A v State of New South Wales & Ors

[2006] HCATrans 40

[2006] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S464 of 2005

B e t w e e n -

A

Applicant

and

STATE OF NEW SOUTH WALES

First Respondent

JOHN FLOROS

Second Respondent

SHARYN HANNIGAN

Third Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2006, AT 9.59 AM

Copyright in the High Court of Australia

MR D.F JACKSON, QC:   If the Court pleases, I appear with my learned friends, MS A.P. STENMARK, SC and MR D.E. BARAN, for the applicant.  (instructed by Greg Walsh & Co)

MR J.E. MACONACHIE, QC:   If your Honours please, I appear with MR P.J. SAIDI and MS J.C. CHAPMAN, for the respondents.  (instructed by Crown Solicitor for New South Wales)

GLEESON CJ:   Mr Jackson, I think we understand the significance of the issue between Sir Frederick Jordan and Sir Owen Dixon but there is a suggestion put against you that this case is not a suitable vehicle to deal with that because on the finding of malice that the Court of Appeal made the appeal would fail in any event.

MR JACKSON:   Yes, your Honour, may I deal with that.  We say three things about that.  The first is that it does seem clear, with respect, that the views adopted by the Court of Appeal on this issue were themselves affected by the approach which it took on the other issue.  May I demonstrate that, your Honours.

Your Honours will see that in three passages particularly, page 190, first of all paragraphs ‑ ‑ ‑

KIRBY J:   Would it be healthy to start with what the primary judge found on malice.  You could remind us of that.

MR JACKSON:   Yes.  Your Honour will see that in a passage – I will come to the conclusion in a moment, your Honour – perhaps I could come to the conclusion first.  Your Honours will see, at paragraph 379 on page 84 that the judge said that:

The plaintiff has comfortably satisfied me on the balance of probabilities –

that the second respondent -

laid both charges against the plaintiff not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to the pressure . . . to charge the plaintiff because he worked for the Police Service. 

Your Honours will see the view that he there expressed and then went on to deal with the other half of the case.  The basis for that, your Honours, goes ‑ ‑ ‑

KIRBY J:   Does that amount to malice in law, that if you do something for pressure of superiors that therefore you are taken to have acted maliciously?

MR JACKSON:   The test appears to be that there would be malice, malice meaning relevantly to do something for an improper purpose, a purpose which was not the purpose of bringing, to put it shortly, the wrongdoer to justice but doing it because he was told to.  Your Honour, that is the view that was arrived at by the judge and your Honours will see, while I am at that passage, if your Honours go to page 83, paragraph 376, you will see that he said that he found the evidence of the second respondent “singularly unimpressive and unreliable” and though he remembered what he had said he was not prepared to say it. 

If I could go back then to page 190, your Honours will see in paragraphs 184 and 185 that when one comes to paragraph 185 he said it is not a “statement of the relevant principles relating to malice” and then if one goes on to page 190, paragraph 177, your Honours will see a reference to malice and again the passage that goes through to paragraph 180.  When one comes to paragraph 180, having quoted from Justice Kitto in Trobridge v Hardy, what was then said was that Justice Kitto’s statement should be read subject to the qualification that that is the wrong test relating to the other element and so one sees that the views taken by the Court of Appeal in relation to the element of absence of reasonable and probable cause are being drawn over into the question of malice. 

KIRBY J:   Could you just confirm that to succeed you have to prove both without reasonable probable cause and malice, and you have to establish that without reasonable and probable cause requires that it be shown that the prosecutor did not have a personal belief in the guilt of the accused.

MR JACKSON:   “Guilt” overstates it a little, your Honour, with respect because your Honours will see that the ‑ ‑ ‑

KIRBY J:   It would be hard to convince me that a policeman has to actually believe the guilt of the accused.  His duty is to lay the person from the Executive Government before the judicial branch so that the judicial branch determines that matter.

MR JACKSON:   Yes.  Your Honour, one has to bear in mind, if I may say so with respect, that if one looks at the test that was applied by the primary judge - your Honours will see that at pages 6, 7 and 8 – you will see that he referred to what was said by Chief Justice Jordan in Mitchell v John Heine and then went on, at paragraph 27, to quote from Glinski v McIver in which the concept of guilt is discussed as meaning not that he believes he must be guilty and then also quoting from Lord Devlin in the same case and Lord Devlin’s adoption of what Justice Dixon had said.  Your Honours will see that about halfway ‑ ‑ ‑

GLEESON CJ:   The prosecutor is quite unlikely to know what the defence case is.

MR JACKSON:   Your Honour, one accepts that and your Honour will see that at the top of page 8 referred to in the quotation from Lord Denning. 

GLEESON CJ:   The corollary of what is perhaps sometimes tendentiously described as the right to silence is that the police do not know what the accused’s version of events is.

MR JACKSON:   I accept that, your Honour, but one is not looking at the end at whether the case will ultimately succeed.  It is a case of whether there was reasonable and probable cause for bringing it.  Your Honours, what I am seeking to get to is that ‑ ‑ ‑

KIRBY J:   Could you define what is the reasonable and probable cause?

MR JACKSON:   Your Honour, we would say first that it is correctly put in paragraphs 23 through to 28 at page 8 and that is that the expressions in the second paragraph of Chief Justice Jordan’s statement are correct.  We would also say the term “guilt” in that sense is as referred to in paragraphs 27 and 28.

GLEESON CJ:   Mr Jackson, why is it inconsistent with having reasonable and probable cause to bring a proceeding that you are under pressure from your superiors to do it?

MR JACKSON:   Your Honour, it may or may not be.

GLEESON CJ:   Then what is said in the first two sentences of paragraph 188 is the essence of the reason for overruling the decision of Judge Cooper on this question, is it not?

MR JACKSON:   Yes, it is, your Honour, I suppose but could I just say in that regard that the finding of Judge Cooper in this regard was not just a finding that he just did it because he had been told to do it.  What he found was that he did not believe, in effect, what was said by the second respondent in giving his evidence and he was satisfied that whilst he had done it in a sense because he was told, that his own absence of belief and doing it for that purpose was something that was not a proper purpose. 

KIRBY J:   So that is how you say it is relevant to both issues that, in a sense, it swamped his proper consideration of the two matters which were

relevant to him and he, as it were, suspended his own decision to that of his superiors. 

MR JACKSON:   Yes.  Your Honour, the passages I was going to refer to were paragraphs 177 to 180 and then paragraphs 184 and 185 and also paragraph 188.  The second thing we would say, your Honours, concerns those observations at paragraph 184 and 186, I think, and this was a case, in our submission, where the second respondent’s evidence – and I took your Honours to the passage earlier – was regarded as singularly unimpressive and unreliable and that he was covering up and, in those circumstances, our submission is that the Court of Appeal could not properly arrive at the finding which it, in effect, substituted in the second sentence of paragraph 188.  Your Honours, the third thing is that we would refer to what we have said in our reply submissions at page 231, paragraphs 9 to 17, on this aspect.

GLEESON CJ:   Thank you, Mr Jackson.  We will see what Mr Maconachie has to say.  Yes, Mr Maconachie.

MR MACONACHIE:   Your Honour, 188 is where my learned friend’s case breaks down, with respect, because what the Court of Appeal did and did crisply in accordance with the cogent and powerful reasons of the recipients in Della Maddalena a week ago was to retry the issue on the papers and that is what they did.

KIRBY J:   But assessment of malice, there are some advantages in being the trial judge who is assessing the police officer and why he laid this charge – did he lay it because he really just gave in to his superiors or did he do it because he did not really turn his mind to the considerations of reasonable and probable cause.

MR MACONACHIE:   I understand what your Honour says but your Honour has to be very careful not to use the words that you used in Della Maddalena, to resurrect the “subtle influence of demeanour”,

KIRBY J:   No one is more ‑ ‑ ‑

MR MACONACHIE:   But that is what it comes down to.

KIRBY J:   Not whilst I sit here, if I have any say in it.

MR MACONACHIE:   Indeed.  What the Court of Appeal did was to find, at 188, that:

Despite the second respondent’s sometimes confused thinking as to what was important and what was not -

it was not established, it was not proved that:

he did not believe he had a “prima facie case” -

That was largely because the Court of Appeal paid more attention to what I have called the concession by Mr Walsh in his evidence before the trial judge and I do not mean “concession” in the sense that it had to be forced out of him, far from it.  But he acknowledged in one of the two critical discussions, Mr Floros had said to Mr Walsh, “The advice I was getting from the superiors was that if there was a prima facie case, I should charge and there was a prima facie case”.

GLEESON CJ:   There is a different question, I should have thought.  In a case of child sexual abuse, if there is a complainant saying, “I say I was abused in these circumstances on these occasions and I am willing to go into the witness box and swear that”, how do you come to the conclusion that there is not a prima facie case?  It could only be on the basis that there is something so inherently incredible about what the person is saying or that, for some reason, the person is so unreliable.

KIRBY J:   Or that there is such great delay that Longman would make it difficult to get the matter up or, as in this case, where one of the children withdrew the complaint and said he had been pressured by his brother.

MR MACONACHIE:   Yes, but that was at a later point in time than the laying of the charges, I think.  There were a number of objective facts, at least quasi‑objective facts - the fact that the mother had taken the doorknob from the children’s door, that she had told friends about this extraordinary incident where a knife was produced by the wife to the husband.  It was not just a matter of a child saying, “I’ve been abused”.  There was the opportunity evidence about Canberra and the involvement of the school teachers.  It was not just a case of a child making an allegation and a policeman in a knee-jerk reaction saying, “Well, I’ll have to charge him”.   There was a great deal of material which the Court of Appeal went through in exquisite detail.

KIRBY J:   That is true but this is a horror story and where a trial judge, in a very careful and reasoned judgment, a very experienced trial judge has concluded that the two elements required were missing and, in effect, that the police officer simply succumbed to the pressure of his superiors, then you just have to be a bit careful substituting that without the advantage of having sat through the whole trial and heard the whole story.

MR MACONACHIE:   I do not dissent from that for a moment but what the Court of Appeal has to do is to retry it on the papers, looking at all of the material, and giving weight to the advantages the trial judge had.  They did that and they came to a conclusion that there was insufficient there to prove the negative that has to be proved.  They did what section 75A asked of them and the very narrow question of, “Did the trial judge have any greater advantage than the Court of Appeal” is a very slim reed, we would submit, in the circumstances of this case with all of the objective material that the Court of Appeal had to look at ‑ ‑ ‑

KIRBY J:   I take all those points but it has the administration of justice issue that I have raised and it also has the quite interesting question of the different ways in which Chief Justice Jordan and Justice Dixon expressed the test.  It may be that in the end of analysis by this Court you would hold the decision of the Court of Appeal but, on the journey, given what has happened in this case, given the careful reasons of Judge Cooper, it does seem a matter which, if only to look at this question of the test, it might warrant the attention of this Court.

MR MACONACHIE:   I would submit not, not only for the reason that the finding of lack of malice by the Court of Appeal, the absence of malice - and I would want to say one more thing about that.

KIRBY J:   Mr Jackson has pointed out that is not malice in the colloquial sense.  It is not, “Did he hate the accused?”  It is “Did he act for a purpose that was not a proper purpose?”

MR MACONACHIE:   I accept that, but his purpose was plain, with respect, as the Court of Appeal found and that was to put the matter before the court.  There is no evidence of any animus.  There is no evidence of any dislike of the man particularly.  There is evidence that he was troubled about whether or not he should or should not commence proceedings, quite proper where an awful allegation of this kind is to be made.  He sought advice and the advice from his superiors was, if I can put it in slightly different terms ‑ ‑ ‑

KIRBY J:   If there is a prima facie case you should put it up.

MR MACONACHIE:    ‑ ‑ ‑ this is a matter of great seriousness and if there is a prima facie case it is your obligation to start the wheels in motion and to give the opportunity to the dramatis personae to have the allegations and the denials tested.  There is nothing improper about that and that is what the Court of Appeal had to consider and they did.  The appearance of the man in the witness box is much less important in a case like this than a careful examination of all of the material, and there was a lot of it, that Sergeant Floros had got together. 

KIRBY J:   It is getting really to the motive of the police officer who laid the charge, his feeling, his actions at the time and I just have a sense of disquiet that that really is something which you derive at the end of a long trial and of considering all the issues, as Judge Cooper did.  If it were not such a careful reasoned judgment of Judge Cooper I would not feel so disquieted.

MR MACONACHIE:   Your Honour, that disquiet should be removed by the fact that the Court of Appeal’s judgment, by Justice Beazley, was a very careful and considered decision. 

KIRBY J:   I accept that, but it does throw up an interesting legal question.

MR MACONACHIE:   If I can move to that, that is the so-called divergence between Sir Frederick Jordan and Sir Owen Dixon, it is a shimmerer, it is just not there, as I hope is demonstrated first by the analysis by Justice Beazley and by the written submissions we have put in.  That all comes out of this apparent conflict between them, it all comes out of the reliance upon Hicks v Faulkner by my learned friend, Mr Jackson, and his failure to differentiate or distinguish between those cases in which the prosecutor relies on his own evidence and his own observations, on the one hand, and those in which a ministerial officer like a police officer or a director of public prosecutions relies on what other people say and Justice Beazley, with respect, relying on what is said by Lord Denning, very clearly.

In the second situation, where you have a prosecutor necessarily relying on what others have seen and what others have said and done, the question of belief is not the same as in Hicks v Faulkner or a Commonwealth Assurance v Brain situation and Williams’ Case extracted by Justice Beazley at 164 makes the point.  There, Sir Anthony Mason and Sir Gerard Brennan had this to say, at line 10: 

If the arresting officer believes the information in his possession to be true, 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 -

and they refer to Mitchell’s Case, Brain’s Case and Glinski v McIver drawing no distinction between them in terms of the test because it is implicit in what they are saying that you have to be conscious in each case of what class of prosecutor do you have, one who knows the facts and therefore has to have a belief in them, or one who is given the facts who at that point merely has to have a belief that it is reasonable to put the wheels of justice in motion.  There is no point of distinction between Heine’s Case and Brain’s Case and Justice Beazley points that out in spades, we would say, so that even if you are against me on malice ‑ ‑ ‑

GLEESON CJ:   Where does she come to that conclusion?

MR MACONACHIE:   At page 166, paragraph 108 of the application book, your Honour:

Dixon J’s formulation focuses upon the question whether the material available to the prosecutor is such as to at least lead to “a belief that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted . . . The prosecutor does not have to believe in the guilt of the accused.  This statement has to be read subject to the qualification mentioned by Denning LJ, that in a case where the prosecution is based upon the prosecutor’s own evidence, an absence of honest belief in the case being advanced would be evidence of absence of reasonable and probable cause. 

One can see instantly why, your Honours.

GLEESON CJ:   But in paragraph 109, she seems to say Justice Dixon is right, Sir Frederick Jordan is wrong.  She does not say they are both saying the same thing.  It is just that they are considering different circumstances.

MR MACONACHIE:   She does not say that, your Honour, but the analysis that we have put in our written submission hopefully demonstrates that what Sir Frederick Jordan was talking about in Mitchell’s Case was whether or not there was evidence of any belief at all.  That was the case in which a man said, “X told me I could take that”.  It is complicated, your Honour.  I cannot, standing here at the moment, tell you precisely the facts of that case but it was a question of was there any evidence not whether there was evidence of a particular level of belief. 

KIRBY J:   Have I understood Mr Jackson right that he says that even if you apply Justice Dixon’s test that this officer did not consider whether the charge against him was warranted, he simply went ahead because he was under the pressure from his superiors.  If that is so, it is relevant both to the lack of reasonable probable cause and to the presence of malice and that that is enough for the plaintiff to get up.

MR MACONACHIE:   But that is not what I understand him to complain about.  What he says is that the ‑ ‑ ‑

KIRBY J:   It is really like an administrative law problem that the donee of the power, exercising the power for an irrelevant or improper or wrong purpose and, in this case, he allowed that purpose to swamp his attention to the proper purposes which would be, at least as I think at the moment, what Lord Justice Denning said, there are many justifiable prosecutions where the prosecutor has not himself formed any concluded belief as to the guilt of the accused.  He just thinks there is enough, there is a case and it is proper to put it before the judicial branch.  That is a theory of our governance.  The Executive brings it as quickly as possible to the judicial branch.

MR MACONACHIE:   Absolutely.  Your Honour, we are getting back to where I started and that is that the finding of fact by the Court of Appeal on malice was a carefully considered and carefully reasoned one and open, pursuant to section 75A in the cases that have dilated upon it.  If that submission is not accepted then my malice argument fails but, we would submit, on any analysis of that which is decided by Heine’s Case, on the one hand, and Brain on the other, together with Sharp v Biggs, there is no difference at all in what is being said.  They are just things being said in different circumstances for different reasons relevant to different issues.

GLEESON CJ:   You may be right about that but that is not what Justice Beazley said if you compare the first two sentences of paragraph 111.

MR MACONACHIE:   I understand, your Honour, but what she says at the end of the day is ‑ ‑ ‑

GLEESON CJ:   She obviously thought there was some conflict between the two authorities.

MR MACONACHIE:   Indeed, but your Honour, if there was a conflict, she said that which the High Court of Australia has said is the right one.  So this Court would have to, as it were, depart from what Sir Owen Dixon said, properly understood, given the issue that he was determining or speaking to, you would have to depart from that in order for the plaintiff to succeed and that will not happen, in our respectful submission, because when you look at the circumstances, as we tried to point out in our written submission, the circumstances in which that which was said in Brain and in Sharp v Biggs is taken into account, what this Court said there is no different to what has been said elsewhere, that is, if you are the prosecutor but not personally involved in the circumstances, your belief only has to be to a level of satisfaction that proceedings should be commenced and the Court of Appeal, in disagreement with the trial judge, found for good and sufficient reason, we would submit, that that is so.

GLEESON CJ:   What has happened to the second and third respondents?  I do not appear to have in front of me a certificate of the kind that I commonly have ‑ ‑ ‑

MR MACONACHIE:   I think I appear for them.  Yes, I do.

GLEESON CJ:   You appear for all of them?

MR MACONACHIE:   Yes. 

GLEESON CJ:   That is their good fortune, Mr Maconachie.

MR MACONACHIE:   Thank you, your Honour.  They are my submissions. 

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.

KIRBY J:   Mr Jackson, it would be terrible if, in this horror story we extended the horror and brought the matter up for your client to lose, so the question that is worrying me is whether or not you are putting the case, as I suggested you were to Mr Maconachie, that the reasonable probable cause and the question of malice is affected by the improper motive coming upon the officer and that that really explained his decision and that Judge Cooper so found and that the Court of Appeal should not have disturbed that. 

MR JACKSON:   Yes, your Honour, could I say this.  What Judge Cooper actually found is at page 87, paragraph 391.  He said, at about line 10:

On the balance of probabilities I am satisfied that [the second respondent] succumbed to the pressure from senior officers in the Child protection Enforcement Agency to charge the plaintiff because he [the plaintiff] was employed by the Police Service.

Your Honours will also see, if one goes to page 79, about line 35, Mr Walsh has noted the conversation he had with him, it is the passaged underlined:

gee they put a lot of pressure on me, you don’t know the pressure I was under to charge him because he works for the Police Service.

Your Honours, there was a reference also to what is said to be the prima facie case concession.  All that amounts to is at page 73 at the bottom of the page recording what was said and your Honours will see the underlined part of it.

Your Honours, in relation to the question of malice, reference was made to the Court’s decision in Della Maddalena – may I simply refer to what is in paragraph 17 of that decision, none of which is, with respect, entirely new, dealing with the position where oral evidence has been given. 

Your Honours, could I turn to the other issue.  It is clear that Justice Beazley thought there was a difference between the two tests.  Your Honour the Chief Justice has referred to two of the paragraphs, 109 and 111.  She says the same thing at 161.

Your Honours, the other feature we would say about the case is what appears at page 217, of our initial written submissions, and your Honour will see that the point that we seek to make is that even if the test be that which the Court of Appeal appeared to say was the test, it seems clear enough that the judge actually did apply a test of that kind.  Could I take your Honours to paragraph 45 on page 218.  Your Honours will see what the judge said in paragraph 380 and then he referred to the discussion of the law and said:

the prosecutor does not have to believe that a court will find the person guilty, merely that he believes that on the probabilities upon reasonable grounds, that the person committed the offence charged.

GLEESON CJ:   It appears most clearly in paragraph 392 on page 87 and indeed the interrelationship between the pressure and the belief really was critical to the outcome of the case, as I understand it.  The view that Judge Cooper took of the test to be applied in relation to reasonable and probable grounds was pretty closely bound up with the view he took about the significance of the pressure from the superiors.

MR JACKSON:   Yes, your Honour, it is not right, with respect, to say that the pressure was to charge him because there was a prima facie case but there was specific finding, to which I referred earlier, charge him because he works for us, works for the police.  Your Honour, those are our submissions.

GLEESON CJ:   Yes.  There will be a grant of special leave to appeal in this matter.

AT 10.33 AM THE MATTER WAS CONCLUDED