The NSW Supreme Court awarded judgment to the state of NSW after an experienced legal practitioner, known only as MJ, failed to make out his claim in tort for malicious prosecution, false imprisonment and misfeasance in public office in connection with his arrest and prosecution on sexual assault offences.

Criminal proceedings were discontinued when the complainant was unable to continue her evidence, and no convictions were ever recorded. The Supreme Court noted MJ was presumed innocent in the recent judgment and made no findings to discount that.

In issue was whether the detective who laid charges in December 2019 instituted and maintained proceedings without reasonable and probable cause and whether that was done maliciously.

Referring to MJ’s allegation that the detective overlooked evidence, Justice Belinda Rigg acknowledged there were sexual assault investigations where evidence may “significantly call into doubt” the complainant’s version of events, but this was not the case.

“A complainant’s account may be undermined to such an extent that it is not appropriate to charge the suspect. This case comes nowhere close to that situation. There was no basis for [the detective] to do anything other than charge the plaintiff,” Justice Rigg said.

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Justice Rigg added there was “very comfortably enough evidence” to warrant the prosecution, so much so that it “would have been perverse for a police officer to not come to that view”.

“The plaintiff has not persuaded me on the balance of probabilities that [the detective] did not believe there was sufficient material to warrant prosecution of the plaintiff, or setting the process of the criminal law in motion,” Justice Rigg said.

Solicitor objects to evaluation of CCTV, witness evidence

On the evidence before the court, the legal secretary was invited to fly interstate to attend an office-wide Melbourne Cup event in November 2019. There was “significant alcohol consumption” at both the licensed venue and in the chambers of some of the barristers.

The secretary alleged that during this part of the night, MJ “gave her many compliments”, pat and kissed her head, questioned her about her former relationship, and commented on a piercing.

After allegedly consuming cocaine, the secretary, MJ, a friend of MJ, and a colleague known as Ms L were invited to MJ’s home to swim.

While in the pool, the secretary claimed MJ came up behind her, blocked her into the side of the pool, and tried to press against her. It was allegedly observed by Ms L, who argued with MJ.

With her legs up to her chest to “protect herself”, the secretary alleged MJ’s friend put his hand on her buttocks and pushed his finger roughly inside her vagina. She claimed to have told him to stop, but the friend assaulted her life this two more times.

When she did swim away from him, MJ approached her, took her hand and placed it on his penis and testicles.

She said she “freaked out” when she realised MJ was naked and had felt “scared and disgusted”, but unsure how to react “because he was her boss and she was scared of the repercussions of not only losing her job but having her name tarnished in the legal industry”.

MJ claimed a “careful inspection” of the CCTV footage discounted parts of the complainant’s evidence. In addition to the alleged assault, MJ said this included her version of events when it came to getting out of the pool, dressing and her state of mind.

“The plaintiff submits that an objective person with reasonably sound judgment, faced with the CCTV judgment of the pool area, would not have regarded the facts and materials available as sufficient for establishing a reasonable and probable cause to institute the criminal proceedings,” noted submissions made on behalf of MJ.

MJ added Ms L’s evidence indicated he and the secretary were never in “close proximity” and that the alleged argument was them “chatting”.

Despite MJ’s submissions, Justice Rigg said the CCTV footage was not “sufficiently clear” to determine what occurred in the pool.

Criticisms of the secretary’s conduct as she exited the pool and afterwards were either not made out, do not support the propositions said to follow, “or are nowhere nearly significant enough to support the plaintiff’s case on lack of sufficiency of evidence”.

“I see no inconsistency of anything like the order of importance that would objectively cause a reasonable police officer to see the prosecution case as undermined in any way relevant to whether the plaintiff should be charged,” Justice Rigg said.

The “clearest inconsistency” is that the secretary did not immediately get out of the pool and get dressed, but rather dried herself off with a towel for a few minutes before putting her dress back on.

Further, even if MJ was correct in that the CCTV depicted a “placid” scene, Justice Rigg said the secretary provided a “compelling explanation” for why she may have made “as little fuss as possible”.

“The imbalance of power between the complainant and all people present, particularly the plaintiff, was enormous,” she said.

As for Ms L’s evidence, the court noted the detective did not look favourably on her evidence, “because he had caught her” lying.

During the investigation, it was also the detective’s view that there was an “evidentiary foundation” to believe Ms L had covered up evidence.

This was supported by evidence of another colleague, Ms N, who claimed she had called Ms L in the early hours of the next morning and been told words to the effect of: “This has happened before … put it this way, the boys know how to handle things like this.”

Malice also tossed by court

MJ alleged the detective was “motivated to appease” the complainant because her stepfather was a “high-ranking officer” in another state, but the court said there was no foundation to make this claim.

The detective’s evidence made plain he did not know the stepfather and had no prior relationship or otherwise before the investigation.

Further, Justice Rigg said she accepted “unreservedly” that the detective believed MJ had committed the offences he was charged with.

MJ also accused the detective of having a “personal animus” and disliking lawyers, having allegedly told one witness that “barristers get away with everything” and making a comment that Ms L could have “lied more carefully” because of her occupation.

Justice Rigg said the detective had a “fully formed coherent allegation of serious sexual assault”, and there was no basis on which he could have legitimately not charged MJ amid the investigation.

“The plaintiff’s occupation had nothing to do with this,” she added.

Overall, Justice Rigg was satisfied that the arrest was reasonably necessary and all claims otherwise were dismissed.

“For reasons set out in relation to the claims in malicious prosecution and wrongful arrest, I am not persuaded on the balance of probabilities that [the detective] committed an invalid or unauthorised act, nor that any act was done maliciously,” Justice Rigg said.

The case: Mr J (a pseudonym) v State of New South Wales [2025] NSWSC 406 (30 April 2025)

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