Cran v State of New South Wales

[2005] HCATrans 21

[2005] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S159 of 2004

B e t w e e n -

JOHN CRAN

Applicant

and

STATE OF NEW SOUTH WALES

First Respondent

WESTERN SYDNEY AREA HEALTH SERVICE

Second Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 FEBRUARY, 2005, AT 9.36 AM

Copyright in the High Court of Australia

MR P.W.J. GRAY, SC:   May it please the Court, I appear for the applicant with my learned friend, MR D.L. CARROLL.  (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR C.L. LONERGAN, for the respondents.  (instructed by Crown Solicitor’s Office (NSW))

GUMMOW J:   Yes, Mr Gray.

MR GRAY:   Your Honours, this is a case where it is submitted there should be a grant of special leave because of the general or public importance of the issue.  The issue is whether the law should impose a duty of care upon the police and/or the DPP.

GUMMOW J:   The actual party is the State.  How does that come about?

MR GRAY:   How does it come about?

GUMMOW J:   Yes.

MR GRAY:   It is a ‑ ‑ ‑

GUMMOW J:   You have not sued the DPP.

MR GRAY:   The State is vicariously liable for the actions of both the police and the DPP and that has not been contested to date.

McHUGH J:   Does that come about as a result of the legislation that was passed in New South Wales in 1978?

GUMMOW J:   The Crown Proceedings Act?

MR GRAY:   It is section 7 of the Law Reform (Vicarious Liability) Act 1983. The first defendant, the State, is sued pursuant to section 5 of the Crown Proceedings Act 1988.

McHUGH J:   Are there any problems of the doctrine of independent discretion, the Bowman v Commonwealth point, the Enever v The King point, that is to say there is no vicarious liability for the acts of an officer in whom is vested an independent discretion?

MR GRAY:   In our submission, no.  In our submission, as the Court would have seen, the conduct in question here does not involve discretionary considerations at all.  There was what has been called sometimes a ministerial or other times procedural or at other times administrative conduct by the police and by the DPP, and it has not been submitted so far that that has involved any element of discretion on the part of the State personally ‑ ‑ ‑

McHUGH J:   Not on the part of the State, but surely the Director of Public Prosecutions has a discretion as to what he does in conducting his affairs, does he not, particularly in relation to prosecutions?  He does not have to prosecute even if he forms the view that there has been a breach of an enactment. 

MR GRAY:   Certainly.  On the facts of this case though, your Honour, as the Court is aware, there was a guideline promulgated by the Director of Public Prosecutions which required the DPP personnel to act in the way that we say they should have.

McHUGH J:   Yes, but it is another question altogether as to whether or not there is an enforceable duty of care on the director for which the State can be made vicariously liable.

MR GRAY:   I can only say, your Honour, that ‑ ‑ ‑

McHUGH J:   Anyway, the point does not seem to have been taken but ‑ ‑ ‑

MR GRAY:   No, and it has been admitted on the pleadings.

GUMMOW J:   They make it an inconvenient vehicle.

MR GRAY:   Yes, at least so far as the DPP is concerned I see that.  On the pleadings, as I say, and it is really all I can say, the allegation is admitted as to both the police and the DPP.  I might just say, to interpolate though, your Honour, on that point, the case would remain an appropriate vehicle, in our submission, even if the DPP aspect of it were not thought to be, because it was the police, it seems, who appeared on the first two occasions when the matter was before the court on 25 March and 26 March.  It would appear that the DPP officer did not appear for the first time until the third occasion on 16 April.  There may be some uncertainty about that on the evidence, but that seems to be the position.

McHUGH J:   Well, can I put to you what seem to me to be the problems that face you.  First of all, the case principally involves the application of general principles of the law of negligence to what might be regarded as a novel factual situation.  Is there any more to it than that?

MR GRAY:   Yes.  In our submission, there is more to it than that.

McHUGH J:   Before you answer that you might also deal with this, because it also appears to me that the first and second special leave applications do not identify the basis on which the duty to the applicant is sought to be imposed on the police and/or the Director of Public Prosecutions.  What is the basis on which you seek to impose a duty?

MR GRAY:   Your Honour, I have tried to wrestle with what I think is essentially that question in preparation for today’s application and I have formulated the issue in a way which may be of assistance in answer to that question.  I have given my learned friend Mr Sexton a copy of this only this morning, but I could hand that up if that is convenient; it is in short form.

McHUGH J:   That states the issue but it does not state the basis.  Your client faces the significant hurdle of the recent decisions of this Court in Tame and Sullivan.  Both support a finding that no duty of care arises for reasons of public policy that seem to me to be fundamentally inconsistent with your contentions. For example, in Tame I expressed the view that police should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties, and that a blanket rule of no duty seems more in accord with the efficient administration of criminal justice than a case‑by‑case examination of each instance.  How do you distinguish this case from Tame and Sullivan?

MR GRAY:   Both of those cases, on my submission, are readily distinguishable.  In the case of Tame, as your Honour says, what was involved was the recording by police of in effect the intelligence‑gathering function that they were carrying out which involved taking statements from potential witnesses and so forth.

In the case of Sullivan, it involved deciding to take steps in relation to sexual misconduct charges against someone on information when it turned out that somebody was harmed by that.  But both of those involved truly investigative discretionary activity.  This case does not involve either investigative or discretionary activity, at least in the sense that either of those words would in any ordinary way be understood.  All that was involved here was the functional or mechanical step of arranging for a necessary analysis to be taking place. 

McHUGH J:   Yes, but why should the law impose a duty?

MR GRAY:   Because the circumstances of the plaintiff ‑ ‑ ‑

McHUGH J:   Foreseeability of harm is not sufficient.

MR GRAY:   I accept that, although it is established here or not in dispute, and I accept that.  Not only is there foreseeability of harm here, but there is the peculiar vulnerability of the prisoner, his entire dependence upon the State to take this step, it being a step that he could not take.  There is the severity of what was at stake, namely his liberty, there is the wide application of this problem that ‑ ‑ ‑

McHUGH J:   It would seem to mean that the DPP owes a duty of care to get trials on as quickly as possible if people are in custody.  That is a large proposition.

MR GRAY:   Well, that is not the proposition for which I contend, your Honour, and the ‑ ‑ ‑

McHUGH J:   I know you do not, but how could you distinguish this case from that situation as a matter of principle?

MR GRAY:   Because it is not on that – if the duty that I contended for were that the DPP should or must get cases on quickly, that really would involve - it would be difficult for me to say otherwise - questions of resource allocation and priorities and public expenditure and so forth, but this does not.  This does not involve anything like that.  In the case of the police, the form that is already in existence for them to fill in already makes provision for the very information that would have negated this problem to be included, so there is no question of resource allocation.  All they have to do is fill in the form that has been very sensibly drafted.  In the case of the DPP, the guideline or direction is also already in place.  There is no requirement for anything further to be done.

In the case of Tame and Sullivan, and for that matter in the cases that have looked at similar questions in the UK such as Hill v Chief Constable of West Yorkshire, the Yorkshire Ripper case, what the plaintiff in all of those cases was contending for was a duty of far wider application than the duty for which we contend.  It was a duty along the lines more that your Honour has suggested, that the police – or, looking at it the other way, the prosecution - had to be efficient in their investigation.  They had to be efficient in capturing criminals or efficient in investigating allegations.  That is not what this is about, in our submission. 

Your Honours, if there is such a duty, there is no doubt that it has been breached and there is no doubt about damage.  We submit - and this may not be contentious; I do not know - that the issue is of general importance.  The Court does not have evidence of this but there are readily available statistics as to the numbers of prisoners on remand in this State and in Australia and they number in the thousands at any one time.  Many of them are charged with drug offences, as is acknowledged, many of them are of low socioeconomic status, many of them are not fluent in English.  For practical purposes, people of that kind such as my client are at the mercy of the State in circumstances such as this.

GUMMOW J:   Is there anything in any of the English cases that closely supports you?

MR GRAY:   Yes, there is.

McHUGH J:   Elguzouli-Daf is against you, is it not?

MR GRAY:   No, in my submission, it is not, although I appreciate that it is put against me and I appreciate that the courts below have treated it as being against me.  It is to be noted that in Elguzouli-Daf there was in fact no allegation of negligence against the police at all.  The cause of action against the police was malicious prosecution and wrongful imprisonment.  It was only the Crown Prosecution Service against whom an allegation was made of not having conducted themselves efficiently.  The way it was actually put, if I may take one moment to mention this because, in my submission, it is telling, as against the Crown Prosecution Service, what the plaintiff claimed was damages for negligence in that the Crown Prosecution Service was said to owe:

a duty of care in the forming and communication of an opinion that might lead to a prosecution, and in any advice given or that ought to have been given as to whether any prosecution should be continued.

The gravamen of the plaintiff’s complaint in that case was that the Crown Prosecution Service had been rather slow off of the mark in realising that their case was hopeless and that the plaintiff was imprisoned for 83 days, I think it was.

So there was no allegation of negligence against the police at all, so on that basis it is distinguishable but it is also distinguishable in that, as I say, the duty alleged was one vastly wider than that for which we contend, and it is not surprising that the court in Elguzouli-Daf said that such a duty would not be imposed.  Such a duty would have the effect of requiring prosecution authorities to be looking over their shoulder and watching their back and so forth, but this plaintiff and the duty for which we contend we submit does not have that effect because it is already required administratively on both the police and the DPP’s part. 

Coming back to your Honour Justice Gummow’s question, there are, in my submission, two cases in particular in the English cases that support our application.  One is Welsh v Chief Constable of Merseyside Police which is a first instance decision by Justice Tudor Evans, which was expressly approved by the Court of Appeal in Elguzouli-Daf on its facts.  And the other is Kirkham v Chief Constable of Manchester, which is a decision of the English Court of Appeal.  It is the case which holds that the police, not as gaoler but as arresting authority, owed a duty to speak when sending the arrested person off to be imprisoned.  The court held that the police owed a duty to inform the prison authorities of facts relevant to the wellbeing of the arrested person, in that case relating to his propensity to commit suicide and so forth.  So we would say that that case is analogous here.  We do not today assert that the case that we bring against the State is as gaoler.  It is as arresting authority in the case of the police and the prosecuting authority ‑ ‑ ‑

McHUGH J:   But what is the act of negligence here?  Your client was arrested on 25 March.  The magistrate ordered that an analyst’s certificate in respect of the paper stickers be served by 16 April.  That order was not made by consent nor was it based on any undertaking by the police or the Director of Public Prosecutions.  Nobody asked the magistrate to request priority analysis, and the laboratory was not told until 21 May that the analysis was needed for an impending court date.  What is the step, what is the negligent act on the part of the DPP or the police?

MR GRAY:   Well, taking them one at a time, in the case of the police, they having been present on 25 and 26 March when the orders for the supply of the brief, including the analyst’s certificate, were made, knowing of the making of that order, themselves having the power and being the only repository of the power to obtain the certificate by sending off the P377 form had a duty, we say, to send the P377 form off, and not only to send it off but to send it off completed, so that the laboratory knew that the matter was required for court, and they did not do that – that is the police.

McHUGH J:   You contend that there was a duty owed to the applicant at that stage to send off the P377?

MR GRAY:   Well, not only to send it off but to send it off in a form which informs the laboratory that the matter is needed for court, and/or that the man is in custody.  The form, as your Honour knows, provides for that to occur.

McHUGH J:   But why should the law impose a duty owed to your client in those circumstances?

MR GRAY:   Well, because of the relationship of proximity, the foreseeability of harm ‑ ‑ ‑

McHUGH J:   Proximity is a dead letter in this Court.

MR GRAY:   Thank you, your Honour.  By reason of the position in which the accused is placed relevant to the police, he is in their hands entirely, he is powerless as to the obtaining of this analysis which is absolutely pivotal to whether there is even a case against him at all, and, as it turned out, there was not.  He can do nothing about it.  There are only two instrumentalities who can bring this about.  One is the police and the other is the DPP.

McHUGH J:   Did the matter come back before the magistrate on 16 April?

MR GRAY:   Yes.

McHUGH J:   Was there an application?  Remind me of what happened then. 

MR GRAY:   One can only go by the court file, your Honour, the Magistrates Court file, and it records, from memory, only that the magistrate was told that the analysis had not been done, and therefore the matter went over for another two or three weeks so that it could be done.  Then when it came back next time, the same thing happened, and I think there was a fourth occasion.

McHUGH J:   That means that what damage flows to your client after 16 April is a result of an order made by the magistrate.

MR GRAY:   Well, in my submission, no.  The real cause of it is the non‑obtaining of the analysis.  That is what provoked the making of the order by the magistrate.  When your Honour said a little while ago that the initial order was not by consent, the evidence, with respect, is opaque about that.  The practice, as I understand it, is, given that the police are the ones who do this or the prosecutors are, that – and I do not say that there is any evidence to this effect here - that the prosecutor is asked, “How long do you need?”, and an answer is given and so a date is then set.  It is highly likely, although I can point to no evidence, that that is what happened here because of the known fact known to the police and prosecuting authorities that there was this fast track guarantee by the laboratory.  And so 16 April was an entirely achievable date.

McHUGH J:   You raise what I will call a Giannarelli point against the Director of Public Prosecution lawyer for failing to ask for the priority date as well. 

MR GRAY:   Yes.

McHUGH J:   Yes.  Well, Giannarelli is against you at the moment.  We have D’Orta‑Ekenaike under reserve judgment at the moment.

MR GRAY:   Yes.  So that is the position on that, your Honour. We submit that the case is a suitable vehicle ‑ ‑ ‑

McHUGH J:   Sorry, your time is up, I blocked out the lights.  But the ever‑vigilant Justice Gummow reminded me that you have exceeded your time.  Yes, Mr Sexton.

MR SEXTON:   If the Court pleases.  Your Honours, there are three reasons why this, in our submission, is not a suitable case for special leave.  Two of them at least have been set out already by your Honour Justice McHugh, but just let me briefly restate those.  One is that it really involves no more than an application of the general principles, particularly in Tame and in Sullivan v Moody, to what is a rather unusual fact situation.

GUMMOW J:   One hopes it is unusual.

MR SEXTON:   Yes, but to what your Honour has described I think as a novel fact situation that could also be described as unusual.  The second reason is that because this was done as a strike‑out application at first instance, there is a whole range of issues that of course were not canvassed at that time.  Some of the legal issues have been adverted to by Justice Gummow, and I think in the course of my learned friend’s argument, some of the factual questions that have not really been fully resolved emerged as to what happened.

McHUGH J:   I appreciate that, but you brought that on.  I mean, as a result of what you have done in this case, to use the old common law terms, the applicant has been told to go without day, has no cause of action, so if we do not look at the matter, the case is over. 

MR SEXTON:   Well, that is so, your Honour, but I simply point those out that the ‑ ‑ ‑

McHUGH J:   Can I put this to you for your consideration.  This matter is adjourned so that the DPP can have an analyst’s certificate.  The magistrate makes an order that it be obtained by a particular date.  It is your client’s conduct that has the applicant in custody.  There is nothing he can do about it, and then you fail to get the certificate done by the date ordered.  You do not ask for it to be given priority undertaking and as a result the accused, because of his vulnerability, is detained.  Why should not the law impose a duty of care in the special circumstances of the case?

MR SEXTON:   For this reason, your Honour, and this is the third reason.  We say that there is no reason to doubt the correctness of the decision of the Court of Appeal because on the authorities and as a matter of general principle, a duty of care would not be imposed in these circumstances.  As your Honour points out, of course there has been an administrative error with these consequences, but in accordance with the general remarks in Tame and Sullivan v Moody, and more specific remarks in Hill v Chief Constable of West Yorkshire and in Elguzouli-Daf, it is a question of coherence between the law of negligence and the statutory and the common law responsibilities that are put on the police and on the Director of Public Prosecutions.  Particularly in Elguzouli-Daf, we would say Lord Steyn in the English Court of Appeal sets out in some detail the difficulties that would result and the litigation that would result from imposing a duty in this kind of case.

It is artificial, if I may say so, on the part of my learned friend to say that Elguzouli-Daf is not against him.  Not only were the facts of a delay in the analysis of evidence very similar, but Lord Steyn – I can take your Honours to some of those remarks but, as your Honours know, Lord Steyn delivered a strong judgment in terms of the question of coherence and the importance of those bodies being able to carry out their responsibilities without facing litigation of this kind, even though in some circumstances they had acted negligently and with adverse consequences for someone who had been accused of a criminal charge.

In our submission, the net result of all that, the statements that are made, including your Honour in Tame and in Sullivan v Moody, the decision in Elguzouli-Daf and also in Hill where Lord Keith makes the same points in a very strong fashion, would all, we would say, ultimately stand very much in the way of success in any appeal in this particular case.  So that in those circumstances we would say it is simply not a suitable case for special leave, notwithstanding the facts of the case which your Honour points out.  But there is an important point of public policy here which this Court and the English courts have in a sense given precedence to over the situation of the individual accused in these kinds of cases.

McHUGH J:   But why would a negligence action or the imposition of a duty of care impede the work of the DPP in a case like this?  It is not a case like Tame where if you impose a duty, a policeman would have to be thinking all the time, “Do I owe a duty of care in respect of this step or that step made in the course of an investigation?”  This is very much a one‑off situation, is it not?

MR SEXTON:   Your Honour, it can be said about all these cases of course that they are one‑off situations, and that is why I say that it is only about the application of general principles, and it is true of course that it is a different situation in some respects to Tame and to Sullivan, although we would say that the remarks made there would certainly cover this situation.  But if one looks, for example, at Elguzouli-Daf, my learned friend says that it was about the prosecution service and not about the police.  Again, we would say it is quite artificial to pretend that the remarks that were made by Lord Steyn and agreed in by the other judges would not have covered and would not have been intended to cover this kind of situation. 

It is really about in a sense the proliferation of litigation arising out of criminal litigation on the civil side, and that is the point of those decisions.  To that extent, this case, unusual though its facts be, fits exactly within the principle that has been put forward by the English Court of Appeal, and we would say that was put forward by most members of the Court in Tame and in Sullivan v Moody.  The statements there are, we would say as a matter of principle, ones that would ‑ ‑ ‑

GUMMOW J:   Well, what Lord Steyn said was:

The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS.

That does not really mesh with this case, does it?

MR SEXTON:   Well, your Honour, but the tenor of his judgment and the other judgments and the judgment of Lord Keith, with whom most of the other judges agreed in Hill, is really that, although it is possible to isolate individual cases and to say in any of these that yes, that would not impede the administration of justice, that the overall impact of these kinds of cases is that for the future, it does affect the way in which police and prosecution services carry out their responsibilities once they are subject to this kind of litigation, and of course once the general principle, to put it that way, is breached, then of course there is likely to be many more instances where litigation is brought.

GUMMOW J:   He also said, and this is in your favour at page 350 of [1995] QB that if he had answered the duty of care question, he:

would have wanted to hear argument on the question whether the CPS is in law vicariously liable . . . Having regard to the duties imposed on prosecutors by statute and common law, the CPS might not have been so liable:  see Field v Nott (1939) 62 CLR 660, 675, per Dixon J.

McHUGH J:   What do you say about this point, the point I raised at the beginning of the argument about whether or not the State is liable?

MR SEXTON:   There must be a question about that, your Honour, but it was not taken in the strike‑out proceedings, but there must be a question that can be argued.  As I say, there are factual problems as well here, and

your Honour has raised the question really in the different court appearances when one analysis them.  I mean, whether one would get to a question of breach of duty, although that of course for the purpose of the strike‑out was conceded, but putting even all that to one side, our submission is that there is a point of principle here that has been set down in this Court and in the English superior courts, and that ultimately that is the reason that the decision of the New South Wales Court of Appeal - that there is not sufficient reason here to doubt its correctness.  Unless there are any other matters, your Honours, those are our submissions.

McHUGH J:   Yes, thank you.  Yes, Mr Gray.

MR GRAY:   Just three matters, your Honour.  One is, my friend has mentioned a couple of times that this was a strike‑out application below.  In fact, that is not right.  There was a strike‑out application made but in due course the trial judge in fact heard the trial and the ‑ ‑ ‑

GUMMOW J:   He seems to have heard it on an abbreviated footing.

MR GRAY:   Well, that is true in a sense ‑ ‑ ‑

GUMMOW J:   He could not quite work it out.

MR GRAY:   No, that is true in a sense, your Honour, but it is not really quite right.  The case came on for trial.  On the morning of the trial the strike‑out application was made.  His Honour began hearing the strike‑out but then decided to change his mind and to hear its case in its entirety, and he did.  The plaintiff gave his evidence and was cross-examined and the rest of the plaintiff’s evidence on damages and so on was tendered, and the defendant went ‑ ‑ ‑

GUMMOW J:   It is page 6 of the application book, is it not, line 15?

MR GRAY:   That refers to what happened, although rather unclear ‑ ‑ ‑

GUMMOW J:  

I considered it inappropriate to determine the preliminary issue until all the evidence . . . was before the Court.

MR GRAY:   Yes, but then at line 30 he then says, all of this is rather minimalist in expression but:

The hearing of the action against the first defendant commenced on 21^st –

What his Honour then did - and I might say the point that I am now making was conceded in the Court of Appeal by counsel who then appeared.  His Honour embarked upon the hearing, the final hearing of the matter, and that is why the result of the proceedings before Judge Puckeridge was a verdict for the defendant.  It was not anything being struck out or dismissed.  What was admitted was admitted for all purposes on the pleadings, not on some preliminary or test basis.

The second thing is, your Honour, it ought not to be assumed, in our respectful submission, that these facts are unusual.  There is no hard evidence before your Honours as to whether they are or are not, although the presence of thousands of people on remand at any one time is common general knowledge, and the need for analysis of suspect items is entirely routine and is ordered by magistrates all around the State and all around the country every day of the week.  So the notion that this is an unusual set of facts is not necessarily right.

The third matter, your Honours, is that, as we mentioned in our written submissions, in Graham Barclay Oysters, your Honour Justice McHugh set out the six point test for whether a duty will be imposed in situations of this kind, and we submit that all six of those questions are answered appropriately in this case.

McHUGH J:   Can I raise with you also, on the unsuitability of the case, the finding on causation.  The learned trial judge seems to have taken the view that because of the incarceration of the plaintiff, that it probably arose on 25 March and that he did not seek bail and therefore all the problems were in place before 16 April.  So, unless you can make your claim against the DPP lawyer good, there may be a considerable causation problem in your ‑ ‑ ‑

MR GRAY:   Your Honour, as to bail, the plaintiff was unable to raise bail, even had it been given, which it was not.

McHUGH J:   The Court will adjourn briefly to consider this matter.

AT 10.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.14 AM:

McHUGH J:   In this matter the Court is of the view that having regard to problems of causation and the vicarious liability of the State for acts of the Director of Public Prosecutions and his lawyers, this is not a suitable vehicle to determine the issue of principle which the applicant seeks to raise.

Accordingly, the application is dismissed.

AT 10.15 AM THE MATTER WAS CONCLUDED