A v State of New South Wales & Ors
[2006] HCATrans 495
[2006] HCATrans 495
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S59 of 2006
B e t w e e n -
A
Appellant
and
STATE OF NEW SOUTH WALES
First Respondent
JOHN FLOROS
Second Respondent
SHARYN HANNIGAN
Third Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2006, AT 10.20 AM
Copyright in the High Court of Australia
__________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS A.P. STENMARK, SC, and with my learned friend, MR J.C. SHELLER, for the appellant. (instructed by Greg Walsh & Co)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR P.J. SAIDI and MS J.C. CHAPMAN, for the first and second respondents. (instructed by Crown Solicitor for New South Wales)
HIS HONOUR: Yes, Mr Jackson.
MR JACKSON: Your Honours, as the Court is aware, the appeal is from a decision of the Court of Appeal in which the appellant, who had been the plaintiff at trial, failed in the Court of Appeal on two claims for damages for malicious prosecution. The claims were in respect of charges of unlawful homosexual intercourse with his stepsons, the elder boy being identified as D, the younger being identified as C. The charges, your Honours, are set out in the primary judge’s reasons in volume 5 at page 1716 in paragraph 15. May I take your Honours to those for just a moment.
Your Honours will see that the charge in respect of D is the first of the charges there referred to. The time in question was between 8 May 1997 and 30 July 1997. The second one in respect of C was between 1 October 2000 and 11 October 2000.
HEYDON J: The dates are actually different on page 796.
MR JACKSON: I am sorry, your Honour.
HEYDON J: The date of the first charge is not 30 July but 31 December 1997.
MR JACKSON: I am just coming to that now, your Honour.
HEYDON J: Very well.
MR JACKSON: What I was going to say was that there was an amendment to the charge in respect of D to enlarge the period, in respect to the period in question, to 31 December 1997. That appears in volume 2 at page 798 and ‑ ‑ ‑
HEYDON J: Volume 2 at 796.
MR JACKSON: I am sorry, your Honour. Your Honours will see that that occurred in fact at the committal.
GUMMOW J: Page 796 is the bench copy for D. Where do we see the bench copy for C?
MR JACKSON: It is not in the book, your Honour.
GUMMOW J: Not there. The informant is stated there and then it says “Charge Created by: SENCON” and “Charge Accepted by: SENCON”. What does that indicate? “Charge Accepted by: SENCON BARRY PARRISH”.
MR JACKSON: Your Honour, what that means I think is that the person – I will check on this, your Honour. What I think it means is that Senior Constable Parrish was the person who made the entry of the charge at the time when the charge was made, who made the entry in the books of the police, as it were, at the time this was done. But may I check on that, your Honour? The second respondent is the person referred to there as the informant. Your Honours, the charges were of a most serious kind, of course, and they deserved proper consideration before they were made.
KIRBY J: I think the question though was directed at whether there was an intermediate independent exercise of the discretion of the constable receiving and accepting the charge.
MR JACKSON: I think the answer is no, your Honour. There is no suggestion that that is so, your Honour, or that his function was other than ministerial.
KIRBY J: I think there is law on this. I think the Court of Appeal of New South Wales has dealt with that matter. Maybe it was in Corbishley’s Case; I am not sure.
MR JACKSON: No issue arose about it in the present case, may I say, that there was anything intervening relevantly. There was, of course, a taking over of the proceedings later on behalf of the Director of Prosecutions. Your Honours will see that reflected in the way in which the trial judge assessed damages. But the reference to Senior Constable Parrish has, as we would understand the case, no immediate relevance.
GUMMOW J: At what stage does the DPP enter the picture?
MR JACKSON: At the committal proceedings when the proceedings were taking ‑ ‑ ‑
GUMMOW J: Not before?
MR JACKSON: I think the position was that the Director of Prosecutions did not lay the charge but took over the proceedings and a brief of materials was prepared and then the Director of Prosecutions took over the proceedings to actually conduct the committal.
GUMMOW J: Do we see that actually set out?
MR JACKSON: Yes. I can give your Honour a reference to it. I think it is in the trial judge’s discussion of damages but I will give your Honour a reference if I may. The appellant succeeded at the committal proceedings of course; otherwise, there would have been no cause of action. Your Honours will see that referred to by the trial judge at page 1717 in volume 5 in paragraphs 19 and 20 on that page. At trial in relation to the claims for malicious prosecution, the appellant succeeded in respect of the prosecution on the charge in relation to the younger boy, C, but failed in respect of the prosecution on the charge in relation to D.
GUMMOW J: The first respondent is the State. We had a matter last week of Ibbett in which we were referred to New South Wales legislation which now controls these questions of vicarious liability of a State in respect of police officers.
MR JACKSON: The position, your Honour, was this, that the sections of the Law Reform (Vicarious Liability) Act 1983, which prescribe in effect that, with some exceptions presently immaterial, the only claim may be against the State, came into force on 1 January 2004, after these proceedings in effect. So the position was that the action could be brought against a State and against the police officer.
GUMMOW J: That is under the Act in its 1983 form I think.
MR JACKSON: Yes, your Honour. It is the Law Reform (Vicarious Liability) Act 1983. The provision that I think your Honour is talking about is section 9B which was inserted as from 1 January 2004.
GUMMOW J: Thank you.
MR JACKSON: Now, your Honours, the reasons for the difference in result may be summarised ‑ ‑ ‑
KIRBY J: Could you just put on the record, what is the provision that overcomes the Enever problem that renders the constable liable personally as well?
MR JACKSON: Well, your Honour, it is the principal provision – I do not have the number just in front of me – of the Law Reform (Vicarious Liability) Act 1983.
KIRBY J: Yes, perhaps we had better have that.
MR JACKSON: Yes, your Honours, I have that here. Can I give it to your Honour in a moment?
KIRBY J: I am not doubting it. I just want to have it on the record.
MR JACKSON: Your Honours, I was going to say the reasons for the difference in result at the trial may be summarised in this way. The tort of malicious prosecution involves, relevantly for present purposes, two elements, one being absence of reasonable and probable cause in instituting a prosecution, the other being malice, that is malice in the legal sense, which goes beyond ill will, but extends to improper motives.
CALLINAN J: What about recklessness? You may want to consider that, Mr Jackson.
MR JACKSON: Yes.
CALLINAN J: I am thinking of defamation.
MR JACKSON: Yes. Your Honour, in ‑ ‑ ‑
GUMMOW J: Do we not have to first work out who is the prosecutor in the tortious sense?
MR JACKSON: Yes, your Honour. Well, your Honour, of course. There are five elements really to the cause of action, damage being the last, the first being that someone has to institute the prosecution. The person against whom the prosecution is laid must succeed. There are some frills to that but it is ‑ ‑ ‑
GUMMOW J: In Davis v Gell 35 CLR 275 at 282 Sir Isaac Isaacs talked about the real prosecutor as a matter of substance, not necessarily just form.
MR JACKSON: Yes. Your Honour, may I say, if one looks at paragraph 22 of the primary judge’s reasons at page 17 and 18 in volume 5, it was not at issue that the charges were laid by the second respondent.
GUMMOW J: That is right, but that may not necessarily mean that he is the prosecutor in the tortious sense. There have been cases in which the tort applies where the relevant defendant is the employer, for example, who is behind getting the police to lay the charges.
MR JACKSON: Or both, your Honour.
GUMMOW J: Or both, indeed.
MR JACKSON: Your Honour, I think it right to say that the present case was conducted as one where the activities that gave rise to the tort, if I could put it that way first of all, were those of the second respondent with the liability of the State being vicarious as distinct from there being a contention that the activities of the State itself gave rise to a cause ‑ ‑ ‑
GUMMOW J: Or the activities of the mother and the children?
MR JACKSON: Yes, your Honour, or anyone other than Constable Floros.
KIRBY J: You were telling us the four elements of the tort.
MR JACKSON: Well, there are five, in a sense, your Honour, because damage seems to be an element of the cause of action. The first, your Honours, is that the defendant instituted, in some cases maintained, a prosecution. The second is that the prosecution ended favourably to the plaintiff. The third is that there was an absence of reasonable and probable cause in instituting or, as the case might be, maintaining the prosecution. The fourth is that there was malice in the legal sense, that is, including ill will but including also other improper motives. Finally, the fifth is a question of damage.
GUMMOW J: I am sorry to go back to this, but this word “maintain” would encompass the DPP, could it not, in some circumstances?
MR JACKSON: Well, there could be, your Honour, but there is in relation to the DPP a protection from indemnity under the Director of Prosecutions Act.
GUMMOW J: That is what I was wondering. Can we have a reference to that in due course?
MR JACKSON: Yes, your Honour.
GUMMOW J: This is the Director of Public Prosecutions Act 1986?
MR JACKSON: That is it, your Honour, yes, and the relevant provision is 35(2), I am told, and your Honour will see the definition of “prescribed person”. Could I give your Honours copies of that Act and ‑ ‑ ‑
GUMMOW J:
No matter or thing done by a prescribed person shall, if the matter or thing was done in good faith for the purpose of executing any relevant law, subject any prescribed person personally to any action, liability, claim or demand.
KIRBY J: Do we have this Act or the section before us? I do not have it.
MR JACKSON: I am happy to give your Honours copies of it now, if your Honours wish to ‑ ‑ ‑
HAYNE J: But it provokes attention to what is meant by the DPP having taken over these proceedings and at what point, because was the DPP on the scene when this person was charged in court, as distinct from handed a piece of paper requiring his attendance at court?
MR JACKSON: May I give your Honour a more precise reference to that, to where that appears? The general proposition, in our submission, is that – and I am quoting, in effect, from the 9th edition of Fleming at page 676 that:
To incur liability, the defendant must play an active part in the conduct of the proceedings, as by “instigating” or setting them in motion.
Your Honours, it may be that the DPP is not liable for what takes place, or no officer of the Director of Prosecutions. It may be a question going ultimately to what damage is suffered by the institution of the proceedings by the second defendant and the stage at which the Director of Prosecutions took over the matter, and the judge was conscious of that when dealing with the question of damages. But it does not, your Honour, in our submission, destroy the cause of action any more than would be the case if the result of the proceedings had been that they were a dismissal of the proceedings after there had been a contested trial of them; assume the proceedings were summary, I meant, your Honour, and the ‑ ‑ ‑
HAYNE J: The basic question I have, which I do not ask you to answer now, is that I should end up with a better understanding of the legal framework within which a prosecution of this kind takes place, that is, by what right does Mr Floros charge the accused? Is that simply because he is a member of the public, or because he is a member of the police service? What constitutes charging someone? Is it when he is charged in court, is it when he is given a summons to attend court, and so on? Now, there is a raft of underlying questions about the way in which the criminal process is engaged by proceedings of this kind.
MR JACKSON: Yes. Well, your Honour, the relevant provisions appear to be those contained at the time in the Justices Act 1902. Your Honours, could I give, perhaps – I am sorry to keep giving your Honours bits of paper in Court, but may I give your Honours copies of what appear to be the relevant part of that Act as in force at 2 May 2000?
KIRBY J: The immunity in section 35 of the DPP Act does not seem to extend to the police officer because of the definition of “prescribed person” and the definition of “officer”.
MR JACKSON: Yes, that is so, your Honour. Could I say, in response to what your Honour Justice Hayne was asking me, there does not seem to be a provision that says that it must be a police officer or it may be a police officer. It may be anyone. That is why one commonly sees, both in the provisions in the Code States and also with the Director of Prosecutions Act, for the ability of the DPP to take over proceedings, as it were. But your Honours will see in section 21 of the Act I have just given you, that:
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed any treason or other indictable offence -
You will see then that in section 22A that:
information is taken to have been laid before a Justice, and a summons issued and served, in respect of a person if -
and your Honours will see the remainder of what appears in that provision.
GLEESON CJ: Might not the role of the Director of Public Prosecutions, both generally and in relation to this particular case, also be of some factual relevance on issues such as malice if it was the understanding of Constable Floros that, for example, he had the Director of Public Prosecutions looking over his shoulder? Would that not be of factual relevance?
MR JACKSON: Well, your Honour, his understanding was really that he was being overlooked by the child protection agency, I think.
GLEESON CJ: He might have been being overlooked by a number of people, but I certainly at the moment do not understand sufficiently the role that the Director of Public Prosecutions played in relation to this particular matter, or was expected to play by Constable Floros at the time he made such decisions as he made.
MR JACKSON: Now, your Honour, the position was that the Director of Prosecutions – I am referring to page 1801 in volume 5 at paragraph 403 – that on ‑ ‑ ‑
KIRBY J: Which page, I am sorry?
MR JACKSON: On page 1801, your Honour, paragraph 403. Your Honours will have seen that the charges were laid on 9 March 2001. That is paragraph 15 of page 1716. One then sees – perhaps if I could go to page 1800 first of all. At paragraph 398 his Honour went on to:
consider the effects of the take-over by the Director of Public Prosecutions -
Your Honours will see paragraph 399 and the steps that followed on from that. Then paragraph 400 refers to the prosecution of the charges by the DPP under section 9 of the Director of Public Prosecutions Act. Your Honours will see reference also to section 10 and the notice given to Detective Floros on 6 April 2001.
You will see in the quotation from section 9(4) at paragraph 401 that:
as from the time when the Director complies with section 10(1) . . . be deemed to be the prosecutor –
not before, but from then. Your Honours will then see in paragraph 403 that the judge refers to the effect on damages, the taking over of prosecution by the Director of Public Prosecutions. Your Honours will see that goes on I think to the top of page 1802. That is the factual position underlying it. Not all the evidence is in the books of course, but if your Honours want something further in relation to that, I am happy to seek to provide it to your Honours, but that is the basic course of events.
GLEESON CJ: Yes, we would like the note that you offered when it is convenient for you.
MR JACKSON: I did not think I had offered one, your Honour, but I am happy to comply with your Honour’s request.
KIRBY J: I have read what you were saying as an offer of a note to help us.
MR JACKSON: I would not dissuade your Honours from that. I would not attempt to dissuade and I do not think I could. May I perhaps move on a little. What I was seeking to say was that on both – I had referred your Honours to the elements of the cause of action and in relation to the two elements which seem to be particularly relevant: one, the absence of a reasonable probable cause; the other being the question of malice.
On both counts, if I can use that expression, it was held at trial that the second respondent had acted maliciously in that sense. Your Honours will see that finding at page 1796 in volume 5 at paragraph 379. Perhaps I should refer to both paragraphs 378 and 379. Your Honours will see that the judge in paragraph 378 refers to the fact, in about line 15, that:
Evidence was adduced by Counsel for the State that this investigation was being monitored by officers of the Child Protection Enforcement Agency because it had been reported to them by reason of the plaintiff’s employment by the Police Service.
Then he went on to say in paragraph 379 that he was satisfied on the balance of probabilities that both charges were laid by the second respondent:
not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to the pressure from officers of the Child Protection Enforcement Agency to charge the plaintiff because he worked for the Police Service.
He went on to say that he was satisfied that he had acted maliciously. That was in relation to both C and D.
KIRBY J: Was that ever explained in the evidence as to why he should be a special target because he was a member of the police force? In the old days when I was growing up that would have been exactly the opposite, that if you were a member of the police force, maybe the police force was sometimes protective. Was that ever explained as to why they should have made him specially a target because he was a member of the police force?
MR JACKSON: May I just say this about it, your Honour. One really derives the reason from the fact of what was said. I do not mean that in any facetious way. What I am seeking to say, your Honours, is that the evidence was that he was pressured to charge him - under considerable pressure to charge him - because of that fact, meaning presumably that because he is in the police service he should be subjected to a rather stricter regime than anyone who was not in it.
CRENNAN J: Was he a police ‑ ‑ ‑
CALLINAN J: He was a civilian, was he not?
MR JACKSON: No, your Honour.
CRENNAN J: No, he was just employed by the police?
MR JACKSON: Yes, he was employed on the communications.
CRENNAN J: Yes.
MR JACKSON: Yes.
CALLINAN J: Mr Jackson, slightly off that point, is there any evidence what the child’s mother’s education or occupation was?
MR JACKSON: Yes, what the children’s mother was?
CALLINAN J: Yes.
MR JACKSON: Yes, your Honour. Well, she had worked in a number of occupations, but I think at the relevant time she was working as a marketer or responder for Goodman Fielder. Goodman Fielder I think was her principal occupation. She was working there to respond to calls about things and to make calls about things. She had had various occupations over time, I think, and for a period she had not worked and, as the primary judge said, your Honours, at some stage she had had a slightly more murky history in the sense that she had been convicted, I think, at some point of some defrauding of Social Security at a time when her first husband had left and there was some difficulty with the children.
I can give your Honour a reference to that in just a moment, if I may. At page 237 in volume 1 your Honour will find some discussion of that. I will give your Honour a reference to the passage in the reasons in just a moment if I may.
The finding as to malice made in our favour was set aside by the Court of Appeal. Your Honours will see that in volume 5 at page 1909 and in a passage that goes, your Honours, if I may put it this way first of all, from paragraph 174 through to 194, there is - paragraph 174 and paragraph 194 appear to be almost a repetition of each other, although not quite, but the essence of the Court of Appeal’s reasons appears to be at paragraph 188 at page 1913 and your Honours will see – I will come back to this in due course.
Your Honours will see – I will come back to this in due course. Your Honours will see what the court there said, and could I refer also to paragraph 192 and could I mention in relation to paragraph 192, Mr Walsh’s evidence appears to have been accepted by the primary judge and that evidence was, as is there said, to the effect that if the matter had been for him, he would not have charged the appellant.
KIRBY J: Could you just help me on that? He did say at one point – and this is referred to in the written submissions – I know it is virtually impossible, but he did make some admissions in his interview with police. Now, at some stage where it is convenient I would be helped if you would refer to what these so‑called admissions were so that we can judge whether or not they are relevant to the formation of his view as to bringing the prosecution.
MR JACKSON: Well, they seem to amount to not much more, your Honour - I will come to this, of course –than the fact that he could have been home at the time.
GLEESON CJ: The primary judge found that there were reasonable and probable grounds for commencing proceedings in relation to D.
MR JACKSON: Well, your Honour, if I put it the other way, with respect, he found that we had not established that there were not reasonable and probable grounds.
GLEESON CJ: Right, and that finding was upheld by the Court of Appeal.
MR JACKSON: Yes, for different reasons.
GLEESON CJ: And you challenge that finding here?
MR JACKSON: Yes.
GLEESON CJ: Did the primary judge find any connection between his conclusion about reasonable and probable grounds and his conclusion about malice in relation to D? Did he regard the two issues as factually related?
MR JACKSON: If I can just take your Honour to where he dealt with that aspect of the matter, you will see his conclusion at page 1797, paragraph 384 in relation to D and reasonable grounds. The connection that is immediately after the finding as to malice which is on the preceding page, 1796, paragraph 379, to which I referred, and then at paragraph 380 is the connection that there appears, your Honour.
GLEESON CJ: I am looking at the last sentence in paragraph 384. If, as the judge found, this was “a proper case to bring to court”, is that not relevant to the issue of malice?
MR JACKSON: Well, your Honour, one could also say the reverse, with respect, and that is the point I wanted to make in relation to that finding. The approach taken by the primary judge was to deal with the evidence first on the question of malice, as is sometimes done. In dealing with the question of malice, he sets out the evidence and then arrives at the conclusion which your Honours will see set out in paragraphs 378 and 379.
Your Honours, in doing that, he appears to have accepted evidence which would be very against the notion that whichever of the tests one might apply, that there could have a relevant belief - I use that word; I will come to what I mean by that a little later if I may – and that is where, in our submission, whilst perhaps the test that the judge appeared to adopt is one that one could not cavil with, the conclusion that he arrived at is one which does not seem to apply the test that he was seeking to apply on this issue.
GLEESON CJ: I just wondered if Constable Floros might not rhetorically say to the judge, “You say that on the balance of probabilities this was a proper case to bring to court. What was I supposed to do?”
MR JACKSON: Your Honour, one does have to bear in mind that there are issues on which we bear the burden of proof. One issue is whether we established that it was not brought to court for a proper motive. On that we established positively in the judge’s mind that that was the case. The judge says, however, that he is not satisfied – and your Honours will appreciate the sentence your Honour has been referring to is a short version of what he has got in the earlier part of that paragraph. What he is saying in the earlier part is “Notwithstanding that, they haven’t satisfied me that he didn’t believe he’d committed the offence”, to put it shortly. That is the part we attack in the sense that the judge, whilst he may have adopted a correct test, did not apply it correctly and it does seem to be inconsistent with the approach that he took on the question of malice. It is the conclusion one arrives at from that. Where he, discussing the evidence, has positively arrived at the view which he did on the question of malice, meaning relevantly motivation and understanding of things, and where one bears in mind some of the detail of that, and I will have to come to that, it is, in our submission, a case where that finding at 384 should not stand and should not have stood in the Court of Appeal and would not have stood were it not for the approach that the Court of Appeal took to what was the question of what was meant by that question. I am sorry, I have given an unduly lengthy answer, I fear, to what your Honour asked me.
HAYNE J: But the relationship between reasonable and probable cause and malice obviously can provoke tension. The nature of the tension is, I think, most accurately identified by Holmes in The Common Law in lecture 4 between pages 140 and 142 where Holmes discusses the way in which reasonable and probable cause and malice have somehow or other to coexist for the purposes of this tort.
MR JACKSON: Yes. The reality is that in many cases if malice is found, then it is very likely that there will also be a finding that there was an absence of reasonable and probable cause. It does not necessarily follow.
HAYNE J: Save this. Take the prosecutor who frankly informs the court that “Yes, I’ve been waiting for years to get this person”. A finding of malice may be relatively easily arrived at. Absence of reasonable and probable cause though injects notions of an objective rather than subjective test according to the facts as known to the individual.
MR JACKSON: That is really Glinski v McIver in a sense, what your Honour is putting to me, and undoubtedly it injects an objective test but it is a question of whether that is all that is involved. Is it just objective or is there a subjective element as well? The reason why there is some subjective element, the precise nature of which one might need to analyse a little, is that it is the way in which there is a compromise arrived at between on the one hand the desirability of having criminal conduct potentially the subject of a sanction and, on the other hand, the undesirability of claims being brought in circumstances where the person bringing them has no personal belief in their merit.
I will give your Honour a reference in a moment, if I may, to a short statement of that position, I think, near a passage from Fleming to which I referred earlier. All I am seeking to say about it, your Honour, is that undoubtedly there is an objective element but so too there is some subjective element, in our submission. I was just going to give your Honours the references to the place where the case on reasonable and probable cause failed in respect of D. That is at paragraphs 383 and 384. It succeeded in respect of C at paragraph 392 on page 1799.
KIRBY J: C was a much easier case, was it not, because there was the assertion, the withdrawal of the assertion, the re‑assertion, the withdrawal of the re-assertion, and so that was a much easier case from your point of view?
MR JACKSON: Quite, your Honour, yes. It was a case that really in the end one would think would be very weak indeed. Your Honours, the Court of Appeal held that the trial judge had applied an incorrect test and that the appellant should have failed in respect of both C and D. Now, could I take your Honours first to the principle which the Court of Appeal purported to declare and apply. You will see that commencing at page 1885, paragraphs 107 through to 111.
Your Honours will see that at paragraph 108 what is referred to is a formulation by Justice Dixon really in two cases, one I can call shortly Sharp v Biggs and the other being Commonwealth Life Assurance Society v Brain. I will come to those in a moment, your Honours. What was said at paragraph 111 was that the court ought not to apply Mitchell v John Heine, a New South Wales decision, but should follow Sharp v Biggs and Brain’s Case. The way in which that was sought to be applied appears in relation to D in paragraphs 160 to 161, which are at page 1904. Your Honours will see there, at about line 14, that it was said:
It was not necessary for the second respondent, in making that decision, to believe that the appellant had committed the offence . . . Instead, what is required is, first, an assessment as to whether the prosecutor believed that, upon general grounds of justice, the available material justified the laying of a charge and secondly, that such a belief on the part of the prosecutor was reasonable in the sense that a person of ordinary prudence and judgment would consider that the laying of the charge was warranted.
KIRBY J: That formulation still incorporates the subjective element of belief?
MR JACKSON: Yes, a subjective element, your Honour. It does not seem to be – and I will come to this in a moment, your Honours – the same subjective element as was contemplated in the reasons for judgment of Sir Owen Dixon in the passages to which I will come, or the passages that their Honours are referring to.
KIRBY J: Could I ask you, is a question that is before us whether this Court should embrace a purely objective criterion such as Lord Justice Denning propounded or some version of the subjective criterion such as appears to have been the settled law in Australia in the past, or something in between, some hybrid?
MR JACKSON: Your Honour, we do not understand our learned friends to be contending for a purely objective test but rather ‑ ‑ ‑
KIRBY J: Because in a sense both Chief Justice Jordan and Justice Dixon interpose the belief of the prosecutor.
MR JACKSON: Yes, quite.
KIRBY J: One might say in Lord Justice Denning’s words, “Well, what does his belief have to do with it? He is only an agent of the State. His duty is to bring the person quickly to the judicial branch where the decision is to be made and he doesn’t know the defence case”, but as against that the repeated requirement of the prosecutor to believe that the matter is one that has to go to a court is a defence against slipshod or indifferent work on the part of police officers that say, “Well, I don’t believe it but, hang it, let’s go ahead with it”.
MR JACKSON: Well, your Honour, could I say a couple of things in response to that? One is that even Lord Denning’s statement of the position in Glinksi v McIver was one that itself involved recognising the possibility that in some circumstances – and, in our submission, they would include cases like this – there was not to be applied purely an objective test, but that there were cases where there was a subjective element involved as well. That is the first thing. The second thing, your Honours, is that so far as the test is concerned, then, in our submission, there is no reason for the Court to adopt a purely objective test. I was going to come to some statements which really support the proposition, I think your Honour was putting to me, about the desirability of there being some restraint on the ability to charge people, to put it shortly.
GUMMOW J: Well, the prosecutor will not always be the prosecution in the criminal law sense. A lot of the cases do not involve policemen at all.
MR JACKSON: No, quite, your Honour.
HAYNE J: Is there not a consequential difficulty of apparently elevating what are the minor premises of a case into the major premise? The major premise is the proof of a negative: absence of reasonable or probable cause. What we find may, perhaps, be understood better is the focus upon the minor premise in the case, for example, where it is the employer who has set the wheels in motion to have the apparently defaulting employee prosecuted where questions of belief may loom large.
MR JACKSON: Well, we say, your Honour, one has to bear in mind that there are cases where there will be no issue about belief and perhaps the most common ones will be ones where there is no question that the person believed, whatever be the exact test, that the case was an appropriate one, but on an objective test the question may be simply whether, objectively, that was justified. That is why one sees in some of the cases a discussion of the circumstances in which the issue of belief will arise – not every case as it is said, but if it is, if it does arise, then that is an issue of fact which has to be resolved by a jury in some cases, otherwise by the judge.
HAYNE J: But in circumstances where life is just a bit more complicated and management issues now intrude in policing, if the informant is the inspector of police who has done little or none of the basic investigation but simply receives the bundle of statements produced by the inferiors, that inspector of police will have no basis for assessing the truth of what is put before him or her, except what appears on the face of the documents.
MR JACKSON: Well, yes and no, your Honour. That may mean no more than that the question of belief either will not arise or is one that will be resolved in his favour. What I mean by that is that it may be that in circumstances like that the fact of having instituted the proceedings having looked at material which apparently would satisfy any test is enough.
HAYNE J: But that suggests, does it not, that questions of belief may be properly identified as minor premises in a case, not the major premise?
MR JACKSON: Well, your Honour, that may be, but major or minor, if the premise is one that does arise in the case, then it has to be resolved.
GLEESON CJ: Yes, but resolved how and by whom? This is the importance of distinguishing the role of the judge and the role of the jury. As I understand it, at a trial by jury it is for the judge to decide whether the prosecution was instituted without reasonable or probable cause.
MR JACKSON: I accept that, your Honour.
GLEESON CJ: But if there are disputed primary facts relevant to that question, and that may include belief, those disputed primary facts are to be decided by the jury.
MR JACKSON: Your Honour, I accept that. The way in which your Honour puts it to me is right. It reflects the fact that in many cases there will be no issue about belief arising. The issue will be the major premise, if one likes to call it that, and that is whether there was absence of reasonable and probable cause.
GLEESON CJ: In some cases the primary facts might all be agreed. The doubt about the reasonableness might lie in some issue of law.
MR JACKSON: It may, your Honour, yes, but your Honour Justice Hayne is right in saying to me that this is not an issue that in a sense will always arise; it may not. The ultimate question is, no doubt, is there absence of reasonable and probable cause? But on the way some questions have to be resolved. This was a case where there was an issue about whether there was an appropriate belief on the part of the person instituting the prosecution.
Lying behind that, of course, is the anterior question of what is required in that regard – and that is a matter I will come to, of course – but the point that we seek to make about that is that what the Court of Appeal did was to depart from a fairly established line of authority on that issue with no really very good reason for doing it and a number of reasons why it should not have done so.
KIRBY J: Picking up something Justice Gummow said, the respondent lay emphasis upon the fact that in the 19th century many of the prosecutions, more than now, would have been privately prosecuted by some person and that one has to be just a little careful of reading the judicial statements at that time because of the different character of the person who is making the complaint.
MR JACKSON: Lord Devlin adverted to that, your Honour, in Glinski v McIver and said that whilst the circumstances might have changed a little, that had not affected those matters. Could I give your Honours the reference to that now. Your Honours will see that in Glinski v McIver [1962] AC 726. The passage I wanted to refer to is the last paragraph on page 776 and the whole of that paragraph where it continues on to page 777.
GUMMOW J: In saying that at the bottom of 776, Lord Devlin I think is picking up what he had earlier said at the bottom of 766 which he treated as entirely consistent with what Sir Owen Dixon had said.
MR JACKSON: Yes. Your Honour, there is a fair bit of that really. I do not mean to put that in a funny way but the reality is that with perhaps the exception of a passing observation in a sense by Justices Evatt and McTiernan in Brain’s Case, until one saw the parsing and analysing of all this in the article by Justice Ipp and the Court of Appeal’s judgment in the present case, no one had really been alive to this supposed great gulf of reasoning between the conceptions that were involved. Indeed, if one looks at the primary judge in this case – and I am going to come to that shortly – the primary judge referred specifically to Brain’s Case and to what Justice Dixon had said, yet that is treated by the Court of Appeal as if he had not done so. I am sorry, that overstates it. It was treated as if it was of no relevance.
GUMMOW J: But you accept, do you not, what Lord Devlin says at 776?
MR JACKSON: Yes, I do, your Honour. One goes on to the top of the next page and then, when one comes to the first new paragraph on 777, he said:
It is said that under modern conditions an officer at Scotland Yard relies upon the legal department . . . There cannot under our law be a prosecution unless someone is prepared to take personal responsibility for it. If the officer in charge of the case does not believe that on the material he has got, if it is left unanswered, the accused is probably guilty, if no one else at Scotland Yard is prepared to take personal responsibility for saying so, and if on top of that whoever does put his name to the information is acting from some improper motive, it would not be right that an innocent man should be without a remedy.
Your Honours will see that goes on, although I think moving away from the point, on to the top of the next page.
If one goes also to what was said by Lord Radcliffe at page 756, your Honours will see the passage commences on the new paragraph on that page. Your Honours will see then towards the end of that page about six or seven lines from the bottom of the page:
If his belief is said to rest on legal advice, I think that the court is entitled to know positively, not merely by inference, what that advice was and upon what instructions it was obtained. If, on the other hand, his action is attributed to departmental instructions, I can only say that my present view is that it would be undesirable in the public interest to allow such a reason to serve as a substitute for the belief in guilt that has habitually been required . . . If any particular officer comes forward to make a charge it is not unreasonable, I think, if the issue arises, to hold him to the belief that the person he is prosecuting is guilty of the charge preferred.
CALLINAN J: …..a lot of experience of public administration, Lord Radcliffe.
MR JACKSON: Yes, indeed, your Honour.
GLEESON CJ: Mr Jackson, could I just take you back to 777 for a moment. You see the sentence that you read out beginning with the words:
If the officer in charge of the case does not believe that on the material he has got, if it is left unanswered, the accused is probably guilty –
Do you see that sentence, middle of the first complete paragraph?
MR JACKSON: Yes, I do, your Honour, yes.
GLEESON CJ: What I wanted to ask you is this. What is the practical difference between that question and the question a committing magistrate asks?
MR JACKSON: Well, your Honour, the committing magistrate asks a slightly different question and that is whether a jury properly instructed might on the evidence find the accused guilty of the offence of which he or she is charged. Now, there are some similarities, of course, because one cannot charge a person unless the – cannot properly, in our submission, charge a person unless the material would be material on which a person is capable of being found guilty, but one is asking the question at different times and at the time when the magistrate comes to answer the question, at that point witnesses have given evidence in one form or another. There may have been no oral evidence, very commonly that would be so today. They may have given oral evidence. But the perception of the magistrate is a perception based on all the material and the submissions that are made.
GLEESON CJ: That way of putting the test, which I understand you to adopt on page 777, throws a lot of weight on this expression “if it is left unanswered”. You see, in a given case the material that the officer in charge of the case has got might be an allegation made by a person who for some reason might be regarded as unreliable. But the question seems to be, if the allegation is uncontradicted, what is the conclusion to be drawn?
MR JACKSON: Well, if I can just say a couple of things about it. That sentence is one which is putting things in a relatively ‑ ‑ ‑
GUMMOW J: Could I just interrupt you, Mr Jackson. That sentence in the middle of 777 is an encapsulation, I think, of what is said at the bottom of 766.
MR JACKSON: Yes, it is, your Honour, yes. So, your Honour, it is put in a very short form and whilst I accept what is said there, I am not really putting that forward as the test, in effect. What we would say about it though is that you will see that sentence does refer to “on the material he has got”. Now, the material he has got itself may contain matter of various value. I use “matter” to cover all the evidence that there might be. Some of it may be obviously completely unreliable, some of it may not be, and it is a question of identifying what there is and at the end of that forming a view whether, if that evidence was left unanswered, the accused would probably be convicted. Now, to say that the material is material which will go one way is not really, with respect, correct. Sometimes it will, sometimes, but often not.
GLEESON CJ: One of the problems is you are dealing at at least three levels of generality. At the highest level of generality you have the formula in the statement of the elements of the tort, prosecution commenced maliciously and without reasonable probably cause. Then at a lower level of generality you have this statement of Lord Devlin or what Sir Owen Dixon said or what Sir Frederick Jordan said and so forth. Then at a lower level of generality or a greater level of particularity again you have the facts and circumstances of an individual case which might be almost infinitely various which throw up what I might call the problem or the room for doubt.
MR JACKSON: Your Honour, one does. What one looks at, no doubt, is to see what the officer, if I can call him that for the moment, has. Now, what the officer has may not be all that the officer should have. What I mean by that is that, if one looks at the statement made by Sir Owen Dixon in Sharp v Biggs, he does not just refer to the test, but immediately after it refers to the fact that there may be a need to carry out further investigations, so it is not just a question of looking at what you have in order to answer whatever may be quite the relevant question. One has to look at what there is and what there might properly be.
Now, having done that, your Honours, one does arrive at a question which has to be answered. The question is, what belief does the officer have, or the person laying the charge, in relation to the prospects of success of that proceeding? Your Honours, that in a sense encapsulates what there is.
Your Honours, could I come back just a little and go back to Glinski v McIver [1962] AC 726 for a moment? What I was going to say was that, if one goes to what was said by Lord Denning, starting at the bottom of page 759, the proposition he advances is that:
These reasons are, I trust, sufficient to show that the question and answer as to “honest belief” should not be used in every case.
He refers then to the basic question which the law itself propounds, and then goes on to indicate a number of relevant circumstances. The first circumstance is that at about point 2 on page 760, facts not in doubt. The second case, about point 7 on page 760:
the prosecutor is personally involved, so much so that his own evidence is the very basis of the case for the prosecution -
Then you will see, “if he was speaking the truth”, “good cause”; if not, “no cause”. Then, your Honours, the third case, on page 761, you will see:
there are cases where the prosecutor is not himself personally involved but makes the charge on information given to him by others. The issue again appears simple.
Then one sees, your Honours, we go back to belief:
If the information was believed by him to be trustworthy, there was good cause for the prosecution. If it was known by him to be untrustworthy and not fit to be believed, there was no cause for it. Here again much depends on the state of mind of the prosecutor.
Your Honours will see a little further down that same paragraph the question for the jury:
Did he honestly believe in the case which he laid before the magistrates?
So his Lordship’s approach to the issue does not leave out absolutely any question of subjective approach, and that that is so appears also from the fourth category to which he refers on the same page, 761:
Fourthly, there are cases where from the conduct of the defendant himself it may reasonably be inferred that he was conscious that he had no reasonable or probable cause for the prosecution.
Your Honours, that goes on through that page and to the top of the next page. So, your Honours, the only point I am seeking to make about referring to that is that, even on Lord Denning’s approach, there are cases where the issue of the belief of the prosecutor is something that is germane.
HAYNE J: Just apropos of that jury question in Abrath which Lord Denning and, I think, Lord Devlin both refer to, the questions are reported at 11 QBD 79, and the question quoted by Lord Denning was, in fact, the second of the questions put to the jury by Mr Justice Cave. The first one was:
1. Did the defendants in prosecuting the plaintiff take reasonable care to inform themselves of the true state of the case; 2. Did they honestly believe the case which they laid before the magistrates; and, 3. Were the defendants actuated by any indirect motive in preferring the charge against the plaintiff?
MR JACKSON: Yes.
HAYNE J: You only got to three if there were a negative answer to one of the first two.
MR JACKSON: Your Honour, could I say also, I referred to Glinski v McIver and to part of what Lord Radcliffe had said, and could I refer also, your Honours, to page 753, the last paragraph on that page where, in the second line, he said:
I take it to be settled law that if the defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the charge (I must, of course, refine on this phrase later) he cannot be said to have acted upon reasonable and probable cause . . . The answer is, I think, that the ultimate question is not so much whether there is reasonable or probable cause in fact as whether the prosecutor, in launching his charge, was motivated by what presented itself to him as a reasonable and probable cause. Hence, if he did not believe there was one, he must have been in the wrong.
Your Honours will see also at page 754, about point 5 on the page, he said:
If there really is some evidence founded on speech, letters or conduct that supports the case that the prosecutor did not believe in his own charge, the plaintiff is, in my view, entitled as a right to have the jury’s finding upon it.
Then, your Honours, finally, at page 755 – I was going to refer to the passage, the last paragraph on the page, where, about four lines in, he said:
despite the full and meticulous review of numerous past decisions in malicious prosecution cases which was offered to us by the respondent’s counsel, I was never able to see that there was anything amiss with the various formulae, such as “belief in guilt,” “belief in the case laid,” “belief in the truth or propriety of the charge” or “belief that the facts amounted “to the offence charged,” which judges habitually used –
and so on.
GLEESON CJ: The word “belief” unfortunately has a number of different shades of meaning. Suppose that a prison cell is occupied by two notorious criminals and one of them rings a bell and calls a prison officer and says the other one has just indecently assaulted me. The other says, “No, I did not touch him”. Where do you go from there?
MR JACKSON: Well, I suppose, your Honour, depending on the nature of the assault, there may be some more investigation to be done. There would be a number of things to be looked at; the state of the cell, I suppose, the state of their clothing, whether there was anything heard outside, whether there was any sound made, whether there was any attempt to resist, matters of this kind.
GLEESON CJ: But Lord Devlin’s test seems to mean that a police officer considering laying an information would say if the evidence of the complaining prisoner remained uncontradicted, would there be a prima facie case?
MR JACKSON: No, Lord Devlin’s test, your Honour, would, in our submission, say what is the evidence? Having looked at that evidence, is it evidence which is capable of being believed not just in a theoretical sense but capable of being believed in a real sense? If that is the case, so be it.
GLEESON CJ: Is a policeman entitled to say, “I know the criminal records of both of these men and I wouldn’t believe anything that either of them said about anything without corroboration, but a jury might”?
MR JACKSON: That is possible. If one had a situation where you had – no doubt there is a spectrum in these things, but if you had a case where one of the notorious – I will start again. If the two notorious criminals were put together because their predilections were of a similar kind and one of them was a person known for making false complaints about things, then there is no reason why one could not say “I’m not going to prosecute because I just don’t believe you. You’ve cried ‘wolf’ too often”.
GLEESON CJ: I am just seeking to explore the different nuances of the word “belief”. There is a judgment of this Court, is there not, which says that “belief” means an inclination of mind?
MR JACKSON: Yes, there is. I could not give your Honour a reference to it straight away, but that sounds correct. It is an inclination of the mind but it is a view arrived at. No one suggests that the view that has to be arrived at is a view that the person charged will be found guilty at the trial. The view that that is what was being said in effect by the primary judge and by Chief Justice Jordan in the Mitchell v John Heine Case seems to intrude a little into the reasons in the Court of Appeal in this case. That is, with respect, not at all the case. What is being dealt with is the subject matter.
CALLINAN J: Mr Jackson, I think that definition, as it were, of “belief” was in some statutory context. I am not sure but I ‑ ‑ ‑
MR JACKSON: Yes, your Honour. I recall there being something along those lines but I do not recall the case.
CALLINAN J: Mr Jackson, what I was interested in – and it may have some bearing upon whose belief it is and the relevance of the involvement, for example, of the Director of Public Prosecutions – but could we get a copy of the Law Reform (Vicarious Liability) Act 1983. Before that, I would think New South Wales would not be vicariously liable for a police officer’s actions because they exercised an independent and ministerial responsibility. So that Act must have been the Act that made the State liable.
MR JACKSON: Yes. He exercised an independent and I suppose ministerial responsibility of the Enever type, I think, but it was really the consequence that was taken away by the Vicarious Liability Act, the consequence being that he had to and the employer did not have to pay for the tort.
CALLINAN J: But there may be inferences from that that therefore everybody who is employed by the police service and who is involved in this affair, as it were, should be aware that the State will be responsible and the State should be aware of that and perhaps it ought not to be imposing pressure. For that reason there may need to be positive means. I am not sure it does have a bearing, but I would like to see the Act.
MR JACKSON: I will get your Honour a copy. Your Honours, could I just say this, that there is no doubt a great deal of judicial activity, as it were, and other activities taking place to identify when the question of a belief or mental element arises in the question of want of reasonable and probable cause, but the underlying rationale, in our submission, of the need to explore a question of belief, if I can use that shorthand, in cases where that issue arises is because it reflects a balance, as I submitted earlier, between the public interest in having conduct which is criminal in nature prosecuted and, on the other hand, the injury which can be caused to a person who is prosecuted without justification.
I said, your Honours, I would refer to a passage in the 9th edition of Fleming The Law of Torts 1989 at pages 680 and 681. I do not know that your Honours have that. If not, I will give your Honours a copy of it. Could I just say that at page 680, at the bottom of the page, the author is discussing the heading “Reasonable cause”. He says in the last paragraph on page 680:
At first blush, it may seem odd that the prosecutor’s belief should be material so long as malice, standing alone, is not deemed sufficiently reprehensible to forfeit his protection. But even if the law in its erstwhile anxiety to encourage the initiative of private prosecutors had to compromise its ideals by recognising that their motives would often be tarnished, it was not – at least on second thoughts – prepared to go to the “monstrous” –
that is Justice Erskine in Broad v Ham –
length of condoning a combination of improper motive and dishonesty. In any event, unshakable certainty in the guilt of the accused is not demanded, since a fair minded person may well feel justified in bringing a suspect to justice without, in his own mind, prejudging the issue.
Then he goes on to quote from what was said in Sharp v Biggs and Brain. So it is a reconciliation of two potentially conflicting concepts.
KIRBY J: So it has to be either a personal conviction that the person is guilty, though that is not essential, or at least a belief that it is proper to bring the person to a hearing on the basis that it is warranted, but it cannot be an indifference as to belief or a complete absence of any belief and an attitude of “Hang it, let them go ahead”?
MR JACKSON: Yes, your Honour. Your Honour put the first two in the alternative, I think. We would, I think, put them rather a little more together. What I mean by that is that we would say that there is no reason why – if I could just pick up the relevant quotation from ‑ ‑ ‑
KIRBY J: I have a problem with that, as I think I signalled on the special leave, because the police officer has not heard the defence case, does not know what, if anything, the defendant is going to say, does not know all of the facts and, in terms of principle, it really does not matter what his or her personal belief is. In the end it matters what the decision‑maker’s belief is. The police officer discharges his or her functions correctly by handing the suspect over from the executive branch to the judicial branch.
MR JACKSON: Yes, your Honour.
KIRBY J: That is why I have a problem with infusing as relevant the personal beliefs of the constable.
MR JACKSON: Well, it is personal belief in this sense, your Honour, personal belief in the sense that there has to be a belief that the material that the prosecutor has, or should have, if I could add that qualification, is such that the prosecutor believes that there is a probability of guilt on that material and that it is a case where a charge should be laid, the two aspects combined. Your Honours, I will come back to that, if I may, in a moment.
KIRBY J: But if the constable is a conscientious one who knows how the law operates, then he or she will constantly tell themselves, “I just can’t be absolutely sure in any case because I don’t know the other side. I don’t know the full story”.
MR JACKSON: Of course, your Honour, and it may be that at a trial or preliminary hearing something comes up that indicates a defence, in either sense of the term, to the charge. It may be of course that the material is such that there is an obvious defence or immunity brought about. But leaving those cases aside, the cases investigated by the police officer, the material before the police officer, the police officer does not have to believe the person will be convicted but has to believe more likely than not that on that material the person would be convicted if the material was accepted and also believes the case is one where a charge should be laid.
KIRBY J: Very properly you have looked at the English authorities and the Court asked you to look at the American authorities. Is there any enlightenment to be given by what they do in Canada or New Zealand or other common law countries on this? Do they simply follow the English authorities, or not? This is a constant necessity.
MR JACKSON: The New Zealand position I think, your Honour, is pretty much what the situation is here. The Canadian position I am not sure about, your Honour, but I will just check that in case there is some question about it. I just cannot give you an answer to that, I am afraid.
GLEESON CJ: Judge Cooper did not seem to see any inconsistency between what Sir Frederick Jordan said and what Lord Devlin said and what Sir Owen Dixon said. He quoted them all.
MR JACKSON: Well, I am going to come to that, your Honour, but he was really explaining what was in the case. What he said was – there is a concise or a short summary given by Justice Jordan, a succinct summary given by Justice Jordan, then one has to understand what is meant by that, he says, and then he goes on to refer to what is meant by “guilt” and so on.
GLEESON CJ: Exactly. Having quoted Sir Frederick Jordan’s statement that the prosecutor must believe the accused is probably guilty, the very next quotation was from a judgment that said, “Be careful about that word ‘guilty’. It doesn’t mean what you think it means”.
MR JACKSON: Your Honour, that is why we say that to say, as the Court of Appeal says, that Judge Cooper simply applied Mitchell is just quite wrong. It is perfectly obvious that he understood the nuances. Your Honour, I did intend to come to those as a separate matter, and may I do that in a few moments? Your Honours, what I was going to say was that there is a strong body of opinion that there must be in the person instituting the proceedings a belief in the probable guilt of the accused in the sense that the available evidence could justify a conviction.
May I take your Honours very briefly to some of the cases. May I go first to Hicks v Faulkner (1878) 8 QBD 167, in particular at page 170, about point 3 on the page:
To succeed in an action for malicious prosecution, the plaintiff must allege and establish two things – absence of reasonable and probable cause, and malice.
At page 171 in the last paragraph on the page he goes on to say:
Now I should define 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 any 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.
Your Honours will see then he sets out what he describes as the elements:
first, an honest belief . . . secondly, such belief . . . thirdly . . . reasonable grounds . . . fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused.
At page 173, about point 5 on the page, he defines a little what is meant by “belief”. Your Honours will see the sentence:
The question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of ‑ ‑ ‑
GLEESON CJ: But the problem might manifest itself in different ways depending on whether, for example, the case against the putative defendant is circumstantial, in which case you would have to ask yourself would an ordinarily prudent and cautious man be reasonably led by these circumstances to a conclusion of guilt, which is one kind of a case. Another kind of a case is where somebody is saying, “I saw him kill Cock Robin”.
MR JACKSON: Your Honour, could I just say that considerations of that kind, though not quite the same as your Honour was just referring to, are really discussed in a sense in Hicks v Faulkner at the bottom of page 173 going through the next page.
KIRBY J: Of course the facts of that case bear out what Lord Devlin was discussing because this was a landlord and tenant dispute over rent and these were the actual parties. There is no interposition of a police constable who necessarily has to act on the evidence of others.
MR JACKSON: No, quite.
KIRBY J: These are the actual people who were involved.
MR JACKSON: Yes, your Honour, I understand that, but I was going to say though that you will see at the bottom of page 173 he says:
It cannot of course be laid down as an abstract proposition that an accuser is justified in acting either upon the credited statement of an informant, or upon his own memory. The question must always arise according to circumstances whether it was reasonable to trust either the one or the other.
That discussion goes through the next page. So it is obvious that whilst the particular facts are as your Honour said, at the same time it is recognised that there are cases where one acts on the information given by others of course. Could I come then to Sharp v Biggs ‑ ‑ ‑
HAYNE J: Sorry, before you leave Hicks v Faulkner, the critical step in Hicks v Faulkner is revealed at 170 to 171, is it not, at the foot of 170 in the last four lines, because it was a case concerning sufficiency of directions or accuracy of directions to a jury. The last four lines on 170 over to the first five or six lines on 171 demonstrate the issue that was there at stake. A case was going to the jury on the basis, “Look, this fellow told you that he’d either given up or not given up the key” – I am not sure which way it went – “and perhaps his memory’s betrayed him”, and that he has gone forward on the prosecution for perjury on the basis of an honestly held but mistaken belief. That was the issue there.
MR JACKSON: I am sorry, your Honour, with respect, but what one sees in the argument of Mr Grantham there at the bottom of the page is that Grantham was saying, really, this was a case where a person contended that if you rely on your own memory then you stand or fall by whether your memory is right or wrong. The Court did not assent to that proposition. If they had assented to that, there would have been no occasion to look at the question of whether the view, though through an incorrect memory, was yet honestly held. That is how the issue, in a sense, arose and why there was the excurses into what the elements were.
HAYNE J: But the belief of the prosecutor was critical in that case. Did he believe the evidence he was given?
MR JACKSON: Yes, quite, your Honour. Your Honour, may I go now to Sharp v Biggs (1932) 48 CLR 81. The relevant passage, I think, is in the reasons for judgment of Justice Dixon at page 106. Now, your Honours will see the statement of the test in the first and second new paragraphs on page 106:
The ultimate inference, whether or not the facts of the case amount to a want of reasonable and probable cause, is for the Court, but it is for the jury to determine what are the facts of the case.
Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted. Such cause may be absent although this belief exists if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment.
That goes on a little, your Honours. Now, your Honours will see also in that case, at page 109, commencing at the top of the page, there is a reference to Justice Hawkins in Hicks v Faulkner and a quotation from passages to which I have taken your Honours with no apparent dissent from the proposition or no particular consciousness that what was being said in some way differed from the thrust, if I could put it that way, of Hicks v Faulkner. Your Honours, when one comes to the second of these cases, that is Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 353 ‑ ‑ ‑
GUMMOW J: There are no policemen in any of these cases ‑ ‑ ‑
MR JACKSON: I am sorry, I did not catch what your Honour said.
GUMMOW J: No policemen in 48 CLR.
MR JACKSON: No, your Honour.
GUMMOW J: But there is now, is there not?
HAYNE J: 48 CLR was also a perjury case, was it not?
MR JACKSON: Yes, I think that is right.
HAYNE J: In which who believed what rather loomed large.
MR JACKSON: Your Honours will see in Commonwealth Life Assurance Society v Brain at page 344, in the second paragraph:
The charge of conspiracy was laid by Detective‑Sergeant Lawrence. The persons charged were the respondent, Brain, who had formerly been a director –
and then the actual action, as your Honours will see from the first paragraph on that page, was brought against the Life Assurance Society. It was brought on the basis that, whilst the charge was laid by an officer of police, the information had been supplied by the company, in effect. Now, your Honours will see at page 353 Justice Starke in the second line on the page in effect says but for earlier decisions he would have thought:
that the conclusion whether there was reasonable probable cause was for the Judge, without leaving to the jury the question whether the prosecutor believed in the guilt of the accused, or genuinely and honestly believed the prosecution was justified . . . In my opinion, however, the cases do not bear out the view I should have supposed was involved in the rule of law stated by Lord Esher M.R. in Brown v. Hawkes . . . and also the defendant’s belief that the facts amounted to the offence which he charged, because otherwise he will have made them the pretext for prosecution, without even entertaining the opinion that he had a right to prosecute. In other words, the reasonable and probable cause must appear, not only to be deducible in point of law from the facts, but to have existed in the defendant’s mind at the time of his proceeding.”
Then, your Honours, Justice Dixon at page ‑ ‑ ‑
HAYNE J: Just before you come to that, what was the particular question put to the jury that was in issue?
MR JACKSON: Your Honour, we referred to that I think in our written submissions in ‑ ‑ ‑
HAYNE J: Justice Heydon points out it is at the headnote 343:
(1) “Was the prosecution of the plaintiff instigated by the defendant company? Yes.” (2) “If so, did the defendant company genuinely and honestly believe that the prosecution was justified? No.”
KIRBY J: Justice Starke sets them out at 349.
MR JACKSON: Yes, thank you, your Honour. At page 382 your Honours will see in the first new paragraph on the page that Justice Dixon says:
Upon the issue of the absence of reasonable and probable cause the jury were asked one question only, namely, whether the appellant company genuinely and honestly believed that the prosecution was justified . . .
When it is not disputed that the accuser believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place, and no question arises as to the materials upon which his opinion was founded, it is a question for the Court to decide whether the grounds which actuated him suffice to constitute reasonable and probable cause. In such a case, unless there be some additional element of an exceptional kind, there is no further fact needed . . . I repeat what I said in Sharp v. Biggs –
and your Honours will see the quotation then which goes to the bottom of the page from Sharp v Biggs. Then he goes on to say at the top of the next page in the second line:
If that belief had been found to exist, the question would have remained whether the materials were enough to arouse it in a man of reasonable prudence and judgment, and this latter question it would have been for the Court to decide.
Could I pause to say that your Honours will see the way in which the test is there expressed as being:
“Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted.”
The test is not stated as being “Reasonable and probable cause does not exist if the prosecutor does not believe that upon general grounds of justice a charge against him is warranted”. There are the prior words “does not at least believe that the probability of the accused’s guilt is such that”, et cetera. Your Honours, that first part is the part that the approach taken by the Court of Appeal leaves out.
GUMMOW J: Looking at the bottom of 382, those words “at least believe” are put in apposition to the next sentence “although this belief exists”, nevertheless “not calculated”, therefore fail.
MR JACKSON: Yes, I am sorry, your Honour, that is really going on to the objective part there.
GUMMOW J: Yes.
MR JACKSON: So it is a clear reflection of the fact that there are two aspects to it.
GUMMOW J: Yes, the words “at least” are indicating there is two branches.
MR JACKSON: Yes. I am sorry, your Honour, yes, I think that is probably right. Your Honours, could I say also Justices Evatt and McTiernan at page 388 were referring to the case of Broad v Ham which is referred to at the bottom of page 387 and they go on to say at about the sixth or seventh line on page 388:
As the rule was discharged, the case is only authority for the proposition that a defendant’s belief in the absence of the plaintiff’s guilt constitutes evidence of the absence of reasonable and probable cause. But Tindal C.J. seemed to go further –
and your Honours will see the passage and then the quotation, where the word “monstrous” comes from, of Justice Erskine is also cited. Your Honours, one sees also a reference at page 389 to a quotation and sees at the bottom of the page Lord Denman being quoted and the quotation:
“I think that belief is essential to the existence of reasonable and probable cause –
and your Honours will see the nature of the belief referred to there. Then if one goes to page 390 you will see a quotation around the middle of the page from Sir John Salmond and then finally at the top of page 391, the first new paragraph, their Honours say:
The precise form of the question for the jury relating to the prosecutor’s belief has been disputed. Jordan C.J. suggests that there is no reasonable and probable cause for prosecuting unless the prosecutor believed that the accused was “probably guilty” of the offence.
Justice Hawkins is referred to and then most recently in Sharp v Biggs and it is said that:
This statement of the law by Dixon J. differs in no essential way from that of Sir John Salmond –
which is on the preceding page. Well, your Honour, that may or may not be correct, but the statement by Justice Dixon would seem to involve a little more than was said by Sir John Salmond.
Your Honours, there is not, in our submission, the great gulf, if I could use that expression, between the tests in Mitchell on the one hand and Brain which is suggested in the Court of Appeal’s judgment in this matter. One notes that two members of the Court in Williams v The Queen (1986) 161 CLR 278 at 300, Justices Mason and Brennan, at about point 3 on the page, did not appear to draw any distinction between those cases, saying:
If the arresting officer believes . . . if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution: see Mitchell . . . Brain; Glinski v McIver.
GUMMOW J: Glinski is a reference to Lord Devlin, I think.
MR JACKSON: Yes, it is, your Honour.
KIRBY J: None of the other Judges referred to this question?
MR JACKSON: No.
HEYDON J: It is way, way, way away from the point at issue in the case.
MR JACKSON: I appreciate that, your Honour. What I am saying is really what I was seeking to say before, that the difference is one not perhaps quite so fully appreciated before Justice Ipp’s article.
KIRBY J: Mr Jackson, at some stage I would be helped – given that some of these statements were said in the context of the belief of the actual prosecutor and not of a police officer, with your assistance on what, assuming that there is some ambiguity or uncertainty in the common law on this matter, the law should most properly be. It seems to me that we just have to be a bit careful picking up statements that have been expressed in different circumstances and try to look at the matter as a matter of principle, what the proper principles are governing what police officers should have to have in their minds before they proceed with a prosecution and not have in their minds.
MR JACKSON: Your Honour, a police officer or anyone instituting a prosecution, one does still have to say. Yes, certainly, your Honour, in the ‑ ‑ ‑
KIRBY J: The private prosecutor will by definition have some involvement, interest and different considerations might arise. I just wonder if it is the same test for an officer who at least in the theory of the law is acting on behalf of society to bring the person from the committed executive arm to the uncommitted judicial branch.
MR JACKSON: Your Honour, may I say this. One is not really exploring the whole of the universe in which the issue can arise by identifying really two classes of people: that is, police officers or other non‑police officers who may institute prosecutions. One has to bear in mind that many prosecutions may be instituted, particularly for what are statutory offences, by persons who are officers on behalf of bodies where no immunity may arise. In many cases of statutory offences, any person is given a statutory entitlement to institute prosecutions. So one is not really covering a range of people simply by saying it may be a police officer or it may be someone who is just a member of the public.
KIRBY J: Lord Devlin supports that view by saying that in the end somebody has to take responsibility for the potentially extremely burdensome and stressful step of putting a person before a court on a criminal charge. So that favours that view, but on the other hand, against that, is the consideration that often a police officer will have no personal knowledge of the facts of the case, will be acting on material that it has been given and that material is coming only from one side, and of course it cannot be a belief or view or knowledge which is entire. It simply reaches a certain point where the view is taken that the matter should go to the judicial branch.
Now, one could think of a rule that says, “If you do not believe in the guilt - if you believe that there is no guilt - then you should not proceed”. That might be enough for you in this case and there is a passage in one of the English cases that supports that view, but I am just a little concerned that our search amongst the treasure trove of what judges have said is not really going to finally resolve the issue, because sometimes they have been speaking in quite different circumstances than the present case.
MR JACKSON: Your Honour, I understand that. What we would simply seek to say is to accept the position that there will be many cases. Indeed, these days when any case involves investigation, as distinct from a police officer seeing someone commit an assault in front of him or her, but, in many cases involving investigation, the police officer will have statements made by persons and will have carried out some other personal investigations. Maybe all those, maybe some of them, maybe none, but the result will be the police officer will have material and the question in the end will be does the police officer believe that there would be the likelihood in terms of more likely than not of a conviction and is it a case that is an appropriate one to prosecute.
KIRBY J: Can I then put my finger on what I see as the problem with that theory and it is that the belief of the police officer is ultimately, functionally irrelevant unless you posit the view that the belief is necessary because it is a check against indiscriminate or irrelevant or insufficiently cautious approach to the prosecutorial power the police officer has.
MR JACKSON: Well, your Honour, that is fundamentally what it is and one has to bear in mind that one is not talking about something as simple, though troublesome, as bland as simply suing someone for a sum of money. What you have here, and in other cases of its kind, is someone instituting the coercive aspects of the law and, in particular, if you take this case, the circumstances were that the appellant was asked to go to a police station. He is there arrested, charged and put on bail. So his whole situation has changed and there is a very, very serious change in one’s circumstances.
It is appropriate, in our submission, that when that is to happen the person who is taking the step that brings about that change in circumstances which can result in a person losing freedom and ultimately going to prison, a person who brings about that change in circumstances should have a belief that the person is, to put it shortly and not entirely accurately, doing what is the proper thing to do and doing what is the proper thing to do does involve, in our submission, those two elements, one element being that the person forms the view that the material that the person has is sufficient, if accepted, to bring about a conviction. The second is that there is an appropriate case in which to lay the charge. Now, there may be cases, your Honours, mostly minor ones, of course, where the second feature illumes of some significance.
GUMMOW J: One has a number of torts dealing with abuses of legal procedure. Abuse of process is one, malicious arrest is another, this is a third one, but they are all concerned with indicating a use of the judicial branch, if you like, or legal procedures for proper purposes, not for abusive purposes against the citizen.
MR JACKSON: Well, your Honour, there is also involved in many of them a concept also of change of status because one of the categories of abuse of legal proceeding is to maliciously bring about bankruptcy or a company going to liquidation.
GUMMOW J: Yes.
MR JACKSON: Arrest involves, in a sense, not in a legal sense a change of status, but as a practical sense a change of status.
GUMMOW J: Or maliciously to file a winding‑up petition.
MR JACKSON: Yes, yes, and also search warrants, maliciously obtaining a search warrant is a case which is akin to malicious prosecution, but it will – obtaining a search warrant, whilst it will not have an effect on status as such, it is likely to have a significant effect on reputation which also seems to be an aspect that runs through these. Your Honour, matters of that kind are ones which do militate, in our submission, in favour of the conception that the person who sets these proceedings in motion should be a person who does so in a serious and proper way, and there does need to be some restraint upon it.
Your Honours have seen, and when one takes the facts of this case, the effects were disastrous on the appellant. If one takes the facts of Gibbs v Rea, the case in the Privy Council that was referred to, the effects of obtaining the search warrant and so on were of various considerable significance on the reputation of the ‑ ‑ ‑
GUMMOW J: [1998] AC 786.
MR JACKSON: Yes. Your Honours, could I go to ‑ ‑ ‑
GUMMOW J: One thing they did say in Gibbs v Rea at 805C is that:
Proof that there was an absence of reasonable and probable cause involves proving a negative. So it is clear that slight evidence to show that there was no reasonable or probable cause will be enough to shift the burden –
I know it is said in the dissenting judgment, but it sounds right. It is Lord Goff and Lord Hope.
MR JACKSON: Yes.
KIRBY J: Is there any academic discussion of this issue, Mr Jackson? Have you found any discussion in the textbooks or anywhere else about trying to find a principled way through this maze of authority?
MR JACKSON: There is some, your Honour. Your Honour’s question to me was in a sense a double-header, if I can put it that way. There is some discussion of the relationship between the various aspects of the – I am endeavouring to give your Honour a list of these if I may after lunch perhaps. There is some discussion of the various heads which have been used to give rise to the notion of absence of want of reasonable and probable cause. There is also some discussion one sees in the American book I think the Court referred to, Dobbs, of whether there should be any requirement for belief or whether the test should be purely objective.
KIRBY J: I notice the restatement does use the requirement of belief.
MR JACKSON: Yes, but I think, your Honour, in that also one of the footnotes it refers to the article in Dobbs which says Dobbs in effect in a minority view suggests that maybe there should be some further restriction so that belief is not required. Perhaps if I could endeavour to give your Honour a list of those.
KIRBY J: We have Dobbs apparently and we have Justice Ipp’s article, but if there is anything else that you think helps to find a principled way through this, I would be appreciative of it.
MR JACKSON: I gave your Honour the passage from Fleming earlier. May I go to the way in which the matter was dealt with by the Court of Appeal and I will do so as quickly as I can. The Court of Appeal appeared to adopt views that can be summarised in this way. The first point is that there was a difference between the test in Mitchell and that in Brain. The second approach taken was that the test in Mitchell imposed a higher duty on the person prosecuting. The third was that the primary judge had adopted the Mitchell test. The fourth was that he had erred in so doing and the fifth was that applying the test in Brain, the claims should have failed.
I qualify the last of those things by saying that what the Court of Appeal seems to have done was applying the test that the Court of Appeal deduced from Brain to the claims should have failed because the approach taken by the Court of Appeal was to in effect leave out the requirement that there be a belief in the probability of conviction.
CALLINAN J: Mr Jackson, the Director of Public Prosecutions would have I think guidelines to prosecute. Do they have any relevance to a police officer?
MR JACKSON: Your Honour will see they are referred to in the reasons for judgment. I can give your Honours copies of both the Commonwealth and the New South Wales State ones, in each of which it is said that it is not sufficient that there just be a prima facie case. That is one thing. The other thing is that there is not to be taken into account the status as, for example, being an employee of the police service of the defendant.
KIRBY J: Perhaps we should have a copy of that, if you could provide that to us.
MR JACKSON: Yes, I will, your Honour. Perhaps I could endeavour to put them in a bundle and get them to your Honours ‑ ‑ ‑
KIRBY J: Just a technical question. We have had what Justice Dixon said and what other Justices have said. Has this Court ever, with the appropriate majority of the Justices, endorsed any particular test, or is this it?
MR JACKSON: This is it I think, your Honour.
KIRBY J: And therefore you are not submitting that what Justice Dixon said or what any other Justice said is a holding of the Court that determines the matter authoritatively for the purpose of a binding rule which we would have to reconsider?
MR JACKSON: Your Honour, that is right. I think the closest one gets really is that. The members of the Court in Brain, for example, seem to have adopted the view that there was an issue of belief involved. The nature of the issue does not appear with unanimity but what one does see is that Justice Dixon and also Justices Evatt and McTiernan appear to have had a more or less similar view about the nature of it. That is as far as it goes I think, your Honour.
KIRBY J: That is still only three.
HAYNE J: In just exploring that view, may I delay you a little longer on Brain, particularly in the passage in Brain at 382 in 53 CLR. What I have in mind especially is the sentence just under point 5 of the page commencing the paragraph “When it is not disputed”, et cetera.
MR JACKSON: Yes.
HAYNE J: The sentence is, if I may say so, with respect, a little dense, but much seems to turn on the second half of the sentence, “or considered its truth so likely that”, et cetera. Now, the point I want to put to you for your consideration is twofold. First, you are concerned with proving a negative. The plaintiff bears the burden of proving a negative proposition. The second part of the problem is presented by the quote from Sharp v Biggs, “The ultimate inference”. The Court is asked almost inevitably to make an inference about a state of mind, is it not?
MR JACKSON: Yes.
HAYNE J: An element of that state of mind as identified by Mr Justice Dixon is the absence in the mind of the prosecutor, be it policeman or the informing party, the absence of a belief, “Here is a matter that should be committed to the judicial process”. Now, does it not emerge from this passage at 382 that the ultimate question the proof of the negative of course may be affected by your conclusion about what did this person believe, but the ultimate question is, has the plaintiff demonstrated that this person engaged the judicial branch without a positive frame of mind that it was proper to do so? There then emerge subsequent objective questions about whether that frame of mind was arrived at on appropriate bases. But are we not at risk of inverting the negative into positive propositions, you have got to demonstrate to meet the case against you that you positively believe this man was guilty?
MR JACKSON: May I say a couple of things in relation to what your Honour has put to me? Your Honour, I think, in fact, I used the word “proper” in a submission I made earlier. What one sees, of course, is that there is an ultimate question, the ultimate question being whether the grounds were sufficient to constitute reasonable and probable cause – whether there was reasonable and probable cause. Now, that, though a question of fact, is a question for the judge if there be a jury and for the judge automatically if there not be a jury.
What the first four lines, of the passage that your Honour referred me to earlier are dealing with is to sweep away, as it were, the circumstances in which there is something to be done before getting to that question for resolution by the court, but it is interesting to see the way in which those matters are swept away. One is to say, “[If] it is not disputed that the accuser believed in the truth of the charge”; another is to say, “[If] it is not disputed that the accuser . . . considered its truth so likely that a prosecution ought to take place”; and thirdly, if there is no question about the materials upon which the opinion was founded. Now, the resolution of the earlier matters, those three things ‑ ‑ ‑
GUMMOW J: One and two are alternatives though. “[If] he believed in the truth . . . or considered its truth so likely that the prosecution ought to take place” ‑ ‑ ‑
MR JACKSON: Well, your Honour, that is a possible view of course but ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑ and no question arises – in other words, as to the materials – so nothing to go to the jury.
MR JACKSON: Well, that is a separate one, the last of those, but, your Honour, if one looks at those first two things, undoubtedly the word “or” is capable of meaning an alternative. However, it really seems to be a reflection of the passage from Sharp v Biggs, which is then later referred to where those two features appear, that is, appear, though, in perhaps different words:
Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted.
Now, I appreciate, your Honour, that the words are not exactly the same but the concepts seem to be similar and the concepts seem to be cumulative in the Sharp v Biggs passage and the word “or” should be meaning “and”, if one likes, but they are two cumulative concepts ‑ ‑ ‑
GLEESON CJ: Is part of the explanation of the emphasis in some of these cases on belief that you are approaching this problem in a context where the defendant is relying on his or her belief? In other words, you get to this when the first two elements of the tort have been made out. That is a prosecution has been instituted and has failed and the defendant is then saying, “Yes, but I believed him to be guilty”.
MR JACKSON: You do not get to the issue unless those first two things are satisfied.
GLEESON CJ: Yes. So the emphasis on belief as an exculpatory factor is in a context where that in which the defendant believed had been shown not to be so.
MR JACKSON: Quite, your Honour, yes.
GLEESON CJ: But how do you translate ‑ ‑ ‑
MR JACKSON: I am sorry, your Honour, may I just say that is usually the case. I think your Honour is right, yes.
KIRBY J: I think one of the cases the prosecution actually succeeded – that you read to us – one of the Australian cases.
MR JACKSON: Yes. Your Honour, there can be cases, I suppose, where there is an appeal and the appeal succeeds and matters of that kind and it may be too sometimes – I do not mean to unduly complicate it, your Honour, but if one took a case where the prosecution failed on, say, a jurisdictional issue or on something of that kind, it would seem likely that you could still sue for malicious prosecution.
GLEESON CJ: But moving from the context of private prosecutions instigated or even commenced, perhaps in the days before there was an organised police force, to public prosecutions commenced by people whose duty it is to prosecute in appropriate cases alters the context of asking about reasonable or probable cause, does it not?
MR JACKSON: It alters the context, your Honour, but it really makes in a sense the question more pointed. Your Honours, the days when there were no police was a little before my time, I am afraid, but the position is, of course, that for a very long period we have had police services in all parts of Australia and in the United Kingdom, where these cases came from, and elsewhere, and the common thing is for those bodies or officers of those bodies to be the ones instituting prosecutions.
GLEESON CJ: But as the facts of this case demonstrate, they have all sorts of people looking over their shoulders.
MR JACKSON: Your Honour, that is so, and that is why it is a very sensible thing to say, here you are, you have an organised force, an organised force in which there are questions of discipline, authority, promotion, influence, all these things, it is important to insist – whilst the milieu may have changed, the requirements of the law have not changed, that the person who is the one who actually institutes the prosecution be one who has turned his or her mind to the issue. The need for that remains and, really, is reinforced in a way by the fact that ‑ ‑ ‑
GLEESON CJ: But then, as Judge Cooper pointed out, when you say the prosecutor has to believe that person is guilty, you had better be careful about what you understand that to mean.
MR JACKSON: Precisely, your Honour, and I am not extending that at all, your Honour. All I am saying is that it is that person who has to form the relevant view and it is right that that person take responsibility for it. It is very easy to say the system has changed in the last 200 years, so be it, but the system that remains is one where someone has to institute the prosecution, and if the person is someone who is acting on behalf of the State in the sense of the polity, and since the executive government is a polity, and if the Parliament of the polity chooses to leave matters in that way, then that person is a person who should have to take responsibility for the very serious course of instituting criminal proceedings against someone.
Of course the State can change it if they want to, but if they have not, the situation remains. Your Honours, for a very long time there has been in Australia a recognition that there is some element of belief on the part of the person prosecuting involved.
GLEESON CJ: Whether the Court of Appeal were right or wrong – and that is what the argument is about in part – what caused them to react against what they thought Judge Cooper was reading into Sir Frederick Jordan’s statements was the impossibility of a situation in which somebody like Constable Floros would find himself when he is dealing with an allegation of child sex abuse in a situation where his capacity to verify the allegation that is being made is very limited.
MR JACKSON: Well, your Honour, may I deal with the specific first and then the general. As to the specific, your Honour, that is not really so. There were significant matters that on the evidence could have been further checked and were not. I will come to those later, if I may. As to the more general thing, your Honour, it is not, if I may say so with respect, a very satisfactory course for a court to adopt – and I am speaking of the Court of Appeal and I suppose by inference this Court, as it were – it is not a very satisfactory course to be adopted for changing the law that it might be it might make it easier or less difficult for persons who are busy to perform their task. I do not mean that in any offensive way, of course, but what I am seeking to say is that one would have thought where offences of this kind are involved, which inevitably are likely to have very, very significant effects on a person and which ex hypothesi have not been established, that the need for someone to take responsibility for instituting a proceeding, responsibility in the sense of being potentially liable if they have not applied their mind properly to the issue, arises.
GLEESON CJ: Where does the Director of Public Prosecution’s Office fit into that scheme in practice in a case like this?
MR JACKSON: It fits into the scheme in practice that here is a case – there is a case instituted which alleges indictable offences of a serious kind against a person. One then sees a situation where instead of, as in the past, having persons who were, I suppose, persons who acted as prosecutors on behalf of the Attorney-General, one has now a system of a Director of Public Prosecutions. The Director has an independent body. The Director’s staff are persons who are able to take over and look after prosecutions that have been instituted.
GLEESON CJ: But does somebody in the position of Constable Floros have to run this past the Director of Public Prosecution’s Office before the charge is laid?
MR JACKSON: No.
GLEESON CJ: At what stage then does the Director of Public Prosecutions come into it?
MR JACKSON: In the particular case the Director came into it after the proceedings had been instituted when the material that the police officer had at that point put together as being the material that might go before the magistrate was put into some form of brief.
GLEESON CJ: So that is a matter of routine?
MR JACKSON: I cannot answer that directly, your Honour. It happens commonly, as I understand it, but ‑ ‑ ‑
GLEESON CJ: Was it the case that when Constable Floros laid the charge he knew that as a matter of routine, or almost as a matter of routine, it was going to go before the Director of Public Prosecutions before the committal proceedings went ahead?
MR JACKSON: Your Honour, I cannot answer that now and I will endeavour to give your Honour an answer. I do not think the material quite goes that far.
GLEESON CJ: I had in mind the possible relevance of that question to the issue of malice.
MR JACKSON: Yes. Would your Honour excuse me just one moment? I am sorry, I thought I would be able to give your Honour an answer to that immediately but I am afraid I cannot.
Your Honours, I was dealing a while ago with the approach taken by the Court of Appeal and I said that the Court of Appeal’s reasons involved five steps. May I come to deal with those as briefly as I can? The first is whether there was a difference between the test in Mitchell and the test in Brain. Your Honours, we have dealt with that in our written submissions in paragraphs 42 to 46. May I take your Honours to those briefly.
Your Honours will see in our written submissions at paragraph 38 we have set out the relevant quotation from Mitchell v John Heine & Son Ltd and then we set out in paragraph 39 the quotation from Sharp v Biggs. If I could take your Honours then to paragraph 42 of our written submissions, we refer in paragraphs 42, 43, 44, 45 and 46 to a number of matters, some of which I have referred to already, which, in our submission, indicate that a new and different test was not being particularly advanced by Justice Dixon.
The second thing, your Honours, is that the view espoused by the Court of Appeal that the test adopted in Mitchell was a higher test is, in our submission, erroneous. I referred to higher tests. What I mean by that can be seen in two paragraphs in the Court of Appeal’s reasons. The first is at page 1904, paragraph 161, where it is said:
The bi-fold test applied by his Honour is a more onerous test than is required.
The second reference is at paragraph 111 at page 1887, where it was said:
this Court ought not to apply Mitchell v John Heine. Rather, it should follow Dixon J formulation in Sharp Biggs and Commonwealth Life Assurance Society Ltd v Brain. It follows that the trial judge erred in his application of principle –
Your Honours, the third feature was that it was said that the primary judge had adopted the Mitchell test. We would submit that it is clear that if there is a difference between them, the primary judge did understand and apply Justice Dixon’s test. Could I go in that regard to volume 5 at page 1718 in the primary judge.
GLEESON CJ: May it be convenient to come to this after lunch, Mr Jackson?
MR JACKSON: Yes, your Honour. I have gone a little longer than I expected actually. I would think I would be another hour.
GLEESON CJ: We will adjourn till 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, may I deal with a number of the matters raised with me before lunch. The first concerns the evidence about the mother’s activities. Could I give your Honours just some references in that regard. First of all, volume 5 on page 1766, I may have taken your Honours to before, at paragraph 262 in the primary judge’s reasons. Secondly, I gave your Honours a reference to page 237 in volume 1, I think, of the transcript indicating the kind of work activities in which she engaged. If one starts in the same volume at page 232 one can see what had occurred in the time since she was first married.
Your Honours, the reference to the social security difficulty, if I could put it that way, appears in volume 3 at page 1265, the answer I think to question 265.
KIRBY J: There is no relevance in her having some minor or other criminal offences.
MR JACKSON: No, your Honour, pre‑emptive observation on my part.
KIRBY J:I just do not see its relevance.
MR JACKSON: No, your Honour. It seemed to me, however, when I was asked about her work history I thought I should say what the evidence was. Your Honours, so far as the involvement of the DPP is concerned, I want to deal with that in two aspects, if I may, now to give some references about the involvement of the DPP. Secondly, I intend on dealing with the question of malice, to deal with the question of the possible relevance or irrelevance of that to malice.
So far as the involvement of the Director of Prosecutions is concerned, I gave your Honours a reference I think earlier today to volume 5 at page 1801 and to the times that were involved thereafter. Perhaps I should have started at paragraph 398 at page 1800. That goes on, your Honours, to page ‑ ‑ ‑
GUMMOW J: Well, 9 March was just a week before the 16th. Is that right?
MR JACKSON: Yes, your Honour. Then one sees what took place then, particularly in paragraph 403:
from 6 April 2001 the maintenance of the prosecution was out of his control and under the control of the DPP.
HAYNE J: Had he by then appeared in court?
MR JACKSON: Is your Honour speaking of he, Floros, or both?
HAYNE J: The accused person, as he was then.
MR JACKSON: I think the answer is no, your Honour. I think the answer is no, but he had been admitted to unconditional bail on the evening of the charge. I will find that answer for your Honour but I think the answer is no.
GLEESON CJ: Mr Jackson, the first sentence on paragraph 399 says that something happened on 16 March. There must have been some system in place pursuant to which that happened.
MR JACKSON: Well, I am going to come to that, your Honour. I was just going to, before that, however, go to page 1805 and paragraphs 427 and 428 where he said:
the DPP is not a party to this case. Furthermore, even though I am satisfied on the balance of probabilities that –
whilst it was not acting maliciously there was no reasonable or probable cause for –
maintaining the prosecution involving [C] after 16 May 2001.
Your Honours, some evidence from the second respondent about the way in which the Director of Prosecutions might become involved appears in volume 1 at pages 491 and 492. Your Honours will see commencing about line 20 on 491 he says:
If there is a problem with a brief which is forwarded to the DPP, is it the case as an investigation officer you would expect to be advised of that fact?
A. Yes and receive a requisition.
Then it goes on through that page and onto the next page. That all relates to matters which occurred after the charge had been laid. At the bottom of page 490 you will see a question and answer referring to there being a procedure or protocol set up. I do not think what the protocol was at the time appears, but the evidence in relation to it seems to be commencing at about line 20 on page 491.
GLEESON CJ: Would it be correct to infer from that evidence that when the second respondent laid this charge he knew that it was going to go to the office of the DPP?
MR JACKSON: No, your Honour. I think it would be quite incorrect to infer they knew – it may.
GLEESON CJ: We do not know how it gets there?
MR JACKSON: Well, your Honour, there was some evidence that there has to be a report within the police service on the fact that an employee of the police service has been charged with an offence of this kind. Now, presumably the Director of Prosecutions is kept aware. There is a protocol now, your Honour, I can identify that, but at the time precisely what it was I do not think appears.
GLEESON CJ: I am thinking about it from a slightly different point of view, Mr Jackson. There has been a trend in recent years to, if I can put it this way and it is a gross over-simplification, taking the police prosecutors out of the prosecution of proceedings at the committal stage and putting the officers of the Director of Public Prosecutions office in there. How extensive that is I do not know, but there must be some kind of system that enables you to know that if somebody is charged with catching undersized fish it will probably be a police officer or a police sergeant or perhaps an officer of some department who is prosecuting, but if you are charged with child sexual assault the proceedings before the magistrate will be run by a barrister or a solicitor.
MR JACKSON: Well, your Honour, there is no doubt that – if one looks at the terms of the Director of Public Prosecutions Act, that speaks, of course, in terms of power to take over things. Your Honours will see in subsection 9(2) in the cases dealing with summary offences it says it cannot do it unless:
(a)the offence is a prescribed summary offence, or
(b)a person otherwise responsible for the matter has consented in writing.
Except as provided for summary offences the Director can take over any matter. Now, undoubtedly, of course, there is likely to be a system whereby the Director informs himself or herself or is informed by others about it. Now, your Honour, all that leads one to – I am speaking about the time of these offences – is the fact that a police officer, knowing whatever was the system, would know there was a possibility the matter might be dealt with by the DPP. But whether that be so or not, one is looking in a case of this kind at the time of institution of proceedings and, I will come to this a little later, but if I might just say, the DPP is really unlikely to know, if one is dealing with the question of malice, of any of the matters that might constitute malice.
Your Honours, I am sorry I have taken a little while with that. May I say also, I have indicated to your Honours I would give your Honours copies of the Vicarious Liability Act and, your Honours, may I do so now. May I, while doing that, your Honours, also give – that is the Law Reform (Vicarious Liability) Act 1983 and it may be convenient, your Honours, if I also were to give the New South Wales Director of Public Prosecutions guidelines, which I think I was asked. I do not have the Commonwealth ones in the form yet to give your Honours.
HAYNE J: You will find that they are not very different, Mr Jackson.
MR JACKSON: I know, your Honour.
HAYNE J: They are a bit longer.
MR JACKSON: I have seen them, your Honour, but I just have not had the opportunity to copy them; that is all.
GUMMOW J: It is section 6 of the Vicarious Liability Act that treats police officers in a particular way.
MR JACKSON: Could I just say in relation to the Director of Prosecutions guidelines, if one starts at page 6, you will see that there is the quotation from Sir Hartley Shawcross’ view that:
“It has never been the rule in this country . . . that suspected criminal offences must automatically be the subject of prosecution . . .
That statement applies equally to the position in New South Wales. The general public interest is the paramount concern.
You will see there are three questions adverted to in paragraphs 1, 2 and 3 on that page. The third ‑ ‑ ‑
KIRBY J: You told me earlier that the only matters of inculpation in the statement to the police was that he was at home at the time of the offences.
MR JACKSON: Yes, I put it shortly, your Honour.
KIRBY J: I raise that because the second respondent did seem to lay emphasis upon the admissions or what it took to be some sort of confession during the interview with police.
MR JACKSON: Well, can I tell your Honour what they are?
KIRBY J: Yes.
MR JACKSON: May I perhaps come to that?
KIRBY J: Of course.
MR JACKSON: I will just deal with the guidelines and then I will come to that immediately afterwards. Your Honour, what I was going to say was this. At page 6 you will see the third matter which is point 3 on the third paragraph numbered on that page elaborated upon and then on page 7 at the bottom of the page, “A decision whether or not to proceed must not be influenced by” a large number of matters. At the top of the next page:
possible media or community reaction to the decision.
KIRBY J: That is interesting to see.
MR JACKSON: Yes, and page 16, your Honours, the reference to the taking over of proceedings, “the right of an individual to prosecute in the Local Court survives”, and the object of having the DPP is set out. You will see the circumstances in which proceedings may be taken over, and then there is a reference at the top of page 20 to a protocol of 28 October 2005 saying that advice will be set out as provided below in relation to a number of matters including, second dot point “allegations of child sexual assault”.
HEYDON J: Mr Jackson, these are not complete. That is intentional, is it?
MR JACKSON: I am sorry, your Honour?
HEYDON J: These do not appear to be complete. There is a lack of consecutive ‑ ‑ ‑
MR JACKSON: Yes, it is 90 pages long, your Honour.
HEYDON J: Yes, these are just the parts that are relevant?
MR JACKSON: I am sorry, your Honour, we have extracted what seems to be the most relevant parts, your Honour. I am sorry, I should have made that clear.
Those are the parts I wanted to refer to. Could I come to the question that your Honour Justice Kirby asked me and that concerns the admissions allegedly made by the appellant occasioned in the record of interview. Could I say these things. First, there were no admissions made that he committed any offence, and that was maintained somewhat stridently. Secondly, any concessions – and I use the word in inverted commas – related to opportunity in that he admitted that, first, he was at home on rest days during some days between 1 and 11 October 2000. You will see that referred to. Perhaps I could just give the references without going to the detail of them now. Your Honours will see that referred to in volume 4, page 1430 and pages 1450 to 1459, the relevant questions being 133 to 134, 251 and following, and I would refer particularly to page 1460, question 338. That is the first thing.
The second thing is that he accepted that he could have been alone in the home with the boys. That is in volume 4, pages 1462 to 1463, questions 355 through to 357. You will find that referred to in paragraph 151 of the Court of Appeal’s reasons at page 1901.
KIRBY J: It is hard to reconcile that with the statement by the second respondent that he had his own personal view but he thought the matter should proceed to trial if that was all there was.
MR JACKSON: That is it, your Honour, yes.
KIRBY J: Particularly given that the evidence of the complainant C was so faulty.
MR JACKSON: I have not quite got to this yet, but when one comes to the reasons for judgment of the Court of Appeal, they said there should have been a charge in respect of C as well because having the two together might in effect amount to corroboration of each other, which is somewhat alarming, with respect.
KIRBY J: It is hard to see how C’s evidence could have corroborated anyone, given that he went in and out of allegations of penetrative sexual intercourse.
MR JACKSON: Could I just mention another matter, your Honours. The charge sheet, with the two charges, one can see in volume 3 also at page 830 to 831. Your Honours asked also, what is the test to be applied by a magistrate in deciding whether to commit. I stated what seemed to be the appropriate test, your Honours. I will maybe just give the Court copies of the relevant legislation without going to it now. It has been changed since the relevant time but the references are then to the Justices Act, sections 41(2) and 41(6), now to the Criminal Procedure Act sections 63 and 64. We will give your Honours copies of those.
May I return then, your Honours, to the point with which I was about to deal when the Court adjourned. It relates to what the primary judge actually applied in the present case. Your Honours will see that in volume 5 in the early part of his Honour’s reasons commencing about page 1718. Now, your Honours will see that at page 1718 he deals in paragraph 22 with the matters not in issue and then he goes on to say:
The matters which the plaintiff has to establish in order to succeed in an action for malicious prosecution are succinctly –
your Honours will see the word “succinctly” –
set out in the judgment of Sir Frederick Jordan in the case of Mitchell v John Heine & Son Limited 1938 SR at page 469. I shall quote this at some length, because it is necessary to understand and to apply these principles when considering the present case –
Your Honours will see the reference to understanding. When one comes to the question of understanding, you will see he refers in paragraph 27 to Lord Denning’s observation in Glinski v McIver that “the word ‘guilty’ is apt to be misleading”. Now, he is obviously, if I may say so with respect, referring back to “guilty” as used in the description by Sir Frederick Jordan. Your Honours will see that he refers to that and then he refers at paragraph 28, on the next page, to Lord Devlin in Glinski v McIver and then he quotes specifically the part of Lord Devlin’s speech in that case in which he picks up what was said by Justice Dixon in Brain’s Case.
So that, your Honours, in our submission, it is clear, really beyond measure, that he is treating the necessary belief as one which has the qualities referred to in Brain. There is not much point in referring to that passage unless that is what he is doing. When he came to apply the tests to the facts, it is apparent that he was seeking to apply such a test. May I take your Honours to page 1797 and to paragraphs 383 and 384. What your Honours will see in paragraph 383 is that he says:
As is pointed out earlier –
and that is a reference back to the paragraphs to which I have just been referring –
the prosecutor does not have to believe that a court will find the person charged guilty, merely that he believes that on the probabilities upon reasonable grounds, that the person committed the offence charged.
He then goes on to deal with the position about D in the next paragraph. If one comes to the position about C at paragraph 392 on page 1799, no doubt his reasons are shortly expressed, but why would one treat him as departing from his earlier statement of principle when he had referred back to it only a few paragraphs earlier at paragraph 383? What was said by the Court of Appeal about this appears at page 1866.
GLEESON CJ: Just before you go to that, can I take you back for a moment to 1718, the passage from Sir Frederick Jordan. I understand the way you can gloss proposition No (1) by reference to Glinski v McIver, but proposition No (3) looks fairly unequivocal, does it not?
MR JACKSON: Yes, it is, your Honour.
The information . . . must be believed by him to be true.
GLEESON CJ: That is a different thing from saying “The information must be such that if it stands uncontradicted, there will probably be a finding of guilt”, or something like that. That seems to suggest that he must believe the informant.
MR JACKSON: What he is speaking of is information in the possession of the prosecutor pointing to such guilt. What he is saying really in the next subparagraph (3) is that:
The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true.
GLEESON CJ: In other words, he must believe what others are telling him.
MR JACKSON: Your Honour, that is probably literally what appears there but what he is saying is “must be believed . . . to be true” in the sense that it is a belief based on reasonable grounds that that is acceptable. “True” perhaps overstates it but, accepting that - your Honour, perhaps he goes a little far in that regard but that does seem to be perhaps putting it a little bit high but, accepting that, it does not seem to affect this case particularly.
I was going to come to what was said by the Court of Appeal about this. This is at page 1866, paragraph 53, where it is said he:
determined the appellant’s claim . . . on the basis of the principles stated by Jordan CJ in Mitchell v John Heine. His Honour also had regard to the comments of Lord Denning in Glinski v McIver –
That does, with respect, understate it a little when he referred to Lord Devlin and when Lord Devlin quoted specifically what had been said by Justice Dixon. A further feature is that when one comes to look at the test that was actually adopted by the Court of Appeal, that test is different from that which is set out in Brain. The two are compared in our written submissions in paragraph 40 and your Honours will see that in paragraph 39 we set out the test from Sharp v Biggs, then at paragraph 40 there is a quotation from paragraph [160] of the Court of Appeal’s reasons where they said:
Instead, what is required is, first, an assessment as to whether the prosecutor believed that, upon general grounds of justice, the available material justified the laying of a charge and secondly –
there is a reference to reasonableness of the belief. Your Honours, the test so reformulated does in fact eliminate, in our submission, the first part of the test adumbrated by Justice Dixon. The test so adopted is, with respect, your Honours, though said to be an application of that, it is simply not the same test.
Now, your Honours, could I come to the application of those tests, whatever they may be, to the circumstances of the particular case. One does have a situation that there was a finding that the charges were laid because of pressure to charge the appellant because he was in the police service. I have taken your Honours to paragraphs 375 and 376 at page 1795 already. What there was also, however, was a statement by the second respondent that if it had been up to him, as he put it, he would not have charged him. Your Honours will see that at page 1741. I am sorry, your Honour, I am sure that is the wrong reference. Page 1795 I should have said. I am sorry, I have missed a reference I am afraid. I said 1741 before, I should have said 1791 at about line 50. You will see the underlined passage:
“Yeah, I feel sorry for him, if it was up to me I wouldn’t have charged him, what did [C] say –
that is a reference back to the evidence that [C] had been giving –
it didn’t happen, I wouldn’t be surprised?”.
Your Honours will also see that passage referred to again at page 1795 at about line 45 where the primary judge extracts it as one of the supporting matters for his conclusion at paragraphs 378 and 379.
KIRBY J: If the test is belief in guilt or even belief that it is proper to put the matter before a court, then the answer on page 1795 at 50 falls short of both of those tests.
MR JACKSON: I am sorry, your Honour?
KIRBY J: Essentially, he says:
“Yeah I agree but what could I do, they told me in town I should have done this or I should have done that but what could I do?”.
He seems to be saying that he really suspended his own involvement in what was told to him in town.
MR JACKSON: Yes, and that is the finding, of course, that the judge made on the question of malice at paragraph 379.
KIRBY J: But there is the passage where they said if there is a prima facie case you should leave it to the court.
MR JACKSON: It is a question, your Honour, whose decision is the one that has to be made. Now, you will see that he said at the top of page 1793 when the judge is recounting what he said, he said he either denied aspects of the conversations put to him or could not remember, he denied saying the plaintiff was charged because he worked for the police service and added what your Honours will see in that paragraph, but what one has to bear in mind is what appears at paragraph 376, page 1795, that he found his evidence singularly unimpressive and unreliable. Also, your Honours, he wanted to cover up not only for his own indiscretion but for the indiscretion of those who told him that if there was a prima facie case he had to lay the charges because he was an employee.
CALLINAN J: Mr Jackson, what weight do we place on the fact that the Children’s Court, I know with all of its limitations, had made a finding on the balance of probabilities that the children had been abused?
MR JACKSON: Well, the answer is none really, your Honour, I suspect. It is perhaps something one can take into account as part of the history of it, the narrative of what took place. But the fact of the matter is that the children were taken on I think 13 October because something that the children’s mother had said to other people and which did not reflect the allegations made in fact by the boys and the result was that based on such material as it had the Children’s Court formed a view that those children should be taken away.
CALLINAN J: Let me just say, that material was defective so far as proving anything against your client.
MR JACKSON: Yes, because both events, of course, as your Honour would imagine, were of immense significance in a family situation - the children taken away with no warning for practical purposes and then the charge being laid and the very worrying time in between. But it does not amount really, your Honour, to any more than part of the narrative because the question is one that relates to the position of the second respondent.
GLEESON CJ: Mr Jackson, I do not suggest that this alters your argument or the way you would put your argument, but in paragraph 379, which is the crucial finding about malice, the statement of purpose is perhaps rather oblique. Did Judge Cooper intend that that should be understood as a finding that the purpose of laying the charge was to avoid public criticism of not enforcing the law against somebody employed in the police service?
MR JACKSON: I would have thought so, your Honour, yes.
GLEESON CJ: Which is another way of saying – you could perhaps put it more colloquially by saying the purpose of laying a charge was that this was a public relations exercise.
MR JACKSON: Yes, your Honour, one can put it at a number of levels. The position really would be to say that the motive is to say, “Charge him because he works for us. It will make us look as though we’re doing the right thing. No one can ‑ ‑ ‑
GLEESON CJ: Or it will avoid suggestion that we are doing the wrong thing.
MR JACKSON: Quite, your Honour, yes.
GLEESON CJ: That we are protecting our own.
MR JACKSON: Yes. Your Honour, I accept that it is perhaps oblique but it is clear enough what he is seeking to convey, in our submission. As your Honour will have seen, if one goes to page 1791, about line 40 ‑ ‑ ‑
KIRBY J: I suppose we cannot put out of mind the fact that at about this time there was a Royal Commission into the New South Wales Police and that that might have been a reason why police were especially careful not to open themselves to any suggestion of favouritism to an officer of police.
MR JACKSON: Well, he is a man in the police service, yes.
KIRBY J: Man in the police service.
MR JACKSON: Well, your Honour, it is one thing to seek to keep the nest clean, as it were. It is another thing to ensure that the birds ejected from the nest are not made unhealthy when they should not be and, your Honour, that bad metaphor, if I can put it that way, is really – the point I am seeking to say is that times when a service is itself perhaps under some kind of scrutiny are times when what is called for is not to give in to the pressure but to take the action that is appropriate whether there is pressure or not. There have to be standards, your Honours.
GLEESON CJ: Well, can I then come back to the DPP? If the proposition of fact is that these charges were really laid in order to get certain campaigners off the backs of the police authorities or to ensure they did not get on, what is the factual relevance of the circumstance that apparently almost as a matter of routine these charges after they are laid go across the desk of the Office of the Director of Public Prosecutions? In other words, there is an outside authority brought into the matter almost straightaway.
MR JACKSON: Well, could I say these things about that, your Honour. The first thing is that that happens, first of all, after the event. That is a simple observation, as it were. The second thing is something I mentioned ‑ ‑ ‑
HAYNE J: After what event?
MR JACKSON: The event of charging – laying the charge, your Honour.
HAYNE J: But before appearance in court in this case?
MR JACKSON: In this case, yes. The second thing is, your Honours, that the Director of Public Prosecutions is unlikely to know the circumstances which would or might give rise to the question of an improper purpose on the part of the person laying the charge and so often questions – I am sorry, I will start again, your Honours. Improper purpose is something relating to the position of the person laying the charge. Now, the matters that might give rise to that are unlikely to be known to the Director of Public Prosecutions. The Director of Public Prosecutions taking over a matter, receiving what there is, but many of the factors involved may not be ones in malice. It may have nothing to do with the material that goes to the DPP.
The third matter, your Honours, is this, that the circumstance that the matter will thereafter be handled by the Director of Public Prosecutions does not remove or, indeed, diminish the possibility of an improper purpose; rather, the possible future intervention of a prosecutorial body which will take the matter further thereafter may increase the possibility that prosecutions will be instituted for improper purposes.
HAYNE J: But what does it say about reasonable cause, that is, whether the prudent, et cetera, person assessing the material would consider that there is a case proper to put before a court?
MR JACKSON: Well, your Honour, the answer is it does not say much really because if one is looking at the position of the person who institutes the proceedings, then that person is able to do so in circumstances where he or she knows that the prosecution will or may be taken over by the Director of Public Prosecutions. That leaves open the possibility that the prosecution will be one taken with less care than might otherwise be the case, because in the end that person does not have responsibility for the ongoing conduct of the thing. He has responsibility for starting it off, unchanged from the situation which exists with or without a DPP, but does not have responsibility for carrying it on. “I am all right, Jack. I have done my part of it. It is up to you from now on, and I don’t have to worry about it because any deficiency will be cured by the actions of the DPP.”
So, your Honour, it is tempting, of course, to say there is another body coming in afterwards that will ensure that nothing goes wrong, but one is talking about a point anterior in time where, because of the possible intervention of the Director of Public Prosecutions, the conclusion is perfectly open that less attention will be paid to those issues than should otherwise be paid. Your Honour, the reality is that no very strong conclusion can be drawn about it one way or the other. I should add finally, your Honours, that the possibility the Director of Public Prosecutions will be involved does not alter the seriousness of the laying of the charges in the first place, because it sets the whole system in motion. Your Honour, I think I have exhausted myself on that topic.
Your Honours, may I deal very quickly with some matters relating to the application of the reasonable and probable cause test. What I was going to say was that if one applies the Sharp v Biggs test, reasonable and probable cause does not exist, first of all, if the prosecution does not at least believe that the probability of the accused’s guilt is such, that is the first part, second part, that upon general grounds of justice a charge against him is warranted.
Your Honours, the case in respect of C was very clear. Could I refer your Honours to page 1797, paragraph 386. It goes through very shortly to paragraph 392. In our submission, the result was manifestly correct. Your Honours will also see that in respect of D, if one goes to page 1787, paragraph 361, your Honours will see so far as D is concerned between about lines 30 and 37, the passage underlined, he said:
your bloke opened his mouth in the record of interview –
I have taken your Honours to what there was there. The second thing was:
He handled himself pretty well in the record of interview but he did make admissions that it just made it possible that it could have occurred you know so far as what the boy was saying. I know it’s probably impossible but there it is.”
A little further down the page between lines 45 and 50:
“Yea but he did make admissions in the record of interview that sort of made it possible according to the kids story.”
Your Honours, if one is looking at the application of the test to which I referred a moment ago, in our submission, in respect of neither C nor D could that test have been satisfied. The primary judge erred in the view which he took at paragraph 384 on page 1797 in relation to D. He should have paid attention to the direct evidence of the second respondent’s state of mind.
Your Honours, so far as the Court of Appeal’s approach in relation to both C and D, it treated any belief in guilt, to use that term in inverted commas, as irrelevant. You will see that in relation to C at page 1906, paragraph 166, particularly in the fifth line where it is said:
for the reasons already discussed, the test as formulated by Jordan CJ is not the correct test to apply, nor was this a case where belief in the guilt of the accused had any relevance. The second appellant was an independent prosecutor . . . investigating an alleged crime in the course of his duties as a police officer –
Your Honours, how that approach was consistent with Sharp and Brain is not clear. At paragraphs, I should also say, 168 through to 172, in dealing with C the approach taken by that court suggests that the test to be applied is one of the weakest kind. Could I, in that regard, refer to paragraph 169 first where, despite the inconsistencies, it was said:
there were considerations that explained some of the inconsistencies.
One was that he:
might have been embarrassed about making statements relating to sexual abuse . . . he was clearly homesick -
and then in paragraph 171:
It is also possible that the Crown may have sought to use the charges in respect of D and C as being mutually corroborative . . . But even if the cases did not corroborate each other, they were closely linked and it was a reasonable response to lay charges in both matters.
Your Honours, that is a very, very weak test, indeed, to apply. Then, your Honours, at paragraph ‑ ‑ ‑
GUMMOW J: What is the Crown being spoken of there?
MR JACKSON: I am sorry, your Honour?
GUMMOW J: Paragraph 171.
MR JACKSON: Yes, the Crown. Yes, it crept in, your Honour, although neither party advance that argument.
But even if the two cases did not corroborate each other, they were closely linked and it was a reasonable response -
Well, your Honours, in general, one would have thought that cases of malicious prosecution can succeed in respect of a charge which has failed even where other charges have succeeded. Persons can be prosecuted for a serious thing not successfully and be prosecuted successfully for more minor things but yet recover from malicious prosecution. The fact that the facts might be closely linked is really to give away any consideration of charges individually. Your Honours will see at paragraph 172, the fourth line:
Those statements reveal an understanding by the second respondent that the case in relation to C was weak . . . But in any event, such a belief does not, of itself, amount to evidence that there was not reasonable and probable cause –
et cetera. Your Honours, that is to leave a side of the test that the court said it was seeking to apply. Your Honours, in relation to D, the Court of Appeal’s reasons are at page 1902, paragraphs 153 through to 161. Your Honours, if one looks at page 1903 at about line 20 it is said:
On the evidence, it is clear that at the time of laying the charge, the second respondent believed the central allegations of abuse.
Now, your Honours, that view is quite inconsistent with the findings made by the primary judge. Your Honours, the ultimate application of the test appears at paragraph 160 where one sees at about line 15:
As has been explained, in a case such as this where the second respondent was not the party making the allegations, that is not the test.
Your Honours, I am not sure quite what that means -
Nor was it necessary for the appellant to establish that the second respondent did not have reasonable grounds for believing the appellant has committed the offence. A test stated in those terms focuses on the subjective assessment of the prosecutor as to the guilt of the accused. Instead, what is required is, first, an assessment as to –
and then your Honours will see the remainder of that paragraph.
Your Honours, the point we would seek to make is that the test that has been applied simply is not a correct test.
GLEESON CJ: On 9 March 2001 what was the domestic situation? Were the children in care at that time or were they back at home with their mother?
MR JACKSON: They were, your Honour. On 13 October the year before I think they had been taken, your Honour, yes.
GLEESON CJ: So that on 9 March they were still in care?
MR JACKSON: Yes.
GLEESON CJ: And when had the Children’s Court proceedings terminated?
HEYDON J: Well, 23 January 2001 was when the second respondent was informed of the Children’s Court findings, so it must have been around then.
MR JACKSON: Thank you, your Honour.
HEYDON J: I am working off your chronology.
MR JACKSON: As your Honour said, on 23 January 2001 the second respondent was informed that the Children’s Court had found that on the balance of probabilities they had been assaulted.
GLEESON CJ: And made orders taking them out of the care of their mother.
MR JACKSON: The orders had been made earlier I think, your Honour.
HEYDON J: Yes, 13 October.
MR JACKSON: Yes, 13 October they were taken out of care.
GLEESON CJ: Then some time later one of the children ran away from the care or whatever it was. I think Judge Cooper records that earlier ‑ ‑ ‑
MR JACKSON: Yes, one ‑ ‑ ‑
GLEESON CJ: When was that?
MR JACKSON: Your Honour, may I give you that in a few moments? There is a reference to the distress of the boy and what he tried to do. That is the younger boy I think.
GLEESON CJ: Yes, I have a recollection it was dealt with early in Judge Cooper’s reasons, but do not ‑ ‑ ‑
MR JACKSON: Your Honours, could I say some things about the question of malice and may I refer your Honours to our written submissions at paragraph 73 where we seek to set out what is involved in the concept of malice, that is, that it was activated by direct or indirect or improper motives as well as spite or ill will.
KIRBY J: Does the point come up under this part of your argument concerning the suggested ultimate step which was taken that he was told, “Well, if there is a prima facie case, you should leave it to the court”?
MR JACKSON: Yes, it does.
KIRBY J: It does.
MR JACKSON: Yes.
KIRBY J: Because, in a sense, if that is the position he ultimately reached, then hard as it is on your client it may be that that is sufficient if you take the view that you do not have to have personal conviction and belief.
MR JACKSON: Well, your Honour, whether that was his actual view is something that was asserted by the Court of Appeal. Whether that finding is something that was justified is another question. All that there is in that regard in terms of what evidence was accepted was that something had been said between himself and the appellant’s solicitor to the effect that he had been told that if you have got a prima facie case, you have got to go ahead. But that was something leading up to the finding that he did it because he was told he had to do it because he was an officer in the police service. So, your Honour, there is not really, in our submission, quite a finding that he did it because he believed there was a prima facie case and, indeed, what he said about it rather suggests the contrary.
GLEESON CJ: Was it put to Constable Floros in cross‑examination that if the appellant had not been an employee of the police service, Floros would never have laid these charges?
MR JACKSON: I think the answer is yes, your Honour. I will endeavour to give your Honour a reference to that. Your Honours, what I was going to say was this, that your Honours will see we have set out in our written submissions where the relevant passages from those cases may be found. There was a finding, of course, at paragraph 379 that he was charged because he was employed by the police service and the Child Protection Enforcement Agency required that he be charged and that finding was, in our submission, plainly open. I have taken your Honours to pages 1791 and 1795.
Now, your Honours, I have dealt with what is involved in that motive in discussion with your Honour the Chief Justice and I do not think I need to go over that, but what we would also say is that if one looks, for example, at matters such as those contained in the Director of Public Prosecutions Guidelines, they are some indication that motives of that kind are not motives which could be properly regarded as proper motives – not binding, of course, but they are matters of that nature.
Could we also say that, if I could go to the Court of Appeal’s approach, one sees that in volume 5 at page 1909 on this issue. One commences at paragraph 174. One sees, if one moves on in the discussion that there appears on to paragraph 185, that it is said:
The trial judge held, however, that it was not sufficient for there to be a prima facie case “in the sense of information which if accepted would establish the elements of the criminal charge. In addition, the person laying the charge must have the belief based upon reasonable grounds that the allegations are probably true”.
That is a reference back to paragraph 374 of the primary judge’s reasons which your Honours will see at page 1795. What the judge was saying there was that he was dealing with – I am sorry to make this sound complicated, your Honours – a submission made on behalf of the other side which is set out in paragraph 371 and he was dealing with the paragraph which is No 9 at page 1794, about line 24:
That the file notes are not a complete record of the conversations as borne out by Mr Walsh’s concession (p 280) that, in addition Detective Floros said to him:
. . . that people advised him above him, “Look, if you had a prima facie case, you’ve got to leave it up to the court”. I think there was conversation about that.”
That is essentially all that there was. Your Honours will see that some evidence was given about these conversations and about his state of mind by Detective Constable Floros but the primary judge’s views of him in relation to that were not particularly good. You will see that at paragraphs 375 and 376 on page 1795. So that was all that the primary judge was saying.
Your Honours will see then that the Court of Appeal went on to say in paragraph 188 where its reasoning appears to be primarily:
it is one thing to find that a person was under pressure to charge if there was a prima [facie] case.
That is really rather to skew the finding of the primary judge.
It is another to find that a prosecutor, in laying a charge, had a motive “other than bringing a wrongdoer to justice”, as must be established to prove malice . . . I do not consider that it was established that he did not believe he had a “prima facie case”, being the phrase used by his superiors, or that his intention in charging the appellant was other than to bring him to justice.
It is a little difficult, in our submission, to arrive at that conclusion when there is no finding to that effect and where the findings that deal with the issue are really against accepting that conclusion. In particular, if one goes to paragraph 189 at page 1913, it is said:
Mr Walsh’s agreement about mention of a prima facie case in cross‑examination . . . must also be considered . . . At the committal proceedings, Mr Walsh reminded the second respondent about the first conversation . . . In cross‑examination, however, the second respondent gave the following evidence –
You will see the evidence given in paragraph 189, and then at paragraph 190, again some evidence from him. Then your Honours will see at paragraph 191 an argument on behalf of the second respondent:
that although the trial judge did not believe the second respondent when he denied or did not remember the conversation with Mr. Walsh, that did not prove that he laid the charges because he was pressured by his superiors -
Then, your Honours, in paragraph 192, what appears to be a view taken by the Court of Appeal in our favour on the issue. It is very, very difficult. Then the broad statement at 193 that “malice has not been established”. Then at paragraph 194 a repetition of what is at paragraph 174.
GUMMOW J: I am sorry, 194 is a repetition of?
MR JACKSON: Paragraph 174. Not quite the same words, your Honour, but pretty close.
KIRBY J: You have the statement by Mr Walsh which was believed, and on that – is the flaw in your argument that, notwithstanding that he says that he would not have prosecuted it and it was very hard on your client but that he had been told that if there was a prima facie case he should lay it before the court and the court would decide the matter according to law, because on one view that is a right approach for him to adopt?
MR JACKSON: Well, it is not, with respect, a flaw, your Honour. The position was that - you will see, for example, if I could just go back a little, page 1777, paragraph 327. This was one of a number of occasions when the second respondent had given evidence that he formed the belief that the appellant did commit those things. Now, your Honours, that really could not have been accepted in the light of the other finding, the findings of the primary judge. You have then, your Honours, the conversations with Mr Walsh commencing at page 1784 and then the part about prima facie evidence comes in at the bottom of page 1785 where he said he was working under pressure.
I also recall, now that you’ve asked me, there was some – in the first conversation about prima facie case that those – that people advised him above him, “Look, if you had a prima facie case, you’ve got to leave it up to the court”. I think there was conversation about that.
You will see then, your Honours, that if one goes on then, there is reference, for example, at page 1790, at about line 17, the underlined part:
under a lot of pressure to charge your client because he worked for the Police Service”.
Between lines 25 and 30, “felt under pressure from superiors”, et cetera. Then, your Honours, the other reference I think to prima facie case is on page 1792, in paragraph 370, where he gave evidence:
In general he either denied aspects of the conversation . . . In particular he denied saying the plaintiff was charged because he worked for the police service and added –
what is said there, including the last three lines of that:
“Well, if you’ve got a prima facie case, you should go to court”.
Now, your Honours, it is in relation to that, the conflict of evidence, that one sees the finding referred to at paragraph 376:
I found the evidence of Detective Constable Flores singularly unimpressive and unreliable . . . I am satisfied that he remembered what he said. He did not want to deny having said it yet he wanted to cover up not only for his own indiscretion but also the indiscretion of those superior officers who told him to lay the charges if there was a prima facie case because the plaintiff was an employee of the Police Service.
Your Honours, one does not have a finding that that was why he laid them and in the light of all that evidence what you have is the ultimate finding at paragraph 379, that he laid them not for the purpose - and it has two aspects – “not for the purpose of bringing a wrongdoer to justice”, not for that purpose, “but for the improper purpose”, et cetera. So the finding, your Honour, goes beyond the positive reason, but also excludes the negative, as it were.
GUMMOW J: What does the last sentence of paragraph 378 mean on 1796:
this investigation was being monitored by officers of the Child Protection Enforcement Agency because it had been reported to them by reason of the plaintiff’s employment by the Police Service.
MR JACKSON: Well, your Honour, there was evidence I think that if someone employed by the police service was charged with an offence of this general nature, that that had to be reported to the Child Protection Enforcement Agency which itself was a body in which the police were involved. I do not know that it was any more than that really.
GUMMOW J: What is the basis of this Child Protection Enforcement Agency?
MR JACKSON: I think it is referred to early in the primary judge’s reasons, your Honour. It is a body which consists of police officers and it is at paragraph 6 on page 1714.
GUMMOW J: That is the joint ‑ ‑ ‑
MR JACKSON: “Joint Investigation Team under the Child Protection Enforcement Agency”. I do not think I have a reference to it in the judgment, but I will endeavour to get one.
GUMMOW J: Anyhow, Mr Sexton will tell us.
MR JACKSON: Your Honour, I should perhaps mention, in relation to the Director of Public Prosecutions Act, section 15A does have a provision that says in subsection (1):
Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
GUMMOW J: When did that go in there?
MR JACKSON: 2001, No 7, your Honour, schedule 2. A question that one of your Honours asked me was about the younger boy and leaving care. That is at page 1715, paragraph 12, and your Honours will see the circumstances in which the two boys ultimately went home. Now, as to the dates of the committal, page 1803, paragraph 416, and the committal was listed on, the first date, 16 May 2001. Your Honours, we rely on our written submissions, of course, and our submissions in reply.
GLEESON CJ: Thank you, Mr Jackson.
CALLINAN J: Mr Jackson, I am sorry, just before you sit down. The actual expression used by Justice Dixon in Sharp v Biggs:
the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted.
That seems to be very, very general. At the moment, I do not understand what “general grounds of justice” means and the expression “a charge against him is warranted”. What I am suggesting to you is that it does not seem, with all due respect, to be a very satisfactory test. I am sorry, I know you have covered part of this, but just trying to focus on the words.
MR JACKSON: No, I understand, your Honour. It is putting in very short terms concepts that one sees elaborated upon in, for example, today such documents as DPP Guidelines to which I referred.
I am not saying this as an exact equivalent, of course. What I am saying though is one has a situation where there has to be a belief in a probability that the accused would be found guilty on the material that there is, but the fact that a person might be found guilty on the material that there is does not necessarily lead to the conclusion that every person who is in that situation should be charged. The observation made by Sir Hartley Shawcross in that passage to which I referred earlier is one which really recognised a concept of that kind and that is that from time to time charges are not laid in respect of persons who might otherwise be convicted. For example, matters such as age, infirmity, all these sorts of things ‑ ‑ ‑
GLEESON CJ: Stale offences.
MR JACKSON: ‑ ‑ ‑ stale offences, yes, your Honour – are taken into account. It is really to cover as a kind of catch‑all concepts of that kind, in our submission, that he is speaking of matters “such that upon general grounds of justice” a charge should be warranted, but it does involve, in our submission, broadly speaking, two aspects. That is it militates against the concept that prima facie is enough. I mean prima facie will usually be enough but it is not always enough.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Solicitor.
MR SEXTON: If the Court pleases, I was going to go first to some of the formulations and the tests that occur in the cases in relation to the absence of reasonable and probable cause and then to look at the question in this case of reasonable and probable cause in relation to each of the charges that was brought and then to look at the question of malice in relation to the charges. They can be considered together for that purpose really as they were brought in this case. The second and third aspects, looking at the evidence, we have dealt with in some detail in our written submissions. I will not go through it in the same detail but I will try to summarise some aspects of it at last, but it is dealt with in considerable detail in that document.
Now, as to the first matter, your Honours, in our submission, one of the problems about many of the formulations that are used in the cases make use of two terms: one “belief” and the other “guilt”.
I think the Chief Justice has already referred to the fact that it is possible in terms of belief to have various shades or various degrees of strength of belief. In the case of the word “guilt”, it is a term that is perhaps normally used in the criminal law to identify the ultimate finding by a jury beyond reasonable doubt at the end of a criminal trial and we would say that there is a question about its utility when it is used at the start of the criminal process when all of the prosecution evidence may not be available and perhaps none of the defence evidence at that time. In our submission, there are good reasons why it is not sensible to apply the statements used in many of the earlier cases concerning private prosecutions to most cases involving public prosecutions.
It should be noted that it is only in relatively recent times that there have been cases concerning public prosecutions. Sharp, Brain and Mitchell v John Heine were all effectively cases about private prosecutions, Brain and Mitchell where the information had been supplied to the police who brought the charges, but the action was brought against the private person who had supplied that information.
KIRBY J: Can I get it clear whether you are arguing from a point of authority that belief is not part of Australian law or from a point of principle, there being uncertainty and lack of binding authority, that the proper expression of the law should be without any reference to belief or with some part for belief to play. What is the State’s proposition?
MR SEXTON: I think we are arguing both of those, your Honour. We would say that because so many of the formulations in the cases use the term “belief” and use the term “guilt” that it is not apposite to the modern notion of a public prosecution. I will come to some alternative formulations. One of the problems about alternative formulations is that they are at a reasonably high level of generality, as Justice Callinan has observed, even about the test that is formulated by Justice Dixon in Sharp and in Brain which, however, we would say has the problem, even that test, that it talks about belief and it talks about guilt.
KIRBY J: I think we know after this morning that there is a variety of expression in the way in which the test has been propounded, but I do think it is important that I understand, if I can say so, what you say is the test and then whether you say that is something that rests on the authority of this Court or the authority of particular Justices or on some analysis of the matter of legal principle which is involved taking into account, for example, the growth of public prosecution as against private prosecution in which some of the earlier formulations were expressed.
MR SEXTON: I am just about to come to that. I am just about to suggest some alternatives, your Honour, all of which do have the problem of generality but, in our submission, it is not a problem that can be easily avoided.
KIRBY J: In the end we have to express a test which applies both to judge alone trial or judge plus jury trial because I imagine that in some parts of Australia – in New South Wales, for example, I imagine that you can summon a jury to determine this type of matter, certainly in my day you could. I do not know whether you still can but I think ‑ ‑ ‑
MR SEXTON: It is possible.
KIRBY J: In Victoria they have been less ready to abolish jury trials.
MR SEXTON: Well, that then involves the problem with formulating questions for the jury which, of course, is the way in which the question has arisen in many of the earlier cases.
GLEESON CJ: That is the way the common law developed. The common law was meant to be administered by and, therefore, explained to juries.
MR SEXTON: That is so, your Honour, and in this case, of course, sitting without a jury the trial judge considered all of those issues simultaneously. I am going to come to those alternatives, your Honour, but I simply wanted to add that in the majority, perhaps almost all, of those earlier cases the defendant had personal knowledge of the facts on which the prosecution was supposedly based and either having personally initiated it or supplied the information in question to a public prosecutor, and it seems to us that that is quite a different situation from this case and from most prosecutions that are now initiated.
If I could just interpolate at that point in relation to the role of the DPP in these proceedings, that because this was an indictable offence it automatically would have gone to and been taken over by the DPP. That happened here, of course, within a matter of weeks of the charges being laid.
GUMMOW J: A week, 9 to 16 March, is it not?
MR SEXTON: Yes, your Honour.
KIRBY J: I am not quite sure how you use that. Do you use that to say, given that there is now the DPP Act and the DPP has the role at a certain point to take over prosecutions and in this case did, that therefore the rigor of the personal belief of the police constable is not required because further down the track the police constable knows there is going to be a rigorous examination of the matter by officers of the DPP?
MR SEXTON: No, not in that way, your Honour. I will come to the facts a little later, but it is relevant, we would say, both to the question of the police officer’s subjective belief in whatever the required subjective belief was and also to his state of mind on the issue of malice, that he knew that this material was going to be forwarded to another and an independent body that was, in effect, going to review it, that that is a relevant factor on those issues because, we would say, it is perhaps unlikely in that situation that he would put up a case that he believed to be fanciful or that was obviously attended by some sort of bias or malice or improper purpose.
KIRBY J: But as against that we have Lord Devlin’s statement that those who initiate criminal prosecutions in this sort of society must take responsibility and we have the rather vivid evidence of the humiliation and stress to which the appellant was placed by what happened long before the DPP became involved.
MR SEXTON: Your Honour, he does take responsibility and he is the person who is the subject of these proceedings, but we say that it has some relevance to those two issues, that he knew that this information that he had assembled was going to be reviewed by somebody else, and somebody who was outside his working system.
KIRBY J: It would not be a good principle to adopt, would it, to say, “Well, don’t worry too much about initiating the proceedings. Don’t worry too much about such a stressful accusation. Don’t worry about the humiliation and so on because two or three weeks or four weeks or a few months later these rigorous officers of the DPP are going to go through it thoroughly”.
MR SEXTON: No, your Honour, it is not what he said here and I will come to the evidence, but he gave evidence in the trial that he believed the allegations of the two children. He gave that evidence. There is no finding by the trial judge disbelieving him in relation to that material.
KIRBY J: Yes, but there is a finding of the trial judge that he did not himself believe that the appellant should be charged.
MR SEXTON: No, there is no ‑ ‑ ‑
KIRBY J: Well, he accepted the evidence to that effect.
MR SEXTON: That is the ultimate. There was an ultimate finding by the trial judge, but we ‑ ‑ ‑
KIRBY J: He found the second respondent a most unconvincing and unimpressive witness.
MR SEXTON: Yes. Well, that was on his conversations with Mr Walsh, as I say, not on other aspects of his evidence, your Honour, and we have to accept those findings of fact in relation to that conversation, but otherwise he gave evidence at the trial that he believed the allegations and that he thought that the charges should be laid. He did not move from that position. Now, your Honours, if I can just go to some possible formulations from the cases that seem to us to be preferable to the ones that refer to belief and to guilt, one of those is the quote from Salmond which is in Sharp v Biggs, quoted by Justices Evatt and McTiernan.
HEYDON J: We are on paragraph 11 of your written submissions, I think.
MR SEXTON: You may be, your Honour; I was looking at ‑ ‑ ‑
HEYDON J: Well, that is where Sir John Salmond is quoted.
MR SEXTON: Yes. In the judgment of Justices Evatt and McTiernan at page 391 in Sharp v Biggs, the formulation that there is no reasonable and probable cause unless the defendant genuinely and honestly believes that the prosecution or other proceeding complained of was justifiable – the quote is in Brain, your Honour, at page 391. That seems to us to be, although in reasonably general terms, a formulation that avoids some of the problems of the earlier cases.
KIRBY J: That does inject a requirement of belief on the part of the police constable. You are not arguing for a completely objective construct of the kind that Lord Denning seemed to favour.
MR SEXTON: I will come to Lord Denning, your Honour. It is the combination of belief and guilt that we would say causes a problem. It is obvious that the person who lays the charges has to draw some conclusions, have some opinion about the information in his or her possession, and some conclusion or opinion in relation to the future conduct of the proceedings, the consequences for the accused and the consequences for the prosecution. The question is whether that can be the subject of a formulation. We would say that that is proved to be extremely difficult in terms of the authorities, which is why the notion of believing that the prosecution was justifiable is ‑ ‑ ‑
KIRBY J: What is wrong with the formulation that they must have a belief, the belief must be of the guilt of the accused, in square brackets, for those who have sufficient knowledge or are the actual prosecutor or the person, or a sufficient belief that it is proper to place the matter before the courts of justice, in square brackets, ie, for those who have no personal knowledge, are acting on information, they must still have that level of belief. It is not a trivial matter to initiate the wheels of criminal justice.
MR SEXTON: The second of those perhaps does not cause a problem, your Honour. It is the question of belief in guilt, whatever those words mean, at the commencement of the proceedings in a case where the prosecutor may not at that stage have all of the prosecution evidence and certainly may not know anything about the defence case or the defence evidence. Justice Dixon’s formulation in Sharp which was repeated in Brain, there is a question as to what is meant by perhaps one of the words that he uses. He said:
“Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted.”
The word “such” there perhaps indicates a degree of belief that is not simply a belief in guilt. It is not quite clear how that qualifies the notion of belief. He then goes on of course to make an objective requirement as well. Of course, the objective requirement is met by the Court examining the materials in the possession of the prosecutor and forming a view as to what conclusion a reasonable and prudent person would have arrived at in relation to those materials.
CALLINAN J: Mr Solicitor, there was a matter I was going to ask you. The statement of claim pleaded unlawful arrest and abuse of process. Now, I can see why the unlawful arrest would fall away, but was there any attempt made to pursue the claim of abuse of process, because there is a difference. The test is quite different, I think.
MR SEXTON: In effect, all of those other matters, there was a verdict by a direction, your Honour, except in relation to the malicious prosecution claims.
CALLINAN J: When you say “verdict by direction” – sorry?
MR SEXTON: They were dismissed by the trial judge ‑ ‑ ‑
CALLINAN J: Were they? All right.
MR SEXTON: ‑ ‑ ‑ at the end of the plaintiff’s case.
CALLINAN J: All right. Thank you.
MR SEXTON: Your Honour, I think, Justice Kirby asked me about the question of some subjective belief. It might be noted that Lord Denning in Tempest v Snowden [1952] 1 KB 130 - Lord Justice Denning in that case at 139 and 140 expressed the view that the prosecutor’s subjective view went only to the issue of malice and not generally to reasonable and probable cause. There might, of course, be thought to be some logic in that position, but we would have to concede that he otherwise does not have support in the authorities, and in that case I think Lord Evershed and Lord Morris took a more traditional approach.
KIRBY J: Well, we are here as the High Court of Australia. We have no binding authority of this Court. We have various opinions of English judges and our own judges over many years so, I think, as was said earlier today, it is now or never. You have to put submissions that assist us to the correct principled conclusion. So you do not embrace a purely objective criterion?
It does have, at least, this attractiveness, that it fits on one view more comfortably with developments in administrative law of which, on one view, the acts of a police constable are a sample, a very special sample, but there have been so many expressions of the requirement of belief and it does play a social role, that it is hard to prop up a purely objective principle at this stage.
GUMMOW J: But acting at the direction of another is abuse of administrative power.
MR SEXTON: Yes, your Honour.
GUMMOW J: So it would not help here.
MR SEXTON: As I say, it is obvious that there have to be some conclusions drawn and that they will be relevant in that subjective sense, although logically it might, if the law had developed differently, been thought that that would have gone to the question of malice.
GLEESON CJ: The problem is these different levels of generality at which the issues arises. The allegation in the pleading - “the issue”, using that expression in the technical sense, is whether the proceedings were commenced without reasonable or probable cause. That is the issue that is defined by the pleading. You then ask yourself, what is the problem in this particular case about the existence of reasonable or probable cause? In a given case the problem might be one of law. Everybody might agree on the primary facts, they might be admitted. The question might be whether the legal consequence is that a crime has been committed.
The problem might be related to the circumstance that the prosecutor, the effective prosecutor, claims to have observed events that occurred which may or may not be in issue, or the prosecutor might be drawing inferences from reports that the prosecutor has received from other people. It is when you ask the question, what is the problem in this case about reasonable or probable cause that people start formulating these propositions about belief, because it is for the judge to decide whether there is reasonable or probable cause, not for the jury. What the jury have to decide is such issues of fact as are relevant to the issue for the judge to decide and they will vary from case to case.
MR SEXTON: We would say in this case, your Honour, that the real contest is about two things. One is about malice and the other is the objective materials on which the prosecutor proceeded. Although the trial judge found in relation to one count that he did not have the requisite subjective belief, whatever that was, we say that in his evidence he insisted that he did and that the trial judge did not reject that evidence. So there is a contest in that sense but generally we would say that the issue here is about the objective materials on which he proceeded. My learned friend says that there were not enough of them and we say that they were adequate. Then there is the question of malice, so in the context of this case it may be that we would say that the question of subjective belief does not loom so large. My learned friend says that it does and it is obviously part of, or it has been part of, some of the formulations in the cases over the years.
As I have already said, almost all of those cases concerned situations where, as your Honour says, in the context of those cases the prosecutor had a personal knowledge and belief, or had a personal knowledge and therefore could have a personal belief in the information on which the prosecution was to be based. It is not true, at least in total in this case, and it is not true in most cases of public prosecutions, which is why we say the test probably has to be in a general form and then it is a question of applying it not always easily to the individual case.
GLEESON CJ: Would somebody in Constable Floros’ position be any different from a barrister who was sent a brief with statements of witnesses in it: “These are the children. This is what they say. This is the transcript of their interviews and examinations”. Should a prosecution be commenced?
MR SEXTON: There were additional materials that I will take your Honours to but in a sense it is the same exercise.
GLEESON CJ: That looks a little like the way Judge Cooper approached it because, as I understand his reasoning at the end, Judge Cooper in effect said, “This was the brief in relation to the matter concerning D and I’ve looked at it and I think there was reasonable and probable cause. This is the brief in relation to C and I’ve looked at that and I think there was not reasonable or probable cause”.
MR SEXTON: That, in a sense, is the exercise that we would say a court engages in, in relation to this tort, but we disagree with one of those findings of Judge Cooper, of course, but in a sense, as your Honour says, the ultimate question, the absence of reasonable and probable cause ‑ ‑ ‑
GUMMOW J: Do not forget this detective had conducted very long interviews with each of these children, which the barrister will not have done.
MR SEXTON: That is right, and associated investigations, your Honour, as well. He had an investigatory role that a barrister would not have, although it is true that he had conducted the interviews but nevertheless the interviews formed the principal material on which he relied because unless he rejected ‑ ‑ ‑
GUMMOW J: He relied to some extent, did he not, on the demeanour of the children during the interviews?
MR SEXTON: He did, your Honour, yes.
GLEESON CJ: As did Judge Cooper, did he not? Judge Cooper saw these video recordings of the interviews, did he not?
MR SEXTON: I think so, your Honour, yes.
CALLINAN J: Yes, he said one of the children looked the interviewer in the eye, I remember.
GLEESON CJ: D I think. My recollection of the evidence – and it may be imperfect – is that when he started to be pressed by whatever the taskforce was as to why there was nothing happening about this, what Constable Floros did was to go to his office or wherever and pore over the records of these interviews for hours and hours.
MR SEXTON: Well, we say that there is not much doubt on the evidence that he spent a lot of time on this and he seemingly agonised about it, that in hindsight it is relatively easy to find efficiencies in the case but it is probably often true in the area of the criminal law. It does not, we would say, meet the test for malicious prosecution.
Your Honours, can I refer to one or two further formulations which, in a sense, leave out the issue of guilt, whatever that means, or do not refer to it in terms. Lord Denning in Glinski [1962] AC 726 at 758 said:
[the prosecutor] has only to be satisfied that there is a proper case to lay before the court, or in the words of Lord Mansfield, that there is a probable cause “to bring the [accused] to a fair and impartial trial”.
KIRBY J: That seems to be consistent with what he said earlier in Tempest v Snowden.
MR SEXTON: Tempest v Snowden actually was 10 years earlier. He went further there and, in a sense, as I say, he would have confined the question of belief simply to malice but ‑ ‑ ‑
KIRBY J: But it is the same rationale that it is not for the police officer to be pre‑empting what by law and our institutions belongs to someone else. He gave the illustration of where the solicitor says, “Well, you can bring it”, and he is personally of the view that the man is not guilty but he believes that it is a reasonable and proper course for him to proceed with the prosecution because the solicitor has said there is a proper case. So they are pretty telling reasons why subjective belief of the police constable is not really the criterion.
MR SEXTON: Lord Devlin posed the question very shortly in the same case of Glinski at 768, where he said it had two limbs to it:
did the prosecutor actually believe and did he reasonably believe that he had cause for prosecution?
HEYDON J: The difficulty with tests like Lord Devlin’s and Lord Denning’s and Mr Justice Dixon’s is that they do not actually give you a test: what is proper, what is warranted on general grounds of justice, what is cause for thinking that someone is probably guilty? Whatever else can be said about Chief Justice Jordan, it is a fairly precise test.
MR SEXTON: As your Honour knows, we say that it was framed in the context of a private prosecution and ‑ ‑ ‑
HEYDON J: Do you say it is wrong or do you say it is right for private prosecutions but not in any other ‑ ‑ ‑
MR SEXTON: We say it could often be right for private prosecutions in the context of that case.
HAYNE J: Why do you single them out?
MR SEXTON: Because very often the prosecutor would have personal knowledge of all the relevant ‑ ‑ ‑
HAYNE J: But is that not the proposition for which you have to contend: it is of relevance in cases where the person who is defendant has personal knowledge.
MR SEXTON: It may well be that Chief Justice Jordan’s test is apposite to that situation, but it is quite true to say, as Justice Heydon does, that the formulations that I have just quoted, and even Justice Dixon’s formulation, do not provide a precise method of calculation in relation to the question of reasonable and probable cause. I think our contention is, as I said at the start, that it is very difficult to avoid a rather high level of generality in the formulation of the test. So that inevitably its application to a particular set of facts, to a particular case, leaves open to the court quite a degree of – perhaps discretion is not the right word, but the ability to form an opinion as to whether or not the material has justified the prosecution.
GLEESON CJ: The tort of malicious prosecution does not apply only to strictly criminal charges, does it? Would these tests that we are talking about apply, for example, to proceedings instituted by the ACCC against a number of corporations accusing them of price collusion, seeking penalties?
MR SEXTON: I am not sure, your Honour. I do not think I have ever seen a case where it has been applied to anything but a criminal proceeding. I think some of the ACCC proceedings do involve offences.
GLEESON CJ: You have these civil penalties now, as they call them.
GUMMOW J: There is a decision of the House of Lords called Gregory v Portsmouth City Council [2000] 1 AC 419 which seems to pin this tort back to criminal law in the strict sense. I am not sure whether that would be followed here.
MR SEXTON: I cannot think of a case where it has been extended, your Honour, but I do not say that ‑ ‑ ‑
GUMMOW J: It applied in ecclesiastical situations, I think, in times past.
GLEESON CJ: What about these environmental prosecutions?
MR SEXTON: I think they would be categorised as criminal proceedings.
KIRBY J: I do not see why not. You can go to gaol.
MR SEXTON: It is certainly possible in the case of an individual, I think, to perhaps have imprisonment.
GLEESON CJ: The reason I picked that example of the ACCC and price collusion is that that is the kind of proceeding, if I could use a neutral word, that is often based on inferences drawn from circumstantial evidence. There may or may not be reasonable inferences but ‑ ‑ ‑
MR SEXTON: Of course, the facts of this case pose particular – of this kind of case, a child sexual assault case – problems for prosecutors because very often the allegations may not be sharply made out in terms of – by the children – but there is perhaps very unlikely to be any witnesses corroborating evidence ‑ ‑ ‑
GLEESON CJ: Yes, but they also pose problems because there are a whole lot of people looking or potentially looking over their shoulders.
MR SEXTON: Corroborating evidence may be in existence but there may not be a great deal of that in some cases. The question of whether the charges ought to be brought, can properly be brought is, we would say, far from easy and ‑ ‑ ‑
GLEESON CJ: But the essence of the case against you is that these charges were brought to get the prosecutors off the hook.
MR SEXTON: On the malice question, your Honour. I will come to that but it ‑ ‑ ‑
KIRBY J: Why is it not also relevant to the absence of reasonable and proper cause? There is no reasonable and proper cause if the real cause of it is to get the prosecutors off the hook and to look after their backsides instead of looking after the interests of justice.
MR SEXTON: I suppose it could go to the question of belief. It is perhaps more often the other way that an absence of reasonable and probable cause might strengthen a case of malice because it would indicate that the case was brought for some other purpose. We say here that on the evidence that the police officer said in his evidence that he believed the allegations and that he thought the charges ought to be brought and so far as the discussions that he had with the Child Protection Agency, he said that what was said was that if there was a prima facie case then it should be left to the courts, in the same way that the Court of Appeal said that the evidence did not justify a finding of malice.
KIRBY J: Would you give the reference to where he said that. Did the primary judge make any finding as to whether he accepted that part of his evidence?
MR SEXTON: I will get your Honour the reference, but the primary judge accepted that in terms of the conversations with Mr Walsh – he accepted Mr Walsh’s evidence of the conversations but presumably he also accepted what Mr Walsh said in cross‑examination, which was that the police officer had said that he had been told in effect in the course of the discussions – I do not think “told” is the right word, but in the course of discussions – that if there was a prima facie case, that he had to leave it to the court.
KIRBY J: It is difficult to reconcile his statement unless it is at a different point in time, that he believed the children’s evidence and both of them and his later statement that he did not think there was enough material to prosecute them.
MR SEXTON: His conversation with Mr Walsh – there were two. One was in July some time after the charges had been laid, and the other was in August on the day in which the committal proceedings in effect were stopped.
HEYDON J: It was after one charge had dropped and just after Mr Walsh’s cross‑examination of the other complainant had caused the prosecutor to ask for an adjournment with a view to getting instructions.
MR SEXTON: Yes. We would say it is a question of what his state of mind was at the time that he laid the charges. The conversations with Mr Walsh, he was trying to be sympathetic with Mr Walsh’s client. It does not, in our submission, cut across the evidence that he gave as to his state of mind at the time that he laid the charges. He was quite definite about that, both on the question of his belief that the allegations were true and also in relation to malice. What was said was that if there was a prima facie case, he had to leave it to a court.
Your Honours, I was going to move to the evidence in relation to reasonable and probable cause and malice, so perhaps if I do that in the morning.
GLEESON CJ: Well, yes, I am only asking this question for the purpose of giving a marking for the next case in the list.
MR SEXTON: No, I realise, your Honour.
GLEESON CJ: How long do you think that you will need?
MR SEXTON: Well, I would like to try and confine it to an hour perhaps, your Honour.
GLEESON CJ: All right. Then we will adjourn until 10.00 am and the next case in the list will be taken not before 11.00 am.
AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 SEPTEMBER 2006
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