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Bayliss v Cassidy

Bayliss v Cassidy

Case [1998] QSC 186 18 September 1998

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IN THE SUPREME COURT
OF QUEENSLAND
  No 4786 of 1988
Before Mr Justice Muir
[Bayliss v Cassidy & Ors]
BETWEEN:
PETER JOHN BAYLISS
Plaintiff

AND:
ROBERT BERNARD CASSIDY
First Defendant
AND:

NEVILLE JOHN HARPER
Second Defendant
AND:

DESMOND GORDON STURGESS
Third Defendant
AND:

STATE OF QUEENSLAND
Fourth Defendant

REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 18 September 1998

CATCHWORDS: TORT - malicious prosecution - malice - whether arresting and prosecuting officers made proper enquiry - existence of reasonable and probable cause - whether reasonable to believe plaintiff medical practitioner was carrying out terminations of pregnancy for purpose other than for the preservation of mother's life - ss. 224 and 282 of Criminal Code - liability as prosecutor of persons aiding, abetting or procuring a malicious arrest or a malicious prosecution - want of jurisdiction of Magistrate to issue search warrant - operation of s. 69(10 of Police Act 1937 (Qld) - false imprisonment - trespass to goods - seizure of goods during police raid outside terms of search warrant - common law powers of seizure - evidence - application of principle in Jones v Dunkel - s. 11 Limitation of Actions Act 1974 (Qld) - damages - exemplary damages.

Counsel:Mr R. R. Stitt Q.C., with him Mr G.H. Brandis for the plaintiff
Mr C.E.K. Hampson Q.C., with him Ms R.G. Atkinson for the first, second, third and fourth defendants

Solicitors:Gadens Lawyers for the plaintiff
Crown Solicitor for the first, second, third and fourth defendants

Hearing date:               13 July to 17 August 1998
IN THE SUPREME COURT
OF QUEENSLAND
  No 4786 of 1988
Before Mr Justice Muir
[Bayliss v Cassidy & Ors]
BETWEEN:
PETER JOHN BAYLISS
Plaintiff
AND:

ROBERT BERNARD CASSIDY
First Defendant
AND:

NEVILLE JOHN HARPER
Second Defendant
AND:

DESMOND GORDON STURGESS
Third Defendant
AND:

STATE OF QUEENSLAND
Fourth Defendant

REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 18 September 1998

Introductory observations
On 20 May 1995 police officers, purportedly acting on the authority of search warrants, entered a premises situated at 687 Logan Road, Greenslopes, and an adjoining premises at 8 Ridge Street, in which the plaintiff, in association with a Dr Errey, was carrying on a medical practice under the name “Fertility Control Clinic (Qld)”. The police proceeded to interview the plaintiff, patients and staff and to seize and take away medical records, other documents and various items of equipment. Whilst being interviewed by the investigating officer, the plaintiff revealed that he proposed to carry out further terminations of pregnancy that day. The investigating officer, after speaking to a superior officer and to the Director of Prosecutions, arrested the plaintiff. The plaintiff was taken by police car to the Woolloongabba police station where he conferred with his solicitor. From there he was taken to the Holland Park watch house and charged with conspiring with a person or persons unknown unlawfully to use force with intent to procure the miscarriage of women between 30 April 1981 and 21 May 1985 at Brisbane. He appeared before a magistrate at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bayliss v Cassidy

Details

AGLC: Bayliss v Cassidy [1998] QSC 186
Case: [1998] QSC 186
Decision Date: 18 September 1998

CaseChat Overview and Summary

This case concerns the medical activities of Dr Peter Bayliss at the Greenslopes Clinic in Queensland, and the arrest and subsequent prosecution of Dr Bayliss by police officers. The plaintiff, Dr Bayliss, sued the arresting officers, the Attorney-General of Queensland and the Director of Prosecutions for malicious prosecution, malicious procuration, false imprisonment, trespass to goods and malicious arrest. The defendants denied liability for all claims. The case was tried before Muir J in the Supreme Court of Queensland. The Court found that the police had reasonable and probable cause to believe that the plaintiff had committed an offence. The Court found that the plaintiff was not maliciously prosecuted or arrested, nor was he falsely imprisoned. The Court found that the plaintiff was entitled to damages for trespass to goods. The Court dismissed the claims for malicious procuration and malicious arrest.The Court found that the police had reasonable and probable cause to believe that the plaintiff had committed an offence because they had evidence that the plaintiff was carrying out abortions for purposes other than the preservation of the mother's life. The Court found that the police had made reasonable enquiries to establish the facts of the case, and had acted on the advice of the Director of Prosecutions.The Court found that the plaintiff was not maliciously prosecuted or arrested because the police had reasonable and probable cause to believe that he had committed an offence. The Court found that the plaintiff was not falsely imprisoned because the police had reasonable and probable cause to believe that he had committed an offence.The Court found that the plaintiff was entitled to damages for trespass to goods because the police had seized goods outside the scope of the search warrants and outside the scope of their common law powers of seizure. The Court found that the plaintiff was entitled to damages for the delay in returning the seized goods.

Orders