Adams v Reynolds

[1996] QSC 71

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 908 of 1988

Before the Hon Justice White

[Adams v. Reynolds]

BETWEEN:

ELWIN BERNARD ADAMS
  Plaintiff

AND:

JOHN PHILLIP REYNOLDS
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 01/05/1996

CATCHWORDS      O.90 r.9(2) - action for malicious prosecution - explanation for delay - prejudice to defendant - strength of plaintiff's case.

Counsel:Mr P Dutney QC with him

Mr PJ Murphy

for the applicant/plaintiff

Mr J Griffin QC with him

Mr M O'Sullivan

for the respondent/defendant

Solicitors:Robertson O'Gorman for the applicant/plaintiff

Crown Solicitor for the respondent/defendant

Hearing date:    18 April 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 908 of 1988

[Adams v. Reynolds]

BETWEEN:

ELWIN BERNARD ADAMS
  Plaintiff

AND:

JOHN PHILLIP REYNOLDS
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 01/05/1996

This is an application by the plaintiff that he be granted leave to take a further proceeding in the action notwithstanding the expiration of three years since the taking of the last proceeding pursuant to O.90 r.9(2) of the Rules.  The action is one for damages for malicious prosecution commenced by writ of summons on 11 March 1988.  By his statement of claim the plaintiff alleges that on or about 20 August 1984 the defendant a member of the Queensland Police Service without reasonable and probable cause maliciously caused a warrant to be issued for his arrest upon a charge of murder.  The plaintiff was extradited from New Zealand to Queensland on 27 August 1984.  He continued in custody pending his committal.  That concluded on 25 January 1985 when he and his co-accused were committed for trial.  He was remanded in custody and was released when a no true bill was presented.
The last step in the action was taken on 17 March 1992 when a supplementary affidavit of documents was delivered by the plaintiff.
           In Dempsey v. Dorber [1990] 1 Qd. R. 418 Connolly J with whom Carter and Moynihan JJ agreed said at p. 420

"On an application for leave to proceed under O.90 r.9, the applicant for leave must "show that there is good reason for excepting the particular proceedings from the general prohibition" on the taking of a fresh proceeding without the order of a court or a judge in a case in which three years have elapsed from the time when the last proceeding was taken.  ...  The question whether there is good reason for making such an order obviously involves the consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter.  ...  In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order."

See also William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 at p. 496. As Thomas J observed in Keioskie v. Workers' Compensation Board of Queensland (unreported decision of 15 September 1992; CA No 46/1992) at p. 4, the provision of a satisfactory explanation for the delay is a relevant matter for the court to take into account, although it is not a condition precedent to the granting of leave, Campbell v. United Pacific Transport Pty Ltd [1966] Qd R 465, 473; Wilson v. Bynon [1984] 2 Qd R 83,86. The matter that is usually of primary relevance is whether the defendant will suffer prejudice as a result of the delay, Borg v. Muscat [1972] Qd R 253; Wilson v. Bynon; Dempsey v. Dorber and in this context a sufficiently serious risk of prejudice may be regarded as sufficient to preclude the order Villani v. Commissioner for Railways No 1768 of 1978, Full Court, unreported, 18 November 1988.  The issues which have been canvassed on this application include the reason for delay, prejudice to the defendant and prospects of success in the action.
Delay
           Mr Dutney for the plaintiff has submitted that notwithstanding the length of the delay in the conduct of the action the file has not been inactive.  Whilst some delays throughout have been occasioned by the plaintiff's need to obtain legal aid approval for each interlocutory step, the principal delay is submitted to be due to delays associated with third party inspection from the Commissioner of Police.
           A succinct chronology from the file held by the Crown Solicitor, who acts for the defendant, is exhibit G to the affidavit of Ann Marie Foley filed 17 April 1996 on behalf of the respondent.  I have appended it to these reasons to save a lengthy recital of what has happened.  Daniel O'Connor, solicitor for the plaintiff, has set out in his affidavit of 9 April 1996 a rather more lengthy chronology from the perspective of the plaintiff.  It can be seen from that affidavit that delays have occurred throughout from 1990 due to the need to obtain legal aid approval to bring interlocutory applications or to carry out certain further steps in the action.  It is also clear that significant delays were caused by counsel briefed from time to time to advise for the plaintiff in not attending reasonably promptly to those matters.  However the plaintiff maintains that the most significant delays were caused by difficulties associated with third party inspection from the Commissioner of Police for whom the Crown Solicitor also acted.  It is necessary to look in some detail at that matter.
           As can be seen from Ms Foley's chronology the parties' affidavits of documents were exchanged towards the end of 1989.  Throughout 1990 the plaintiff's solicitors were engaged in satisfying the Legal Aid office that the plaintiff satisfied its means test.  In March 1991 Mr O'Connor requested inspection of the defendant's documents.  At the end of May he telephoned the officer in Crown Law having charge of this matter to arrange inspection.  Towards the end of August 1991 he attended at Crown Law to inspect six documents copies of which were received shortly afterwards.
           On 3 September 1991 Mr O'Connor asked the Crown Solicitor whether there were any documents other than those disclosed in the defendant's affidavit on which he would be relying.  The Crown Solicitor advised that there were a number of documents which were not in the defendant's possession or control upon which he proposed to rely.  On 18 October 1991 Mr O'Connor requested an extension of legal aid to bring an application for third party discovery and after receipt of counsel's opinion legal aid was extended.  On 3 February 1992 Mr O'Connor wrote to the Crown Solicitor indicating that an application would be brought if the person who held the documents that were to be relied upon by the defendant did not produce them voluntarily.  On 5 February 1992 Crown Law advised that the documents were in the possession of the Commissioner of Police and suggested that Mr O'Connor write to the Crown Solicitor to seek instructions from the Commissioner.  Mr O'Connor did so on 16 March 1992 and at the same time delivered an amended statement of claim.  On 17 March (the last step) he delivered a supplementary affidavit of documents by the plaintiff.  On 27 April he forwarded a brief to counsel for an application for third party discovery.
           On 5 June 1992 Mr O'Connor wrote to the Crown Solicitor asking his office to approach the Commissioner for instructions as to whether there would be a voluntary production of documents which were, in the main, the exhibits from the committal proceedings.  Shortly thereafter Mr O'Connor was advised to direct any enquiries to the Commissioner himself.  On 25 June the Queensland Police Service wrote advising that the request was being considered.  Mr O'Connor sought a decision on 20 July.  On 27 August 1992 Thomas J made an order for third party discovery against the Commissioner of Police.
           After several requests from Mr O'Connor the Crown Law office indicated that it would be possible to have inspection of those documents in the first or second week of December 1992.  Mr O'Connor was away on annual leave in December and on 27 January 1993 he attended at Crown Law where he was shown several cartons containing numerous documents.  The inspection took place over a number of days.  Some 70 claims of privilege were made in relation of the documents to be inspected.  Inspection was completed on 26 March 1993.  Mr O'Connor sought legal aid in respect of the privilege claims on 19 April 1993 and on 2 September 1993 aid was extended to make a chamber application in respect of the claims of privilege.  Thereafter delays occurred until 11 February 1994 due to counsel being unable to attend to the application, although numerous enquiries were made of him during this period.
           On 7 February 1994 an extension of legal aid to obtain photocopies of relevant documents was sought and on the same day Mr O'Connor wrote to the Crown Solicitor requesting copies of certain documents in the files which had been inspected.  By then the files had been returned to the Queensland Police Service.  Between then and May 1994 Crown Law experienced difficulty in retrieving the files from the Police Service.  On 19 May Mr O'Connor attended at Crown Law to inspect the documents and discovered that they consisted primarily of exhibits from the committal hearing which had not been available previously but were not all of the 82 exhibits.  In June Mr O'Connor sought the balance of the exhibits for inspection.  During the rest of 1994 correspondence took place between Crown Law and Mr O'Connor's office relating to copies of documents previously requested and the location of missing files.  In January 1995 Mr O'Connor wrote to the Crown Solicitor expressing concern at the missing files.
           In February 1995 legal aid was extended to continue with the action up to but not including the trial.  Counsel was briefed on 22 March 1995 to draw interrogatories and to advise on evidence.  In September 1995 counsel was referred to O.90 r.9(2) and he advised (erroneously) that inspection was a step in the proceedings for the purpose of that Rule.  On 20 September 1995 Mr O'Connor sent a notice pursuant to O.90 r.9 to the Crown Solicitor confirming the plaintiff's intention to proceed at the expiration of one month.  Counsel provided the settled interrogatories on 27 October 1995.  On 7 December 1995, having delivered the interrogatories to the Crown Solicitor for the attention of the defendant, Mr O'Connor received a letter referring to O.90 r.9(2) and the need to obtain the leave of the court to proceed.  In early February 1996 fresh counsel were briefed to bring this application.
           It is clear that although the plaintiff's solicitors were slow to seek copies of the Commissioner's documents which had been inspected the documents initially provided for inspection were far from complete.  During 1994 and including January 1995 the delay was due to difficulties being experienced by the plaintiff's solicitors in obtaining copies of documents or indeed inspection of documents not originally provided.  Thereafter during 1995 whether or not the documents could have been produced substantial delays occurred due largely to counsel's inaction.  It is submitted that the solicitors ought to have briefed other counsel but it is not difficult to understand why they persevered with the original counsel since the matter was complex.
           Nothing appears in Mr O'Connor's affidavits about the plaintiff's activities during these years.  I accept that the file was not left to lie idle in the solicitors' office and it must be inferred that there was regular contact with the plaintiff.  Mr O'Connor mentions from time to time in correspondence with the Crown Solicitor that his client was anxious to proceed to trial.  My attention has been drawn to a passage in Thomas J's judgment in Keioskie at pp. 7,8 where his Honour observed:

"In the context of applications of this kind, a distinction is often drawn between fault that is personal to the applicant and that which is attributable to his solicitors.  Both sources of fault contribute to the ultimate delay and both are relevant for the court's consideration of the question of delay.  From a defendant's point of view the delay is the same whether the plaintiff or his legal agent is to blame.  However from the court's view point in applications of this kind, delay for which an applicant is personally responsible is regarded as more difficult to explain than that of his solicitor.  In Gleeson v. Brock [1969] Qd R 361, Hoare J considered this issue in the context of an O.90 r.9 application.

"It must be kept in mind that it is the party's action with which the Court is concerned.

I must consider the effect of the actions (and inaction) of the plaintiff himself.  That the actions of the plaintiff's solicitor are highly relevant is clear (William Crosby & Co Pty Ltd v. The Commonwealth (supra).  However, except in the rare cases where there is some kind of estoppel or quasi-estoppel created by the actions of a party's legal representative (which would necessarily bind the client) it does not follow that in matters of this nature the litigant must always suffer for the sins of omission and commission by his legal representative.  See Kaats v. Caelers (supra) at pp. 504, 505 where Stable J adopts statements of Barwick CJ in Hall v. The Nominal Defendant (1966) 40 ALJ 102."

A similar attitude was expressed in Woodford v. The Nominal Defendant Appeal 5 of 1978, Full Court, unreported, 30 June 1978 by Hoare J with whom Lucas and WB Campbell JJ concurred.

"In the present case it is most significant that the chamber Judge has accepted as satisfactory the appellant's own explanation for the delay.  The action or inaction of a dilatory party's solicitor is a relevant factor in determining the position whether or not the party should be excused from the operation of a time provision but it should not be forgotten that in the final result the question is whether or not the party himself should be excused from the delay and unless the action or inaction of the solicitor can in the particular circumstances be shown to have an important bearing on the question they usually are not as crucial as the conduct of the party himself."

This approach has been considered appropriate in subsequent decisions of the Full Court (Russell v. Michaljevic and SGIO No 59 of 1973 Full Court, 24 June 1982; Salkicevic v J Gadsden Pty Ltd No 2239 of 1985 Full Court, 10 November 1989)."

The delay has been lengthy.  I am satisfied that it has not been due to want of diligence on the part of the plaintiff.  The delays attributable to his solicitor seem to be in most instances referrable to the administrative hurdles in the Legal Aid Office but it seems that the plaintiff's case did not command the firm's urgent attention, or even, from time to time, ordinary attention.  Inactivity by counsel accounts for some barren stretches.  Whilst the solicitor might now be criticised for not removing the brief he was assured regularly that the advice, etc, was about to be sent and, in the context of legal aid funding, starting again with fresh counsel would not have seemed encouraging.  The delay occasioned by problems with the Commissioner's documents has also been considerable.  It has been submitted that an early application to recover the "lost" documents should have been brought.  The Legal Aid response is predictable that there was little point if efforts were being made by Crown Law and the Police Service to locate the documents.  There must be seen to be a degree of identification of the defendant with the Police Service in respect of this matter.
           In the context of the several responsibilities for the delay the prejudice, if any, to the defendant must be considered.
Prejudice to the Defendant
           The defendant resigned from the Queensland Police Service in 1993.  He was one of a large number of police officers involved in the murder investigation.  The defendant submits that he is particularly prejudiced by the death of two witnesses Peter Keith Lambshead who died in Victoria on 5 December 1987 and Robin Johann Williams who is supposed to have died under the assumed name of Jack Cooper on 21 May 1991.  He maintains that he is also prejudiced by the loss of the warrant of apprehension and the grounds therefore.  In fact the warrant is available, it was produced by the plaintiff's counsel, but no grounds are endorsed upon it.  The defendant says that he had not retained a copy of the grounds for seeking the warrant but does not say that he has sought to find a duplicate in the relevant Police Service file.  He says that he does not know the present whereabouts of witnesses who gave evidence at the committal proceedings against the defendant.

•Williams

Petts, McNeil, Williams and Adams were each charged that on 9 June 1983 at Lillianvale Station near Nebo they murdered David Francis Parkinson.  The committal proceeded over 10 days in November 1984 and January 1985.  The transcript consists of some 1600 pages; 26 prosecution witnesses were called to give evidence; Mr MacGroarty who appeared on behalf of the plaintiff cross-examined witnesses for approximately 694 pages of transcript; he made submissions to the magistrate for some 36 pages of transcript.  At the end of the committal the magistrate committed all of the accused to stand trial.
           The statement of Williams signed by him on 9 August 1984 was an exhibit at the committal and is submitted by the defendant to implicate the plaintiff in the murder.  Williams stated that he made an arrangement with Petts (a co-accused) to visit a club on a particular night with some other men, to get into a fight with Parkinson and give him "a real good belting".  Money was offered by Petts to Williams.  It seems that at least Williams and the plaintiff were involved in boxing.  Williams said that he asked McNeil and the plaintiff to carry this out but Parkinson did not attend that night.  The following week Petts asked Williams if he knew anyone who could "tidy" Parkinson up and was prepared to pay $5,000.  Williams said that after he let a few men know about it McNeil said that he would do the job.  Parkinson was to be killed on his own property.  Williams said that McNeil told him that he carried out Parkinson's murder and he, Williams, obtained the $10,000 from Petts which he gave to McNeil.  In his statement Williams said that he had not seen the plaintiff since the day before the murder at boxing training.
           Williams said that he met a man known to him as Paddy Ryan in Mackay who told him that when he (Ryan) was in Melbourne he had been told by McNeil about the Parkinson murder and he had said that he and "Big Al" had driven to Lillianvale Station and that Al had shot Parkinson.  Williams stated that his only knowledge of Al being involved in the murder was from street rumour but had had no contact with the plaintiff directly.  Williams added that he knew from press reports that the police had located a shoe print at the scene of the murder made by a Tiger Pinto brand of track shoe and knew that Al wore such shoes when training.

•Lambshead

Peter Lambshead provided an addendum statement to the police dated 22 March 1985.  In the statement Lambshead says that he travelled from Mackay with McNeil on 10 June 1983 and the plaintiff went with them as far as Townsville.  The next day the plaintiff drove McNeil and himself to the airport.  Lambshead died before the writ was issued although that does not preclude his unavailability being considered if relevant.
           Neither of those witnesses directly implicates the plaintiff in the murder, indeed Lambshead not at all.  Mr Griffin submitted that the defendant would have wished to explore matters further with Williams and Lambshead had they been alive as to the strength of the case against the plaintiff.  This misconceives what has to be proved by the plaintiff, namely, that at the time when the warrant of apprehension was executed and the extradition proceedings taken the defendant had no reasonable and probable cause to set the prosecution in train and maliciously caused the warrant to be issued.  It is the evidence which was available to and availed of by the defendant at that time which is relevant, not further enlightenment which Williams or Lambshead might have been able to cast upon the plaintiff's involvement in the murder.  What the defendant had at the relevant time was no more and perhaps somewhat less than the evidence produced for the committal.  There is no suggestion from the defendant that he had any other facts operating upon his mind when the warrant was issued.  If he had it would be quite unusual not to have produced that evidence at the committal.

           It is submitted that further prejudice occurs because the defendant is unable to locate the document(s) used in support of the warrant of apprehension issued on 20 August 1984.  It seems clear from Ms Foley's affidavit that no attempt was made to locate those documents until April 1996.  The defendant has apparently not kept a copy but Mr Joice SM, who issued the warrant, has said that he would not have issued it without grounds.  A request to the Magistrates Court at Mackay has been unable to produce the supporting documents which Mr Joice said he would have filed the day following the issue of the warrant.  There is no suggestion that police files have been searched to produce a copy of the grounds which one would expect, in the ordinary course, would have been retained on the relevant file.  Although the files in respect of this matter seem to have had something of a checkered career there is no suggestion that any have been destroyed.  Mr O'Connor, the plaintiff's solicitor, attempted to obtain a copy of the warrant and the complaint from the Magistrates Court in Mackay and the Supreme Court Registry in Rockhampton.  A copy of the warrant has been obtained but it contains no grounds.
           The defendant says that he does not know the present whereabouts of persons who gave evidence at the committal without identifying any of those witnesses or the relevance of their evidence to his defence.  The evidence of the witnesses was exhaustively dealt with in lengthy cross-examination particularly that of Mr MacGroarty who appeared for the plaintiff at the committal hearing.  Their statements would contain the evidence which the defendant would have relied upon in reaching a conclusion to charge particular individuals with the murder of Parkinson.  The defendant has told Ms Foley that many police were engaged in the investigation and that they exchanged information on a regular and informal basis.
           It is not relevant to an action for damages for malicious prosecution to seek to adduce additional evidence now or a new slant on the evidence from any of those witnesses which did not operate on the defendant's mind at the relevant time.
           Mr Griffin has submitted that the interrogatories delivered for the examination of the defendant reveal further prejudice should the defendant now be required to answer them.  The first question asks whether when the defendant caused the warrant to be issued he had any belief as to the guilt of the plaintiff; whether he believed the plaintiff to be guilty; or whether he believed him to be probably guilty of the charge.  He is asked if he had grounds for that belief, what they were and whether he relied in any part on the opinion of others in forming that belief; whether he carried out any investigations as to the plaintiff's guilt; did he have regard to documents, statements, tape-recordings or any other recordings and to name them.  He is asked in sub-question (vi) whether when causing the warrant to be issued he then knew of any evidence tending to establish the plaintiff's guilt and if he did, did he make any assessment as to the cogency and admissibility, of that evidence and is asked for particulars.  Similar questions are asked in respect of the extradition application and whether the defendant had further or extra evidence which tended to establish the plaintiff's guilt from that which he had or held when the warrant was issued.
           The defendant has sworn no affidavit but material concerning his state of mind is included in the affidavit of Ms Foley.  In paragraph 21 she says that the defendant has told her that

"Heavy reliance was placed on statements and intelligence gathered by the investigators and that the information and intelligence gathered was shared amongst the officers on a regular but informal basis."

The defendant does not say, for example, that as a consequence of the many investigations that he has carried out since 1984 he is unable now to recall much of what occurred in respect of this matter.  Inevitably, however, the passage of some 12 years since this investigation and subsequent charging and the fact that the defendant resigned from the Police Service only in 1993 must lead to a conclusion that his recollection would be hazy at best.  He is, of course, at liberty to refresh his memory by reference to the files and all the evidence adduced at the committal.  At the present time the grounds are unavailable to him and may never become available.  If there were reasons other than those which appear in that material which caused the defendant to have the warrant issued and the plaintiff extradited from New Zealand then it is unlikely that he could now recall it.  On the other hand it seems highly unlikely that there would be evidence other than that which was documented and available for the committal.
           The state of mind of the defendant when the warrant was issued is an essential element of the plaintiff's case and of the defence.  In Commonwealth Life Assurance Society Ltd v. Brain (1935) 53 CLR 343 Starke J quoted with approval at pp. 352-3 from Denman LCJ in Turner v. Ambler (1947) 10 QB 252 at p. 260

"It has long since been held that the defence of reasonable and probable cause to an action for malicious prosecution is, in the words of Sir Fredrick Pollock, "personal and not absolute".  ...  But among the facts to be ascertained is the knowledge of the defendant of the existence of those which tend to show reasonable and probable cause, because without knowing them he could not act upon them; 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."

It is thus the knowledge of the defendant of the existence of those facts which tend to show reasonable and probable cause which is vital in an action for malicious prosecution.
           Although from time to time in the course of the progress or lack of it of this action there have been delays of months on end, nonetheless the Crown Solicitor was aware that Legal Aid was involved in the conduct of the litigation and it was in no sense ever abandoned or did the plaintiff or his solicitors give the impression of it being abandoned.  When the defence was prepared it must be inferred that the defendant's state of mind at the time when the warrant issued and the extradition proceedings were put in train would have been canvassed with him.  All of the documents relevant to his defence were in the possession of the Queensland Police Service of which he was a member from the issue of the writ in 1988 until 1993 including, I am prepared to infer, a copy of the grounds upon which the warrant was sought.  There is no suggestion that the defendant had no access to these documents when preparing his defence or advising the Crown Solicitor in respect of it.  I accept that instructing in respect of a defence is different from instructing with respect to answers to interrogatories and preparation for trial.
           It is of assistance to consider when the interrogatories might have been delivered had this action proceeded reasonably efficiently.  It is usual to do so after documentary discovery.  It would seem that little was revealed in the documents discovered by the defendant.  The interrogatories delivered did not depend upon or are not derived from the examination of documents, particularly those discovered from the Commissioner of Police.  Those questions could have been asked at any time (accepting that in this case legal aid would be required to do so).  However, until the Commissioner's documents were examined the plaintiff's legal advisers could not know that they contained nothing about which questions might wish to be asked.  It is now clear that the appropriate course would have been to deliver the interrogatories once difficulties with the Commissioner's documents became apparent and to reserve the right to seek leave to deliver a second set if necessary when they became available.  I think that this is being wise after the event.  Selecting the moment to abandon waiting for the documents would not have been simple, but the earliest would have been June 1994.  In terms of the defendant's recollection it is doubtful if that would have been significant.  It should be borne in mind that responsibility for not seeking discovery from the Commissioner immediately following discovery from the defendant must rest on the plaintiff's side.  Even March 1990, two years after the issue of the writ, which might be accepted as the time when interrogatories in a moderately efficiently run action not hampered by legal aid delays, was some five and a half years after the issue of the warrant, and it might be supposed the independent recollection of the plaintiff would be challenged but it is a great improvement on nearly 12 years.
           It is necessary then to turn to the other factor of significance - the prospects of success for the plaintiff.
Strength of the Plaintiff's Case
           A relevant factor to take into account in deciding if the plaintiff is to be excepted from the general prohibition in O.90 r.9 is whether the plaintiff has a viable cause of action.  The elements to be established in an action for damages for malicious prosecution are not in dispute.  The plaintiff must show that he was prosecuted by the defendant in the sense that the law was set in motion against him on a criminal charge by that defendant.  He must show that the prosecution was determined in his favour, that it was brought without reasonable and probable cause and that it was malicious.  It is not in dispute that the defendant was the arresting officer and brought the extradition proceedings against the defendant.  The plaintiff was committed for trial but after representations by the Attorney-General a no true bill was presented.  Accordingly the prosecution was resolved in favour of the plaintiff.
           The defendant submits that it is impossible for the plaintiff to prove malice against him.  The plaintiff relies upon a statement by Jordan CJ in Mitchell v. John Heine & Son Ltd (1938) 38 SR (NSW) 466 at p. 474:

"It has been somewhat loosely said that evidence of absence of reasonable and probable cause is evidence of malice, but that evidence of malice is not evidence of absence of reasonable and probable cause.  In truth, neither of these statements is accurate.  Proof of a particular fact may supply evidence both of malice and of absence of reasonable and probable cause, as where it is established that when the defendant instituted the prosecution he knew that the plaintiff was innocent.  But proof that the defendant was animated by a desire to injure the plaintiff would not supply evidence of absence of reasonable and probable cause.  And evidence that the defendant had formed a belief in the plaintiff's guilt which, though genuine, was based on unreasonably insufficient grounds, would afford no evidence of malice.  On the other hand, proof that the defendant had instituted the prosecution in the complete absence of any information pointing to guilt, or upon information which was ludicrously and obviously insufficient, might of itself supply evidence warranting an inference of malice in a particular case."

In Brain Dixon J repeated at p. 382 what he had said earlier in Sharp v. Biggs (1932) 48 CLR at p. 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."

Lord Denning considered the degree of satisfaction which a police officer bringing the charge must have in Glinski v. McIver (1962) AC 726 at p. 59:

"He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him.  He is no more concerned to convict a man than is counsel for the prosecution.  He can leave that to the jury.  It is for them to believe in his guilt, not for the police officer.  Were it otherwise, it would mean that every acquittal would be a rebuff to the police officer.  It would be a black mark against him, and a hindrance to promotion.  So much so that he might be tempted to "improve" the evidence so as to secure a conviction.  No, the truth is that a police officer is only concerned to see that there is a proper case to be laid before the court."

In Brooke v. Grimpel (1987) Aust. Torts Reports 80-108 Dowsett J, after an analysis of the authorities, concluded that it was correct in principle not to require a police officer to have an actual certainty of guilt.  His Honour continued at p. 68, 768

"The formation of such an opinion is not necessarily the function of a police officer.  If there be sufficient evidence to put an accused upon his trial in the sense commonly used to determine whether or not there is a case to answer at the end of the prosecution evidence or whether or not there is sufficient evidence to put a defendant upon his trial upon indictment in the case of committal proceedings, and I doubt that a police officer should generally be required to do more prior to launching such a prosecution.  Of course, there may be cases in which there are matters known to him which would, if relayed to the tribunal of fact, negative the evidence forming the prima facie case.  It is to such a case that I think the reference to actual belief in guilt relate.  Such a situation might arise if a police officer himself witnessed the commission of an offence, but he subsequently accumulated sufficient evidence against a person known to him to be innocent to make out in an objective sense a prima facie case.  Similarly if a police officer had received a confession from a third party which was in all respects credible, it may that he would not have reasonable and probable cause to proceed against another defendant notwithstanding the fact that there was evidence against the latter which might amount to a prima facie case."

It is necessary then to look at the evidence upon which it may be inferred the charge was founded and as a consequence of which the extradition was sought.  Ms Foley set it out in her affidavit

•The signed statement by Williams of 9 August 1984 in which he said that he made an arrangement with McNeil and Adams shortly before Parkinson was killed that they would give him a good beating.  There was some evidence of a conversation with one Paddy Ryan who said he had been told by McNeil that the plaintiff had done the murder.

•Statements by Adams contained in a signed record of interview between himself and Detective Senior Constable O'Sullivan in New Zealand on 20 August 1984.  Adams said

•He knew McNeil;

•McNeil was offered money to have a person beaten in a nightclub;

•He knew Williams;

•Williams would visit the plaintiff's home whilst McNeil was residing there;

•He had driven McNeil from Mackay to the airport at Townsville in early June;

•He used to train in a pair of Tiger Pinto track shoes;

•He obtained some $7,000 some of which was used to buy fares for himself, his de facto wife and two children to travel to New Zealand in June, from the sale of marijuana which he had produced on a farm property near Gympie and sold in Mackay.

•The plaintiff declined to answer any further questions as to the whereabouts of the training shoes.

Other evidence was

•Two sets of footprints located on the deceased's property suggesting that the murder had been committed by two persons;

•Imprints caused by Tiger Pinto track shoes near where the deceased's body was located;

•Report in the Mackay Daily Mercury newspaper that on 15 June 1983 bloodstains had been located on the deceased's property;

•The plaintiff had removed his children from the Mackay North State School on the afternoon of 15 June;

•A report in the Daily Mercury on 23 June 1983 that the body of the deceased had been discovered in a grave;

•On 23 June 1983 the plaintiff purchased one-way air tickets to New Zealand for himself, his de facto wife and two children.

Mr Dutney drew attention to other evidence some of which was not contained in the prosecution statements but which emerged at the committal.

•The plaintiff's former wife gave evidence at the committal that she visited her husband on remand on 30 October 1984 and in the course of their conversation she said she asked him if had killed a man.  He allegedly replied "No there are four other people involved.  I'll get off".  Mrs Adams said that she told the plaintiff that a detective had told her that the plaintiff had murdered a man in Mackay and the plaintiff had replied to her "No I was in Mackay.  Ian McNeil did it and he will get it".

•The plaintiff denied to Detective O'Sullivan in N. 2. that he was implicated in the murder

•As to the evidence in Williams' statement that he had heard from a person called Paddy Ryan that McNeil told him that a person called "big Al" was involved in the killing, Constable Marlon in cross-examination said that in his opinion Paddy Ryan was a figment of Williams' imagination;

•The size of the Tiger Pinto training shoe at the scene of the burial was the same size as shoes worn by Williams who admitted to owning a pair of Tiger Pinto shoes.  The plaintiff wore a shoe that was one size bigger than the print at the scene.

Prior to submissions being made on behalf of the various defendants at the committal proceedings by their counsel the Magistrate indicated that he proposed to commit each of the defendants to stand his trial for the murder of Parkinson.  Submissions were then made by Mr MacGroarty on behalf of the plaintiff and by other counsel for Petts and McNeil.  No submissions were made on behalf of Williams.  After submissions the Magistrate announced that he was satisfied that there was sufficient evidence to place each defendant on his trial.
           Mr O'Connor, the solicitor for the plaintiff, points to a number of features in the case which he submits in his affidavit point to impropriety and malice on the part of the defendant.  They are

•The co-accused Williams took part in a tape-recorded record of interview and signed a statement to the police.  He admitted his part in a plan to murder the deceased.  He said that he no personal knowledge of the plaintiff being involved in that plan;

•The police evidence at the committal focused on the plaintiff admitting to owning a pair of Tiger Pinto jogging shoes when there was clear evidence that Williams also owned such a pair and that the size of the print at the grave was a size smaller than the shoe size apparently worn by the plaintiff and was the same as Williams'.

•The plaintiff's wife alleged that she was threatened by the police with serious consequences to her in respect of a shoplifting charge if she did not give evidence against the plaintiff.

•The police allegation that the plaintiff was reluctant to leave a forwarding address when he took his children from school when the evidence revealed that he had left a forwarding address at the school;

•Evidence was led from a travel agent that the plaintiff had booked a flight to New Zealand for himself, his de facto wife and his two children but on cross-examination the evidence revealed that that occurred some six days after the Mackay newspaper published the finding of the bloodstain;

•There was evidence that the plaintiff could have caught earlier flights from Brisbane to New Zealand in the intervening six days and a number of flights from Sydney (although the availability of seats on those flights was not known).  There was evidence from a prosecution witness that the plaintiff had told him prior to the publication in the paper of bloodstain of his intention to go to New Zealand.

It is not clear how the plaintiff came to be committed for trial on the evidence presented at the committal hearing as the Magistrate did not give reasons.  Mr MacGroarty in his submissions made the deficiencies in the admissible evidence against the plaintiff plain.  There was no other evidence which was of doubtful admissibility or likely to be ruled inadmissible but which was inculpatory of the plaintiff.  Mr Griffin conceded that the evidence against the plaintiff was "a bit thin to go to trial".
           Mr Griffin submitted that it was necessary to show that the defendant did not believe in Adams' guilt.  According to Brain the formation of an opinion as to certainty of guilt is not the function of a police officer but he should have sufficient evidence to put an accused person upon his trial in the sense commonly used to determine whether or not there is a case to answer at the end of prosecution evidence or whether there is sufficient evidence to put a defendant upon his trial upon indictment in the case of committal proceedings.  I would only comment that the plaintiff has some prospects of demonstrating want of reasonable and probable cause.  The major issue will be whether the matters to which Mr O'Connor has drawn attention set out above are sufficient to constitute malice.  I would have some difficulty in coming to such a conclusion on the present material.  If malice is not independently made the question is whether the plaintiff can show that the material upon which the warrant and extradition relied was "ludicrously and obviously insufficient" such that malice might be inferred.  It cannot be said that it is a proposition without any prospects of success.
Conclusion
           There has been no identified delay attributable to the plaintiff himself.  His reliance on legal assistance to maintain this action has given rise to long intervals of apparent inaction as far as the defendant was concerned.  There have been periods when the want of legal aid has not been the cause of delays on the plaintiff's side, as I have mentioned.  Significant delay is also attributable to the Police Service concerning its documents both in failing originally to produce the documents and subsequently.  I do not consider the deaths of Williams and Lambshead to give rise to prejudice against to defendant for the reasons I have set out above.  I am not satisfied that the grounds made out by the defendant which were apparently sufficient to satisfy the Magistrate to issue the warrant cannot be located in the Police Service documents concerning this investigation.  If in the event they are not found both sides are hampered but it is highly unlikely that the bases for the grounds could be more than the documentary evidence and the oral evidence taken at the committal.
           I do, however, have some serious concern about the defendant's capacity to answer the interrogatories as to his state of mind at the relevant time after such a long time.  It is for the plaintiff to prove his case.  In many cases answers to interrogatories may offer assistance to a party or narrow the issues for trial.  The documents that the defendant would resort to and no doubt rely on to make his answers are also available to the plaintiff.  I think that it would be onerous to require the defendant to swear now as to his state of mind in August 1984.  He may, of course, give sworn evidence at the trial in response to the plaintiff's case but that is a different matter.       Although the plaintiff has in my view considerable difficulty facing him with respect to the issue of malice nonetheless the action is not so hopeless that on that ground he ought to be shut out from prosecuting it.
           I have concluded that the plaintiff ought to be permitted to proceed with his action.  I note that legal aid has been approved up to trial.  Mr O'Connor considers that apart from the answers to interrogatories the matter is in all respects ready for trial.  I would propose that leave to proceed be conditional upon the plaintiff not delivering interrogatories for the examination of the defendant.  Since that qualification was not canvassed before me I would allow further submissions in respect to it.
           The respondent has sought costs against the applicant's solicitors.  None of the principles adverted to in Knight v. FP Special Assets Ltd (1992) 174 CLR 178 are raised here. The applicant has sought the leave of the court to be excepted from the prohibition in O.90 r.9. No fault lies in the respondent that this has become necessary. The appropriate order is that the applicant pay the respondent's costs of and incidental to the summons to be taxed.