By Paul Gregoire and Ugur Nedim
In November 2019, then NSW police detective senior constable Jesse Porter received information from the NSW Sex Crimes Unit relating to a complaint lodged by a high-ranking police officer from another state. The complaint involved allegations that a Sydney lawyer aged in his fifties had sexually assaulted the high-ranking interstate officer’s then 21-year-old stepdaughter, who was working as a junior legal secretary for the firm.
The claimed aggravated sexual assault was alleged to have taken place at the home of the senior lawyer, known by the pseudonym of ‘Mr J’, on the morning after Melbourne Cup celebrations of 5 November 2019, and also involved another lawyers, known as ‘Mr K’, also in his 50s, and both men were charged with sexual assault that was aggravated as they were in company, while J was also alleged to have engaged in the offence of sexual touching.
The case was taken over by the NSW Director of Public Prosecutions in March 2020, and the DPP certified that there was evidence to establish two counts of sexual assault against Mr J, which was based on the evidence provided by the legal secretary.
But a trial that had been scheduled to take place in the NSW District Court against both lawyers was terminated on 11 May 2021, partly because the complainant indicated she was no longer prepared to testify against the men.
Lawyer Mr J, however, went on to lodge legal action against Porter, now a detective sergeant, to the NSW Supreme Court in relation to the dropped prosecution, claiming that wrongful actions were taken against him that included the tort of malicious prosecution, false imprisonment and misfeasance in public office.
The names of the two lawyers and the law firm in which they worked were the subject of a suppression order during the criminal proceedings, while the civil case brought in the NSW Supreme Court against the police detective saw Justice Belinda Rigg apply a similar suppression order to protect the law firm’s reputation.
The proceedings also included three law firm staff members referred to as Ms M, Ms N and Ms L.
The torts triggering the claim
As this was a civil matter, evidence only had to be proven to the “balance of probabilities”, meaning the alleged wrongdoing is more likely to be true than otherwise, which is a lower burden of proof than is involved in criminal cases, when evidence must be proven “beyond reasonable doubt”, meaning all other scenarios of what might have occurred have been ruled out.
The tort of malicious prosecution involves the wrongful initiation of criminal proceedings against a person, and a plaintiff must prove that the defendant wrongfully initiated the criminal proceedings, against them, and it further must be shown that the defendant commenced or maintained the proceedings maliciously and that they had no reasonable or probable cause to do so.
The intentional tort of false imprisonment requires a plaintiff to prove that they were wrongfully arrested or imprisoned. In this case, Mr J was detained until granted bail. And the onus falls on the defendant in the case to prove a justification for the questioned act of detainment.
Porter relied on the police power within section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which permits arrest without a warrant, under certain circumstances.
The tort of misfeasance in public office was also involved, and it comprises of an invalid or unauthorised act carried out by a public officer during the course of their duties in a malicious manner, whilst simultaneously claiming to be acting in the line of duty, and this act has caused the plaintiff loss or harm.
“The plaintiff seeks over $3,000,000 in damages comprising general, aggravated and exemplary damages for the claimed false imprisonment, malicious prosecution and misfeasance in public office and additionally… legal costs, economic loss and out of pocket expenses,” explained Justice Rigg in her 30 April 2025 final findings.
Consideration of the evidence
Justice Rigg first turned her attention to the tort of malicious prosecution, and as to whether Porter had reasonable and probable cause to pursue the criminal charges against Mr J, which included the consideration of written affidavits by the junior legal secretary, her mother and then senior paralegal Ms M, the latter of whom asserted that she attended an office party the night prior but had left at about 9.30 pm with lawyer Ms N.
The material suggested that the legal secretary, lawyer Ms L, Mr K and Mr J all went back to the latter’s home. The secretary claimed to have been sexual assaulted in the pool area at a time when Ms L was not present. CCTV footage capturing the area of alleged events did not depict J or K being in close proximity with the legal secretary when L was not there. Nor did it reveal any of the alleged acts of touching and groping.
The legal secretary claimed that J approached her in the pool and inserting his finger inside her, and when she swam to the steps to protect herself, that was when K approached her and commenced touching her and inserted his fingers into her vagina, and when she fled this situation, J swam toward her and placed her hand on his crotch, which was when she realised he was naked.
Ms L did confirm with Ms M, the morning after, that Mr J had been naked in the pool. In her statement, she outlined that the legal secretary told her that the men had both digitally penetrated her in the pool. However, Ms L did not recall having told the secretary that she must tell the police what had occurred afterwards in the taxi. Ms M then informed Ms N about the alleged sexual assaults.
Her Honour found that based on the events described in statements taken by police, it was reasonable for detective Porter to press criminal charges. The judge noted that the statement of the legal secretary was coherent, and where it differed in detail with the account of Ms L, it did not do so to the extent that it undermined the overall assertions.
Under cross-examination, Porter further asserted his reasons why he considered the CCTV footage and Ms L’s account of events did not undermine the case against Mr J.
“The plaintiff has not persuaded me on the balance of probabilities that detective Porter did not believe there was sufficient material to warrant prosecution of the plaintiff,” her Honour said last month, “or setting the process of the criminal law in motion.”
Prior to handing the case over to the DPP
As for Porter continuing to pursue charges against Mr J, even though in her second statement Ms L denied she had an argument with him about his being in the pool wearing no clothes, whilst the legal secretary was too in the pool, as the NSW detective pointed to contradicting points made by M, N and L in their differing accounts, which didn’t result in it being necessary to drop all charges against J.
“In the context of cross-examination about Ms L’s second statement detective Porter said he did not think she was telling the truth because he had caught her out lying,” Justice Rigg explained.
“He said he had done so by comparison with the statements of the first complaint witnesses,” her Honour continued. “He said that ‘immediately after the incident, she makes a lot of statements that she doesn’t back up in her – in her statement, that she conveniently leaves out or lies about’”.
Further, her Honour concluded that Porter had thought L was lying, however, regardless of this, the detective could have formed a reasonable and probable cause without considering this as such. So, the NSW police detective’s actions accorded with the evidence that was available to him at the time, and there was nothing that had occurred to remove the sufficient basis for the prosecution.
Reasonable and probable cause post-DPP takeover
Following the case having been handed over to the DPP in March 2020, Porter correctly took more of a backseat role in the prosecution, allowing the Director to take the lead and he then acted in the capacity of assisting the DPP with the matter.
Mr J had also raised points during the civil matter claiming that Porter had withheld exculpatory evidence, when the reality was that the NSW police detective had not handed on phone recordings relating to Mr J, although this was not due to the fact that they would clear his name, but rather because they were of no relevance to the case.
Her Honour further underscored that in terms of evidence nothing significant occurred after the case was handed over to the NSW DPP, and therefore, Mr J’s defence had not established an absence of reasonable and probable causes to have pursued the lawyer in court over the charges that had been laid in respect of the alleged assault.
Mr J’s defence team raised particulars around detective Porter having emailed a colleague about the legal secretary perhaps having a mental health issue, that she’d self-harmed in the past and police had assessed that she was in need of mental health assistance. Yet, even if Porter had remained the prosecutor, the defence had failed to prove a lack of a reasonable and probable cause for the case.
Accusations of malice
Mr J accused Porter of holding malice in regard to progressing the case against him, with the chief point being that detective Porter had pursued the matter because she was the stepdaughter of a well-known interstate detective, but the identity of the legal secretary’s stepfather was further dismissed as a reason to find malice.
Proof of malice is usually a matter of inference, but on trial, proof is required not conjecture or suspicion, and there was no reason to consider that Porter held any malice, especially as the woman’s police officer stepfather was not known to the NSW police officer personally.
Further, Porter’s not having dropped the prosecution following Ms L having provided a revised statement regarding the crimes again fails to prove malice, as L’s original statements to Ms M further served to support the case against the senior lawyer.
Allegations outside of original pleadings
Mr J further submitted additional reasons alleged to reveal malice not pleaded before, which included suborning perjury, or the act of inducing someone else to lie in court, along with nondisclosure of telephone intercepts, and misleading the DPP on the chronological order of CCTV stills, with the defendant further insisting his case had nothing to do with these matters.
Section 333 of the Crimes Act 1900 (NSW) contains the crime of subornation of perjury, or getting someone to lie on the stand, which carries up to 7 years imprisonment, whilst committing this act to attempt to see an individual acquitted of a serious indictable offence, can see a person put away for up to 14 years gaol time.
The defence attempted to put to the court that as detective Porter had suggested that Ms M chose her words carefully when conducting her second police interview, so she did not refer to the legal secretary as “a slag” or a “topper”, or that she had kissed three different strangers on a night out, as this might cause unnecessary issues, was neither found to be proof of the detective’s malice.
And while Ms M had been persuaded to frame some of her statement differently, she hadn’t complained that she was forced to say something she did not want to say and neither did the detective make her say anything she knew to be false.
So, in this instance, her Honour considered that the plaintiff wanted her to find a false statement had been made, when this was not the case.
Further claims of malice in the forms of not supplying telephone intercepts, which were not exculpatory, and the incorrect chronological order of four CCTV stills that detective Porter had put together as evidence to be considered singularly, so they were not found to have been placed in the wrong order to cause false assumptions about what had occurred on the night.
The assertion that Mr J was wrongfully arrested was also problematic, Justice Rigg underscored, as it was clear that Porter suspected on reasonable grounds that the plaintiff had committed an offence, which empowered him to arrest the legal professional.
As for the final claim that NSW detective sergeant Porter had partaken in the tort of misfeasance in public office, her Honour made certain that if the police officer had not been found to have partaken in a malicious prosecution, then it would be hard to establish further impropriety in the execution of his duty as a NSW police officer in respect of the current matter.
Orders of the day
“Each of the plaintiff’s claims fail,” Justice Rigg ruled on 30 April 2025. “Judgment will be entered for the defendant.”
And in terms of damages, her Honour assessed that “although there is benefit in determining as many issues as possible, I am of the view that it is not appropriate to endeavour to assess damages in this case”.
