malicious prosecution postulates two fault requirements: the proceedings complained of must have been instituted without reasonable and probable cause and for an improper purpose. Both must be satisfied because the prosecution of persons reasonably and honestly suspected of crime is considered of greater social importance than disapproval of unworthy motives.”
[12] The absence of reasonable and probable cause includes both objective and subjective elements; the latter being the absence of a belief by the prosecutor that the person charged “was probably guilty of the crime imputed.” The canonical statement, from the judgment of Hawkins J in Hicks v Faulkner, defined reasonable and probable cause to be “an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”[13] In short, the prosecutor must have an honest belief that the defendant was probably guilty and that belief must be based upon grounds which a reasonable person would accept as supporting the belief. However, as explained by the High Court in A v New South Wales, it is sufficient to demonstrate that the prosecutor did not believe the accused was probably guilty of the offence. That is, reference to “honest” belief adds nothing to that which must be disproved.
...
[19] The fourth element [the third as stated in A] is that of malice. The term is somewhat archaic and, as the High Court noted in A v New South Wales, quoting Fleming, it “has proved a slippery word in the law of torts”. The Court adopted the language of Fleming in the following passage:
“At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.”
[20] As the High Court further noted, the elements of malice and honest belief in the guilt of the defendant may overlap but are not coterminous. A prosecutor who has an honest and reasonable belief in the guilt of the accused may nevertheless seek to pursue a prosecution out of spite or ill-will. That circumstance alone would not base an action for malicious prosecution. Prosecution of criminal charges motivated by disgust at the conduct of a person believed to have indulged in criminal activity, with the intention that he or she should be punished, might be thought to constitute malice in a colloquial sense, but it would not constitute an extraneous purpose for the tort of malicious prosecution. On the other hand, if it can be shown that the prosecutor had no actual belief in the guilt of the accused, it might more readily be inferred that he or she acted for an improper motive. Nevertheless, the two subjective elements must remain separate and be addressed separately.
Reasonable and probable cause
Charges concerning AC
19.1. That neither PCC Scantlebury nor PCC Stillwell made any proper enquiry of Complainant AC as to why the vital safe word “red” was not referred to in her internet post “It's all Fun and Games” from her boyfriend [QD]’s statement, and from all text messages between herself and the Plaintiff commencing on 22 October 2015.19.2. That neither PCC Scantlebury nor PCC Stillwell, when a further statement was obtained from AC, disclosed in AC’s witness statement the fact that AC had not referred to the vital safe word “red” in her internet post “It’s all Fun and Games” in respect of which AC was referring to the sexual encounter which constituted a charge against the Plaintiff of aggravated sexual intercourse without consent (x 3) and one charge of inflict actual bodily harm.
19.3. At no time did PCC Scantlebury nor PCC Stillwell enquire of AC as to why the description of the sexual intercourse detailed in her police statements were (sic) so significantly different from the description detailed in her online post entitled “It’s all Fun and Games”.
19.7. That PCC Stillwell had been informed in October 2016 by a witness SM that [JD] aka Master James had ill will to the Plaintiff and had himself made and caused others including AC, SH, LNP and GBC and occasioning actual bodily harm against the Plaintiff.
That PCC Stillwell had been informed in October 2016 by a witness SM that [JD] aka Master James had ill will to the Plaintiff and had himself made and caused others including AC, SH, LNP and GB-C to make false allegations of sexual assaults and occasioning actual bodily harm against the Plaintiff.
Charges concerning SH
19.13. That PCC Stillwell was aware of conduct of Crown witnesses [JD], [LNP] and [GBC] throughout 2017 which wilfully breached the Court’s non-publication, orders, thus not only providing evidence of the commission of a serious criminal offence but prejudicing the interests of justice including that of the Plaintiff and in particular that he, PCC Stillwell, took no action to have the posts removed nor took any action to direct [JD], [LNP] and [GBC] from desisting in their contentious conduct and to have the posts taken down. This conduct on the part of PCC Stillwell and the persons referred to, continued into 2018 when on 27 May 2018 Mr Waterstreet of Counsel alerted a Ms Wong of the DPP who then contacted PCC Stillwell. Ms Wong again alerted PCC Stillwell on 7 June 2018 and directed him to contact the witnesses and have the posts removed. The posts remained.19:14 That PCC Stillwell was aware before the Plaintiff was initially arrested, that there existed contemporaneous text messages between Complainant SH and the Plaintiff from 29 March 2015 to 6 April 2016, such text messages being recorded on the Plaintiff’s iPhone 6 and Mac Book Air which had been seized by Kings Cross Police on 25 October 2016 (the first date of arrest of the Plaintiff). The said text messages provided probative evidence of major inconsistencies and the allegations made by the Complainant SH against and in respect of the Plaintiff, such that in the interests of justice, a Police Officer such as PCC Stillwell could not have ignored such probative evidence in the proper investigation of such serious allegations of criminality against him in respect of the Plaintiff. PCC Stillwell wilfully concealed the said text messages and otherwise refused to disclose such text messages to the Court.
19.18. That on 19 March 2018 and in the course of the committal hearing in respect of the charges against the Plaintiff, PCC Stillwell gave evidence to the Court that SH had provided two mobile phones but they were not capable of being forensically examined. In the course of cross-examination at the Downing Centre Local Court on 19 March 2018, PCC Stillwell had to concede that he had not even asked SH for the passwords to access the phones which by use of such passwords would have enabled them to be readily accessed. Further, that PCC Stillwell on 19 March 2018 gave evidence that SEEB (forensic section of the Police Force) could not access the mobile phones of SH. When asked for a report from SEEB, PCC Stillwell said “There is no report”. PCC Stillwell wilfully took active steps to prevent highly probative evidence from being examined forensically and otherwise being disclosed to the Court and to the Plaintiff and his legal representatives.
19.19. That PCC Stillwell knew that situated on Complainant SH’s mobile telephones were Whatsapp messages which were highly probative of the vital issue of consent in respect of the charges relating to SH against the Plaintiff.
19.20. That PCC Stillwell was aware before the initial arrest and subsequent arrest of the Plaintiff and also during the course of the committal hearing in respect of the Plaintiff, that the Complainant SH had made two public internet posts on her Fetlife profile which were highly probative of the vital issue of consent and otherwise inconsistent with her allegations against and in respect of the Plaintiff.
Malice
20.1. That PCC Scantlebury and PCC Stillwell had no bona fide belief that there were materials sufficient to prosecute, namely material to establish the Plaintiff was probably guilty of the charges that were laid against him in respect of AC and SH.20.3. The Plaintiff repeats the particulars referred to in paragraph [19] above, namely [19.1]-[19.27].
20.4. That PCC Scantlebury and PCC Stillwell knew or ought to have known that in the circumstances as particularised at [19.1]-[19.27] that their conduct was unlawful and without justification.
20.6. That PCC Scantlebury and PCC Stillwell wilfully failed to properly investigate the allegations against the Plaintiff in such circumstances as particularised at [19.1]-[19.27] and the Plaintiff relies upon those matters set out in relation to the absence of reasonable probable causes evidence of the prosecution and/ or circumstances were being conducted maliciously.
20.7. That PCC Scantlebury and PCC Stillwell failed to disclose to the Office of the Director of Public Prosecutions deficiencies in the investigation of the allegations against the Plaintiff.
...
The references to the particulars in paragraphs 19.1 to 19.27 were said to be to those particulars which survived the culling of them in Mr Sheller SC’s final address.
[I]s it fair to say that your attitude in a relation to a matter such as this - this is an allegation of serious sexual assault - was to gather what material could be gathered and once whatever could be gathered was gathered, leave it to the Court to decide via a prosecution process?
Damages
The arrest relating to AC
As pointed out by the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-1; [1990] HCA 26, statutory provisions permitting the issue of search warrants or, I add, the arrest of individuals, “authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”. The High Court indicated that in those circumstances strict compliance with the conditions on the exercise of the powers is required.
Further, the breach (twice made) was not technical, but a “failure to appreciate the statutory obligations with which [the police] were required to comply in responsibly exercising powers reposed in them as police officers”: Smith at [161].
A substantial portion of the ultimate award must be given for what has been described as “the initial shock of being arrested”.
The arrest relating to SH
Because the law places a high value on personal liberty, a statute which authorises the detention of a person must be strictly construed. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether, in a case of arrest without warrant, the requirement that there be reasonable grounds for the suspicion (or the belief) said to justify the arrest is satisfied. Contrary to the SNSW’s submission, the mandatory language in the chapeau to s 99(3) and the requirements that the suspicion be held “on reasonable grounds” and that it is necessary to arrest a person for a s 99(3) purpose, give effect to the statement in the Second Reading Speech “that arrest is a measure that is to be exercised only when necessary [and] should only be used as a last resort”.
(citations omitted)
Interest
Other damages
He indicated that he wanted help to deal with perceived stressors, which included unemployment and relational problems. Mr Murphy reported that he had mood swings and anger management problems, both of which have been long term. He mentioned that he tends to get into rages and is prone to hitting objects and self-harm. Mr Murphy that he had been irritable and prone to quick temper most of his life. He also talked about chronic unfaithfulness and he worried that he might be found out one day. Mr Murphy is married and he has a three year old daughter. He provided a statement that indicated problems around poor emotional regulation skills, obsessional sex drive, persistent difficulty with his own identity and attachments and possible narcissistic characteristics.
Economic loss
|
Tax year
|
Taxable income
|
Net income
|
|
Year ending 30 June 2010
|
$116,388.00
|
$84,711.56
|
|
Year ending 30 June 2011
|
$155,618.00
|
$110,089.34
|
|
Year ending 30 June 2012
|
$15,223.00
|
$13, 839.55
|
|
Year ending 30 June 2013
|
$1,213.00
|
$1,213.00
|
|
Year ending 30 June 2014
|
$43,606.00
|
$37,887.05
|
|
Year ending 30 June 2015
|
$104,074.00
|
$77,619.62
|
|
Year ending 30 June 2016
|
$19,738.00
|
$19,445.78
|
|
Year ending 30 June 2017
|
$27,961.00
|
$26,106.41
|
|
Year ending 30 June 2018
|
zero dollars
|
zero dollars
|
|
Year ending 30 June 2019
|
$31,959.00
|
$29,344.79
|
Thank you for taking the time to talk to me earlier today. Following our conversation, I wish to advise you that effective today 16/11/16 we will terminate your employment with MB Australia P/L.Unfortunately, your overall performance since commencing employment does not align with the expectations I have for the position of National marketing Manager.
As you are still in your probation period, all entitlements and 1 weeks’ (sic) pay in lieu of notice will be paid to you at the end of the month.
Conclusion
**********
Amendments
27 April 2023 - Para [39] amended to anonymise telephone number.
28 April 2023 - Paragraphs [163] and [168] anonymised
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URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2023/407.html