Beckett v The State of New South Wales

[2013] HCATrans 4

[2013] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S144 of 2012

B e t w e e n -

ROSEANNE BECKETT

Applicant

and

THE STATE OF NEW SOUTH WALES

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 FEBRUARY 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR G.O’L REYNOLDS, SC:   If it please the Court, in this application I appear for the applicant with my learned friends, MR S.M. NIXON and MS G.R. RUBAGOTTI.  (instructed by Turner Freeman Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR W.G. ROSER, SC and MR P.J. SAIDI, for the respondent.  (instructed by Crown Solicitor (NSW))

FRENCH CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   If the Court pleases, this is an application for special leave to appeal which has been referred to this Full Court so that the application for special leave may be argued as on an appeal, and that is set out at page 193 of the application book at about line 38.  The issues before the Court on this application originate with a question which was posed for separate determination by the primary judge, which is to be found at page 71 at around line 40.  I can take your Honours to that briefly.

The question is there set out and your Honours will note a number of things about the question.  The first is that it emanates from a motion filed by the State of New South Wales, that is, the question was formulated by them.  Secondly and importantly – this is in about line 41 – the question accepts that the proceedings have been terminated in favour of my client.  Finally, the only issue which is raised is whether my client bears the onus of proving that she was innocent of the five counts mentioned in the question.

Now, the primary judge and the Court of Appeal both held, in effect, that they were bound by the decision of this Court in Davis v Gell, which we will come to in a moment, and their Honours all found that that question posed by the primary judge should be answered yes.  So, the effect of that is that my client, as things currently stand, has to prove her innocence in relation to those various counts in order to make out her case for the tort of malicious prosecution.  My client submits ‑ ‑ ‑

HAYNE J:   That case is one which could be met ‑ if it has to be made – could be met by reference to matters not known to the prosecutor at the time of the laying of the charge, not even knowable by the prosecutor at the time of laying of the charge.

MR REYNOLDS:   That is the effect of the current answer, yes, your Honour.  To anticipate things a little, that tends to fly in the face of the decision of this Court A v State of New South Wales on reasonable and probable cause but I will be coming back to that.  My submission is essentially twofold about this question which, we say, should be answered no, and that is essentially for two reasons.  The first is that we wish to submit that the decision in Davis v Gell (1924) 35 CLR 275 was wrongly decided and should be overruled. We have a backup submission, and it is this, that even if the decision in Davis v Gell is correct its reasoning should not have been extended to the direction given by the Director of Public Prosecutions in the present case under section 7(2)(b) of the Director of Public Prosecutions Act.

FRENCH CJ:   What is the content of the term “proof of innocence” in this context?  Is it proof that the plaintiff did not do what is alleged or is it proof that the plaintiff could not be convicted beyond reasonable doubt?

MR REYNOLDS:   The former, as I understand it, your Honour ‑ needs to affirmatively prove that she was innocent of these charges.

FRENCH CJ:   Because acquittal was taken as equating to, or dispensing with, need of proof of innocence.

MR REYNOLDS:   Yes, and that is one of the problems we are going to come to later, and this is a matter pointed out in Smith, is that it is really trite law that a verdict of not guilty simply means that the prosecution has not proved its case to the satisfaction of the jury beyond reasonable doubt.  It is not, and counsel often say this to juries, a certificate of innocence.  That is one of the underlying problems, we submit, and I will be coming that in a moment, with the decision in Davis v Gell and a matter on which the Court or the plurality in Smith criticised that decision.

KIEFEL J:   Before you proceed, Mr Reynolds, would you just mind assisting me with the background facts and their relationship to section 7?  I am reading from the Court of Appeal at appeal book 138, paragraph 17 where it is stated that:

On 22 September 2005 the Director directed that there be no further proceedings against the appellant on all the outstanding charges.

Do I take it that refers to the existing indictment which remained filed so that section 7(2)(b) operated, that is, that there was a direction under section 7(2)(b) with respect to the bill of indictment?

MR REYNOLDS:   Yes, there is a direction in relation to the outstanding charges and they were as set out in the question, the counts 1, 2, 5, 6 and 7.

KIEFEL J:   The difficulty I have is paragraph 18, “The document referred to” was in the form and it says, “Has a Bill been found”, answer, “No”.  I would have thought that that was referrable to section 7(2)(a), and a bill being found equates to declining to file an indictment so I am a little confused about what that document means in light of the direction.

MR REYNOLDS:   I believe that is an error, your Honour.  On my understanding, a bill of indictment was filed in this case.  I cannot turn up ‑ ‑ ‑

KIEFEL J:   Is that a common position between the parties?

MR REYNOLDS:   Yes, it is.  My learned friend and I are agreed about that.

KIEFEL J:   All right.

MR REYNOLDS:   Yes, it is odd that that particular box has a cross in it in that way.  Your Honours, given my intended challenge to the correctness of Davis v Gell I need formally, as I understand it, to seek the leave of the Court to reopen the correctness of Davis v Gell.  There are some statements more recently, particularly by your Honour Justice Bell and Justice Heydon, raising the issue of whether that is necessary but, as I understand it, it is still probably necessary for me to do so and therefore I seek that leave.  What I was intending to do, and obviously I am in your Honour’s hands, is to attempt to demonstrate by reference to the reasoning in Davis and Smith that Smith has effectively totally undermined Davis.

FRENCH CJ:   I think if you just proceed on the basis that you put forward an integrated argument on leave and the correctness of the decision.

MR REYNOLDS:   Your Honour, I am grateful for that.  Your Honours should have what we have called an applicant’s outline of argument, and the way I intend to proceed is to track through that document starting now with section 2 and I want to go through the key holdings in Davis v Gell with a view to indicating – and this is section 3 – that basically all of those holdings have been imploded, if I may put it that way, by the plurality judgment in Smith.  Starting then with the core reasoning of the decision in Davis v Gell, that is summarised for us in the decision in Smith, and I will give your Honours a reference to that, it is (1938) 59 CLR 527, and the full citation is Commonwealth Life Assurance Society Ltd v Smith.  In that judgment at page 533, at about point 7 on the page, the four justices there refer to:

an elaborate examination of the decided cases by Isaacs J. and by Starke J –

and note that they appeared to arrive at “substantially the same” conclusions in which, as they understand it, Justice Gavan Duffy concurred, and this is the proposition that they ascribe to Davis v Gell, or indicate as its ratio, and that is that:

Their Honours considered that in every –

that word is important –

action of malicious prosecution the plaintiff must show that the charge was “unfounded,” and that meant that he must show his innocence.

Now, we have set out in our outline the references to where that is stated, we assert, in Davis v Gell in the judgments of the Acting Chief Justice and Justices Gavan, Duffy and Starke and I am not proposing to go back to those judgments to make good that proposition which we submit should not be in dispute.  The other thing that I wanted to point out, and this is in our synopsis of argument, is that in stating that that is the holding, the key holding, the core reasoning or ratio of the case, it should be noted that there is not any fall‑back reasoning.  By that I mean that there is not any reasoning in Davis v Gell which would sustain a requirement of innocence in respect of criminal proceedings terminated by a nolle prosequi but not otherwise.

Now, the second matter we point to is that there are some brief observations – this is paragraph 2.2 in the judgment by Justice Isaacs – that “Innocence” is a matter “relevant to damages”.  Thirdly, there is a discussion – this is at paragraph 2.3 – as their Honours said in Smith, of the various authorities, and I will be coming back to this when we discuss Smith’s Case, where Justices Isaacs and Starke go through the cases and the ratio or core reasoning in their judgments, we submit, is effectively derived from the case law, that is a proposition that the cases establish that in all malicious prosecution cases a plaintiff must prove his or her innocence in order to succeed.

The final thing I wanted to point to in the decision in Davis is that there are some, I submit, with respect, distinctly quirky observations about proof of innocence and the principles of estoppel, picking up an observation that your Honour the Chief Justice made to me a little earlier.  If your Honours go to the judgment in Davis, and we have set out the references I want to take your Honours to at paragraph 2.4, Justice Isaacs – this is at page 285 at about point 3 – says that innocence is an essential and then says that:

The proof of innocence must be made in accordance with the ordinary rules of evidence –

At page 291 –

FRENCH CJ:   Just before you leave 285, under the heading “Damages” his Honour referred to:

the differences between the earlier action and the later action –

That is the action in conspiracy, on a case in conspiracy, was it, the earlier action?

MR REYNOLDS:   Yes.  I think that is right, your Honour.  I mean, the history of this tort is that it starts – and Professor Winfield went into this ‑ ‑ ‑

FRENCH CJ:   Yes, in The History of Conspiracy.

MR REYNOLDS:   It started with a conspiracy to abuse the processes of the court.  It morphs, if I can put it that way, into an action for maliciously abusing the processes of the court.  At page 291 at about point 7, this is in the context of – this is at point 4 about the effect of an acquittal, Justice Isaacs says that if there is an acquittal that creates an “irrebuttable presumption of innocence”.  Now, we will be coming back to that, but that proposition ‑ and it was, I think, implicit in what your Honour the Chief Justice said to me earlier, with respect – cannot be right.  Justice Gavan Duffy, at about ‑ ‑ ‑

HAYNE J:   Well, it could be right, could it not, if it were to be understood as referring to the incontrovertibility of the verdict?  That is a different proposition from one of demonstrated innocence or proved innocence.

MR REYNOLDS:   Quite so, but he is linking it with his earlier statement about proof, and I accept what your Honour Justice Hayne puts to me entirely.  To anticipate things a little, their Honours in Smith come back to this point and say it is not about proof at all, it is that when the criminal proceedings have been terminated as a matter of policy the courts will not go back and inquire into guilt or innocence once termination has occurred.

HAYNE J:   Well, more generally expressed, it may be that the point is one of coherence, that you ought not to end in the legal system with a successful action for malicious prosecution if, proceedings not having terminated in the favour of the accused, the accused, after determination of the action for mal pros the prosecution continues and guilt is established and it is a question of coherence rather than anything else.

MR REYNOLDS:   Well, I will be submitting, in due course, that there is a key passage ‑ I know I am anticipating things a little ‑ in Smith’s Case about the policy of the law which, in effect, sounds the death knell for my learned friends on that and I think I might, with your Honours’ leave, deal with that when I discuss Smith’s Case.  Justice Gavan Duffy ‑ this is at page 294 at about point 7 ‑ says that:

It is unnecessary to discuss what the position would have been if the plaintiff instead of proving the entry of a nolle prosequi had been able to prove that he had been acquitted.

So his Honour seems to have detected that there may be some problems here about this proposition of proof but did not go into it further.  Justice Starke, and this is remarked upon by their plurality in Smith, at page 296 at about point 7 refers to Mr Spencer Bower’s book “Res Judicata” and says that:

An acquittal no doubt establishes the fact that the proceedings have terminated in favour of the plaintiff, but it also establishes, in my opinion, his “innocence” . . .  It may be that this conclusion can be supported on the technical ground that the plaintiff and the defendant are in substance parties to the criminal proceedings which resulted in acquittal –

Just pausing there, and this is something we will be picking up in a moment in relation to Smith’s Case, he appears to be suggesting that there is some form of estoppel there, but he then says or places a ‑ ‑ ‑

FRENCH CJ:   A party who procured a prosecution is not necessarily the party to the prosecution.

MR REYNOLDS:   Exactly.  He refers at the top of page 297 that the broader ground may be preferable, that is, “considerations of public policy”, and that is what we are going to come back to in relation to Smith.  So they are the central observations, I would submit, in Davis v Gell for present purposes.  If I can turn then to the decision in Smith and your Honours will see immediately the swathe that is cut through the reasoning in the earlier decision.  Before I get to that can I just point ‑ ‑ ‑

FRENCH CJ:   There was a formal submission, was there not, that Davis v Gell was wrongly decided?

MR REYNOLDS:   Yes, there was in argument, and it is, I think, common ground that their plurality did not formally overrule it, or I should withdraw the word “formally” ‑ they did not overrule it.  We will be looking in a moment at the precise status of Davis v Gell post the decision in Smith probably in about five or 10 minutes.

This was not a case terminated by the filing of a nolle prosequi but by the Attorney‑General refusing to file an indictment.  If your Honours go to page 528 of the report at about point 6, your Honours will see how the issue arose.  Essentially what happened was that the plaintiff was determined to lead evidence that he was innocent, both on what I will call liability and also – this was a jury case – no doubt to inflame the jury on the question of damages.  The defendant objected to that and the trial judge on the authority of Davis v Gell said that evidence is admissible.  Just pausing there, even though this was not a nolle prosequi case the reasoning in Davis v Gell was generally expressed, that this is an element in all cases of malicious prosecution.

The defendant then sought a new trial in the Full Court and he submitted, as your Honour the Chief Justice said to me, that Davis v Gell was wrongly decided, but also must have submitted, in effect, that regardless of that, in this particular case or more generally, innocence was not an element of the tort. Now, their Honours – this is proposition 3.1 – deal with that core proposition starting at page 542, this is about point 4, where having mentioned Davis v Gell they say that:

the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff.  The plaintiff must prove that the prosecution terminated in his favour.  He must prove that there was no reasonable and probable cause for the prosecution.  But he need not prove that in truth he was innocent of the charge, and it is not open to the defendant –

just pausing there, in other words as some form of defence –

to attempt to prove as an answer to the action that in truth he was guilty, notwithstanding the termination of the criminal proceedings in his favour.  In proving the existence of reasonable and probable cause, the defendant is confined to information of which he was aware at the time of the prosecution.

Which, as I noted before, is the effect of the holding in the decision in A in New South Wales.  So this is responding to the plaintiff’s assertion in this case that on liability he is able to put in evidence evidence of his innocence.  Their Honours are saying that as a general proposition applying to this tort of malicious prosecution, the issue of innocence is completely irrelevant to all issues of liability whether they be matters raised by the plaintiff or by way of defence by the defendant.  Now, there are other references we have put in our notes ‑ ‑ ‑

HAYNE J:   Because the focus of the action is on the state of affairs at the time of institution of the prosecution alleged to have been maliciously instituted.

MR REYNOLDS:   Yes, your Honour, that is right.  This goes back, on one view, to the genesis of the cause of action is about abusing process so it looks to the defendant’s state of mind and the material in his or her possession at the point of institution of the proceedings or if it is pleaded this way at the point that they were maintained if that point is raised.

CRENNAN J:   Well, added to that absence of reasonable and probable cause it is just a very different inquiry from the inquiry into innocence.

MR REYNOLDS:   It is.  One can have a malicious abuse of process where a person is innocent or where the cause of action, if I can put it that way, is not observed.

CRENNAN J:   I think in Smith’s Case it is pretty clear at the bottom of page 535 that the plurality were of the view that the opinion had been expressed too widely in Davis v Gell and did not cover the facts of Smith’s Case and that is made clear at the top of 543 with the first full sentence containing what is the ratio, in essence, so Davis v Gell is preserved by this decision only in relation to its precise facts.

MR REYNOLDS:   Yes.  I will be coming back to that in a moment to be more precise about it but, yes, your Honour is right.  What they are saying there is, as I will put it later, in this case they paint a very broad canvas in a sort of monochrome colour saying innocence is utterly irrelevant to the tort of malicious prosecution, and they then note this decision in Davis v Gell and in effect put a dot on the canvas and they say, you see that issue there, well, if the particular termination is by a nolle prosequi then that issue is ‑ and they use this expression three times ‑ covered by Davis v Gell and that case stands as authority for the proposition, post Smith, that where there is a termination by a nolle prosequi then innocence must be proved but, importantly, in no other form of favourable termination covered by the tort does innocence have to be proved.

The essential difficulty – or one of them – for my learned friends is that Davis v Gell is based on general reasoning and Smith effectively guts that reasoning.  It says, you just cannot say – advance that general proposition.  Now, Davis v Gell does not have in it any backup reasoning, any ratio minor, if I can call it that way, that says apropos a termination by a nolle prosequi that in that particular form of termination there is a particular reason why innocence must be proved, notwithstanding that innocence does not have to be proved with any other form of termination and that lies at the nub of the difficulties for my friends.

The other main difficulty, to anticipate things, is this proposition about the policy of the law which was mentioned by Justice Starke, commented on by your Honour Justice Hayne, and will be taken up later on in Smith, and that is that once there has been, as is conceded here, a favourable termination, then the courts will not, as a matter of policy, go back into the question of guilt or innocence.

Just to continue, the Court also needed, because of the alternative argument put the plaintiff, to deal with the issue of whether innocence could be relevant to damages, and that is dealt with at page 545 at about point 2 where their Honours say that:

the issue of guilt or innocence has no real relevance to damages.

For the reasons already given, the basis of the action puts out of consideration any question of actual guilt.

I will be coming back in a moment to the reasons they give for that.  The other thing, and this is paragraph 3.4 of our outline, that Smith is notable for is that there is a full review in the case of – and this is paragraph 3.4 of our outline – of all of the textbooks, all of the pleading texts and the case law, and beginning probably at page 540 at about point 3 with the observation that:

Before the decision in Davis v Gell no one appears to have supposed that –

and they continue on there.  The effect of this discussion of these various texts and authorities and pleading books is to lead to a rejection of the proposition that innocence is relevant in any respect to this tort.  The only caveat on that is that at the top of page 542 their Honours do point out that there is, however, a decision in Saskatchewan which has pointed out that “the issue of guilt is always open”, but they go on to point out that:

It does not represent any general view held in Canada.

Whilst I am there on that page, their Honours say a little lower down, having referred to the decision in Jewhurst, that the Court there:

gives the usual list of things for the jury’s determination in malicious prosecution, making no mention of guilt and says that these only are what the jury must determine.

In other words, there are cases which implicitly reject the requirement of innocence by stating the elements of the action in a form which omits any reference to innocence.  Now, I will not take your Honours to our submissions, but your Honours will have noticed that there are various cases in various jurisdictions that we have cited which refer to the elements of the tort in a way which is inconsistent with the requirement of innocence, including the very decision on this Court in A v New South Wales.

Now, in our submissions at paragraph 36 to 40 we have put the proposition that when one goes back and analyses the various decisions referred to by Justices Isaacs and Starke that none of those cases state, by way of ratio, that there is an element in this tort of malicious prosecution of innocence.  One can explain them away on the basis of that point not having been at issue or that the statements are equivocal.

CRENNAN J:   Is there any point made ‑ I suppose this is a task for Mr Walker, but is there any point made in any of those cases to which reference has been made as to the rationale for making an exception in relation to a nolle?  Is there a point made about – well, sometimes that may be consistent with innocence and sometimes not.  Is that kind of point floating around in some of those old cases?

MR REYNOLDS:   It is probably a point for my friend, but the point that I have made, I hope before, and perhaps I can dwell on it again, is that this is at the nub of the difficulty for my friend.  Once one accepts Smith as an authority which covers every form of termination except nolle prosequi, once one accepts that one has to – and that the reasoning in Davis v Gell is based on that broad proposition rejected in Smith, one has to say, apropos a nolle prosequi, there is something special about that form of termination which means that ‑ ‑ ‑

CRENNAN J:   Well, that is precisely what I was asking you about, whether one could have access to the rationale for a special distinction being made through those cases to which reference was made in Davis vGell.

MR REYNOLDS:   I submit negatively that there cannot and I will be dealing in a few minutes with what we say is the only effective submission mounted by State of New South Wales on that because there is a submission.  My learned friend has put in his written submissions, which attempts to draw a distinction between the termination by a nolle prosequi and other forms of termination but to anticipate things a little, we say that the distinction that he draws is not an effective distinction because it does not distinguish termination by nolle prosequi from other forms of termination.

My learned friends - and I do not say this critically, and I have not taken up discussion of the cases where we have submitted that the cases relied upon by Justices Starke and Isaacs do not support this proposition, certainly not by way of ratio.  There is nothing original in that submission.  Your Honours will note that that very submission was put ‑ this is at page 277 ‑ by Mr Owen Dixon, as he was at that time, at about point 3 of the page, this is in argument where he says that:

The statements in cases which are relied upon –

by Mr Latham –

to support the view that the plaintiff must prove his innocence have been made when the Court was dealing with other matters.

What appears to have happened, if I can divert slightly at this point and take your Honours to our outline of submissions - this is at page 10 of our submissions - is that in 1883 Lord Justice Bowen in the decision we refer to - this is at paragraph 48 on page 10 of our written submissions in‑chief made a statement to the effect that the elements of the tort included, and we have quoted, that there the plaintiff was innocent and that was picked up – that was an obiter dictum.

That was picked up in the decision we refer to at paragraph 48 of Cox v English, Scottish and Australian Bank [1905] AC 168 which notably was an appeal to the Privy Council from the Supreme Court of Queensland. As we note in paragraph 48, there was a statement made, obiter again there, about that question. It then comes into the Commonwealth Law Reports through – this is paragraph 49 - Crowley v Glissan[No 2] (1905) 2 CLR 744 where there are references to this dictum but again – and my learned friends do not appear to dispute this – the matter was obiter. I should note the footnote at the bottom of that page and that is that in Smith’s Case they go back to – this is footnote 5 at the bottom of page 10 – this observation by Lord Justice Bowen and they say this: 

As Isaacs J explains in Davi[s] v Gell [at 293] Bowen LJ did not mean that innocence must be proved and acquittal also.  He meant that a decision in favour of the accused must be proved, which decision thus established innocence.

So the point made in some detail in Smith is that the cases, textbooks and what have you, when one looks in detail at them do not support the broad proposition for which Davis was authority, and although obviously he does not say it, that the submission originally made by Mr Dixon in Davis v Gell should have been accepted on that point.

FRENCH CJ:   One of the modes of termination, apart from nolle prosequi, where the termination may be informed by public interest considerations that have nothing to do with guilt or innocence, I suppose one example might be following a committal a decision not to file an indictment.

MR REYNOLDS:   Well, I will be dealing with that apropos and I will deal with it directly now.  I am dealing with that in some detail later on, but there are a couple of examples referred to of that in Davis’ Case and I am just looking for the reference.  The best reference is at page 297 at about point 7 where ‑ ‑ ‑

HAYNE J:   Page 297 of what?

MR REYNOLDS:   Page 297 at point 7 on the page.

HAYNE J:   Of Davis?

MR REYNOLDS:   Of Davis, I am sorry, your Honour, I beg your Honour’s pardon, where Justice Starke refers to forms of termination and he lists a number of them.  He talks about “want of jurisdiction . . . or some technical defect”.  Now, paraphrasing what he says there, those are accepted forms of favourable termination for this tort and yet those forms of termination do not involve or may be for reasons other than the merits.

Another example would be that – and we have included this in a document which your Honours’ associates should have to hand, the guidelines for the office of the Director of Public Prosecutions.  I have used the page numbers at the bottom of the page.  These are excerpts from these guidelines.  One point I will be coming to later is one does not get any court decisions on these issues because these issues are unexaminable by the courts.  But if your Honours go to page 8, under the heading “4  The Decision to Prosecute”, your Honours will see at about point 6 on the page, paragraph 3:

whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest.

Then at about point 8, “The third matter,” that is, paragraph 3:

requires consideration of many factors which may include the following –

I interpolate referring to those 23 matters, they include public interest matters which do not relate to the merits.  Likewise at page 13, at about point 7, under the heading “Discontinuing Prosecutions” there is a paragraph beginning:

In considering and preparing such applications regard is to be had principally to the three tests set out in Guideline 4 –

So these are, as is accepted here in the very question, forms of favourable termination for the purposes of the tort, but they can be for reasons other than the merits.  So the short point is that it is not - and we will be coming to this later - open to my learned friends to say that a nolle prosequi could be terminated for reasons other than the merits and that makes it a special case.  It does not make it a special case because other forms of favourable termination may also be for matters other than the merits.

KIEFEL J:   Do you contend that there should not be a requirement for the cause of action of malicious prosecution that there be a termination in favour of the plaintiff or do you simply say that the requirement of termination is explicable on bases other than the requirement of innocence?

MR REYNOLDS:   Well, I have rested, essentially, on the concession made in the question, which is that there is a favourable termination here which, as we will note a little later on, is consistent with statements in Davis v Gell and Smith - I will be coming to that in a moment, but the short point is I do not ask your Honours to excise the requirement of favourable termination from the elements of the tort.

KIEFEL J:   But do you say that historically it is explicable on bases other than innocence?  It has other foundations?

MR REYNOLDS:   Yes.  Essentially they are, picking up what I think I said to your Honour Justice Crennan earlier, that at the root of this tort historically is the notion of abusing process, so that is its focus.  It says has there been a malicious abuse of the process and as a matter of logic that issue can be answered without going into the question of the merits of the case.  Of course most of the time, not always, but most of the time the issue of guilt, another point made by Mr Dixon in his argument, will bob up at the point of reasonable and probable cause because the question of guilt will arise in some form at that stage because when one looks at the material available to the prosecutor at the point of institutional maintenance of the proceedings then matters which might otherwise have been relied upon on guilt or innocence will bob up at that stage.

KIEFEL J:   But in terms of institutional questions, the requirement by the courts that there be a termination in favour of the plaintiff is more likely to be addressed to questions of not trying again the same issue or challenging something that has been either found by the court or the jury - a decision made by the court which raises the question of coherence, I think, that Justice Hayne mentioned before.

MR REYNOLDS:   Yes.  It may be convenient at this point to go to proposition 3.6 in our outline which deals with this directly - I apologise, I have been bobbing around this point - but it is probably the strongest card in my hand and it relates to page 544 at about point 7 in Smith’s Case where their Honours say this, that:

The policy of the law appears to us to be opposed altogether to reopening in civil proceedings the question of innocence or guilt.  Even if the question of real guilt or innocence had a prima facie relevance to damages, we should think that it ought to be excluded upon the same grounds of policy as have kept that question out of the elements constituting the cause of action.  In other words, for the purpose of malicious prosecution, the law should consistently treat the question as disposed of in the criminal proceedings, the propriety of the conclusion of which ought not to be canvassed.

Now, that policy – and that your Honours will see at page 545 – that is a policy linked closely to the issue of innocence being irrelevant to damages and also of the very – as they say at point 2 on 545 – the very “basis of the action”.  That means that where one has, as is conceded here, a favourable termination, then Smith stands as authority for the proposition that as a matter of policy in malicious prosecution cases the courts will not go into the propriety of that conclusion, or to pick up the words at the bottom of 544, will treat that question as disposed of by “determination of the criminal proceedings”.

KIEFEL J:   Do not their Honours take up the reason for the rule of termination at the bottom of page 538, second‑last line, and then on page 539 list three reasons?

MR REYNOLDS:   Yes, that is the rationale of termination in the plaintiff’s favour, or I should more accurately say three possible rationales which ‑ ‑ ‑

KIEFEL J:   The first one is the collateral attack on the conviction, the second is preventing imputations in one proceeding against the justice ‑ ‑ ‑

MR REYNOLDS:   Or, yes, alleging there is still the pending suit, that it is unjust.  That is 539 at point 4, but it all ends up, ultimately, with this policy stated at page 544.

KIEFEL J:   Yes.

MR REYNOLDS:   Once one accepts that there has been a – and it is not an issue in this case – once there has been a favourable termination.

FRENCH CJ:   Does favourable termination reduce to the requirement that the plaintiff was not convicted and the proceeding is no longer pending?

MR REYNOLDS:   This is an issue which has been touched on in this Court, probably, I think it is fair to say, not finally resolved, but to answer your Honour, I hope directly, there are a number of formulae but the one which we would respectfully suggest is probably the preferable one is the one contained in Davis at page 289 at about point 7 where Justice Isaacs refers to the – in these words that the action:

shall have terminated, and without adverse consequences to him.

I would submit that is probably the better view although there has not as yet been a decision, I think I am correct in saying, on precisely what the test is.  I should also point out ‑ ‑ ‑

HAYNE J:   I am not so sure about that.  The critical point is termination.  The termination must not be unfavourable to the accused, that is to say, if the termination was by verdict of guilt the action for mal pros would generate incoherence but termination of the proceedings, if once it is allowed to include nolle which is, in this case, not disputed and for which there seems a deal of authority, what matters is termination, not unfavourably to the accused and the question of guilt or innocence is then, on one point of view, utterly irrelevant to whether the processes of the criminal law were launched without reasonable and probable cause and launched maliciously, which is the essence of the cause of action in suit.

MR REYNOLDS:   Precisely.  That is the nub, we respectfully submit, adopting what your Honour has put to me of the cause of action.

KIEFEL J:   I suppose, testing it another way, the rationale for the requirement of termination by reference to the reasons or principles stated in the cases do not actually require that a jury determine guilt or innocence.

MR REYNOLDS:   Exactly.

KIEFEL J:   The coherence of the law would also require that, for example, where a magistrate or a judge made a decision that proceedings were not to proceed further or to be permanently stayed or whatever, that would be a sufficient termination, one which does not involve guilt or innocence for the purpose of the rule.  There must be some examples of that.

MR REYNOLDS:   There are and I am sorry, perhaps I may not have finished my response to a question I was asked earlier because the two examples given in Davis’s Case were – this is at page 297 at point 7 - I did take your Honours to this - a formal “defect in the indictment” and dismissal on the ground that the proceedings were coram non judice.  They both involve terminations which do not involve the merits.  I noticed - I do not have it to hand - but I noticed that your Honour Justice Bell was in a case where there was a withdrawal of the case – I will give your Honour perhaps a reference in reply as a significant part of the argument, but where that was treated as a favourable termination and where that would not involve a conclusion on the merits.  There are other examples.

HAYNE J:   But the lumping together of those examples with “ignoramus” and refusal to commit is perhaps itself telling.

MR REYNOLDS:   Yes, it is.  They are all treated as being forms of favourable termination, notwithstanding that some involve merits‑based determination and some do not. 

FRENCH CJ:   The other example I think I put to you was where there is a committal, but a decision not to proceed.  You do not get to a nolle prosequi in that case, do you?

MR REYNOLDS:   No, because a nolle prosequi assumes a committal usually and certainly the filing of an indictment, and then the indictment is non pros.

FRENCH CJ:   Yes, I think the term “nolle prosequi” used to be used rather loosely in practice to describe the outcome of a submission to a prosecutor not to proceed.

MR REYNOLDS:   And not to file an indictment, yes and I should say a misapprehension under which I once laboured before this - but yes, that is true and, of course, as we look to the guidelines the DPP may decide not to file an indictment for public policy reasons or decide to make a section 7(2)(b) direction for public policy reasons. There is nothing particular about a nolle prosequi or a 7(2)(b) direction in that regard.

One point I have missed out and I will come back to now is with paragraph3.5.  I perhaps do not need to go into this in any detail other than to refer to it and that is that in this decision in Smith their Honours or the plurality criticised this provisional view of Justice Starke on an estoppel.  They also say that contrary to what Justice Isaacs put that a verdict of not guilty never means more than that from the evidence that is the proper conclusion - I said before that it is trite law that a jury’s verdict of not guilty does not establish innocence, but I have put three cases there at the top of page 2 of our outline.

HAYNE J:   To which might be added, I think, as to incontrovertibility, is it not, Rogers v The Queen?

MR REYNOLDS:   It was on my original draft, your Honour, but I did not want to go beyond three cases, but, yes, Rogers does deal with this point.  The seventh proposition we put at paragraph 3.7 really goes to the status of Davis v Gell post the decision in Smith and we have said, as your Honours will see, three things.  First of all their Honours seem to accept the proposition in Davis that a nolle prosequi amounts to a termination.  Then they use this particular past participle as an epithet.  They use this expression “covered”, that is termination by nolle prosequi is “covered” by Davis.  My learned friends want to say that somehow the decision in Smith adopts Davis, but we would submit the use of that particular word indicates they are being very careful not to state in terms that they regard it as correct.

But, very importantly, at page 543, point 7 of Smith, their Honours in the plurality go out of their way to indicate that Davis is not to be extended further, that is, beyond the particular form of termination that was the subject of Davis, namely termination by a nolle prosequi.  So this creates this really quite unusual situation where innocence is stated in very strong terms to be utterly, utterly irrelevant to malicious prosecution no matter what the form of termination is and yet there is, as it were, a notation that one form of termination is covered by the decision in Davis but it is then stated that that dot on the canvas, using the metaphor I used before, is not to be extended further.

So it leaves Davis at the very least, we would submit, in a rather odd position, but that really forces, as I may have said before, my learned friends into a situation where they have to go back to Davis and say, well, actually there is some alternative reasoning which says that even if we are wrong, in effect, on our ratio major that innocence needs to be proved in all malicious prosecution cases, our fall‑back reasoning is that innocence needs to be proved where there is termination by a nolle prosequi for these particular reasons. 

Now, those reasons are not found in the judgment.  If they are to be found no doubt my learned friend will point your Honours in that direction, but that then means that my learned friends bear an effective onus to articulate for the first time, that is, other than the statements made in Davis, how they can resurrect, I would put it, Davis, upon reasoning not relied upon in Davis, but which is nonetheless consistent with Smith, and to be consistent with Smith they have to point to a reason why where there is termination by a nolle prosequi there is something so special about that, so special, that in that one instance innocence needs to be proved.

Now, we have set out, in order to make it easy for my friends, in section 4, the difficulties which we submit exist in seeking post Smith – in seeking to uphold Davis as requiring innocence in relation only to nolle prosequis.  I perhaps do not need, given the discussion we have had about these two cases, to go through these points in great detail, but your Honours will see, starting in paragraph 1 is the proposition that the core reasoning in Davis has been, as I put it, I hope appropriately before, gutted by the reasoning of the plurality in ‑ ‑ ‑

FRENCH CJ:   Well, just looking through these points, they do seem to be covered largely by what you have already put to us, do they not?

MR REYNOLDS:   Yes, and my written submissions.  I accept that, your Honour, and I do not want to labour your Honours with points, particularly as they are fairly simple ones.  I would stress, and your Honours appreciate this, paragraph 4.7, and also stress the fact that neither my learned friends nor my team seem to have found any case anywhere or any text writer who is prepared to adopt the proposition that in a nolle prosequi case innocence needs to be proved.  It is – may I put it this way – a friendless proposition.

HAYNE J:   Well, some friendship might perhaps be found in the footnotes to Chitty’s 7th edition of pleading where there were four conditions stated for the action of malicious prosecution, the first of which was falsehood. 

MR REYNOLDS:   Yes.

HAYNE J:   But it is perhaps necessary - it is certainly desirable - to read the footnote in full for what is meant by the author by the reference to falsehood.

MR REYNOLDS:   Yes.  One of the difficulties that has bobbed up in the discussion of the pleading texts, and if I may say so, your Honour and I have discussed this in this very place before, is that sometimes pleaders tend to, out of an excess of caution, plead matters which they perhaps do not need to plead and sometimes they plead or use a word which is wider than the expression they need to use.  So that, for example, the word “falsely” might be including notions of absence of reasonable and probable cause.

HAYNE J:   The closest you get to it in the actual pleading is in the inducements where:

whereas the said plaintiff now is good, true, honest, just, and faithful subject of this kingdom and as such hath always behaved and conducted himself, and hath not ever been guilty, or until the time of the committing of the several grievances by the said defendant as hereinafter mentioned, been suspected to have been guilty of -

It has the joy of the language of the time but ‑ ‑ ‑

MR REYNOLDS:   Yes.  We should not, with respect, place too much weight, I submit, on the superabundant caution of pleaders.  The example has come back to me of a case where your Honour and I were discussing this and that is in relation to qualified privilege where there are pleadings in the books which say without malice on the part of the plaintiff and in my aging years I forget the name of the case, I think it was Trad, but your Honour said that that is not, I think, an element that the plaintiff ‑ ‑ ‑

HAYNE J:   I divert you from the argument, Mr Reynolds, and you should perhaps pass by.

MR REYNOLDS:   No, well, with respect, it is not, if I may say this, a diversion; it is a point I needed to deal with and I accept that.  The points that my learned friends raise, and we have set these out at section 5, are first of all that Smith accepted the reasoning in Davis was correct.  I have already summarised what we say the effect of Davis post Smith, and I perhaps do not need to go back to that, or I hope I do not.  Secondly, my learned friend seeks to rely on some North American cases, but those are cases which deal with the requirement of favourable termination in a nolle prosequi case and they do not articulate, as we read them, a requirement of innocence, which is what this case is about, in a nolle prosequi case.

Now, my learned friends have, shortly before the matter was called on, referred to a case which I have not digested called Soliman, so I should indicate that there may be a caveat in relation to that case, but I have not been able to digest it yet.  If it is important no doubt my learned friend will deal with it.  The point that I do need to deal with and deal with in some detail is the proposition which we have specified there in paragraph 5.3, which we have called the scandal and injustice argument, which stems primarily from paragraph 24 of my learned friend’s submissions.  As we understand it, it essentially runs this way ‑ really probably two propositions; the first is that a nolle prosequi may be entered for reasons which do not relate to the strength of the prosecution case or, as your Honour the Chief Justice put it to me before I think, it may be for reasons other than the merits.  We agreed with the first proposition, by the way.

The second proposition is that it would be a scandal, or an injustice as it is also put, if a plaintiff whose criminal proceedings were terminated by the entry of a nolle prosequi for reasons which do not relate to the merits of the prosecution case could somehow recover damages for malicious prosecution without proving his innocence.  Before dealing with some specific difficulties which we say exist with that argument can I point out a couple of things about it, and the first is that that argument involves only a partial defence of Davis v Gell, that is, it does not say that in all nolle prosequi cases innocence must be established, it says in some nolle prosequi cases innocence must be established, namely, those cases where there has been a nolle prosequi entered for reasons other than the merits. The other thing to observe about the argument, which is at paragraph 24 of my friend’s submissions, is that this argument inevitably depends upon an examination of the reasons given by the Attorney‑General for the entry of a nolle prosequi.

Can I again ‑ I hope to assist your Honours in my friend’s outline in point form, we did not have room in our outline of argument ‑ the difficulties which we respectfully submit exist with that argument?  The first is that there is not any authority that supports that argument, and as I said a moment ago, the North American cases are about favourable termination, they do not articulate a requirement of innocence.  The second point is that ‑ and I have said this three or four times but I will just make the point again ‑ is that the argument inevitably contravenes the policy stated in Smith’s Case at pages 544 to 545 because there is with a nolle prosequi or the direction here, as my friend’s concede, a termination, and the policy is that there can be no inquiry into innocence.

Perhaps the third difficulty is the most problematical for the State of New South Wales and that is, as I said a moment ago, the argument inevitably not only permits but requires the courts to examine in detail and pronounce upon the reasons for the Attorney‑General or for that matter the Director of Public Prosecutions entering a nolle prosequi or similar.  Now, the difficulty with that, as your Honours no doubt know, is that the courts have consistently said that they will not in any way concern themselves with those matters.  They will not – or as one case put it, such matters are not even examinable by the courts.  In other words, this proposition goes further than merely a refusal judicially to review these decisions but even to permit examination of them.  I will just give your Honours one reference in particular.  The first is to Maxwell’s Case which is on my learned friend’s list of authorities (1996) 184 CLR 501.

FRENCH CJ:   Well, in any event, you accept that a nolle prosequi is, on the face of it, inscrutable as to whether the administrative thinking behind it was to do with perception of innocence or public interest or a mix of criteria.  You do not advance the proposition that a nolle prosequi is other than a favourable termination for the purposes of your case?

MR REYNOLDS:   No, and I think my learned friend and I are agreed about that, and for that matter about a section 7(2)(b) determination; they are both favourable terminations. I will just give your Honours the reference ‑ ‑ ‑

FRENCH CJ:   I just wonder whether we are entering into straw man territory here.

MR REYNOLDS:   Well, if that is what I am doing, I apologise, your Honour, but my learned friend has been very explicit about raising an examination of the reasons by the DPP here and I am saying by reference to page 534 of Maxwell’s Case where Justices Gaudron and Gummow use this expression that the courts will not be:

in any way concerned with decisions as to who is to be prosecuted and for what.

They refer at footnote (141) to Barton’s Case where there is a similar statement at the bottom of page 95.  This is, as I say, not only a proposition about not judicially reviewing such a decision, it is about not examining them at all.

The fourth argument that we put is ‑ and I have said this before, I will just state it briefly ‑ that the argument does not articulate anything unique or special about termination by a nolle prosequi because, as we discussed before, there are other forms of favourable termination that could be for reasons other than the merits.  And, fifthly, the proposition that a guilty man, or woman, can recover damages for malicious prosecution does not distinguish the entry of a nolle prosequi from other forms of favourable termination.

As we discussed before, most times, as a matter of probability, if someone is guilty then the prosecutor will have in their hands material at the time that proceedings are instituted or maintained which will mean that the tort does not succeed by reason of proof of absence of reasonable and probable cause.  It is really only where after the proceedings have been terminated evidence comes to light which was not previously available which shows that the accused is guilty that this possibility exists for a nolle prosequi, but the point I am trying to make is this, that possibility exists for other modes of termination as well.

The paradigm case, as your Honours put it in A v The State of New South Wales for a mal pros case is where there is termination by acquittal and there are many examples of people being acquitted and then evidence coming to light after the acquittal to show that they were in fact guilty.  Perhaps the most famous example was the Bruno Magli shoes, as they were called, in the OJ Simpson case, which were available in the civil case but not in the criminal case and would no doubt have proved guilt, but in that instance the accused can be a successful plaintiff in malicious prosecution after acquittal and so here there is no reason or there is no distinction to be drawn between nolle prosequi and other forms of termination.

The final submission that I wanted to make, and in the circumstances not in any great detail, is that the evidence – if your Honours go to pages 127 to 128 – we submit does not establish that the Director of Public Prosecutions, Mr Cowdery, gave his direction because he formed the view that the prosecution case was not strong or because he formed the view that the case should not go ahead for other reasons which where non‑merits based.  Now, on one view, may I say with respect, your Honour the Chief Justice should probably pull me up here and say that in the light of my earlier submission I am not allowed to ask your Honours to examine this material and formulate submissions about it and ask your Honours to delve into the very reasons why this direction was made and, of course, I ‑ ‑ ‑

FRENCH CJ:   Well, speaking for myself, I must say I do not think it is particularly helpful but it might be a matter in reply.

CRENNAN J:   Are you suggesting to us that the terms in which the question was framed to which you directed our attention at page 71 means that it is not open to the respondents to say there is a live issue here about whether or not the determination was in fact a favourable determination, which seems to be what is suggested by the considerations to which you have just been referring?

MR REYNOLDS:   Well, we do adopt that.  We say it is not open to them to dispute it.  In form this was a separate determination.  There is a very detailed discussion – it is not on our list – a decision in Bass v Permanent Trustee 198 CLR, and at one page there is a reference there to an adoption of a principle stated by Lord Justice Diplock, as he was then, in the Fidelitas Case.  It says once you have a separate determination and that determination has been made the parties are bound by it as a form of what I would call quasi res judicata.  So I submit my learned friends are stuck with that, given the way the question was framed.

FRENCH CJ:   Do you say it is sufficient unto the day, to use the language that Justice Hayne I think put to you, that you have a determination that is not unfavourable?

MR REYNOLDS:   Quite.  I am sorry if I have overegged the pudding on those points but they are matters which we say raise substantial difficulties on what is probably the most significant argument that is put against me.  If I can deal then ‑ and again I am a little bit – or more than a little bit – I am in your Honours’ hands on this issue, on the issue of reopening and ‑ ‑ ‑

FRENCH CJ:   I think you have put fairly detailed written submissions on that and I do not think that it will be assisted by elaboration in oral argument at the moment; again, maybe a matter in reply.

MR REYNOLDS:   I am grateful for that, your Honour, and I rest obviously on those submissions and also point out the responses that have been made, which are short, in paragraph 29 of my friend’s submissions.  The final submission that I need to make is my alternative submission – this is section 7 of my document – which essentially involves a submission that even if Davis is good law in relation to a nolle prosequi that in the light of Smith, Davis cannot extend to a section 7(2)(b) direction. Now, Davis’ Case obviously related to a nolle prosequi and if your Honours go back briefly, and this will only take me a minute, to Smith’s Case at page 543 at about point 7:

The decision in Davis v Gell was upon the effect of a termination by the latter process –

that is by nolle prosequi –

and both on principle and upon the authority of the decision of the Privy Council in Balbhaddar Singh v Badri Sah it cannot be extended further.

My submission is that the primary judge in the Court of Appeal, by extending the holding in Davis to apply to a section 7(2)(b) direction, has contrary to that observation in Smith at page 543, extended Davis beyond the entry of a nolle prosequi to a statutory direction by the DPP under section 7(2)(b) of the DPP Act. Now, there is no issue that the direction was made under the – but that is between my learned friend and myself ‑ that the direction was made under section 7(2)(b) of the Director of Public Prosecutions Act, your Honours should have that in some form, and if your Honours do not it is annexed to our submissions in‑chief at the back.

Section 7(2)(b) directions were the subject of discussion in the Court of Criminal Appeal of New South Wales in the case of GKA in (1998) 99 A Crim R 491. This was a judgment of Justice Cole, with whom the Chief Justice, Justice Gleeson agreed and with whom Justice Barr also agreed, and the key passage is at page 494 at about point 7 on the page, the paragraph beginning “The power to direct”, and the third sentence starts:

The substance –

I underline that word ‑

of the power contemplated by ss 7(2)(b) and 27(b) is wider than a nolle prosequi because it constitutes a direction that no further proceedings be taken against a person who has been committed for trial or sentence.

Now, particularly in the light of that statement I submit that a direction under section 7(2)(b) is different from a nolle prosequi in a number of important respects. The first is, picking up the statement made by the Court of Criminal Appeal, that a section 7(2)(b) direction:

constitutes a direction that no further proceedings be taken –

But, if your Honours go back to Smith’s Case, which deals with a nolle prosequi, it is noted at page 534 at about point 7 on the page that:

A nolle prosequi does no more than bring the trial to an end.

In the second last line it only ‑ again, “no more” and “only” are important here ‑ “puts the defendant without day”.  On the previous page, page 533, they qualify that a little at about point 4 by saying, apropos the nolle prosequi in Davis v Gell, that:

the criminal proceedings had been brought to an end, or perhaps more accurately to a standstill, by the entry of a nolle prosequi during the trial.

The point is a very basic one, but it is that those statements I have just taken your Honours to in Smith indicate the narrow nature of a nolle prosequi whereas a section 7(2)(b) direction is, as the Court of Criminal Appeal have said, wider than that.

Can I make three other very basic points? One is that the direction under 7(2)(b) is made by the Director of Public Prosecutions, not the Attorney‑General, the Director of Public Prosecutions being a – or at least in 1986 in New South Wales a new statutory creature. Secondly, that the 7(2)(b) direction is a statutory power, not an exercise of the prerogative and thirdly, although it is not relevant in this case, a section 7(2)(b) direction could be given either before or after the indictment is filed - that is the effect of its language - whereas a nolle prosequi, as I think your Honour the Chief Justice put to me, can only be entered after the indictment has been filed.

The short point is that there is an injunction in Smith’s Case saying that Davis is not to be extended beyond a termination by entry of a nolle prosequi and the Court of Appeal and the primary judge have extended Davis further.  If the Court pleases, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  In light of the matters that have fallen out between your Honours and my learned friend this morning in argument may I, if not reorder, provide the following guidelines to, in particular, point one in the outline for my address.  May I start with the form of the question raised at first instance in the Supreme Court? 

Although my friend does not put it quite thus in terms, it appears a number of the submissions he put this morning, allied with his written submissions on this question, amount to chancing his arm on the proposition that the issue was capable of being resolved only one way in light of the form in which the question was raised or, as we would elaborate that, by appending the epithet “favourable” before the all‑important termination.  Those who framed the question, or at least acquiesced in it being asked and answered, ensured that on authorities, including as it happens apparently Davis v Gell, the answer would have to be in favour of the plaintiff. 

Now, in our submission, that is to misunderstand not only the nomenclature of the cases, particularly Smith’s Case, in relation to the element of favourable termination, but also of course to sweep aside the very point in question and in this Court, namely the abiding authority of Davis v Gell.  That is what the issue was about below and that is what it is in this Court.

To come straight to the point with respect to favourable termination, our argument, as your Honours have seen in our written submission, particularly by our references to the reasoning of Acting Chief Justice Isaacs in Davis v Gell, turns on the historical development seeking to ensure that the balance struck by this tort, a balance in light of the imperatives of the orderly administration of criminal justice plus the common law compensatory approach for wrongdoing, that balance, that in striking that balance there were developments wholly in favour of a plaintiff, the plaintiff’s position, whereby the notion of termination could be satisfactorily demonstrated by the plaintiff and in a way which was not with the same evident effect as a conviction. 

It is, of course, a childish absurdity to suppose that the tort would be available to somebody who had suffered a conviction and the conviction remained on the record of the criminal court.  No one has supposed so.  A termination which was not a conviction, therefore, and all its various forms by which it might ensue starts with a list headed by acquittal and for all present purposes and for the purposes of their Honours and their Lordships, whose considerations of these issues are found in the cases cited in our respective submissions, the case of acquittal was and is an easy one, including, with respect, to what I will call the evidentiary questions. 

Now, there is one wrinkle to that that I will come to very briefly when addressing your Honours on the relation between Davis v Gell and Smith but it can be summarised as follows, namely, that the purely estoppel evidentiary approach which was one and appears to be the favoured approach of the two approaches considered by Justice Isaacs in Davis v Gell for the acquittal concluding the issue of falsity, which is the same as the issue of innocence, that has been very plainly disfavoured by this Court in Smith.  It is, of course, the law that falls out by the operation of both Davis and Smith that we seek to defend against the application to reopen and overrule it.

Now, in our submission, as soon as you move off the easy and straightforward case of acquittal one is in the area where, historically, in the manner and for the reasons traced by Justice Isaacs in passages that have not been subject to any criticism in this Court today, there were developments in favour of making available to would‑be plaintiffs cases for compensation for commission of this tort where there had not been an acquittal.  It turns out that both the words “favourable” and “termination” cannot be taken literally and were not taken literally, in particular, “termination” in the sense that nothing further could ever be done, which would be a usual way of using the word “termination” in relation to criminal proceedings, has been established long before Davis v Gell as not necessary. 

It was enough, for example, that there had been discharge at committal, when done by justice, equivalent to the ignoramus of a grand jury because, of course, an ex officio indictment could bring proceedings notwithstanding that.  It was enough that no true bill was found where that was the essence of the proceeding as it is in this case and that is because, as explained by this Court in Smith, the failure to find or the refusal to find a true bill and the properly termed “no bill application” is, of course, directed to that possible outcome.  As explained by this Court in Smith, that proceeded from a consideration of whether the case was such as should be prosecuted with the implied reference to a merits decision obviously involving strength of case, that is, likelihood of conviction being involved.

HAYNE J:   Do not the propositions you have just advanced lead to this summary of them?  Malicious prosecution does not depend upon application in the criminal proceedings, or determination in the criminal proceedings of something that would give rise to preclusion or its close ally, incontrovertibility of verdict.  Rather, the history is pointing to the fact that what mattered was whether as a matter of practicality the orderly administration of criminal justice – your phrase – had come to its end.

MR WALKER:   Yes, is the answer.  Yes, absolutely, but it evolved from a position where it was only the acquittal which could be effectively pleaded for autrefois acquit which would found the tort and it was, as Justice Hayne has, with great respect, encapsulated in his question to me, it was the movement wholly in favour of would‑be plaintiffs away from that strictness which gives rise to the issues, one of which is before the Court today.

HAYNE J:   But that movement away from strictness occurred somewhere in the 17th century or before, so what are we pausing to notice this ancient history for?  What do we get from it?

MR WALKER:   It was not all concluded in the 17th century or indeed even in the early 18th century.  Still in the mid‑19th century arguments were being had about supposedly novel cases, at least in terms they were novel, such as the ex parte binding over on terms which would involve, in default of bonds, imprisonment where it was an ex parte application but never gave rise to a prosecution and so the question arose as to whether there could be, as the defendant said, a glib answer to the tort by saying there has been no termination, there are no proceedings to terminate, the six months term of your binding over has expired.

HAYNE J:   But the discharge by the justices at committal was the paradigm case which would yield a mal pros.

MR WALKER:   Quite.

HAYNE J:   Yes.

MR WALKER:   Smith’s Case demonstrates very clearly and not for the first time that another case, a paradigm of what was not an acquittal but was to be treated as a favourable termination, was the failure to find a true bill and ‑ ‑ ‑

CRENNAN J:   But then, as we noted this morning, went on to say that termination by way of nolle might be distinguishable or, putting it another way, Davis v Gell went too far as a general proposition in relation to a refusal to commit.  Now, can I ask you what I asked Mr Reynolds?  Is there something in those older cases, first of all, which would explain or proffer a rationale for making an exception in relation to nolle as a form of discharge and, secondly, is there some discussion somewhere, a bit like a point made in the United States cases, that there is more than one form of nolle, of course. 

One may be entirely consistent with innocence and one may not, and there seems to be a proposition suggested in your argument, I think paragraphs 24 to 26, which raises not just support for the authority of Davis v Gell being retained, but seemed to contemplate that it might be reduced in some way having regard to an argument that perhaps the real point is that their innocence may be raised as a fact, if you like, in contest when there is a particular sort of nolle, for example, the reasoning given is time has been served in gaol.

MR WALKER:   Yes, as this case, as the case ‑ ‑ ‑

CRENNAN J:   Now, I know that was two questions and too long, but what I am trying to elicit from you is what you are trying to make of the distinctions you seem to rely on, well, in point 3 of your outline, for example.

MR WALKER:   Yes.

CRENNAN J:   How does that marry with your basic argument about Davis v Gell?

MR WALKER:   Your Honour has, with great respect, probably asked more than two questions there, however, and also with respect, you have, I think, captured everything that I want to go on to say in the opening and, really, summary of our answers to our friends.  May I attempt, shaking it, to address Justice Crennan’s questions, the following description of the matter?  

First, it is not truly Davis v Gell which Smith corrected, as we have put in our written submissions.  It is Justice Starke in Davis v Gell.  I will seek to make good later the possibly that the better reading is that Justice Isaacs was in accord with the Smith rationale in relation to nolle prosequi only being the case which calls for the considerations that Davis v Gell regarded as the law.  That is the first thing. 

The second thing is that of course the older cases, including those in the era to which Justice Hayne referred, the older cases of course are all one way when nolle prosequi was considered in relation to this tort.  It is in reported decisions that it will not suffice to prevent the action to be brought because it is not an acquittal.

HAYNE J:   Because it is not a termination, because nolle pros does not stop further prosecution, is it not?

MR WALKER:   Yes and no.  Yes, that is true of nolle prosequi, but no the reasoning in the cases was that it does not import anything as to guilt.  It simply brings the proceedings to an end in the sense of the accused being put sine die but of course it could be revived.  So it is true that it is not termination as that word in English is to be understood, but it is also true we are here to argue that it amounts to termination for the purposes of this tort so long as there is something else proved by the plaintiff in a case of such a favourable termination. 

Now, why is nolle a favourable termination, to spend just a minute more on defending the resort to the established nomenclature by those who drafted, asked and then had answered the question of first instance in these proceedings?  It is favourable, first in the sense that it is not unfavourable; there has been no conviction entered, but also favourable in the sense that the plaintiff, as accused, is no longer vexed with the proceedings. 

Now, one has to add rather hurriedly, not only with nolle prosequi, but with other ways in which favourable termination can come about, the phrase “for the time being” and that is why we say neither favourable nor termination have been understood for a long time in the jurisprudence as being literally true, but they stand for this component that the proof necessary from the plaintiff to succeed that which overcomes the requirement shown by the Latin tag “non intelligitur quosque terminetur”, which can be adequately translated as meaning it cannot be understood or recognised for what it is as to its true nature until it has been brought to an end.

That, in our submission, is why again using the phrase the “orderly administration of criminal justice” as a matter of the policy of the law to which the Justices of this Court in both of these authorities explicitly refer, accommodated by the evolution in history of the tort, so‑called terminations, junctures perhaps in criminal proceedings which in all likelihood and practical experience of the courts, of the criminal administration of justice, would be an end to it.  Once nollied that would be, in all the cases so exceptional as to prove the case, the end of it.  That is the reasoning. 

Exceptions to that, in our submission, do not destroy the powerful appeal as a matter of policy to the natural justice of giving a plaintiff a cause of action, this tort, when the plaintiff was never going to be able to get the satisfaction of an acquittal because those who willy‑nilly the plaintiff controlled the criminal case had brought it to – and the words follow naturally – an end.  The fact that one has to add to be literally correct “for the time being” in the case of a stay, which is expressed as being pursuant to conditions or a nolle prosequi or, indeed a discharge of committal or indeed a failure to find a bill, those considerations at a glance, in our submission, fall away as considerations which ought fairly prevent a plaintiff from bringing the cause of action.

Now, we set nolle prosequi in a context which says well, historically you could never mount this if you had benefit only from a nolle prosequi not an acquittal.  That has changed.  You can now bring your action, that is, you can answer the challenge of the Latin tag by saying “True, I do not have an acquittal but I do have a nolle prosequi”, but what you cannot do, in our submission, is according to the cases and according to the law to this point in this Court, you cannot rely upon a nolle prosequi to provide what has been called the ground of the action which has been variously described – Justice Isaacs assembles a collocation of the epithets as follows – you have “groundless”, you have “unjust”, you have “false” and those are the matters which are pregnant with the point that has been called, maybe unfortunately, innocence. 

We do not commit an error in our argument by using that expression because the cases are replete with it.  In Smith’s Case there are two telling descriptions to which I will come, two telling usages in relation to both guilt and innocence which perhaps highlight the point that was raised by various of your Honours with my learned friend this morning.  They used the words “real” and “actual” to distinguish an issue which is a false issue to most of the aspects of most cases of malicious prosecution from that which is imported by most, but on the law and this Court so far, not all forms of favourable termination. 

In our submission it is therefore, in further answer to Justice Crennan’s question, important to note that rightly or wrongly as a matter of jurisprudential history the discharge of committal, the ignoramus of a grand jury, the refusal or failure of a prosecutor to find a true bill have been lined up in terms of what they import concerning merits with acquittal, all by reference to the policy of the law which I stress is wholly in favour of would‑be plaintiffs, that which tries to mould the tort so as to control civilly the oppressive putting in train criminal prosecution of another without, as one can see from all the other elements of the tort, without, of course, placing an undesirable inhibition on those who either by right or duty feel impelled to do so. 

That is doubly important because the element of the defendant being prosecutor is, as has been established for a very long time and very importantly, not to be confused with the formal statutory or prerogative role of a prosecutor in the criminal proceedings.  That is the first proceedings in relation to the second civil proceedings. 

That, it has been put in shorthand, is a matter of substance to be determined in light of the facts; you are to prosecute her for the purposes of the tort simply because you supply some information to police investigators, but that may be the beginning of a course of conduct which renders you, when all the evidence is considered as a whole, the prosecutor.  So the tort is, as the Acting Chief Justice had pointed out in Davis v Gell, the court is engaged when it considers the elements of this tort in a continuing balancing exercise. 

Now, in light of what has fallen out this morning I am bound to add this, I think, something novel to what we have put in our written outline and that is, to pick up another matter that Justice Crennan’s questions to me raise, is it really defensible that such an oil and water difference be observed between a nolle prosequi, on the one hand, and failure to find a true bill, discharge on committal, ignoramus of grand jury, et cetera, on the other hand?  At the moment, and I fear anyone standing here in such a case might feel the ice soar on the ice underneath his feet, at the moment we have ‑ ‑ ‑

CRENNAN J:   Well, we are listening.  You are not in oubliette or anything, Mr Walker, are you?

MR WALKER:   No, that is true.

HAYNE J:   Yet.

MR WALKER:   Yet.  Yes.  The real question is whether what we are seeking to defend will be consigned to legal history, your Honours, we accept that.  Now, at 543, in 59 CLR, right at the midway point are those very emphatic words that of course we refer to as saying, well, there is the distinction and it is treated as decisive and you have the language – let me put it in context.  As your Honours appreciate, this was a case addressing the course of criminal proceedings in a system where there was no grand jury and, as their Honours put it, the Attorney‑General discharged a duty analogous to or replacing what at common law had been done by a grand jury.  It was explained by their Honours:

When an accused person is committed for trial, it is for the Attorney‑General to consider whether the accused should be put on his trial –

That is the expression I was referring to earlier –

and for what precise offence, and this he does by filing or refusing to file and indictment.

I have used the language of finding a true bill, which is old‑fashioned nomenclature to the same effect.  Then comes the statement that, at the moment, we are entitled to rely upon, indeed, duty bound to put to the Court as the law:

This is an entirely different function from that of entering a nolle prosequi upon an indictment after it has been filed, which does no more than non. pros. the indictment.

Now, part of what we need to address, we need to do, is to provide some content for and perhaps more elaborate justification of that difference which was so emphatically stated, that is, stated in terms so emphatic that it would support the difference of outcome which their Honours were observing and which they were ruling on and finding.  I fear some of our attempts to provide that content and elaborate the justification are overlapping or repetitive, and some of them may be more formalist than would be desirable, but it is appropriate to bring them to attention, notwithstanding they are relatively obvious.

There is a radical difference between saying of proceedings which ex hypothesi have passed the test of should this be prosecuted, answer, yes, find a bill, file an indictment, there is a radical difference between saying of such a proceeding that shall not go forward, nolle prosequi, and the anterior stage of a proceeding not satisfying an officer of the Crown that that be so, not satisfying an officer of the Crown that there should be any proceeding.  That appears to be, indeed, the critical point that their Honours are referring to and I may simply have expressed less elegantly what their Honours have said at 543.

Another is the evident – it may not be correct, it may not be historically or sociologically correct, but another is the evident reference to a decision on the merits – that is to do with the prospect of prosecution justifying the prosecution continuing and an indictment being found, a bill being found – to which their Honours referred halfway down the page on 543.  That, of course, enables one sensibly and with a rationale to lump together, to use the expression used earlier this morning, the ignoramus of the grand jury, the refusal of the justice to commit and the refusal of the prosecutor to find a true bill, because each of those and in particular the first two explicitly and institutionally the first two have to do with an examination of the material brought forward by those concerned to prosecute, or to find whether there should be a prosecution, and the response on the merits by reference of course to the prospect of successful prosecution to conviction a determination negative to a prosecution going any further. 

All of those are therefore in the category which the historical evolution of the tort wholly in favour of would-be plaintiffs sought to embrace.  Let me explain.  Originally – I will call it in its primitive form – there had to be an acquittal and furthermore an acquittal which would support the plea of autrefois acquit.  That was expanded and obviously as later explained, whether by way of a historical revisionism or accurate understanding of principle does not matter, it was authoritatively explained as being necessary to avoid inconsistency of outcome or approach to the same issue between the first, that is the criminal court, and the second, that is the civil court, which is still, with respect, doctrine both established by authority and answering, in our submission, all the dictates of principle, common sense and the proper administration of both forms of justice, criminal and civil today.

When the necessity of re‑examining the impossibility of a plaintiff succeeding who did not have an acquittal in his favour came to consider one by one these other ways of things being brought to an end, albeit for the time being, in our submission it was an appropriate equivalence and in answer to Justice Crennan, yes, this is referred to by the Judges in a passage to which I will come, it was an appropriate equivalence for the law, the common law, to perceive between that which the criminal court would do by an acquittal and that which the officers of that court would do by saying it is not proper, given our meritorious – our evaluation on the merits of the material to support a prosecution further to vex the plaintiff, a decision to do with prospects.

Now, in short, in our submission there was nothing new, let alone, with great respect, maverick about Davis v Gell in the decision on the point for which it stands in light of Smith.  First, nolle prosequi had never been considered sufficient; second, the basis of the action required that there be compensation for an unjust, groundless, false prosecution undertaken without reasonable or probable cause by the defendant – in substance by the defendant – and with malice.

Now, the combination of all of those matters is of course the combination to which in an important opening passage in his reasons the Acting Chief Justice referred to as one which ought not to be, as it were, dissected so as not to have the parts operate as a harmonious whole in striking the balance to which I have referred and to which his Honour referred.  It is for those reasons that in relation to nolle prosequi Davis v Gell called upon the jurisprudence which showed that the point of favourable termination was that it evidenced what is the fundamental ground of the tort that the prosecution had been unjust, false, groundless, hence the expressions both in Davis v Gell and by quotation of repetition and paraphrase in Smith to the favourable termination meaning the innocence of the plaintiff.

Now, it means it for the purposes of the action only.  It does not mean it in some inexplicable repeated commission by their Lordships and their Honours of a solecism about the meaning of the outcome of a criminal proceeding.  None of the distinguished judges was committing a childish error about what not guilty imports.  They were rather reflecting the grandiloquent words of the prefatory averments to which Justice Hayne drew attention earlier today whereby – though, of course, they were never required to be proved literally - one staggers at the prospect of trying to prove you have never done anything wrong – showed that this was an action for an innocent person.

A moment’s thought suffices to show that it would be a true scandal if the common law gravely said, “Though it may yet be the case you will be proved guilty” – and that is the whole point of the rule against prematurity – the “non intelligitur” tag – “or though there be nothing to show, according to the criminal proceeding in question, that you should be treated as not guilty, you may proceed then to attack the reasonable and probable cause” which as we know has nothing to do with true, actual or real innocence.  It has to do with an investigation of the material before the prosecutor at the relevant times and the prosecutor’s state of mind, judged subjectively – equally, malice. 

All of those matters could then be gone into by a plaintiff about whom it could never be said something has happened which either shows not guilty which means innocent – an innocent person has been wronged by being dragged through these proceedings – or there has been a prevention of that occurring by a method which, to use the American expression – not unique to America but certainly in America – indicates innocence.

Now, your Honours will have seen that we quoted from the Supreme Court of Canada – I do not need to go to the authority.  That refers to other ways of cases being terminated in a very broad and loose understanding of that expression such as plea bargaining by which, of course, a more serious charge in a paradigm case does not go forward and a less serious charge is preferred and usually pleaded guilty to.

All of those important issues and this is the novel question, I suppose.  Should this Court, first of all, contemplate that a plaintiff can jump straight to reasonable and probable cause, straight to malice, being treated as if they were not guilty, that is, for the purposes of the tort, innocent, when one knows from the record and also putting the actual record and the case to one side from the potential of the procedure, that a person thought by the authorities likely to be convicted, a person – and we have this on the record – ordered by an appellate court to stand trial – retrial – that such a person should be treated exactly the same as somebody where the evidence has been considered and thought to be inadequate to support either committal for trial or the finding of a true bill.

KIEFEL J:   But without conviction, what about the presumption of innocence.

MR WALKER:   There is a fleeting and entirely inconclusive – probably unhelpful – reference to that by, I think, Justice Starke, to which I may come later. 

HAYNE J:   Well, there is more than that, is there not?  Is that not what generated the decision in Davis v Gell, that the very direction at issue was ‑ ‑ ‑

KIEFEL J:   Based upon that.

HAYNE J:   Yes.

MR WALKER:   You should assume, was the direction, the impugned direction.

HAYNE J:   That he is innocent.

MR WALKER:   Now, may I say in answer to Justice Hayne’s point, it does not at least appear to our reading of Davis v Gell that the presumption of innocence, as it is the subject of a standard direction to a criminal jury, for example, was the basis for that impugned direction about you should assume he was innocent.  However, the two cover such obviously similar territory that ‑ ‑ ‑

HAYNE J:   No, they do not.  The presumption of innocence at a criminal trial is really no more than an expression of two things.

MR WALKER:   Well, there is onus, your Honour.

HAYNE J:   The trial is an accusatorial process and the standard of proof is beyond reasonable doubt.

MR WALKER:   It is the first of those by which I was referring to by the word “onus” which provides the common ground between that and the matter of assumption wrongly put to the civil jury in Davis v Gell because it had the effect of dispensing the plaintiff from what the High Court held was the plaintiff’s onus.

HAYNE J:   But it was, as the reasons of Acting Chief Justice Isaacs reveals, necessary to understand the foundation for the Full Court’s conclusion which yielded, his Honour thought, a conundrum that could not be solved in the fashion which the Full Court had sought to solve it.

MR WALKER:   Well, in particular, not by a no miscarriage device.

HAYNE J:   That is right.

MR WALKER:   I should not say “device”, no miscarriage mode of reasoning is what I meant of course.  That actually served, as the judgments in this Court showed in Davis v Gell, that served to show that this was a matter of evidence.  Now, could I, at that point, endeavour still in answering Justice Crennan’s questions, and in volunteering against ourselves that there is a point that needs to be addressed, perhaps in this case, come to the question of evidentiary effect?  That, of course, is to use the expression and to apply the mode of analysis that Justice Isaacs did follow and, in our respectful submission, most persuasively follows in Davis v Gell.

Now, true it is the emphasis on estoppel and, in particular, what I will call the inter partes requirement of estoppel, did not appeal near so much to Justice Starke - my friend has already gone to that passage - and certainly it did not find support, seems really to have been rejected as either a useful or adequate explanation of the matter by this Court in Smith.  So we take the position those parts of Justice Isaacs’ reasons fall away as authority.  Of course as I shall show, that was not the only way in which his Honour put it; his Honour also put it on the ground which certainly is upheld by this Court in Smith and which remains evergreen, namely the need to avoid institutional inconsistency or incoherence between the administration of the criminal justice in the first case and the civil justice in the second.

KIEFEL J:   Could I go back to the point you made which led to the reference to the presumption of innocence?  The question raised was, why should a plaintiff in a claim for malicious prosecution who has not stood trial be treated the same as someone who has, and has had the determination when – and the position you put was where at least the prosecuting authority has determined that there is a case to be put.

MR WALKER:   Yes.

KIEFEL J:   Is that a public policy question that you are really raising?

MR WALKER:   I do not mean to quibble, but if I may use the expression “the policy of the law”, it being the phrase found in some of these authorities, it is the policy of the law in relation to the tort, to which I have to come, that shows the need in this balancing approach to accommodate, that is, to permit cases by plaintiffs where they have been prevented by one of these criminal junctures having occurred from getting the acquittal, which was originally or primitively the requirement for their case in order to show that the prosecution had been groundless.

KIEFEL J:   Is that putting it perhaps the other way around?  Is it not also a valid view that a person should be afforded the presumption of innocence where an indictment has not being pursued, and in the face of a claim for malicious prosecution?  Why cannot the courts, as part of the policy of the law, inquire why the indictment is not being pursued?

MR WALKER:   One of the troubles about using presumption, of course, is that its true realm is up to the point of verdict, and so it talks about a time which must be supposed for the purpose of this tort to have passed, at least conceptually, because otherwise you could sue, saying “I am presumed innocent”.  It does not matter what a wonderful brief the Crown has, I have not suffered a verdict, maybe it is yet to be had, the trial.  I enjoy the presumption of innocence; therefore I make good the element required for the tort.

The short answer is “no”, that would be laughed out of court, and that is the point of the Latin tag.  You do not understand its character, was it groundless or not, until it has been finished – had to move on from that because there is more ways than the verdict of not guilty and the judgment of acquittal of ending a proceeding.  The cases do not show, we respectfully submit, that it is simply the presumption of innocence in the criminal sense that either has provided explicitly or can be seen, in retrospect, to provide the real rationale for the expansion of the cases to outcomes other than acquittal.

HAYNE J:   Is not that policy captured by Justice Starke in his reasons in Smith, particularly at 552 at about point 4 of the page when, after dealing with Viscount Dunedin’s dictum, speaks of “the decisions of magistrates, grand juries or the Attorney‑General” not being tried over again.

MR WALKER:   Yes.  Now, that is, if I may say so, the passage where his Honour – how shall I say ‑ without full acknowledgement of it accepts the correction of what he had said in Davis v Gell, but he plainly accepts it.

HAYNE J:   Well, I am not so sure, given the next sentence.

MR WALKER:   That is not the only sentence like that in these reasons, your Honour.  But certainly, he expresses reasoning there which departs from, diametrically opposed to, the observation, the obiter he had made and which attracted the strictures to which I will come in Smith’s Case about ignoramus, about failure to commit.

HAYNE J:   What is said in Smith has to be read in the light of what was said by the Court in Brain, does it not, in 53 CLR, and in particular Justice Starke’s elaborate discussion of the Indian case of Balbhaddar Singh?

MR WALKER:   Balbhaddar Singh and Badri Sah.  Yes, your Honour, all of that.

HAYNE J:   Which leads to this question that it may be open to read the succession of decisions in this Court which change direction in light of what the Privy Council have said as intended to cohere together, and that perhaps it may be that whether we need to reopen Davis v Gell may have already been largely, I do not say entirely, concluded by what the Court actually did in Smith following Brain, but more importantly, following what the Privy Council had done.  And that yes, the Court in Smith says, look, yes, there is Davis v Gell off stage right but when read as a whole I wonder whether there is left standing an exception.

MR WALKER:   Your Honours, the first sentence of our outline for address is orthodox, if I may say so.  I do not mean to engage in self‑praise.  But as we understand the rules in this Court, that is an issue and we either support or do not support, we should not just sit on the fence about that matter.  However, for all the reasons, about which I shall express some qualification, that Justice Hayne has just expressed and in the manner that the Chief Justice announced at the beginning of the hearing, of course the Court needs to consider the matters as matters of principle.  But in so doing, bearing in mind we are talking about legal principle and the policy of the law and what is necessary for a plaintiff to make good a claim in tort which, of course, exists only because of a course of judicial decision, naturally weight ought to be given to both the authority as well as such persuasive force is to be found in the judgments in both Davis v Gell and Smith.

Now, the qualification I wanted to express to what Justice Hayne has put to me is this.  It is not, in our submission, right to read between the lines, because you do not get them in the lines, of Smith, a disdain for any but the identified parts of the reasoning in Davis.  In particular, in the passage to which I have already taken your Honours enough times at 543 there is a principled, it is either persuasive or not, but there it is, it is the authority of this Court, there is a principled explanation of why Davis is right and why Smith, being a different case, will not be determined by the rule in Davis, but will rather be determined by the case being treated as the same in outcome as the ignoramus of a grand jury discharged on committal, failure to find a true bill.

That is a termination in the sense that it prevents the ultimate form of termination and acquittal, but it can be seen to be favourable in the full sense requisite for the foundation of the tort that it indicates that the prosecution was groundless, unjust, false.  Now, bearing in mind that things have moved on, not so much as a matter of common law as by statute, in relation to criminal proceedings since 1938, it is to be borne in mind that what I have just called the ultimate form of termination and acquittal even that now in certain circumstances, subject to what may fall out in this Court in some future case, even that is supposed by some legislatures not to be final, to be in a sense for the time being.

Therefore, as a matter of principle, what emerges, in our submission, as the serviceable approach to favourable termination is that it must be in a practical sense judged by the ordinary – I should not say ordinary – judged by the system for the administration of criminal justice an end to the case against the plaintiff, and it must be such as by its proof indicates in the case of all but a nolle prosequi the innocence understood in the tortious or civil sense of the plaintiff, that is, the groundlessness, the injustice of the prosecution.

Now, I have said in all but the case of nolle prosequi, there may be other cases yet to examine and so I next have to volunteer against myself in light of what fell out this morning in argument the matter particularly being asked about by Justice Crennan, and that is, are there nolle prosequi and nolle prosequi.  Now, we say notwithstanding what fell out in my friend’s answering the Chief Justice’s questions about the evidence in this case, the DPP’s acceptance of the recommendation and the reasons for it, we say that it is important both for the determination of this case and for a weighing up of the factors that ought to shape the common law to consider that this is a case where it is not a matter of speculation or hypothesis.

This is a case where we do know that the ground the decisive matter for the nolle prosequi was not any doubt about either the propriety of having earlier prosecuted or the correctness of the Court of Criminal Appeal’s ordering a retrial or the cogency of the prosecution brief as it then stood after the successful inquiry – quashing after inquiry ‑ but because the plaintiff had served virtually all the sentence, and it was therefore not in the public interest to undertake a process which would not, as a matter of justice, result in further pain or penalty for her.

Now, that, of course, is exactly the same case, though for a rather less onerous sentence, as was considered by Justice Nettle in Skrijel v Mengler, to which we have made reference, it is [2003] VSC 270. We are not going to take your Honours to it, but the passage to which I intend to make reference by point 2 of our outline for address is, of course, the passage at paragraphs 223 to 232. With great respect, we adopt and urge that reading of the authorities, accepting, as his Honour did as well, that it is, of course, a matter for this Court to evaluate afresh those matters if you are so inclined. Next we observe that within that passage, this is at paragraph 231, that you will find a reference to the circumstances of Skrijel’s Case which render it so close to this case in terms of real, concrete example of a nolle prosequi that could not possibly be construed without a fiction which is false, that is, a fiction which is opposite to the truth, about what the nolle prosequi imports.

BELL J:   That is a submission that is apt to suggest that the applicant is guilty.  Innocence and guilt are difficult things to establish.  All the submissions that you put and the force of them can be understood in the context of reasonable and probable cause, but for my own part I have some difficulty understanding why one should accept the proposition that the magistrate declining to commit for trial is a pointer to innocence, why innocence should have any role in this inquiry.

MR WALKER:   Your Honour, with respect, is of course right, it is an awkward word, it is throughout the authorities.  Working with it, as we think, with respect, it can and perhaps should be, it has to be understood as a concept special to this tort, not referring to a mythical outcome of a criminal trial – there is no such outcome – let alone an absurd or impossible outcome of an earlier stage in a criminal proceeding before verdict.  Equally, for the reasons Justice Bell has just pointed out, how can one say that a person is innocent because they are not going to face a trial?  Now, it may be that in truth they are innocent but that is not something that is either established or is necessarily evidenced by a magistrate taking that view.

HAYNE J:   But in terms of jury trial the question is whether the first of the jury questions put in the case of Brain should have been put.  That question was, has the plaintiff satisfied you that he is not guilty of conspiracy with names or with any or either of them to defraud the shareholders and policyholders, as so charged in the prosecution.

MR WALKER:   Yes.  Well, that is certainly a point at which some, if not all, of the issues in this case will arise.  Yes, your Honour, in answer to that question your Honour just posed, should that have been put, yes.

HAYNE J:   Well, but should that question be put?  It should not be put where a plaintiff in a mal pros has been acquitted at trial.  It should not be put, I understand you to accept, if the plaintiff was not committed for trial and should not be ‑ ‑ ‑

MR WALKER:   Yes, your Honour, pace Justice Bell’s question to me, which I have not quite finished answering, but yes.  I am sorry, your Honour, yes is the answer to your Honour’s question, and the same ‑ I can go through the rest, the failure to find the true bill ‑ ‑ ‑

HAYNE J:   The only case where it should be put is if a nolle has been entered in respect of an existing indictment, is that right?

MR WALKER:   Yes, subject to the following.  Criminal procedure is not fixed and the common law of criminal procedure, including the common law of the prerogative in this regard, is not fixed and there are, of course, statutes.  Indeed, Smith’s Case was a case where there was a statute that regulated, but this case is a case where there is a statute that regulates what can be done and by whom and for what reason et cetera.

Reference has been made to the notion, if it be distinct, of withdrawing charges.  Practitioners in criminal courts, some of us at least bear scars from being caught short with, what do you mean, Mr X, when you say you wish to withdraw the charge?  But be it assumed that there either is or will be in a jurisdiction in this country a means by which a charge, having been preferred, whether it be indictable or not, can be simply withdrawn, leaving altogether to one side whatever costs consequences may follow, what does that say about the tort?

FRENCH CJ:   What about the case where somebody is charged and indicted with murder and the prosecutor accepts a plea to manslaughter?  Is there a termination of the prosecution for murder?

MR WALKER:   Yes, there is.

FRENCH CJ:   I suppose the same happens if there is an acquittal on murder but a finding of guilt on the lesser offence.

MR WALKER:   Yes.

HAYNE J:   That might require consideration of what the Court said in Lavender about manslaughter and homicide more generally, I am not sure.

MR WALKER:   Yes.  May I say this in answer to the Chief Justice’s point?  It is proper that these matters be tested as various an array of possibilities as one can summon, and I have in fact just volunteered that some of them may not exist yet.

FRENCH CJ:   The plea bargain situation is perhaps the easier to focus on, whether it is homicide or some other offence.

MR WALKER:   How shall I say it?  There is not a superabundance of decided cases of this tort about somebody who flourishes to the jury that I did not murder the victim, I killed them by culpable homicide that has the name manslaughter.  However, I accept that it is proper to test the position we seek to defend, which might be seen as the sole case of nolle prosequi in this way.

The first part of my answer is precisely this – to say that though it is fair to attribute to us a position that singles out nolle prosequi, in truth we are singling out any mode, by whatever name it be called, hence, there being no difference in substance between 7(2)(b) and nolle prosequi, as the Court of Appeal properly held, a means by which a would‑be plaintiff has no chance of gaining the acquittal which is the paradigm case for showing that the prosecution was unjust and groundless or false which has caused the damage, the defendant being the prosecutor and liable because of the lack at the relevant time of reasonable and probable cause and because of the entertaining at the relevant time of malice.

In our submission, the attempt has been made by the courts in the past – see 543 of Smith – to examine for their indications of what, for the purposes of the tort, is called innocence, the mode of determination.  Perhaps a more logical approach for which there is not textual support in any Australian case would be to depart from the difficult, problematic language of indicative of innocence – problems particularly arising with the word innocence – to the allied but not identical concept of not inconsistent with guilt ‑ or not consistent, I should say, with guilt.

CRENNAN J:   Not consistent.

MR WALKER:   Not consistent with guilt.  That is, you must be able to show that the outcome you have enjoyed, favourable in the sense that you are no longer on your trial, no longer at least facing actual pending proceedings, is not consistent with you being guilty.  That is a functional distinction that appears for some ‑ it is tempting to say most but it is not really a matter that can be estimated – of failures to find true bills or discharge at committal, ignoramus of a grand jury.

The last two ought in theory all be of that kind.  The first I have to concede, not least because of the well‑known prosecutorial discretions and what one knows about modern practice – contemporary practice in terms of no bill applications and decisions upon them – cannot, I am afraid, be unequivocally or completely taken to stand for that proposition.  It is at that point that we volunteer against ourselves, well, of course there is a difficulty, just as this raises the question, well, are there nolle prosequi and nolle prosequi, might there also be no bills and no bills? 

Now, as a matter of observation of the criminal justice system in work, the answer is yes, there are.  There is a wide range including a variety of reasons for both nolle prosequi and no bill which shows no doubts on the part of the prosecutor about the cogency of the case, but rather points to something outside the merits of criminal guilt or not as to why there should not be a prosecution.  Sickness, obviously, mortal illness of a defendant is a classic example.

FRENCH CJ:   Mr Walker, we might explore that further after lunch.  Adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Thank you, your Honour.  Your Honours, where I was in trying to answer a number of points raised by and questions asked by your Honours was to submit that on the state of the law to be found by reading Davis v Gell in light of Smith, the case of a nolle prosequi, so called, was treated as the case that the course of decision for the reasons given established would not suffice to make out the tort. 

Furthermore, it would not suffice in a special sense, namely, it would suffice for favourable termination but it then constituted a case where that did not leave only reasonable and probable cause, malice and identity of prosecutor as the only issues.  In a belated and still partial answer to one of Justice Crennan’s opening questions, the reason given, the rationale expressed, was in order to prevent the tort being available to a person about whom the Court could not be appropriately satisfied he or she was not guilty in the nomenclature of the tort about which some of the Justices showed some unease that the plaintiff was innocent.

Why did that matter?  Bearing in mind the plethora of statements contrary to real or actual guilt or innocence being the issue in the tort action why did that matter, simply and solely because it was the means by which the origin of the tort which remained its justification and rationale could be made out, namely, that the prosecution was false, groundless, unjust. 

In the course of an attempt to express that before the adjournment I may not have been sufficiently clear that we are not saying that the jurisprudence, either avowedly or as it happens, presents nolle prosequi as some kind of anomalous exception and I wish to make it clear our argument is that it does not matter whether it is nolle prosequi by that name or, as in this case, the capturing in a statute of the Attorney‑General’s function to direct nolle prosequi, or whether by any other word proceedings on extant or pending criminal proceedings are brought effectively to an end, in favour, that is, without a conviction of the accused.

In our submission, if there be any justification for the distinction which this Court pronounced in Smith and acted upon and sought to explain in the passage that I have already been to and alas have to approach a bit crabwise in order to conclude my address, if there be any merit in it it is the relation that that juncture reached in the criminal proceedings has to do with an official endorsement of a merits‑based view that the proceedings should not continue because they did not have sufficient prospects of success, that is of showing guilt.

FRENCH CJ:   What do you mean by an official endorsement?  Do you mean an administrative opinion?

MR WALKER:   That is one of the things I do mean, yes, that is one of the things I do mean.  By official I intend to embrace an Attorney‑General when he or she is relevant, a Director of Public Prosecutions where that is the office that has the thing, a Crown Prosecutor, otherwise a committing magistrate, et cetera, et cetera, a coroner.

HAYNE J:   Acting by reference only, in the case of an Attorney, acting by reference only to the strength of the case?

MR WALKER:   Now, your Honour, with great respect, that is a question that goes to the heart of the matter and presents one of the difficulties we have because the justifications to date in this Court, as I hope I have drawn to attention, really proceed and certainly, we would submit and concede, for their cogency depend upon a reading of those outcomes as being merits based.  Let me multiply, mostly against my interests, other ways in which proceedings may come to an end, including as it happens by nolle prosequi, so as to throw up a wider array – it will not be exhaustive – of the realistic possibilities apart from those that I think Justice Hayne and the Chief Justice have already raised with me. 

An example which could have quite sinister implications is the case where a witness has disappeared or has become mute or unco‑operative in what might be circumstances suggestive of…..  That is a case where either a no bill, if that had occurred after committal, but before finding a bill, might have occurred or a nolle prosequi.  To put it another way it is not a case where the natural and proper response by the prosecution would be to seek a directed acquittal necessarily.  It might, but it might not be depending upon what else lay in the offing as a way of filling a gap.

Now, that is a case which, in our submission, would present most oddly as providing the occasion for a plaintiff to assert as if it were a grievance entitling the plaintiff to take the first steps towards civil damages that the prosecution had failed.  “Failed” is a word that this Court has used in Smith.  The failure of the prosecution in such a case would not in any way import anything in relation to merits suggesting that the prosecution had been a false one, but rather that by a subsequent event and ordinary innocent death of a witness will provide another example, has caused the proceedings to be proceedings that cease to have the prospects that once justified the bill being found and the case fixed for hearing. 

In this case, to give the concrete facts of this case, if they be admissible, it would be odd if the failure of the criminal proceedings, which this Court in Smith has identified as the first of the grounds of this action, the failure of the criminal proceedings was something which ought to be regarded as having been brought about by the plaintiff as a convicted person having served her sentence under a conviction for the very charge upon which the indictment remained extant and for which a retrial had been directed.  That does not sound in any respect like a failure in the sense that this Court in Smith treated as bearing sufficient resemblance to the outright merits declaration of an acquittal as to provide a plaintiff with a means to ground a claim for damages if there be lack of reasonable and probable cause and there is malice and the defendant was the prosecutor.

HAYNE J:   Does not that last submission identify the separation that must be drawn between the position of the defendant accused of maliciously prosecuting the plaintiff and the position of the plaintiff, vis‑à‑vis the prosecuting authority, in this case the DPP?  The action against the person alleged maliciously to have prosecuted the plaintiff will be against the person who puts the process in train.  That will not, ordinarily speaking, or at least may not, ordinarily speaking, be the holder of the office of Director or the particular subordinate officer of the Director who is responsible for signing the indictment.

MR WALKER:   Without being Pollyanna, one can say, and one would hope so, bearing in mind their official positions and their duties and the justifiable expectation that they mostly discharged them properly.

HAYNE J:   Because of that distinction, why should one in an action against the individual agitate the issue which ordinarily in the criminal justice system is agitated between, on the one hand, the state with a small “s” and the citizen or individual, on the other hand?  Why should you agitate the issue of has the plaintiff proved that he or she was innocent of or not guilty of charges X, Y, Z?

MR WALKER:   My answer to that focuses on the premise, that is that there has been some wrongful putting in train the prosecution officially carried out by, I will call them, innocent personages.  The issue we are seized with in this case is anterior to, that is, informs whether or not that premise be correct.  To put it another way, the issue of malice is distinct from the issue of favourable termination meaning innocence, to use, I stress, the language of the cases. 

As it has been put, malice is a good prosecutor.  Chief Justice Parker in Jones v Givin, if there is a good case the choice to prosecute may well be actuated by loathsome human sentiments of revenge or vindictiveness.  That does not provide an action, whatever else it may provide in terms of disapprobation or not an action for this tort.  So we are not talking about malice serving to show that this was a false prosecution.  That it was malicious is an element, not a sufficient one.

HAYNE J:   But in the common case where it is – take the facts of A v New South Wales, let us come away from this case, where it was alleged that the investigating police officer had no reasonable and probable cause and had acted from purposes or for purposes that were improper, what is the relevance to whether an action for damages should lie against that police officer to whether in a criminal proceeding which, yes, was instituted but now has come to an end, one verdict or the other was to be preferred?

MR WALKER:   I should utter this caveat.  It may be that what I am about to say is circular, I think not on the authorities.  The answer that the judges seem to have been giving for a long time is that it is necessary in order to ensure that damages are not being recovered for something which was rightful having been accomplished or having been put in train, having been threatened and caused expenditure and grief.

FRENCH CJ:   Given the broadening scope of the concept of favourable termination beyond acquittal, to which you refer in your submissions, have we not reached a point at which it is a logical and coherent approach to say that all terminations are favourable other than conviction, that the cause of action lies in a prosecution or prosecutor acting without reasonable grounds, acting with malice and a prosecution which is terminated other than by a conviction, and the reason that conviction defeats it is a public policy reason?

MR WALKER:   Your Honour, it may be that we are on the brink of that and because of what this Court did in Smith and ‑ ‑ ‑

FRENCH CJ:   The problem is otherwise – the difficulty we have to address is that we are making these sorts of distinctions and then there are questions:  do you look at merits nolles or non‑merits nolles and so forth.

MR WALKER:   Quite, and my other answer to the Chief Justice is this.  That is not the only – it is not inexorable that that is the only incremental step the common law should take.  I certainly accept that this case presents an opportunity.  It may not require it to be fully followed up but it does present an opportunity to take an incremental step of that kind, I accept that.  Another possibility is what the Chief Justice has just referred to, though forebodingly for my prospects in it, and I will call it – this may also be foreboding for its prospects – what appears to be the rule in California where I think the language is used at one stage of a case specific determination, this is somewhat out of the order I had intended to follow but it is convenient if I finish this part of my address now. 

I will take your Honours to the Court of Appeal case in just one moment, but in summary the proposition that we submit this Court may find attractive for a step to be taken in this country in its common law would be to recognise the following circumstances as circumstances which tend in a salutary way to keep this tort open as widely as it should be as a control of oppressive prosecution, but not so widely as to be productive of the kind of scandal to which we have referred in our written submissions.

The circumstances are first, the criminal prosecution is a highly formal and completely official phenomenon.  The subject matter of this tort therefore has to do with official action.  Second, it is the kind of official action which in all but cases of rare accident is the subject of authoritative record.  Third, onus of proof for cases where record is ambiguous solves any difficulty in a way that answers the justice of the case by permitting in that case an action to be dismissed for want of the scales having been shifted to balance having been tipped in the plaintiff’s favour.

Now, if your Honours could go to that decision last year in Soliman v CVS/Pharmacy Inc, we do not know yet whether there is a report that would meet the Californian requirements for permissibility to cite.  We have given your Honours this citation, namely 2012 WL 3243798.

HAYNE J:   What level of court is this?

MR WALKER:   This is the highest court.  This is the Court of Appeal.  Now, your Honours, you will find the facts raise one of this array that we accept is a part of the appropriate testing of our arguments - see page 2, right‑hand column about the middle of the page.  One sees there were pretrial hearings:

the prosecution dismissed the charges . . . a “[p]lea bargain agreement [was] filed and” . . . the case was “dismissed –

There was no explanation for the plea bargain agreement and the plaintiff did not offer any explanation of the district attorney’s reasons for dropping the charges.  One will see through these reasons a reference to dismissal in the interests of justice, that is language which is found in a relevant rule, and it is redolent, if not entirely identical with the discretionary factors to which my learned friend made reference with respect to DPP decisions. 

On page 3, under the heading “Favourable Termination”, one sees a tripartite description of the ground of the action which is more than tolerably similar to ours and then in the next paragraph commencing “The theory underlying” there is an explanation, justification or rationale given which uses this language:

tends to indicate the innocence –

Of course, that is an expression which as to all three main words - “tends”, “indicate” and “innocence” - has obviously problematic qualities, but we draw it to attention.  We share with that formulation of course the problematic nature of innocence.  On page 4, left‑hand column - this is the intermediate Court of Appeal below the Supreme Court.  Jaffe v Stone is a Supreme Court of California decision which is several times referred to.  It is at the foot of that paragraph, last inch:

If it is of such a nature as to indicate the innocence of the accused –

Again, that seems to have those essences of an indication that is a direction of implication and innocence –

it is a favourable termination –

Then there is a collection of other possibilities with opposite effect, “technical grounds, for procedural reasons” and then another phrase:

or for any other reason not inconsistent with his guilt –

The subject matter shows that that is a phrase which would not apply to a prosecution dismissing for weakness of case, in other words, dismissal for weakness of case is one that is inconsistent with guilt and that makes, with respect, good sense, namely, that there is a valid and proper expectation on the civil side, the Commonwealth side, that the criminal side when officially administered will be administered according to merit in such cases and so if it is dismissed for weakness or insufficiency of evidence then that ought to be a sufficient demonstration precluding any other contest, let alone evidence and argument, about the issue of the innocence for the purpose of favourable termination.

On page 5 there is a reference – I will not read it – to the De La Riva v Owl Drug Case and one will see some of the examples of the endorsements which were available to successful plaintiffs in the civil proceedings in such a case - left‑hand column, last half inch or so you will see the expression:

‘by reason of lack of evidence and in the interest of justice.’

The last part might be ambiguous but the first was not.  One also sees a similar expression extracted from the decision of Womack about one inch from the right‑hand column’s base:

because the termination of the underlying prosecution leaves some doubt concerning Womack’s innocence or liability, and because Womack failed to establish –

et cetera.  The role of onus, that is, if the plaintiff cannot show that this thing, short of acquittal, which brings it to an effective end was inconsistent with guilt can be seen on page 6, left‑hand column, with respect to the holding in People v Hatch:

a court cannot presume the criminal prosecution’s dismissal was based on insufficiency of the evidence absent something in the record indicating that was the basis for it.

“Case‑specific” is the expression found halfway down the discussion of Brown v Town of Henrietta on the right‑hand column on page 6.  At the foot of that column our case of nolle prosequi is raised but, alas, any direct consideration of it dispelled because nolle prosequis had been abolished in California.  On the other hand, I need to draw to attention, because it is the foundation of a submission I am about to put, that Jaffe noted that:

“there is a favourable termination sufficient to form the basis of a tort action . . . where the prosecuting attorney at the trial enters a nolle prosequi for lack of evidence.

I would ask your Honours to note that.  I am going to relate that to a hypothetical possibility in New South Wales.  In terms, again, not only of onus but also of fact finding, that is the characterisation of such a dismissal, one sees a resort in California to the notion of ambiguity, that is, a need to avoid – not to have ambiguity, at the foot of the left‑hand column on page 7 up to the top of the right‑hand column, are based upon the case of Minasian.

Now, your Honours, in our submission the matters that your Honours might find useful for comparative thought only, of course, is first that it is a matter of the substance of what has been done in terms of the administration of justice as it is required to be carried on from time to time.  It is not a matter of the technical form of something being nolle prosequi.  Second, that there is an embracing capacity for a jurisdiction like California to embrace the proposition that for those civil plaintiffs who do not have an acquittal, who wish to get damages on the basis of the conduct of the true prosecutor or a prosecuting party, that it is not inappropriate for there to be the case specific requirement, plaintiff bearing the onus, to show, in a sense explain a disposition favourable in the sense not only of bringing to an end, not only of not being a conviction, but also inconsistent with guilt understood to mean reflecting, what I said earlier was, an official view of the prospects of conviction.

HAYNE J:   Can that official view be supplemented by reference to later discovered material?

MR WALKER:   No.  If the record showed, as it will show in some cases as practice is conducted today, that a nolle prosequi was entered because it was accepted there was an irreparable defect in a case, that is rethinking a matter that could have produced no bill or could have resisted committal then, in our submission, there is no reason at all as a matter of the policy of the law, particularly that aspect that spurns divergence between the criminal and the civil view of the same question, there is no reason why the defendant should be able to try to do what the prosecution deliberately chose not to do when bringing the criminal proceedings to an end.

HAYNE J:   What then is to be made of the case first where there are reasons and second where those reasons say, having regard to the costs of a trial, the effect on the prosecution witnesses and the likelihood of conviction, non pros.

MR WALKER:   Now, your Honour, that is, as I venture to say, your Honour intended it to be, a difficult question to which I hope not a glib answer is probably the last of those three phrases would be enough for a court to find that this was on the merits in the sense that they played a part avowedly in the determination.  You could contrast it with a case such as the present where not only is there no reference to insufficiency of evidence, there is a contrary suggestion. 

The fact that matters that are not merits matters, such as the first two that Justice Hayne gave in the example I mentioned, ought not in the way we seek to put the matter as a development from Smith – ought not prevent a plaintiff from proceeding to the other issues in the case and with the defendant being precluded from opening the question.

Now, in our submission, there is an appropriateness about holding those responsible for the official record, it will either be the defendant or will be a critical part to the defendant’s case in the civil proceedings, to the position they took when bringing the proceedings to an end.  So long as that is the position that obtains up to the conclusion of the civil proceedings there can and should be no departure from that by those who took that position.

We should raise another case, I think this is against us, should raise another example.  What is loosely and inaccurately called either plea or charge bargain, it might be more charge bargain than anything else, often can and does result in a more serious charge the subject of the extant indictment being agreed with the Crown to be dropped, to use the colloquialism, in favour of a materially less serious. 

The means by which that may be accomplished, particularly on eve of trial, notoriously includes entry of nolle prosequi for say, the murder charge, and a new bill, a new indictment being filed for say the assault with intent to cause grievous bodily harm upon which there is a plea of guilty.  The question arises, what is the position of the person who, if one can imagine such a bold litigant, wishes to say “I want to sue for malicious prosecution with respect to the nollied murder”. 

Now, it follows, we think, from what we have suggested will flow from Smith and consideration of how things are done the other side of the Pacific, it follows that that is a case which obviously has to do with merit, that is, the appropriate, the more appropriate charge is the lower one and in such a case if such a plaintiff could thread the needle to show the differential between being faced with a murder charge and being faced with assault with intent to cause grievous bodily harm and that is imaginable, then they ought to be able to point to that kind of nolle prosequi of being the functional equivalent of a no bill for murder or a failure to commit for murder had that been the earlier terminations of the murder proceedings against such a person. 

Now, that is seeking to borrow, though with radically different effect from the same reasoning as this Court displays in Smith in the passage I have already taken you to which uses the provocative expression “entirely different functions” with respect to no bill, on the one hand, and nolle prosequi on the other.  It is saying if a functional approach is appropriate then there will be nolle prosequis where functionally they ought to be treated the same way as a no bill.

What emerges from those considerations is this, that the succession of case law, to which I am now about to come, in this country, including by reference to India, the succession of case law has had the effect that what might have been regarded as a more logically simple, certainly a more robust schema such as Justice Starke enunciates in Davis v Gell, namely if you do not have more or less an acquittal then you do not have this action, having been and with great respect properly corrected, identified as being erroneous by this Court in Smith, therefore the established case of the grand jury’s ignoramus, the established case of the discharge on committal, being said by this Court in Smith to permit without any inquiry of actual guilt or real innocence in the civil case, then it ought to follow, in our submission, that an equivalent functional approach be followed consistently through.

When one follows it consistently through however it does not overthrow Davis v Gell.  It only permits there to be cases where a nolle prosequi is, unlike the paradigm case to which the Court confined its attention in Davis v Gell, proceeded on the basis of a view of the merits.  Now, your Honours, if I may very briefly simply offer to the extent we can a rival reading of Davis v Gell and Smith.  May I do it so as to accomplish it as quickly as possible by going in order more or less to some passages that we submit contain holdings that are important in first of all Davis v Gell (1924) 35 CLR 275.

It is appropriate to draw to attention the way Mr Dixon of Kings Counsel put the matter in argument, 276, because it embraced as a premise that which is an explicit premise of our argument.  The second sentence of the summary of argument:

The termination of the proceedings in the plaintiff’s favour is the condition which the law makes in order to prevent the possibility of a guilty person succeeding in an action for malicious prosecution. 

It is in that setting that this notion of needing to show innocence can be appreciated in the judgments that followed the argument.  That point of argument where Mr Dixon as counsel failed can be seen on page 277, third sentence commencing “No distinction”.  That is what was ruled against. 

May I take your Honours immediately, please, in the Acting Chief Justice’s reasons at page 282 or perhaps at the foot of page 281, the reference to his Honour’s own reasons in Varawa v Howard Smith (1911) 13 CLR particularly at 81 and following.  Sir Isaac referred to the need to bear in mind that the essentials:

are not a number of independent and disintegrated requirements.

That is they, as he then proceeded to put on that page, they are part of the effort, dynamic no doubt, that is changing from time to time as required, to strike the appropriate balance.  As things then stood, 1924, there are six matters that his Honour regarded as a convenient enumeration of what needed to be shown.

One will see that, after the identity of the prosecutor, the first of the substantive grounds is that it must have been groundless.  Your Honours know that there is a citation of authority for that and cognate epithets throughout these reasons.  His Honour picks that up at the foot of page 283 and relates it, as we have tried to do, to the reason for the action, the rationale for its existence, and one sees then the history traced, starting on 284, and then commencing that collocation of epithets and descriptions of the nature of the prosecution, upon which I have earlier drawn, that continuing onto page 285.  On page 285 in particular, about an inch and a half down, can I draw to your Honours’ attention what his Honour says about “The second essential”?  The language is:

The second essential –

namely groundless –

means that the plaintiff in the civil action is innocent –

That difficult word –

because, the prosecution being groundless, there was, when all the circumstances are known, no real cause for it.

Then there is a difficult sentence in relation to the proof of that, difficult but raising matters which are later, we submit, resolved satisfactorily in this judgment.  In relation to termination, at the foot of page 285 his Honour commences discussion of that, and at the top of page 286 we draw to attention and rest on the need for this to be based on a broad ground of social justice.  That is the description by which the evolution to which I referred before the adjournment took place, I stress, wholly in favour of would‑be plaintiffs, and one sees that there Sir Isaac includes ignoramus of a grand jury as one of the cases which the law had shown would suffice for favourable termination.

That is the basis, and it turns out not to be a completely secure one, I have to say, that is the basis for my earlier suggestion that really the mistake in Davis v Gell was Justice Starke’s, not Sir Isaac Isaacs.  However, I have another passage I have to draw to attention against that last proposition.  Halfway down page 286, after referring to the importance of moulding and modifying, hence our argument about it not mattering whether it is called a nolle prosequi, hence our suggestion to your Honours that a functional approach, picking up where Smith left off might be the way forward, one sees those expressed at the foot of page 286:

obviously on the broadest ground of inherent justice – that, where a judicial determination of innocence –

One sees that word, and that means acquittal -

was impossible by reason of the form of proceeding –

In fact, in Steward v Gromett that is the case I was referring to before lunch where there was not going to be a trial, there was a binding oath of six months on conditions which, unfulfilled, had the man in gaol for six months, an ex parte application never any possibly of controverting.  His Honour says about that:

the plaintiff was not bound to produce such a termination.

His Honour there says:

It follows necessarily from the principles adverted to that a nolle prosequi entered by the prosecuting authority on its own responsibility and discretion –

Now, that last phrase is one which perhaps opens the door for our latter day suggestion that there might be a different nolle when it is entered by the prosecution no doubt accepting responsibility and exercising discretion, but doing more than that, pronouncing a judgment in the executive branch, of course, that the case ought to be nolle because of a perceived insufficiency of evidence. 

Be that as it may one sees that the rationale for why a nolle prosequi would not suffice and what I will call the paradigm case of nolle prosequi, whether that be inscrutable or avowedly on a ground having nothing to do with merits is, as his Honour puts it, it does not follow that termination by way of nolle prosequi in any way establishes innocence.

Now, under the heading “Reasonable and Probable Cause” on page 287 may I simply draw to attention the reference to “actual guilt of the plaintiff” that you will find an inch from the bottom of that text on that page.  That accords with the division of the issues, reasonable probable cause, as well indeed as malice, as well indeed as damages where emphatically a contest as to so‑called actual or real guilt or innocence is irrelevant and must not occur.  In short, the distinct difference between reasonable and probable cause and the favourable termination that is meaning innocence is developed at page 288 by reference, of course, to the kind of material that cannot be relied upon by a defendant answering a lack of reasonable and probable cause.

Under the heading starting on page 288, “Effect of Termination” there is an important passage that is to be found on page 290.  It ought to be conceded by us that at the top of page 290 the sentence commencing “First” appears to be a ground exploded by the Court in Smith.  However, we draw to attention the statement three sentences on:

Perhaps the most complete statement of the reason is by Lord Selborne L.C. in Metropolitan Bank v. Pooley –

I will not read the quote.  That appears rather to be in accordance with the way it was decided in Smith.  In relation to this embarrassing terminology of innocence one sees that for the purposes of the civil action it has the relation to acquittal that is shown starkly at page 291 about point 6 by his Honour’s quotation from Lord Macnaughten in Mody v Queen Insurance Co, namely he:

was acquitted of the charge made against him.  It must therefore be taken that he was innocent.

That is not that great judge committing a schoolboy howler about criminal law.  That is adapting, for the purposes of the civil proceeding which ought not to run counter to the anterior criminal proceeding, it is turning the not guilty into that which justifies there being a tort at all, that is that an innocent person has been oppressed.  On page 292 one sees, I do not need to dwell on it, what appears to be a crux for Sir Isaac about an inch in:

Acquittal connotes (a) termination of the proceedings and (b) innocence of the accused.  Nolle prosequi connotes the first only.  This effect it must have on the civil action.

His Honour then goes on to deal with Piper’s Case (1897) AC 383. It is that page and, in particular, the implications we think inexorable of his Honour’s remarks on page 292 about what Piper shows which gives rise to a doubt, at least in our minds, as to whether his Honour was or was not aligning himself with Justice Starke’s mistake or error, as I have called it.  There it would appear that the Attorney‑General, not finding a bill, that is, refusing to file a bill, was treated as a position which still called for proof of innocence.  If that be so, there is a difficulty with this part of Acting Chief Justice’s reasons.

Could I, in Justice Starke’s reasons, draw to attention, particularly at page 295, what we submit is an important, not for historical reasons but for current reasons, an important and antique description of the rationale of this tort at all from Chief Justice Parker in Jones v Givin 1714 Gilb. It is also in other nominate reports, the references to which are found in 93 ER 300. There, the Chief Justice, that is Chief Justice Parker describes:

“The true grounds of these sorts of actions are on the plaintiff’s side, his innocence and the damages sustained by him through a false accusation; on the defendant’s side, that this was not an honest prosecution of justice, and a bare mistake; but it was done in downright malice, i.e., merely wickedly and without any cause.”

There is an air of quaintness, no doubt, not apparent when those words were uttered or recorded, that now appears but translated, in our submission, they still supply without any need for qualification, not merely an adequate but a convincing explanation as to why this tort exists in the form representing the balance of factors to which the Acting Chief Justice had referred.  Wrongdoing should be compensated but there should not be, if you like, oppression of a person alleged to have acted oppressively.

An embarrassment, as it were, or at least an unease with this difficult word “innocent” or “innocence” is illustrated on the next page of Justice Starke’s reasons.  You will find the quotation marks, not indicative of an extract from another document, which are found halfway down that page and also three‑quarters of the way down that page in relation to “innocence”.  It is clear from the way his Honour constructs that paragraph that he is using the word “innocence” as a label for that state of affairs.  It may be called the falsity, groundlessness or unjustness of the prosecution without which it would make no sense to have this tort at all.

At the foot of that page, 296, up to the top of 297 of course is the passage where, as recognised in Smith’s Case, though Justice Starke had raised the evidentiary estoppel point he had preferred the more substantive ground adopted by this Court in Smith. At page 297, of course, in the paragraph commencing “Consequently” – I do not have to read it – that is where the error is contained and that is the error that was corrected at 59 CLR 534 to 536 in a passage that your Honours have been taken to too many times already. It is not true, with great respect to our learned friend, that that was gutted or that it was swept away by the approach taken by the Court in Smith.

FRENCH CJ:   When you say the “it”, are you referring to the rationale of the unjustness of the prosecution?

MR WALKER:   Yes.

FRENCH CJ:   Or the falsity, as you ‑ ‑ ‑

MR WALKER:   Yes, it is not true that the need for the favourable termination to be sensibly, not fictitiously and in an absurd fashion, but sensibly treated as a proxy for innocence, that need, based upon very solid grounds of intuitive justice is not affected all, we submit, in Smith and as a matter of authority, of course, bearing in mind that the correctness of Davis v Gell was plainly full front and centre in Smith and that argument failed there has been a course of authority in this Court thereby established.

Taking it in order, however, and as briefly as I may, there was of course then intervening, as Justice Hayne has drawn to attention, the judgment of the judicial committee of 16 March 1926 in Balbhaddar Singh v Badry Sah – Oudh Appeal No 17, Privy Council Appeal 66 - the relevant passages are contained in page 4 of the Privy Council typescript but are set out in Brain, to which I will come in a moment.  There had been an erroneous attribution as a second element of what the plaintiff had to prove:

that he was innocent of the charge upon which he was tried –

denounced as being –

quite erroneous.  It should be ‘That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating –

including the reference to Basébé v Matthews LR 2 CP 688 to which, of course, reference is made in the High Court cases.  It is at the end of that passage, as your Honours are aware, that the matter that had been decided in Davis v Gell and was reconsidered to the degree it appears in Smith is referred to:  “There was controversy as to what terminated proceedings, as, for example, whether a nolle prosequi of the Attorney‑General was a termination”.

Now, that is a statement that has some difficulties, historically.  There was certainly controversy about whether it was an event that satisfied the favourable termination issue and understood in that fashion there is no difficulty with it but in fact the controversy was not about whether it was a termination that is bringing a practical end but as to what it imported as to guilt and the contrast being made with acquittal, to which attention has been drawn.

At the top of the typescript 5 in the Privy Council their Lordships then immediately refer to:  “It was quite settled that a prosecution comes to an end when a magistrate declines to commit.”  That, of course, is directly at odds with the way in which Justice Starke had put the matter in Gell.  That was the case in the Indian decision. 

It was that that was picked up by this Court in Brain (1935) 53 CLR 343. We know from it, see 344 and 376, point 9, that it was a case where the Attorney‑General had refused to file an indictment after a committal. I should draw to attention – your Honours may have seen this already in the application book - there appears to be error in that regard by Justices Evatt and McTiernan in their reference to a nolle prosequi, which you find at 399, point 7. But, as, I think, Justice Hayne raised before the adjournment, the questions to the jury in that case included, as the first one, what might be summarised as, were they guilty?

There is no discussion in the case as to whether that question should have been asked and there is nothing in the High Court argument or decision as to the kind of material that the jury had pressed on them, to and fro or pro and con, assuming there was any con, in relation to the answer to that question.  On principle, as we can now see in Smith’s Case, the fact that the Attorney had refused to file an indictment would have been enough to require an affirmative answer to that question.  None of this is gone into, alas, in Brain’s Case because it was simply not an issue in the case, as reading of the argument shows.

With respect to Davis v Gell, there is a reference as your Honours know at page 379 by the now Justice Dixon, but that is to a quite different issue, not the issue presently at hand, namely whether a nolle prosequi is enough so as to go straight to the other issues in the tort or whether it leaves the plaintiff not yet having demonstrated that the prosecution was wrongful, groundless, unjust or false. It is thus that one comes to what, notwithstanding what has been said about A, is really the last word in this Court until this case in relation to the adequacy of proof of a nolle prosequi, (1938) 59 CLR 527.

Davis v Gell’s correctness was directly confronted by Mr Dovey of Kings Counsel, 529, point 2 or thereabouts.  There was a very general statement that we certainly do not embrace as being correct at the commencement of the summary of Mr Shand’s argument for the respondent, taken as something true of all cases and understood as perhaps it should not be understood as meaning proof in the ordinary way, then that cannot be right and was not right when the argument was put.

However, if it is understood as something where that matter can be proved by the adequate or effective termination in favour, such as an acquittal or the other species to which we have referred, then it was unexceptionable.  In the summary that my learned friend has already taken you to by the plurality, at the foot of 533 of Gell, can I draw to attention by way of emphasis that the accurate paraphrase by their Honours refers to:

the plaintiff must show that the charge was “unfounded,” and that meant that he must show his innocence.

So innocence in the special sense of that which later in their reasons they show is imported by a failure of the criminal prosecution.  I stress a failure of the criminal prosecution.  It has to be said that that is not a matter which is thereafter in Smith picked up as a point of error or indeed a point that requires any further consideration by their Honours in Smith.  The correction commences as I have already drawn to attention at 534 – I do not need to dwell on it – through to 536.  The Indian appeal is gone to in detail at 536, 537 and following.  Then comes some important passages in relation to the unsettled or the possibly unsettled case of nolle prosequi, at the foot of 537 and up to 538:

The ignoring of a bill of indictment was covered by authority at a very early date, and it is quite clear that it is a termination of the prosecution in favour of the accused. 

Then comes an important expression which I hope helps to supply authority for the rationale that we submitted earlier in answer to Justice Crennan’s question could be found in the cases:

It is a termination on the merits –

Now, stepping back from this case, of course that cannot possibly be taken literally.  It has to be understood specially for the purposes of this discourse.  It is not a termination because something else can happen in the future, and it is not on the merits, there has never been a hearing.  No one has ever heard the evidence or made any decision on it.  But within this context, and meaningfully the expression means it has been brought to a practical end and the tort has been liberalised so as to allow the justice of plaintiffs suing in such cases, where they have been denied, as it were, the opportunity of an acquittal, and it is on the merits, that is it has been done for reasons which involve an official view, not a bystander’s view, a participant’s view – relevant participant’s view – of the adequacy or sufficiency of the case and judged, of course, in terms of the requisite prospects of success.

HAYNE J:   Now, is that last proposition a restatement of the argument that Mr Shand captured at pages 529 to 530, namely that:

If those proceedings did not result in the acquittal of the plaintiff it must appear that he was innocent in order to show either that the prosecution was groundless –

MR WALKER:   I think Mr Shand would have counted that argument successful in obtaining that dictum, but no it is not an acceptance of that argument because ‑ ‑ ‑

HAYNE J:   Because at the moment I do not see the difference between the argument you are advancing and the argument there recorded.

MR WALKER:   May I try to explain?  The way their Honours deal with it is not to talk in terms as if it were a real issue with real factual consideration of innocence, but rather to ask in the way this case shows one should be asking in the civil court about what has happened in and about the criminal court, what does the juncture at which things reached in the criminal court import in terms of the groundlessness or otherwise of the prosecution?

HAYNE J:   But, groundlessness of the prosecution concerns absence of reasonable and probable cause and much of the burden of what is said in A is directed to demonstrating that if you invert that you get into a logical conundrum.

MR WALKER:   We, I hope, have avoided that.  May I make this as clear as I can.  Though reasonable and probable cause will necessarily involve a consideration of merits, it is not directly so for the question of guilt or innocence.  It has to do with a time located investigation of what I am going to call the propriety, objectively judged, of the beliefs and actions of the alleged prosecutor in light of material then available with no attempt retrospectively to rehabilitate, repair or patch up.  That is quite different, in our submission, from looking at what I will call the record of the anterior criminal proceedings and asking what does that import about this prosecution or, to use one of the expressions that one finds in these reasons, did it fail or did it simply not proceed?

We say if it failed then that provides the green light to go through to the other issues.  If it simply did not go forward, as in the paradigm of a nolle prosequi with no refer to merits or against the merits, then it could not possibly be called a failure, it ought to be counted only as not going forward.  That is why I say that the termination on the merits without embracing what might be called a literal or real notion of proving innocence in these reasons by their Honours should not be counted as an acceptance of the argument with the language at the top of 530, assuming that that is a summary of an argument that actually used innocence to mean really and truly factual innocence, as opposed to the state of affairs that, for the purposes of this tort, ought to be considered as flowing from the failure of the prosecution in the sense I have attempted to explain.

Their Honours then, on 538 in the next couple of inches, dismiss the notion of it simply following from autrefois pleas, particularly in light of their relation to estoppel, and I can pass over that other correction, as it were, there is acknowledgement that Justice Starke considered two and preferred the second.  Picking up that about two and a half inches from the bottom of 538 their Honours say of Justice Starke:

The reason he proceeded to give for treating an acquittal alone as enough to exclude the issue of guilt is the broad ground of the peculiar and exceptional character of the action for malicious prosecution and considerations of public policy; a policy which could not allow a criminal prosecution so terminating to be tried over again upon its merits.

Then follows what I think alas is the only or at least the last to which I will refer reference in the authorities to what Justice Crennan was asking me about rational:

But, in substance, dismissal by a magistrate or the refusal by a grand jury to find a true bill ought not to receive less respect as a decision given in due course of law that the accused is not guilty, which in criminal proceedings never means more than that from the evidence that is the proper conclusion.  The reason of the rule that the criminal proceedings must have terminated in the plaintiff’s favour has been found in three different considerations.

One and two I am not going to dwell on now, though they do nothing adverse to my argument.  Three I am going to it at the foot of page 539.  Their Honours do not castigate Lord Justice Bowen for speaking extemporaneously and rather trace his words to that of Baron Cleasby:

“First, if the proceeding be really without foundation –

That, of course, is the mainstay of our proposition.  Then a very important explanation of that that links it to favourable termination –

and this must be evidenced –

is redolent of Justice Isaac’s concern with the evidentiary effect –

must be evidenced by the proceedings having finally terminated in favour of the plaintiff –

and if you have got an acquittal that is the end of that issue, you win.  If you have got these other species that we have conceded or the Court has held will suffice you win on that and no one can adduce evidence or put argument to the contrary of it.  Their Honours describe this not as reflecting some kind of anomaly, not as, as it were, an unreasoned decision not to actually overrule Davis v Gell, but rather all of this comes together they say as reasons for or explanations of a settled rule.  Then the next passage:

Before the decision in Davis v Gell –

is, of course, referring to the fact that what was done perhaps in the Acting Chief Justice’s reasons and, therefore, in Justice Gavan Duffy’s concurrence and certainly in Justice Starke’s reasons, what had been done was to reverse prior decisions without recognising the fact, permitting ignoramus of a grand jury or discharge on committal to be adequate favourable termination, importing innocence that is showing the prosecution was without foundation.  That is the meaning of the introductory words –

Before the decision in Davis v Gell no one appears to have supposed that –

That cannot be taken literally because you can date the reports of the evolution of the tort, but in terms of the modern law that is what their Honours are saying concerning the state of authorities.  The matter that Justice Hayne referred to, I think, in raising the matter with my learned friend before the adjournment at the foot of page 540, top of page 541, it is of moment, with great respect.  I do not need to add to what has already been said about that.  There is an important qualification found at 541, about point 7 to point 8, which we point to in rebutting a species of straw man arguments or travesty arguments put against us by my learned friend.

We are not saying that there must be proof in the ordinary way of one’s innocence in every case of malicious prosecution, far from it.  That element is supplied by the favourable termination which means innocence.  In the sense, all of that has been explained in the passages to which we have drawn attention.  It is, therefore, important to note what their Honours say in Smith about Justice Isaacs’ use of the dictum by Lord Justice Bowen in Abrath 11 QBD 440:

As Isaacs J. explains in Davis v. Gell, Bowen L.J. did not mean that innocence must be proved and acquittal also.

Now, that is because obviously if you proved acquittal you have done what the basis of the tort requires.  He meant the decision in favour of the accused must be proved ‑ that is the favourable termination, in that case, by acquittal – which decision thus established innocence.  Now, their Honours are not saying that this is wrong or unprincipled or that it is the mere decision confined to its own facts of Davis v Gell which stands.  They are using the reason of the Acting Chief Justice to explain, in light of the footing for the tort and its modern development as their Honours were seeing it, as to how it should proceed.

FRENCH CJ:   Well, does that mean anything more than that the various species of termination which are not unfavourable, putting to one side nolle prosequi for a moment, regardless of the reasons for those terminations are treated as, or labelled if you like, innocence.

MR WALKER:   Yes, and that is what the next sentence is –

When he said that the plaintiff must prove first, that he was innocent and that his innocence was pronounced by the tribunal –

what their Honours have done is said do not put any weight on that word “and” –

. . . he used words which cover –

that word again –

discharge by a magistrate, the ignoring of a bill of indictment and a judgment of acquittal after a verdict of not guilty.

FRENCH CJ:   On that argument, innocence is not offering much of an informing principle, it is really just an umbrella over the development of the law in favour of the plaintiff which you outlined earlier.

MR WALKER:   It is not just a fig leaf, if I can mix metaphors, your Honours, because regardless of the real reasons for an acquittal, it may be jury cussedness, it may be jury error.  Regardless of the reasons for discharge by a magistrate, failure to appreciate the inferences that can be drawn from material et cetera, the same with prosecutors and Attorney‑Generals ignoring a bill, a grand jury ignoring a bill, what we have here, in our submission, are the official acts leading to different junctures which bring things to a practical end not consistent with guilt because they are that which follows, either in the case of acquittal because you are not satisfied of guilt after a full trial or in the other two cases you do not think the case, given its prospects of procuring a verdict of guilty, is appropriate or adequate to go forward.

That is no mere matter of form or words, though it is, as I have several times volunteered, at least a pity that the word “innocence” has been used to describe the notion to which all these matters drive.  It is all, as Mr Dixon put in Davis v Gell as counsel, in order to enable the absurdity to be avoided of the tort ever being available to somebody who was guilty.

HAYNE J:   Well, can you capture it all by saying that there has been an official decision not further to engage the processes of the criminal law?

MR WALKER:   On the merits.

HAYNE J:   I do not know how that fits with the actual decision in Smith at all, because we do not know why the Attorney chose not to file a bill.  All we know is the Attorney did not.

MR WALKER:   Yes and yes, everything your Honour has just said.  That is what I drew to attention when I started by going to 543, the page I have just about worked my way back to; it appears to proceed on the basis that these are decisions that will proceed on the merits.  I accept what your Honour Justice Hayne has put, but they do not always.

HAYNE J:   But the merits in this area of discourse is the merit of whether the processes of the criminal law should further be engaged, as to which prospects of conviction, harm to prosecution witnesses, cost all of those innumerable considerations.

MR WALKER:   Yes, your Honour.  The law changes what was formerly an offence charged in pending proceedings is no longer an offence.  By way of amnesty, perhaps announced in an election, all those cases go away.  Now, that is not unknown and presumably will happen again.  We do not have that case before us as to whether that gives rise to the tort of malicious prosecution. 

What I am actually offering by reference to the rule in California, if I may put it in shorthand that way, is this.  That before one gets money for being prosecuted it must be shown, to put it at its crudest and most general, that you should not have been, and part of that, that is the breach of a norm enforced by this tort, is an inquiry so as to avoid the absurdity of saying you should not have prosecuted somebody who was guilty.  The Court should not be saying that.  We know the Court will not say that while the proceedings are pending, at least that was the first rule.  We know that had to suffer exception for cases where there was never going to be an acquittal possible.  In our submission, the qualification really ‑ ‑ ‑

FRENCH CJ:   But guilty only has a meaning in the context of a verdict, does it not?

MR WALKER:   Of course, your Honour, that is why I have repeatedly said guilt is bad enough, but innocent is a particularly difficult word.  But it is the one the judges have used now for a very long time.  I am not suggesting it should be continued as usage that could be changed.

KIEFEL J:   In any event, should not have is the conclusion, is it not, and the means by which you come to that conclusion is whether there was reasonable and probable cause.

MR WALKER:   Now, your Honour, this Court of course could rewrite the law particularly in light of the difficulties that have been raised in this case, in this argument, so as to have “favourable termination” mean no more than an end.  In other words, “favourable” meaning nothing more than you have not been convicted, as the Chief Justice has raised with me.  It will be a change and I am not here to argue that change should not occur. 

In our submission, because there are so many ways that proceedings can be brought to an end, favourable in the sense that the person will never be convicted or who has not been convicted, which are done in the public interest and very properly notwithstanding good faith, reasonable belief by those responsible for that decision that the case was one which had good prospects of securing a verdict leading to conviction. 

With so many of those kinds of cases that, in our submission, one should hesitate before saying all of them – along with true cases of oppressive prosecution – immediately throw open a cause of action which turns on lack of reasonable and proper cause and malice.  But I concede, in answer to what Justice Kiefel has raised with me, of course the Court can do that by way of clearing house in relation to this tort.

BELL J:   In point of principle, in circumstances in which a plaintiff has not been convicted of an offence, given the difficulties you acknowledge about notions of guilt and innocence, what is the difficulty with the cause of action being available to a person who has been subjected to a prosecution which ought not have been brought by reason it lacked probable cause, brought by a prosecutor who acted maliciously, putting to one side altogether the question of guilt or innocence?

MR WALKER:   What your Honour asks me, with respect rhetorically, is the reason why I said what I said in answer to Justice Kiefel’s question.  Now, there are, I will not call them difficulties, but there are factors to be considered including what ought to remain the critical principle that the inquiry into reasonable and probable cause is not one in which the defendant can call in aide, as if it were later justification of a contractual decision, things which may be cogent, but were not appreciated by the defendant at the time of inflicting what I will call the damage.

If as, with respect, this Court in A and consideration of basic principle would suggest that remains vital preserve then a case appears logically, it might be only logically, but it certainly appears, of the following kind for success by a plaintiff under a reshaped tort in the manner that has been raised with me, and it would be this:  A case where, perhaps by lurid memoirs published after a nolle prosequi, a television interview after a successful appeal – these things have happened – evidence emerges not available to the malicious prosecution defendant, because of its time cannot be the subject of consideration, not relevant to the question of malice, because it comes after the time when the plaintiff has been subjected to that which is alleged to have been damage by the prosecution.

So, you will get malice, you will get want of reasonable and probable cause, but you will have, scandalously, publication of matter which gives rise to a further prosecution.  Now, if the tort case is heard to a conclusion before a further prosecution is launched – I say is launched because once it was pending presumably the tort case is gone as a matter of rule – but if the tort case is completed before the prosecution then we do have permitted under the law, not only conflicting or contradictory decisions, but we have the scandal of a guilty person recovering for the ex hypothesi wrongful character of a prosecution, which it turns out, no thanks to the prosecutor, was justified.

Does the prosecutor deserve disapprobation?  Of course, if the prosecutor is professional or official should there be other consequences worse than that?  Of course.  But should there be recovery by the plaintiff as a form of social control of such conduct?  No.

BELL J:   Is there some relevant distinction you are drawing on that particular illustration between the scandal created when proceedings are no billed and subsequent sensational memoirs are published, and a nolle?

MR WALKER:   No, I cannot point to anything.  I hope I have exhausted that topic which distinguishes in the way their Honours do in Smith’s Case as serving an entirely different function, the no bill and the nolle.

BELL J:   Given the exhaustion of that topic what was the point of the illustration?

MR WALKER:   No, your Honour, in such a case, in our submission, there will have been a contradiction of the matter having been done, on the merits.  The rule in California does not care it being nolle prosequi or before or after a bill or anything.  It does not go to the niceties of procedures from time to time it simply asks has this been brought to an end in a manner not consistent with guilt, if so, plaintiff can go forward, if not, the plaintiff cannot go forward.

BELL J:   I understand.

GAGELER J:   Mr Walker, you spoke a moment ago of reshaping the tort.

MR WALKER:   Yes, your Honour.

GAGELER J:   In A in paragraph 1 the tort is identified as having four elements.  Now, to accommodate your argument how would those four elements have to be restated or supplemented?  The second element is that the proceedings terminated in favour of the plaintiff.  It is not clear to me whether you are qualifying that element or adding a fifth element that the plaintiff was innocent, at least in some circumstances.

MR WALKER:   No.  As to plaintiff was innocent, if one is reshaping it would be as well to remove that notion and that the notion of favourable termination has proved too useful to depart from.  But it needs to be understood in the sense I have tried to explain by reference to authority, namely, that which means the prosecution was groundless in turn that importing what Justice Starke puts in inverted commas “the innocence of the plaintiff”.

GAGELER J:   That is for one of the four elements to be made out absent which the plaintiff cannot succeed.

MR WALKER:   That is right, yes.

GAGELER J:   But you contend for an affirmative answer to the separate question?

MR WALKER:   Yes.

GAGELER J:   Which would suggest to me that you accept that the plaintiff could succeed in this case if the plaintiff could prove innocence?

MR WALKER:   Yes, I do.  That is what authority says, but if I am reshaping a tort ‑ ‑ ‑

GAGELER J:   No I am just asking how would the statement of the tort that one sees in four elements in A be reworded to accommodate the tort, as it currently exists, on your argument?

MR WALKER:   If by “currently exists” your Honour means, given what Davis v Gell and Smith say, then my first answer is A is consistent with each of those because “favourable termination” is explained by those as meaning or requiring different things to be proved depending upon the mode of termination.  If it is favourable only in the sense of bringing something to an end, but is consistent with guilt, which is a gloss on the explanation of the difference between acquittal and nolle prosequi and it is a gloss on what was said at 543 of 59 CLR, then it is not sufficient.  To prove that you must also prove innocence.  That is what Davis v Gell clearly says and it is what the Court clearly said Davis vGell held that is for the case covered by it nolle prosequi in Smith.

CRENNAN J:   So, you would recast the second element that the proceedings terminated in favour of the plaintiff for reasons indicative of the innocence of the accused.

MR WALKER:   Yes.  That uses language ‑ ‑ ‑

CRENNAN J:   Well, it is the American language, I know.

MR WALKER:   It is earlier than America but, yes, that is what you find.

GAGELER J:   But then you add some words.  You say, but if they did not, the plaintiff is innocent.

MR WALKER:   I might not have followed your Honour’s question, if they did not?

GAGELER J:   If the proceedings did not so terminate the plaintiff is innocent.

MR WALKER:   I am sorry.  Justice Crennan’s proposition was that it ought to be terminated favourably in a manner indicating innocence.

GAGELER J:   Correct.  But, you accept that if that is not made out that nevertheless they terminated favourably ‑ ‑ ‑

MR WALKER:   No you fail then.

GAGELER J:   Well, how is that consistent with the answer for which you contend to the separate question?

MR WALKER:   We contend the answer to the separate question is if it is nolle prosequi because that does not indicate innocence you fail.  Because, the only sense in which it is favourable is that things have been brought to an end you have not been convicted, and that is not enough.  That is what Davis v Gell says.  If it is nolle prosequi, because that does not have the effect of an acquittal and because apparently it does not have it should not get the same regard as the verdict of the petty jury gets acquittal, it is not like discharge on committal.  It is not like ignoramus of the grand jury and it is not, apparently like not finding a bill, a difficult one.  Because of that, the current law says nolle prosequi does not suffice as the favourable termination.

So my argument is consistent with the answer we argued below bound by Davis v Gell, if the tort were to be reshaped it should still be the answer for this case because we know the ground of the nolle prosequi which certainly does not tend to indicate innocence and it is consistent with guilt.

KIEFEL J:   Well, it would just be a qualification or exception to (2).

CRENNAN J:   To (2)?

MR WALKER:   Yes. 

KIEFEL J:   That is what one is left with after Smith.  

MR WALKER:   That is what Smith does, in effect.  Your Honours have seen – you have already had your attention drawn to it – the two words that signal it are “unless” and “except” on page 542 about two inches down:

Unless the termination of the criminal proceedings has been by nolle prosequi, a case which is covered by. . . the cause of action –

et cetera.  We do not seek to reshape, in any degree, any of that.  We have adopted all of that.

BELL J:   But has not the last part of your argument moved beyond the idea that one can, as it were, confine Davis to nolle prosequi and does not extend that principle because one is now looking at, in the instance of the no bill when it is because the complainant says I cannot stand the idea of going to court, one does not allow the action to the plaintiff.  When the magistrate does not commit, not because there is any doubt as to guilt but because the witness does not turn up.  All of those cases so you are  ‑ ‑ ‑

MR WALKER:   Yes that is why I drew attention to the expression “case specific” which has its burdens and disadvantages as well as in the interests of justice the capacity to ensure that the law responds to a case as it is not to a fiction.

BELL J:   It adds considerable complexity to the prosecution of torts of this character.

MR WALKER:   That may be an understated way of describing one of the burdens or disadvantages to which I was referring yes, your Honour.  We are not here as partisans in that cause at all.  We are simply saying that the way things have fallen out in the argument of this case, particularly bearing in mind what seems to be raised by this reference to function at 543 of Smith, when one searches for the function, it seems both textually and as a matter of principle to have something to do with what is loosely called merit.  That has a lot to do with what is embarrassingly called “innocence”.  The nomenclature is unavoidable as historical usage, trying to give it conceptual currency, in our submission, necessarily involves something of the kind that one sees illustrated in California. 

Now, it may be that rather than the positive tending to indicate innocence, the negative not consistent with guilt is a better approach.  But if one were to reshape than rather than the qualification “exceptional footnote” which Smith holds is the effect of Davis v Gell, there does not need to be a revisiting of A, there simply needs to be an understanding that favourable termination has to have the qualities that I have just described.  That would be a change in the matter. 

Could I, in closing on this matter, simply say this?  There is a danger in the sweep of the historical evolution of this tort for seeing the past already having been sold on all modes of termination except conviction being adequate as a foundation for this action, hence, the language of exception or exclusion for nolle prosequi.  In our submission, that would be so to approach it as if there was some argumentative burden on us to show there ought to be an exclusion for that which Davis v Gell and Smith says is the law. 

It is better and a proper approach to this tort given its function between criminal and civil law to ask why should anything except an acquittal, be the proper foundation of a cause of action for being oppressed wrongfully?  Not with bad motive because that can happen for a very good case, but by a malicious or vindictive prosecutor; just wrongfully and the answer has been given over the centuries because there are excellent reasons why the common law, civilly, should do nothing to deter the criminal law from bringing cases to an end before a trial when that should be so.  Those are cases where somebody may have suffered the loss of being oppressed, the oppression has been truncated, good.  Now the plaintiff ought to be able to be compensated for that which he did suffer.

That is why the case of not committed, ignoramus and no bill, as I say that is a difficult case.  I cannot justify it without qualification because as the very institution of supposedly independent DPP has shown, not all Attorneys‑General proceeded in relation to finding bills in what might be called a pure and abstracted assessment of prospects of success in all cases.  For those reasons, in our submission, better to depart from what I might call, a priori categories such as indicated by the technical term “nolle prosequi” and look at the functional aspects of these junctures which represent the end of a criminal proceeding, and where one can see that it ought to be treated as a matter of the policy of the law as tantamount to that state of affairs which is signalled by acquittal, then the tort can properly go forward.  We are not, no.  Your Honours, I do not wish to add anything we have put in writing to the paragraph 7(2)(b) point.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Reynolds.

MR REYNOLDS:   If your Honours please, I have no reply.

FRENCH CJ:   Thank you.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow.

AT 3.51 PM THE MATTER WAS ADJOURNED