A v State of New South Wales & ORS.Floros v A State of New South Wales v A - [2005] NSWCA 292

No judgment structure available for this case.

Reported Decision:
63 NSWLR 681

Court of Appeal

CITATION:
A v. STATE OF NEW SOUTH WALES & ORS.Floros v. A State of New South Wales v. A [2005] NSWCA 292
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
07/03/2005; 08/03/2005

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
Mason P at 1; Beazley JA at 2; Pearlman AJA at 220

DECISION:
1. That the appeal be dismissed;; 2. That the cross-appeal be allowed;; 3. That the verdict and judgment of Cooper DCJ in favour of the appellant dated 3 February 2002 be set aside;; 4. In lieu thereof enter a verdict and judgment in favour of the respondents;; 5. Set aside Order 1 made by Cooper DCJ on 19 February 2004; ; 6. That the appellant pay the respondents' costs of the proceedings at first instance, and of the appeal and cross-appeal; and; 7. That the appellant have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled, in respect of the cross-appeal.

CATCHWORDS:
TORT - malicious prosecution - reasonable and probable cause - malice - TORT - false imprisonment - unlawful detention - unlawful arrest - District Court Rules 1973 (NSW), Part 26 rr 7 and 8

LEGISLATION CITED:
Crimes Act 1900 (NSW)
District Court Rules 1973 (NSW)

CASES CITED:
AW & Ors v State of New South Wales [2005] NSWCA 543
Baker vTelevision & General Finance Co (Australia) Ltd [1968] 1 NSWLR 3
Bales v Parmeter (1935) 35 SR(NSW) 182
Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR(NSW) 36
Broad v Ham (1839) 5 Bing NC 722
Brown v Hawkes (1891) 2 QB 718
BRS v The Queen (1997) 191 CLR 275
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
Dallison v Caffery [1965] 1 QB 348
Dawson v vansandau (1863) 11 WR 516
Glinski v McIver [1962] AC 726
Grainger v Hill (1838) 4 Bing (N.C.) 212
Haddrick v Heslop (1848) 12 QB 267
Herniman v Smith [1938] AC 305
Hicks v Faulkner (1878) 8 QB 167
Hobbs v Tinling (CT) & Co Ltd; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1
Houston v Stone (1943) 43 SR(NSW) 118
Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76
McDoanld v Coles Myer Ltd (t/a K-Mart Chatswood) (1995) Aust Torts Reports 81-361
Mitchell v John Heine & Son Ltd (1938) 38 SR(NSW) 466
Nye v State of New South Wales (2004) Aust Torts Reports 81-725
Nguyen v Nguyen (1990) 169 CLR 245
R v Dann [2000] NSWCCA 185
R v RTB [2002] NSWCCA 104
R v Skaf & Ors [2004] NSWCCA 84
Sharp v Biggs (1932) 48 CLR 81
Stevens v Midland Counties Railways (1854) 10 Exch 352
Tempest v Snowden [1952] 1 KB 130
Thacker v Crown Prosecution Service [1997] EWCA Civ 3000
Thompson v Vincent [2005] NSWCA 219
Trobridge v Hardy (1955) 94 CLR 147
Varawa v Howard Smith Co Limited (1911) 13 CLR 35
Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286
Williams v The Queen (1986) 161 CLR 278
Williams v Spautz (1992) 174 CLR 509

PARTIES:
CA 40137/2004
A (Appellant)
State of New South Wales (First Respondent)
John Floros (Second Respondent)
Sharyn Hannigan (Third Respondent)
CA 40182/04
John Floros (Appellant)
A (Respondent)
CA 40184/04
State of New South Wales (Appellant)
A (Respondent)

FILE NUMBER(S):
CA 40137/2004; 40182/04; 40184/04

COUNSEL:
D Campbell SC/L Whalan (Appellant)
J Maconachie QC/P Sadie/J Chapman (1,2,3 Defendants)

SOLICITORS:
Greg Walsh & Co
I.V. Knight - Crown Solicitor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
9360/01

LOWER COURT JUDICIAL OFFICER:
Cooper DCJ

CA 40137/2004
CA 40182/2004
CA 40184/2004

DC 9360/01

MASON P
BEAZLEY JA
PEARLMAN AJA
2 September 2005

A v STATE OF NEW SOUTH WALES & ORS.

FLOROS v. A

STATE OF NEW SOUTH WALES v. A

Headnote

The appellant brought proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the second respondent, his employer (the first respondent) and another police officer following the dismissal of two charges of homosexual intercourse laid under s.78H of the Crimes Act 1900 (NSW). The trial judge found the claim of malicious prosecution had been made out against the first and second respondents in respect of one charge. The first respondent’s liability was based upon its vicarious liability as the second respondent’s employer. His Honour dismissed the rest of the appellant’s claims.

The appellant appealed against the dismissal of the other claim for malicious prosecution; the dismissal of the claims for false imprisonment, false arrest and abuse of process, and against various components of the award of damages. The first and second respondents cross-appealed seeking a verdict on both claims of malicious prosecution.

In determining whether the respondents had acted without reasonable and probable cause in laying the charges, the trial judge applied the test stated by Jordan CJ in Mitchell v. John Heine & Son Ltd (1938) 38 SR(NSW) 466, which, for many years, has been considered authoritative in this State. At the outset of the appeal, the Court raised with the parties whether Jordan CJ’s statement was contrary to statements made in the High Court in Sharp v. Biggs (1932) 48 CLR 81 and Commonwealth Life Assurance Society Ltd v. Brain (1935) 53 CLR 343. A central issue on appeal, therefore, was the proper test to apply in resolving a claim for malicious prosecution.

HELD per Beazley JA (Mason P and Pearlman AJA agreeing):

1. General

(i) To succeed in an action for malicious prosecution, the accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause: Sharp v Biggs (1932) 48 CLR 81

2. Reasonable and probable cause

(ii) A prosecutor will act without reasonable and probable cause where an accused can show that a prosecutor lacked an honest and reasonable belief that the laying of a charge against an accused was justified: Sharp v Biggs (1932) 48 CLR 81 ; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 ( approved ); Mitchell v John Heine & Son Ltd (1938) 38 SR(NSW) 466 ( not followed )
(iii) A prosecutor will “honestly and reasonably believe” that the laying of a charge is justified where: upon the material available to the prosecutor, the prosecutor forms a genuine belief that upon general grounds of justice a charge against the accused is warranted; and where the evidence would lead a person of ordinary caution and prudence to conclude that the laying of a charge was warranted: Sharp v Biggs (1932) 48 CLR 81

(iv) A prosecutor need not believe that the accused was guilty of the offence charged, in the sense that an accused will be convicted. It is sufficient that a prosecutor honestly and reasonably believed that, upon the available evidence, there was a proper case to lay before the court: Sharp v Biggs (1932) 48 CLR 81

(v) It is not appropriate for a prosecutor to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so, for example, to assist in an assessment of the credibility of other material.

(vi) Although much of the material considered by the second respondent was inconsistent and inadmissible, there was sufficient material in his possession such that a reasonable and prudent person would consider that the charges were warranted.

(vii) Although there was pressure on the second respondent from his superiors, it was pressure to lay the charge if there was a “ prima facie ” case.
(viii) The second respondent believed, on the material he considered, that the charges were warranted.

3. Malice

(ix) Malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by either spite or ill-will towards the accused, or by indirect or improper motives, namely, motives other than a desire to bring the accused to justice: Hicks v Faulkner (1878) 8 QB 167 ; Trobridge v Hardy (1955) 94 CLR 147 ; Glinski v McIver [1962] AC 726

(x) An improper motive in charging an accused with an offence, such as succumbing to pressure from bureaucratic superiors to lay a charge, may, in some cases, support a finding of malice. In this case, however, the pressure was to lay a charge if there was a “prima facie case”.

(Obiter)

(xi) Absence of reasonable and probable cause and malice, respectively, are distinct elements of the tort of malicious prosecution. However, where it can be shown that a prosecutor’s belief in the justification of charging the accused was distorted by malice or prejudiced by improper motives, it can hardly be said that a prosecutor acted with reasonable and probable cause: Glinski v McIver [1962] AC 726 ; Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76

4. False arrest, unlawful imprisonment and abuse of process

(xii) At the time the appellant was arrested, the second respondent suspected that the appellant had committed the alleged offences and there was ample evidence to support that suspicion: s.352(2)(a) Crimes Act 1900 (NSW) .

(xiii) There was no evidence that the appellant was falsely imprisoned, or arrested or detained for an impermissible length of time merely for the purposes of investigating the allegations of abuse or deliberating whether he should be charged.
(xiv) There was no suggestion that the criminal proceedings against the appellant were brought to obtain some collateral advantage other than laying the allegations of abuse before a court: Varawa v Howard Smith Co Limited (1911) 13 CLR 35; Williams v Spautz (1992) 174 CLR 509 .

ORDERS

Matter No. CA 40137/2004

1. That the appeal be dismissed;

2. That the cross-appeal be allowed;

3. That the verdict and judgment of Cooper DCJ in favour of the appellant dated 3 February 2002 be set aside;

4. In lieu thereof enter a verdict and judgment in favour of the respondents;

5. Set aside Order 1 made by Cooper DCJ on 19 February 2004;

6. That the appellant pay the respondents’ costs of the proceedings at first instance, and of the appeal and cross-appeal; and

7. That the appellant have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled, in respect of the cross-appeal.

Matter Nos. CA 40182/2004; 40184/2004

CA 40137/2004
CA 40182/2004
CA 401/84/2004
DC 9360/01

MASON P
BEAZLEY JA
PEARLMAN AJA

2 September 2005

A v STATE OF NEW SOUTH WALES & ORS.

FLOROS v. A

STATE OF NEW SOUTH WALES v. A

Judgment

1 MASON P: I agree with Beazley JA.

2 BEAZLEY JA: The appellant, A, was charged with two offences under s.78H of the Crimes Act1900 (NSW). The first alleged offence was that he had homosexual intercourse with his stepson, D, between 8 May and 30 July 1997, at which time D was 8 years old. The second alleged offence was that the appellant had homosexual intercourse with his other stepson, C, between 1 and 11 October 2000, when C was aged 9. The charges were laid by the second respondent, a police officer, on 9 March 2001, at which time D and C were aged 11 and 10, respectively. The prosecution was subsequently taken over by the Office of the Director of Public Prosecutions (DPP).

3 Both charges were ultimately dismissed.

4 The appellant brought proceedings against the State of New South Wales, the second respondent and the third respondent, an officer of the Child Protection Agency, for malicious prosecution, false imprisonment, false arrest and abuse of process. He claimed general damages, past and future medical expenses, the recoupment of his legal costs in defending himself, as well as aggravated and exemplary damages.

5 The trial judge, Cooper DCJ, found that in charging the appellant with an offence against C, the second respondent was guilty of malicious prosecution. He found the State vicariously liable on this claim. His Honour dismissed the claim insofar as it related to D. His Honour awarded compensatory damages in the sum of $20,000, aggravated damages in the sum of $5,000 and exemplary damages in the sum of $5,000. With interest, the judgment sum was $31,250. His Honour rejected the appellant’s claim for legal costs and medical expenses.

6 The claims relating to false arrest, unlawful imprisonment and abuse of process brought against the State and the second respondent were dismissed under Pt 26 rr 7 and 8 of the District Court Rules 1973 (NSW), which provide, respectively, for the dismissal of claims and judgment by direction.

7 All claims against the third respondent were dismissed by his Honour under Pt 26 rr 7 and 8.

8 Subsequently, his Honour gave a separate judgment as to costs in which he ordered that the respondents as defendants pay 90% of the appellant’s costs on a party/party basis and ordered that there be no order as to costs of the third respondent. Presumably, in making the order in the appellant’s favour his Honour intended that order only to operate against the State and the second respondent, the third respondent having been wholly successful in defending the action.

9 The appellant appeals from his Honour’s dismissal of the malicious prosecution claim insofar as it related to the criminal charge involving D and appeals against the awards of damages. The appellant also appeals against the trial judge’s ruling under Pt 26 rr 7 and 8 in relation to the other claims.

10 The second respondent and the State have cross-appealed. They challenge his Honour’s finding as to malice and the finding that the second respondent succumbed to pressure in laying the charges, being findings that relate to the claims in respect of both D and C and the finding that there was not reasonable and probable cause to charge C. They also appeal against the costs orders made by his Honour.

11 The effect of the appeal and the cross-appeal is that every relevant legal and factual finding of the trial judge on liability, damage and costs is challenged. I will deal with the appeal and the cross-appeal insofar as they relate to the malicious prosecution claims together and the other issues, insofar as they need to be decided, separately.

12 The trial judge determined the malicious prosecution claim based on the test propounded by Jordan CJ in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466. During the hearing of the appeal the Court raised the question whether this test was in fact contrary to what the High Court (and in particular, Dixon J) had earlier said was meant by reasonable and probable cause for the prosecution, in the case of Sharp v. Biggs (1932) 48 CLR 81.

13 The Court of Appeal is not bound by its own decisions. However, there is a well entrenched convention that it will only depart from the principles stated in earlier cases where it is convinced that the earlier decision is wrong. This convention and its strictures were commented upon by the High Court in Nguyen v Nguyen (1990) 169 CLR 245 where Dawson, Toohey and McHugh JJ said at 268-9:

“The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself….The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here:…..It should be observed, however, that …the Court of Appeal in New South Wales [does not] regard [itself] as strictly bound by its previous decisions.

…

Queensland v Commonwealth

14 Before turning to a consideration of whether this Court should follow Mitchell v John Heine or whether it should apply the formulation of Dixon J as to what constitutes reasonable and probable cause, I will first review the factual background of the allegations.

Factual background of the allegations

15 The appellant commenced a relationship with S, the mother of C and D in 1996. Sometime later the appellant and S commenced cohabitation. C and D were part of the family constellation as was their older sister CA. In May 1997, the appellant and S married. At that time D was 9 years old and C was 8. The relationship between the appellant and D commenced to deteriorate shortly after this. About two and a half years later, in December 1999, D commenced seeing his natural father, after which the relationship between D and the appellant further deteriorated.

16 At some stage, and at least by 2000, the relationship between D and the appellant was such that D was determined to get the appellant “out of the house”. At about the same time, he alleged the appellant had sexually assaulted him. He alleged the assaults commenced within a month of his mother’s marriage to the appellant. At that time D had a plaster cast on one of his legs, up to his thigh, following an operation for a club foot. Cooper DCJ found that D galvanised C into making a similar complaint. The magistrate who heard the charges, for his part, considered that C made his allegations to support D’s claims.

17 In July 2000, S made a complaint against the appellant to the Child Protection Enforcement Agency (CPEA) in respect of D’s allegations. The CPEA comprises officers of the Department of Community Services and the Police Service. According to the COPS (police) report of the complaint, S informed the police that “the stepfather of the victims had been performing oral sex” on the “victims”. The complaint was not investigated until October when interviews were conducted with D and C. By the time of first being interviewed C had made a complaint that about a week previously, he too had been sexually assaulted by the appellant a short time prior to the Record of Interview. The allegation of each was of penile-anal penetration. D and C were removed from their home on 13 October 2000 and, following an application to the Children’s Court, they were made wards of the State.

18 On 9 March 2001, the charges which form the basis of the malicious prosecution claims were laid by the second respondent.

19 The committal proceedings relating to both charges commenced on 23 August 2001. On that day each boy gave evidence of a sexual assault. On 28 August 2001, C admitted in cross-examination that his allegation of sexual assault was “a lie”. The charge involving him was then dismissed. Although D maintained his allegations the magistrate found that there was “no reasonable prospect that [a] jury would convict” the appellant of the offence and dismissed the charge. A number of factors led the magistrate to this conclusion including the following matters: the complaint was first made at about the time contact with D’s natural father was re-established; D wanted the appellant “removed from the home” so that he might have more contact with his natural father; there had been collusion between D and C in making the allegations; D’s account of the assault was itself dubious, particularly as there was no allegation that the assault was painful, and immediately after the alleged assault D walked out of the room and engaged in family activities, giving no indication that anything untoward had happened; D gave varying accounts of the times and details of the assaults. The magistrate also considered there was doubt as to whether the second alleged assault occurred, given that D gave evidence of assisting in household activities (collecting household goods from the family car) immediately afterwards despite the fact that at the time he was in plaster and using a walking frame. Finally, the corroborating evidence relied upon, namely, the assault on C, had been proved to have been a fabrication.

20 Both before and during the committal proceedings, the second respondent spoke with the appellant’s solicitor, Mr Walsh. According to Mr Walsh, the second respondent expressed doubts about the strength of the prosecution case and indicated he had been “pressured” by his superiors to charge the appellant. This evidence was central to the appellant’s claim of malicious prosecution and I will return to it in more detail when dealing with the trial judge’s reasons. Before doing so, it is important to have a complete understanding of the allegations that were made by D and C in the course of their Records of Interview.

D’s Records of Interview

21 During his first Record of Interview taken on 13 October 2000, D was initially reluctant to speak about the sexual abuse. He was 10 years and 9 months at the time and was interviewed by a Detective Constable of police and a District Officer. After being asked on at least two occasions about “good touches” and “bad touches” it was apparent that D did not want to discuss anything. The Detective Constable said:

know

22 He was then asked whether something had happened to him. He agreed, but again expressed a wish not to say anything. He was then told by the interviewing officer that they had been informed the appellant had done something to him. It was only at that point in the Record of Interview that D made any allegation of sexual assault.

23 In the course of the interview, D alleged that the first act of anal sexual assault occurred in his bedroom. He was not able to put a date on when it occurred. He said it occurred on his bunk bed. He could not remember what he was wearing (but he could remember specifically what the appellant was wearing). His statement was non-specific as to what occurred as he was being assaulted, other than that it was “gross”. In relation to the first assault he replied “I dunno” when asked what was occurring.

24 D then said he remembered the second time and identified an occasion when his mother was out shopping. He said he went to the toilet in the ensuite of his parents’ bedroom. The appellant was on his bed. He said when he came out of the toilet the appellant sexually assaulted him. However, as the story unfolded, D said that after he went to the toilet he went and laid in the appellant’s bed to read because that bed was “big and comfortable”, whereas his own bed was “really small”. D then said it was at this time the appellant “came in and did that”, meaning anally sexually assaulted him. When asked what it felt like when being assaulted he said “weird” and “gross”. When asked to explain what he meant by “weird”, he said “Just didn’t feel right”. When asked “… what did your bum feel like” immediately after the assault, he answered “I’m not sure”.

25 He said he knew the appellant had assaulted his brother because C had told their mother. When asked whether he had overheard the conversation between C and his mother, he said “I heard [C] laughing”. I pause to observe that that answer, in my opinion, was so incongruous with what might be expected from a young boy complaining of serious sexual assault that it should have alerted a prosecutor to take care when assessing the reliability of the allegations.

26 A second Record of Interview was conducted with D on 19 October 2000. By that time he had been placed in foster care. Much of the questioning was directed to D not wanting to be in foster care and some ‘interference’ by his older sister who suggested that he should withdraw the allegations and tell the police that he had “made them up” because he was “looking for attention”. However, D denied this was the case and confirmed that the assaults had occurred, and again provided details of the assault in the appellant’s bedroom. He described the appellant as a “filthy disgusting person”.

27 D was also questioned about the doorknob. He said that the doorknob on the bedroom he shared with C was broken and that C had broken it when he had had the bedroom to himself. However, in her affidavit in the Children’s Court proceedings filed on 7 December 2000, the mother referred to the broken doorknob and the bedroom arrangements. The only inference to be reasonably drawn from the affidavit is that the boys shared a room at this time and there was not a time when C had a room on his own. The matter of relevance for present purposes, however, is that there were inconsistent accounts relating to the doorknob.

C’s Records of Interview

28 C was first interviewed on 13 October 2000 and then again 5 days later, on 18 October 2000. He was 8 years and 9 months old at the time. C was severely hearing impaired and was required to use hearing aids. In the first Record of Interview, which was conducted by the same District Officer who interviewed D, and in the presence of C’s teacher, C was asked a series of questions about “good touches” and “bad touches” and about the various parts of the body. He displayed a clear understanding that in relation to “bad touches” he could tell his mother, the police, or ‘welfare’ and if he was subjected to a ‘bad touch’ he “would tell somebody” (emphasis added). It also appears that he understood that he was being interviewed by “the welfare”.

29 The District Officer asked whether there was anything he wanted to tell them, but he replied in the negative. He was then asked a series of questions relating to whether he had been touched on various parts of his body. Relevantly the following emerged in the course of this questioning:

…

you’re telling me that nobody’s touched you in a bad touch, is that right or is that wrong

Yeah, it’s right.

…

Q. Yes. O.K. You’re not in any trouble today, O.K. …

…

Q. O.K. You know, O.K., which part. How about if I just ask you each part of the body somebody’s touched you. Is that a good idea? Do you understand?

…

anus

No one’s touched me there

somebody told us that you told your mum that your dad, [the appellant], did some bad touches

He hasn’t touched me yet

30 C said that “it” had happened to his brother about 2 years previously, that D had told the mother and that the mother had become “angry” but had told the boys she wanted to “get [the appellant] out of the house [and] she wanted [the appellant] to stop doing it [abusing C and D] but she couldn’t afford to be by herself”.

31 The questioning continued:

No. It’s never happened

32 The second Record of Interview with C was conducted on 18 October 2000 by the second respondent, assisted by the same District Officer. C had been brought to the interview by the District Officer after C and D had been at the Children’s Court earlier that day. C told the District Officer that at the Court he had spoken to a person who worked there about “all the disgusting things …Dad did ..to me and [D]”. The interview continued:

…

A. Well, he um, he did all these awful things.

…

A. He um, he um, when he started it was in 1999 and he um, he first started, he said, Do you want to do this? And I said no, and he said, Oh well I’m doing it to you anyway then this happened … and he sat on me and all that.

…

A. I said, No.

…

A. Then he kept doing it and doing it and I told …

…

A. Yeah and um, he um, put his penis in my anus.

…

A. … nice kisses that he likes.

…

A. He went out into the kitchen, right … these things. I don’t … watches me taking clothes off all the time when I go in the bath.

…

A. And he, … a few weeks ago he um, he wanted me to put my um, penis into his anus and I said, No.

…

A. I didn’t go to school, do you know where’s Canberra, the um, Heritage Hotel .. all that.

…

A. That’s … and every time he comes home from work he winks at me, he um, loves me too much.

…

A. … um, he tells me not to tell Mum … that’s all.

…

A. Not to tell anyone, tell anyone. That’s all.

…

33 On being questioned as to where and when the assaults had occurred, C’s evidence was specific that they started in May 1999 at the house in which the family lived first at W. His account then changed. He said that the assaults had commenced at N where the family was currently living, having moved there about two and half years previously:

…

Q. … When you say it started in 1999, what part of 1999 did it start?

…

A. It was in um, May.

…

34 The interview continued and C made the following allegations about the assaults:

…

Q.. He said, I don’t care, I’m doing it anyway.

…

what he was going to do and he got in trouble on the phone

A. I got out, I snuck out of my room and I got the phone and rang Mum up.

35 He repeated this and also confirmed that the appellant did not in fact “do anything” to him that day.

36 C then described how his mother had taken the door knob off his bedroom door and told him where a butter knife was so that he could open it. C said that thereafter the bedroom door was kept locked every day and every night. He was asked some questions about who slept in the same bedroom (his brother D shared the room with him). The interview continued:

…

Q. O.K. Ten times. When was the first time?

…

A. I can’t remember.

…

Q. So the first time happened .. Where were you when he put his penis in your anus?

…

A. I can’t remember.

…

37 C then referred to incidents of the appellant watching him in the bath.

38 A little later in the interview the second respondent returned to the topic of the trip to Canberra. C said that he and the appellant had travelled to Canberra in the appellant’s car. He alleged that whilst staying at the Heritage Hotel the appellant had sexually assaulted him in the shower.

39 Further on in the interview, C said that he had denied the sexual assaults in the first Record of Interview because he had been embarrassed.

40 Apart from the general allegation made in the early part of the Record of Interview, the only specific instances of assault that C alleged were, first, one on “about” the Wednesday prior to the interview and secondly, the assault he alleged had occurred in Canberra.

41 C was interviewed a third time on 8 February 2001 by the District Officer and a female sergeant of police. His understanding of telling the truth was clarified. C then said that he had “not really” told the truth last time. The interview continued:

…

A. Yeah. He kissed me and that.

…

A. ‘Cause, ‘cause [D], I was a bit shy to tell it to Ray [the welfare officer at the Children’s’ Court]

…

A. Some things happened but mostly it didn’t happen.

…

Q. - - - but mostly it didn’t happen.

…

The reason I can just tell a lie ‘cause I really didn’t like [the appellant] too much

…

Record of Interview with S

42 A Record of Interview was conducted with S, the boys’ mother, on 30 October 2000. This interview was also lengthy. S referred to the appellant’s abrupt manner and lack of communication skills. She continued:

“…[D] started saying, you know, like, ‘Well, I can get rid of him’. And I’d say ‘Well, what do you mean? [D], you can’t just take things into your’, ‘Yes, I can’. … ‘Well, if told people that he, if I told people he did things to me that he shouldn’t have done, he’d be gone then.”

43 S dated this complaint as being made in January 2000. She said she had been sceptical of the veracity of the complaint but said that from then on she had “endeavoured to ensure … that [the appellant] had not been left with the children unattended”.

44 S said D told her that “it’s even happened to [C]” but when she questioned C he said “no, don’t be silly”. About three weeks later C and D together went to S and C said:

“’Yeah, you want me to tell you about the things that dad’s been doing to me as well, do you?’ And I said ‘Yeah, what?’ And he said, ‘He said [D] told me’. And I said, ‘No, no. I don’t want to know what [D’s] told you to tell me, you tell me’. And he made mention that, what did he say, ‘Dad’s been doing things to me that he’s not supposed to do’.”

45 When S pressed C as to what the appellant had been doing, C responded:

“… [H]e just does things that are disgusting that he’s not supposed to do. You’re supposed to do those with women, not with children.”

46 This conversation occurred not long after the boys had had “child protection” lessons at school. S later learned that after the “child protection” lessons, C and a friend had discussed matters at school in which the friend alleged his father “does the wrong things to him too” and C said “yes, so does my dad”.

47 After this conversation, S had taken a knife to the appellant’s throat. S described what happened as follows:

“I held it [the knife] at [the appellant’s] throat .. and said to him, “you know, if this is what it’s going to take, I want the truth, because I’m not going to live with my children living in fear of disliking you to this point where they’ve got to make these allegations up”. And he just, “yeah”, I mean he stood there, looked me straight in the eye and said ‘No, I haven’t done anything at all’. And I turned to [C] and I said, ‘Have you or have you not, which is the truth?’ And he just said, ‘No, but [D] wanted me to’. And I said, ‘O.K. That tells me enough. It’s all right”.

48 S described D as being “desperately unhappy … has been for a long time”. She also said she observed the boys’ behaviour closely but did not notice any change. This was significant to her because she understood from extensive reading she did at the time that behavioural changes, such as children becoming withdrawn, were an indicator of abuse. However, neither boy had shown any disinclination to be with the appellant as she believed might have been expected if any assault had occurred.

49 She described her reaction when first informed by DOCS that sexual abuse allegations had been made at Q and A 87:

that he’d made several straight

out point blank claims that he was going to do something along these lines because he’d do whatever it took to get rid of him

50 S was also asked about the removal of the doorknob. She denied that it was done in any way to protect the boys from the appellant. Apparently, a number of doorknobs in the house had come off. She described the allegation as being “so silly”. As mentioned above, D also gave an account about the doorknob that was different from C’s.

51 Specifically S said she did not believe the allegations of abuse but was acutely conscious that there were difficulties in the appellant’s relationship with the boys, especially with D. She said, however, that she was not prepared to take any risk with the children.

52 The second respondent took statements from numerous other witnesses and a Record of Interview was also conducted with CA, the boys’ older sister. It is not necessary to set out that material in detail. To the extent it is relevant, I have considered it as part of the discussion of the trial judge’s factual findings.

The law

53 Cooper DCJ determined the appellant’s claim for malicious prosecution 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 [1962] AC 726. Both parties allege error in his Honour’s purported application of the principles stated in those cases, and in particular in the application of the test stated by Jordan CJ.

54 However, as I have already indicated, a more fundamental question arose during the course of the appeal, namely, whether the test stated by Jordan CJ ought to be applied given that there are persuasive statements of the High Court to a different effect which had been made prior to his Honour’s consideration of the matter in Mitchell v John Heine. That question, which is directly called into issue in this case has been raised extra-judicially by Ipp JA: see “Must a Prosecutor believe the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?” (2005) 79 Australian Law Journal 233. It will be apparent that what follows draws heavily from this article.

55 Jordan CJ’s statement of principle has been viewed as authoritative for many years. It was most recently applied in this State by O’Keefe J in Nye v State of New South Wales (2004) Aust Torts Reports 81-725, and was considered by the trial judge in this case to be binding on him. It is convenient, therefore, to first turn to Mitchell v John Heine. The relevant passage is found at 469. There, Jordan CJ pointed out, uncontroversially, that there were two elements in the tort of malicious prosecution that a plaintiff must prove: first, that the prosecution acted without reasonable or probable cause; and secondly, that the prosecution acted maliciously. It is the next passage which throws up the controversy. His Honour said at 469:

“In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) 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. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

[I]t is essential that he should establish that one or more of these conditions did not exist

56 It is apparent that to establish the absence of any of Jordan CJ’s 5 conditions evidence of some fact or facts would be required which, of itself, or coupled with other matters proved in evidence, would enable the inference to be drawn that the defendant did not believe in the plaintiff’s guilt. Jordan CJ said that if such evidence was given, the question must be left to the jury as to whether it has been proved to their satisfaction that the defendant did not believe in the plaintiff’s guilt. However, “unless such evidence is given it is not proper to put a question to the jury as to the defendant’s belief” (Mitchell v John Heine at 469-70 per Jordan CJ).

57 Jordan CJ continued at pp 470-471:

“Merely to prove that the defendant had before him information which might or might not have led a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant’s belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative.

…

If he contends that the defendant did not believe some of the information which he had, he must supply evidence supporting an inference as to what the defendant’s belief actually was with respect to the accuracy of the information in question, not a guess as to what it was.

If the plaintiff does place before the Court evidence of the nature of the whole of the information which the defendant had, it is for the judge and not the jury to determine whether it was reasonable for the defendant to believe in the accuracy of the information … and also to determine whether it was reasonable for him to act on it, ie, whether it was sufficient to justify a man of ordinary prudence and caution in believing that the plaintiff was probably guilty.”

58 The question of the correctness of Jordan CJ’s formulation of what constitutes reasonable and probable cause calls for an understanding of the legal background to Mitchell v John Heine as well as the cases that came after it. In considering both the prior and later case law, it is important to recognise that the focus of the respective courts was often on whether questions had been correctly left to the jury, and in particular, as to whether the question whether the prosecutor reasonably believed in the accused’s guilt was a proper question for the jury. Mitchell v John Heine itself involved that question. The other thing to bear in mind is that the courts have consistently looked at the question of reasonable and probable cause by considering what is required of the prosecutor. However, to establish this element of the tort of malicious prosecution, it is necessary to establish the absence of reasonable and probable case. In other words, the plaintiff must prove a negative.

59 Mitchell v John Heine was decided by the Full Court of the Supreme Court of New South Wales constituted by Jordan CJ, Davidson and Owen JJ in 1938. Six years earlier the requirement of “reasonable and probable cause” for the purposes of the tort of malicious prosecution had been considered by the High Court in Sharp v Biggs. There, Dixon J said at 106:

“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.”

60 Dixon J continued:

“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”

61 His Honour considered that the question whether the material before a prosecutor was sufficient would be satisfied by determining what further steps the reasonable person would take to inform him or herself before laying the charge.

62 There are two matters of note in Dixon J’s judgment. The first is his Honour’s reference (at 106) to a prosecutor holding a belief that “at least” a charge is warranted. This indicates that his Honour had in a mind a test that did not require a belief in the guilt of the accused. That is different from Jordan CJ’s formulation. If a prosecutor formed the view enunciated by Jordan CJ that “the information … reasonably believed by [the prosecutor] to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty”, it would also satisfy Dixon J’s test. The question is, however, whether a prosecutor must satisfy the higher threshold expounded by Jordan CJ.

63 The second matter to observe is how Dixon J dealt with the decision of Hicks v Faulkner (1878) 8 QB 167 which had long been accepted as authoritative as to the requirement of reasonable and probable cause in the tort of malicious prosecution. In that case, Hawkins J stated (at 171) that a plaintiff must prove an absence of the following elements to show want of reasonable and probable cause: first, an honest belief on the part of the accuser as to the guilt of the accused; second, such an honest belief must be based on the honest conviction of the existence of circumstances which led the accuser to conclude that the accused was guilty; and finally, these circumstances must be such that an honest and “fairly cautious” person would also form such a conclusion of guilt, that is, there must be, objectively, reasonable grounds to justify the accuser’s belief in the accused’s guilt.

64 The question arises as to what Hawkins J meant by “belief in the guilt of the accused”. If his Lordship intended to refer to the ultimate guilt of the accused, as appears to be the way Hicks v Faulkner has been consistently interpreted, then there is a difference in the test stated in Hicks v Faulkner and that stated by Dixon J. It is somewhat curious therefore that Dixon J refers to, and seemingly adopts, Hawkins J’s formulation of the necessary ingredients of the tort without comment.

65 An analysis of the judgments of Rich and McTiernan JJ in Sharp v. Biggs indicates that their Honours may have accepted that belief in the guilt of the accused was a necessary ingredient. Rich J stated at 95:

“Although reasonable belief in guilt is an important fact, it is not the same by any means as reasonable and probable cause for prosecution.”

66 In this passage, Rich J was referring to whether it was appropriate to leave to the jury a question (which was the fourth question posed to the jury in that case) whether the prosecutor’s belief that the plaintiff had committed the crime charged, was based on reasonable grounds. The jury had been asked as a prior question, and had answered affirmatively, whether the prosecutor honestly believed that the plaintiff had committed the crime charged. Question 4, in the terms it was asked, appears to involve the question of belief in the guilt of the accused. It had been submitted to the Court that the question of “reasonableness” as asked in question 4 should not have been left to the jury as that issue was a question of law for the Court’s determination. Rich J considered that in the circumstances, the question had been appropriately referred to the jury. This approach appears to reflect the traditional approach that there is a subjective element of the prosecutor’s belief in the accused’s guilt and a separate, cumulative requirement of reasonable and probable cause equivalent to Jordan CJ’s fifth condition.

67 McTiernan J also considered that the question had been appropriately left to the jury. His Honour said at 112:

“The peculiar traits of the appellant, which are disclosed by the evidence, would suggest that though he may have had a sincere belief that the respondent committed perjury, his belief may not have been based on reasonable grounds. It is quite proper to obtain the assistance of the jury in determining the question of fact contained in the fourth question. The answer to that question established part of the premises for the decision of the learned Judge of the question of law, whether there was an absence of reasonable and probable cause…

The inquiry whether the defendant’s belief – honest though it may have been – was based on reasonable grounds, is, in my opinion, quite different from the question whether there was an absence of reasonable and probable cause for prosecuting the plaintiff for perjury.”

68 Gavan Duffy CJ and Starke J, in their joint judgment, state the relevant test in such a way that reasonable grounds for laying a charge and reasonable ground for belief in the guilt of the accused were interchangeable concepts. Citing the decision of Lord Esher MR in Brown v Hawkes (1891) 2 QB 718 at 726, their Honours said at 87-88:

“The presence or absence of reasonable and probable cause must be determined by the facts which the defendant [prosecutor] knew when he instituted the proceedings….Reasonable and probable cause is shown when it appears that the facts which were known to the defendant at the time of the institution of proceedings, if believed, ‘would create a reasonable suspicion in the mind of a reasonable man’, or would afford a reasonable ground for the institution or carrying on of those proceedings.”

However, in their discussion (at 89-90) of whether the fourth question should have been put to the jury, their Honours said:

“Authority exists for putting such a question, in some cases, to the jury. But if…such a question is to be put in every case, the result will be to transfer the decision of what is reasonable and probable cause from the Judge to the jury. The question is not whether the prosecution was wise or foolish, well considered or hasty, but whether the facts within the knowledge of a party himself or deduced by him from credible information afforded a reasonable and probable ground of belief that the person accused of the offence was guilty .” (emphasis added)

69 No reference was made in any of the judgments in Sharp v Biggs to either Haddrick v Heslop (1848) 12 QB 267 or Broad v Ham (1839) 5 Bing NC 722, both of which had also long been accepted as authority that the prosecutor was required to believe in the guilt of the accused.

70 Dixon J’s formulations of what constitutes reasonable and probable cause therefore appears to have been a departure from the law as it had long been accepted. That departure was made without any express acknowledgement that that was the case.

71 Dixon J reaffirmed his formulation of the relevant test in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382, where he repeated what he said in Sharp v Biggs. The issue in that case, as summarised in the headnote, was whether a defendant could be liable for malicious prosecution even if he or she did not lay the charge, but instead counselled or persuaded the prosecutor to do so or procured the prosecutor to do so by the provision of false information or other dishonest means. The case was heard before a jury who were required to answer a number of questions, including whether “the defendant …genuinely and honestly believe[d] that the prosecution was justified”. Dixon J found this question was properly left to the jury. His Honour then considered the role the jury’s answer played in the ultimate determination of the question whether there was reasonable and probable cause for the prosecution. It was in the course of consideration of that question that his Honour restated what he had said in Sharp v Biggs:

“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. In the circumstances of this case, I think that it was desirable, if not necessary, to put the question to the jury and that the answer given to it, unless set aside, makes it impossible for the Court to decide that there was not an absence of reasonable and probable cause for the prosecution of the respondent Brain.

Sharp v. Biggs

6. That the appellant pay the respondents’ costs of the proceedings at first instance, and of the appeal and cross-appeal; and

Suitors Fund Act 1951

224 In the applications for leave to appeal in Nos. CA 40182/04 and 40184/04, I propose that that the summonses be dismissed with no order as to costs

225 PEARLMAN AJA: I agree with Beazley JA.

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07/09/2005 - Incorrect spelling in citation - Paragraph(s) -

07/09/2005 - Additional names in citation - Paragraph(s) -

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Citations

A v State of New South Wales & ORS.Floros v A State of New South Wales v A [2005] NSWCA 292

Most Recent Citation

Calabro v The State of Western Australia [No 2] [2013] WASC 367

Cases Citing This Decision

11

A v New South Wales [2007] HCA 10

Idya Pty Ltd v Anastasiou [2008] NSWCA 102

Cases Cited

18

Statutory Material Cited

2

Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76

R v Dann [2000] NSWCCA 185

R v RTB [2002] NSWCCA 104

CITATION:	A v. STATE OF NEW SOUTH WALES & ORS.Floros v. A State of New South Wales v. A [2005] NSWCA 292 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	07/03/2005; 08/03/2005
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Pearlman AJA at 220
DECISION:	1. That the appeal be dismissed;; 2. That the cross-appeal be allowed;; 3. That the verdict and judgment of Cooper DCJ in favour of the appellant dated 3 February 2002 be set aside;; 4. In lieu thereof enter a verdict and judgment in favour of the respondents;; 5. Set aside Order 1 made by Cooper DCJ on 19 February 2004; ; 6. That the appellant pay the respondents' costs of the proceedings at first instance, and of the appeal and cross-appeal; and; 7. That the appellant have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled, in respect of the cross-appeal.

CATCHWORDS:	TORT - malicious prosecution - reasonable and probable cause - malice - TORT - false imprisonment - unlawful detention - unlawful arrest - District Court Rules 1973 (NSW), Part 26 rr 7 and 8
LEGISLATION CITED:	Crimes Act 1900 (NSW) District Court Rules 1973 (NSW)
CASES CITED:	AW & Ors v State of New South Wales [2005] NSWCA 543 Baker vTelevision & General Finance Co (Australia) Ltd [1968] 1 NSWLR 3 Bales v Parmeter (1935) 35 SR(NSW) 182 Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR(NSW) 36 Broad v Ham (1839) 5 Bing NC 722 Brown v Hawkes (1891) 2 QB 718 BRS v The Queen (1997) 191 CLR 275 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Dallison v Caffery [1965] 1 QB 348 Dawson v vansandau (1863) 11 WR 516 Glinski v McIver [1962] AC 726 Grainger v Hill (1838) 4 Bing (N.C.) 212 Haddrick v Heslop (1848) 12 QB 267 Herniman v Smith [1938] AC 305 Hicks v Faulkner (1878) 8 QB 167 Hobbs v Tinling (CT) & Co Ltd; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1 Houston v Stone (1943) 43 SR(NSW) 118 Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76 McDoanld v Coles Myer Ltd (t/a K-Mart Chatswood) (1995) Aust Torts Reports 81-361 Mitchell v John Heine & Son Ltd (1938) 38 SR(NSW) 466 Nye v State of New South Wales (2004) Aust Torts Reports 81-725 Nguyen v Nguyen (1990) 169 CLR 245 R v Dann [2000] NSWCCA 185 R v RTB [2002] NSWCCA 104 R v Skaf & Ors [2004] NSWCCA 84 Sharp v Biggs (1932) 48 CLR 81 Stevens v Midland Counties Railways (1854) 10 Exch 352 Tempest v Snowden [1952] 1 KB 130 Thacker v Crown Prosecution Service [1997] EWCA Civ 3000 Thompson v Vincent [2005] NSWCA 219 Trobridge v Hardy (1955) 94 CLR 147 Varawa v Howard Smith Co Limited (1911) 13 CLR 35 Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286 Williams v The Queen (1986) 161 CLR 278 Williams v Spautz (1992) 174 CLR 509
PARTIES:	CA 40137/2004 A (Appellant) State of New South Wales (First Respondent) John Floros (Second Respondent) Sharyn Hannigan (Third Respondent) CA 40182/04 John Floros (Appellant) A (Respondent) CA 40184/04 State of New South Wales (Appellant) A (Respondent)
FILE NUMBER(S):	CA 40137/2004; 40182/04; 40184/04
COUNSEL:	D Campbell SC/L Whalan (Appellant) J Maconachie QC/P Sadie/J Chapman (1,2,3 Defendants)
SOLICITORS:	Greg Walsh & Co I.V. Knight - Crown Solicitor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	9360/01
LOWER COURT JUDICIAL OFFICER:	Cooper DCJ