Duke v State of New South Wales

[2005] NSWSC 632

CITATION:	Duke v State of New South Wales & Ors [2005] NSWSC 632
HEARING DATE(S):	24 March 2004
JUDGMENT DATE :	30 June 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J
DECISION:	Application granted.

CATCHWORDS:	PRACTICE AND PROCEDURE: - pleading - application to file amended statement of claim, join additional defendant - whether tenable causes of action - allegation of fabrication of evidence by police - claims in negligence, misfeasance in public office (as well as false imprisonment, malicious prosecution) - witness immunity principle - immunity of police from action in negligence arising from investigation - whether those immunities applicable
LEGISLATION CITED:	Law Reform (Vicarious Liability) Act 1983
CASES CITED:	Cabassi v Vila (1940) 64 CLR 130 Watson v M'Ewan [1905] AC 480 R v Beydoun (1990) 22 NSWLR 256 Roy v Prior [1971] AC 470 Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435 Marrinan v Vibart [1963] 1 QB 528 Cran v State of New South Wales [2004] NSWCA 92 State of New South Wales v Knight [2002] NSWCA 392 Letang v Cooper [1965] 1 QB 232 Williams v Milotin (1957) 97 CLR 465 Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 Davis v Gell (1924) 35 CLR 275
PARTIES:	Christopher William Duke (plaintiff) State of New South Wales (first defendant) Others (names of other defendants suppressed)
FILE NUMBER(S):	SC 20137/1998
COUNSEL:	Mr R Toner SC (plaintiff) Ms M Kumar (plaintiff) Mr D Cowan (first defendant)
SOLICITORS:	Daryl Benjamin Pike - Pike & Associates (plaintiff) I V Knight - Crown Solicitor (first defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 30 June 2005

20137/1998 Duke v State of New South Wales & Ors

JUDGMENT

1 HIS HONOUR: The plaintiff, Christopher William Duke, has commenced proceedings by way of statement of claim against the State of New South Wales, as the first defendant, and four police officers, as the second to the fifth defendants. Before me is a motion on his behalf that he have leave to file an amended statement of claim and to join another police officer as the sixth defendant. Accompanying the notice of motion is an affidavit by his solicitor, to which is annexed the proposed amended statement of claim. However, argument proceeded upon the basis of an earlier, and somewhat different, version of that document. For clarity, I shall have that earlier document identified as mfi1. The later document is annexed to the affidavit of Daryl Benjamin Pike, sworn on 6 March 2003.

2 The matter has a procedural history in this Court which led to some discussion at the outset of the hearing of the motion about how it should proceed. It is not now necessary to recount that history or to refer to that discussion. The parties resolved that the motion would be pursued and that it would be opposed upon the basis that the amended statement of claim discloses no tenable cause of action. It is necessary to refer shortly to the facts giving rise to the proceedings. I ordered that there be no publication of the names of the police officers involved and it is convenient to refer to them, including the officer sought to be joined as a defendant, by reference to their status in the proposed amended statement of claim as the second to the sixth defendants.

Background

3 On 2 February 1990 the second to the sixth defendants, in their capacity as police officers, searched the plaintiff’s house at Bathurst. The plaintiff was arrested and charged with supplying heroin. Put shortly, it is alleged that the police “planted” a quantity of heroin in a resealable plastic bag in the premises and fabricated evidence that he made relevant admissions about it. The second defendant made a statement in which he claimed to have found the heroin and to have had a conversation with the plaintiff in which the admissions were made. The third to the sixth defendants made statements corroborating that of the second defendant.

4 In due course, the plaintiff was committed for trial in the Bathurst District Court. The trial took place towards the middle of 1992, and he was found guilty and sentenced to a term of imprisonment. In 1996 the fourth and sixth defendants admitted in the Police Royal Commission that the evidence against him had been fabricated. In 1999 the Court of Criminal Appeal quashed his conviction and entered a verdict and judgment of acquittal: R v Duke [1999] NSWCCA 281.

Amended statement of claim

5 Only the first defendant appeared at the hearing of the motion. The case is affected by Pt 4 of the Law Reform (Vicarious Liability) Act 1983, the relevant provisions of which it is not necessary to examine. The first defendant concedes vicarious liability, in accordance with s9D(1)(b) of that Act, in respect of the second, third and fifth defendants. Accordingly, Mr Toner SC, for the plaintiff, acknowledged that those three officers should not have been joined as parties: s9B(3). However, by virtue of that latter provision, it was appropriate that the fourth defendant be joined because the first defendant denies vicarious liability in respect of him. Whether it is appropriate to join the proposed sixth defendant depends upon whether the first defendant concedes vicarious liability in respect of that officer, a matter which had not been determined at the time the motion was heard.

6 The proposed amended statement of claim (mfi1) seeks damages for negligence, false imprisonment, malicious prosecution and misfeasance in public office. The claim in negligence includes a claim that the first defendant was itself negligent, quite apart from its vicarious liability for the actions of the officers, but at the hearing Mr Toner abandoned that claim.

7 It is best to set out pars 7 - 13 of the document, which are germane to the claims in negligence and misfeasance in public office and which give rise to an important argument in the motion. After reciting the search of the plaintiff’s home, his arrest and his being charged, the document continues:

7. Each of the second to sixth defendants knew or ought to have known that the said charge was laid in the absence of evidence.
8. Each of the second to sixth defendants knew or ought to have known that there was no evidence to support the offence charged and as such was under a duty to advise, caution, warn, recommend against and/or desist from the laying of the said charge.
9. Each of the second to sixth defendants knew or ought to have known that that the said charge would come before a Magistrate and in the circumstances the plaintiff would be committed for trial.
10. Each of the defendants knew or ought to have known that on committal of the plaintiff for trial and in the circumstances of the case the Director of Public Prosecutions would present an indictment against the plaintiff in the District Court.
11. Each of the defendants knew or ought to have known that in the circumstances the plaintiff was rendered vulnerable to be convicted by a jury.
12. Each of the contingencies described in paragraphs nine to eleven happened.
13. Each of the defendants knew or ought to have known that if at any stage of the processes described in paragraphs nine to eleven hereof he advised the Police Prosecutor, Director of Public Prosecutions, and/or the Court that there was no evidence against the plaintiff, then in all probability:-
(a) The magistrate would have dismissed the information (paragraph 9).
(b) The Director of Public Prosecutions would have entered a nolle prosequi (paragraph 10).
(c) The trial judge would have directed a verdict or in any event the jury would acquitted the plaintiff (paragraph 11).

Witness immunity

8 The first defendant’s central argument is that those paragraphs, although complaining of an absence of evidence against the plaintiff, plead a case based upon the alleged failure of the second to the sixth defendants to tell the truth. Inherent in the plaintiff’s case is the assertion that they prepared and gave false evidence. That being so, it was submitted, the pleading in negligence and misfeasance in public office falls foul of the immunity of witnesses against civil action arising from their evidence.

9 The basal Australian authority on that immunity is the decision of the High Court in Cabassi v Vila (1940) 64 CLR 130. The appellant in that case had instituted proceedings for assault, in which the respondent and two others had given evidence for the defendant. The appellant lost the action and was unsuccessful on appeal. She then brought proceedings against the respondent, the defendant in the action for assault and the other two witnesses, alleging a conspiracy to cheat and defraud her by giving false evidence: see the judgment of Williams J at 146 – 7. It was held that, as a matter of public policy, such an action did not lie.

10 Rich ACJ (at 139) explained the rationale of the rule on two bases: firstly, to prevent the impeachment of a judgment in a collateral suit and, secondly, to protect the administration of justice by requiring “that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury.” It is the second of those bases that is relevant for present purposes. The immunity applies to any kind of action and is not confined to actions arising from defamatory statements by witnesses: McTiernan J at 144.

11 The breadth of the immunity is apparent from passages in the judgment of Starke J (at 140 – 1):

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.
…it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared…, given, adduced or procured by them in the course of legal proceedings.

12 The concluding words of that passage are important in the present case. The immunity is not confined to the testimony of witnesses in court. For the proposition that it extends to the preparation of evidence Starke J relied upon Watson v M’Ewan [1905] AC 480, in which it was held that the immunity necessarily applies to a proof of evidence prepared for the purpose of a trial. Counsel for the first defendant, Mr Cowan, argued that, accordingly, the immunity is applicable to the statements prepared by the second to the sixth defendants and any other steps any of them might have taken towards the presentation of evidence against the plaintiff.

13 A useful re-statement of the principles governing the immunity, with extensive reference to authority, is to be found in the judgment of Hunt J (as he then was) in R v Beydoun (1990) 22 NSWLR 256 at 259 – 60. His Honour said (at 259):

The purpose or rationale of the rule has been variously expressed in the cases, but it is, it seems to me, twofold:
(1) that witnesses, parties, judicial officers and advocates should be free (and should feel free) to make statements in the course of and with reference to judicial proceedings without fear of subsequent harassing and vexatious litigation; and
(2) (perhaps to a lesser extent) that there should be no opportunity for relitigating the same issues by means of subsequent actions.
Such a rationale is said to be based upon public policy, a policy which outweighs the possible consequence of injury to any persons affected by such statements…

14 His Honour added (at 260):

Civil actions such as malicious prosecution and abuse of process are not precluded by the rule, however, because they are based not directly upon statements made in the course of the judicial proceedings, but rather upon the instigation of the proceedings themselves (or upon their continuation), and notwithstanding that the plaintiff may seek to support his case by proving the falsity of statements made in those proceedings which form the basis of such a claim… The availability of such actions appears to me to accord satisfactorily with the twofold rationale of the rule which the cases have identified.

One of the authorities upon which his Honour relied in support of that proposition was Roy v Prior [1971] AC 470, to which I shall refer a little later.

15 Mr Cowan’s argument was that the plaintiff’s expressed reliance upon an absence of evidence was a vain attempt to evade the immunity. What is really being alleged, he said, is the fabrication of evidence, not the absence of it. This brings me, then, to the important decision of the House of Lords in Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435.

16 The issue in that case was the viability of an action the appellants had brought for damages for conspiracy to injure and misfeasance in public office, alleging (among other things) that police officers had fabricated evidence against them. They had been arrested, and in due course indicted, for conspiracy to import cannabis resin. In the event, their trial did not proceed because, for reasons which I need not examine, the trial judge granted them a permanent stay. The statement of claim included allegations that two police officers and a police informant fabricated statements against them, and that one of those police officers knowingly allowed and/or incited the informer to fabricate evidence: see the speech of Lord Hutton at 462 – 3.

17 It was held that the immunity of witnesses did not prevent the action being pursued. Lord Hutton, with whom the other Law Lords agreed in separate speeches, examined the history and purpose of the immunity (at 463 ff), including its extension to proofs of evidence and other steps in the preparation of evidence, and concluded (at 469):

The underlying rationale of the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence . There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect’s signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not.

18 Some passages from some of the other speeches should also be noted. Lord Hope of Craighead, after referring to the need for the immunity to extend to statements provided by police officers who are potential witnesses and their preliminary examination prior to a trial, said (at 448):

But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators. The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. The rule of law requires that the police must act within the law when they are enforcing the law or are investigating allegations of criminal conduct. It also requires that those who complain that the police have acted outside the law in the performance of those functions, as in cases alleging unlawful arrest or trespass, should have access to a court for a remedy.

19 Lord Cooke of Thorndon, after referring to the summary of the appellants’ allegations in the speech of Lord Hutton, said (at 453):

…it is obvious that none of the alleged conduct could fairly be said to be part of the process of investigating a crime. The fabrication of evidence, for instance, is almost the antithesis of investigation; it is creation.

His Lordship continued (at 453 – 4):

A police officer who gives evidence or a proof of proposed evidence is entitled to the same immunity as any other witness or potential witness. And to prevent the evasion of this immunity it is necessary to rule out also allegations of conspiracy to give false evidence, as was held in Marrinan v Vibart [1963] 1 QB 528. There may be some borderline cases where it is not easy to draw the line as to the precise extent of witness immunity. The solution of these cases may be helped to some extent by bearing in mind that witness immunity is a general doctrine applying to all persons called upon to give evidence, whereas the function of official investigation is limited to the police and various other public officials. Conduct which is primarily and naturally to be seen as belonging to the investigatory function, even though it may have some ultimate link with the giving of evidence, should not be within the general protection.

20 Finally, Lord Clyde said (at 461):

If one seeks to apply the reasons which justify an immunity to the present case it seems to me that it would not be proper to strike out the statement of claim. So far as the first purpose of the immunity is concerned, the necessity to secure that witnesses will speak freely and fearlessly, this justification is substantially irrelevant to the present case. What is alleged here is not the telling of lies about facts which had occurred but a deliberate fabrication of facts which had not occurred. What is under attack is not the investigation of possible realities but the preparation of a fiction. In so far as the immunity granted to a witness relates to the substance of the evidence which he or she gives or is to give, the matters of which the plaintiffs complain will almost certainly not be the intended substance of the evidence of those who were engaged in the conspiracy. It cannot be that everything which is said or done in the preparation for judicial proceedings is necessarily immune. Where evidence is fabricated or statements concocted, protection from attack should not be gained by a subsequent presentation of false testimony in court.

21 Darker was accepted to be the law in New South Wales in Cran v State of New South Wales [2004] NSWCA 92, per Santow JA at [62]. It appears to me to be at least arguable that the witness immunity principle has no application to the present case. The plaintiff alleges that his prosecution was founded upon a fabrication, that is, the planting by police of some heroin, together with the concoction of admissions which were themselves based upon that same falsehood. The statements prepared by the second to the sixth defendants might be seen as an integral part of that fabrication, not merely proofs of their evidence. It is in this sense, Mr Toner argued, that the expression “absence of evidence” in the statement of claim should be understood, that is, that there was in reality no evidence upon which the prosecution could have been based. However that may be, the immunity is not necessarily a bar to the claims in negligence or misfeasance in public office. It is necessary, then, to examine other arguments mounted by Mr Cowan in relation to those claims.

Negligence

22 As I understood the oral argument, both claims are founded upon the allegation that the plaintiff was charged when, to the knowledge of the second to the sixth defendants, there was no evidence to justify that course (par 7 of mfi1). Each of those defendants also knew that, having been charged, the plaintiff could be the subject of each of the steps in the prosecution of an indictable offence and that each could result in a decision adverse to him (pars 9 - 13). For the purposes of the claim in negligence, it is the knowledge alleged in all those paragraphs which is said to give rise to the duty pleaded in par 8, that is, “to advise, caution, warn, recommend against and/or desist from the laying” of the charge. (I do not overlook the fact that each of pars 7 and 9 – 13 allege that the defendants knew or “ought to have known” relevant matters.) The breach of that duty, said Mr Toner, is pleaded in par 14, as follows:

14. In failing to advise as to the absence of evidence as aforesaid the second to sixth defendants were negligent.

23 Mr Cowan also relied upon authorities to the effect that investigating police do not owe a duty of care to those under investigation and, accordingly, are immune from actions for negligence arising from their conduct of an investigation. That principle is not in doubt insofar as conduct which might be described as “negligent” in the ordinary sense of the word is concerned. It was confirmed, after an examination of authorities explaining its rationale, in Cran v State of New South Wales (supra). However, it was in that context that Santow JA referred to Darker at [62]. What his Honour said was this:

Finally I should refer to the exception, recognised in Darker v Chief Constable of the West Midlands Police… , that where the police had committed criminal acts by fabricating evidence and conspiring to give false evidence no immunity is conferred.

24 His Honour went on to observe that Cran itself was not a case of that kind. It involved an allegation of conduct which would popularly be understood as negligent, in the sense of careless. In Darker, of course, the allegation was of intentional wrongdoing and there was no claim in negligence. Nevertheless, Santow JA’s observation suggests that such a claim could be brought in relation to the fabrication of evidence by police.

25 Some analogy might be found in State of New South Wales v Knight [2002] NSWCA 392, in which an argument that the appellant could not be vicariously liable for both assault and negligence arising out of the same incident was rejected. Delivering the leading judgment, Meagher JA said at [16]:

This might be so if one took the view that all intentional torts lay only in trespass, and all torts arising out of careless behaviour lay only in negligence; and if one also took the view that negligence in law is the same thing as what a layman would call carelessness. While the law in England seems to be tending in this direction, under the malign influence of Lords Denning and Diplock in Letang v Cooper [1965] 1 QB 232, it is not the case in Australia, as the High Court pointed out in Williams v Milotin (1957) 97 CLR 465, where it was held there is a substantial overlay between the two causes of action.

26 This aspect of the matter was not fully argued before me and, apart from Santow JA’s passing reference in Cran, I was not taken to any Australian authority which has considered the implications of Darker. In all the circumstances, it cannot be said that the proposed pleading in negligence does not disclose a tenable cause of action. Duty, breach and damage are alleged. That said, I propose to grant the plaintiff leave generally to re-plead and, given the availability of other causes of action, he might wish to consider whether a claim in negligence should be pursued.

27 If it is pursued, it might be preferable to allege in terms the fabrication of evidence. Mr Cowan also identified some deficiencies in the particulars of negligence to which attention might be given and, if it is intended to rely upon the conduct of all of the second to the sixth defendants, it might be desirable to plead with greater specificity the conduct of each of them.

Misfeasance in public office

28 The elements of the tort of misfeasance in public office were examined by Lord Hope in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. It is not necessary to recite all of them for present purposes. Relevantly, his Lordship said this at [42] (p 246):

First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith.

29 Expanding upon the second and third elements, his Lordship observed that the case at hand was not one in which it was alleged that acts or omissions were done or made with the purpose of causing loss to the claimants. Rather, it was a case of “untargeted malice.” His Lordship continued at [44] (p 247):

Where the tort takes this form the required mental element is satisfied where the act or omission was done or made intentionally by the public officer (a) in the knowledge that it was beyond his powers and that it would probably cause the claimant to suffer injury, or (b) recklessly because, although he was aware that there was a serious risk that the claimant would suffer loss due to an act or omission which he knew to be unlawful, he wilfully chose to disregard that risk. In regard to this form of the tort, the fact that the act or omission is done or made without an honest belief that it is lawful is sufficient to satisfy the requirement of bad faith.

30 The pleading of this cause of action recites that the second to the sixth defendants were police officers, who at relevant times were acting in the purported performance of the functions of their office (pars 26 and 28). Pars 4 – 13 are incorporated (par 27). Of those, pars 7 – 13 are set out above. Pars 4 – 6 recite the search of the plaintiff’s premises, his arrest and charging. Par 29 is in the following terms:

In doing or failing to do as aforesaid the second to sixth defendants abused and exceeded their powers of office with intent to injure the plaintiff or alternatively reckless as to possible injury to the plaintiff.

Particulars

(a) In charging the plaintiff or procuring, acquiescing, aiding or abetting the charging of the plaintiff in circumstances where there was no evidence;

(b) Alternatively to (a), the second to sixth defendants either jointly or severally charged the plaintiff or procured, acquiesced, aided, abetted in charging plaintiff reckless as to whether there was any evidence or not against him.

31 Mr Cowan submitted that the pleading fails to specify, in relation to any of the second to the sixth defendants, the powers of his office said to have been abused and the manner of that abuse. He also argued that pars 9 – 13, reciting the history of the prosecution after the plaintiff was charged, are irrelevant to this cause of action.

32 I think there is some force in Mr Toner’s response that, read as a whole, the paragraphs relied upon allege with sufficient clarity the elements of the tort as Lord Hope explained them. The second to the sixth defendants are alleged, in the purported exercise of their powers as police officers to arrest and charge a citizen, to have participated in the arrest and charging of the plaintiff when, to their knowledge, there was no evidence providing any legal justification for that course. Paragraphs 9 – 13, incorporated by reference, appear to me to be relevant to the mental element.

33 That said, the cause of action could be pleaded with greater particularity. I repeat my earlier observation that the fabrication of evidence might be alleged in terms. Again, if it is intended to rely upon the conduct of all five officers, it might be desirable to specify how the conduct of each of them meets the requirements of the tort.

False imprisonment

34 The pleading of this cause of action in mfi1 incorporates pars 4 – 8, reciting the basic facts and alleging that the second to the sixth defendants knew or ought to have known that the plaintiff was charged “in the absence of evidence.” Par 19 then alleges that the plaintiff was confined without lawful authority, that allegation being particularised as follows:

(a) The second to sixth defendants either arrested, assisted or acquiesced in the arrest of the plaintiff on 2 February 1990 and caused acquiesced or facilitated his being transported in custody to the Bathurst Police Station where he was held unlawfully until he was bailed on 2 February 1990.
(b) The plaintiff was arrested and imprisoned as aforesaid without reasonable or probable cause.

35 The witness immunity principle has no application to this cause of action: cf Roy v Prior (supra). Mr Cowan did not suggest that it did. However, he maintained his argument that there could not be said to be an absence of evidence, as opposed to fabricated evidence. I have already dealt with that argument. In the sense in which it is used, that expression is not inapt (although it might be better to allege fabrication).

36 Mr Cowan also argued that there is a failure to plead material facts in relation to each of the second to the sixth defendants. As I have said, that argument was also mounted in respect of the claims in negligence and misfeasance in public office, but it has greater force in relation to this claim. As I understand it, it was the second defendant who arrested the plaintiff (although in the presence of the other four officers and, impliedly, with their assent). If it is intended to rely upon the conduct of those other four officers for the purposes of this claim, it seems to me that it is necessary that the pleading specifies the basis of the liability of each of them.

Malicious prosecution

37 Mr Cowan’s principal submission in relation to this cause of action was that, yet again, the pleading relates to the conduct of the second to the sixth defendants without specifying the basis of liability of each of them. Par 21 alleges that those defendants “maliciously and without reasonable cause laid and/or caused and/or acquiesced in the laying of a false information against the plaintiff.” That allegation is then particularised in such a way that no distinction is made between them. Par 22 alleges that each of those four defendants “well knew that the plaintiff had not committed the offence with which he was charged, or alternatively, well knew that they either individually or severally had no evidence upon which he could lawfully be charged with the offence of supply heroin.”

38 Mr Cowan argued that only one person can lay an information or charge, and that person should be clearly identified in the pleading. I was informed from the bar table that the informant in the present case was the sixth defendant. However, Mr Toner relied upon Davis v Gell (1924) 35 CLR 275 for the proposition that the informant is not necessarily the prosecutor for the purpose of an action for malicious prosecution. Isaacs ACJ said (at 282 – 3):

For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.

39 Thus, in that case it was appropriate for proceedings to have been brought against a civilian complainant even though the prosecution had been launched by police. Mr Toner submitted that, consistently with that reasoning, there might be cases in which more than one person might properly be viewed as a prosecutor. This, he said, was such a case because it was alleged that the officers other than the sixth defendant “were instrumental in bringing the proceedings in one way or another.”

40 I was not referred to any authority on this point but it appears to me that Mr Toner’s proposition is arguable. However, it highlights the need, yet again, to decide whether the conduct of all of the second to the sixth defendants is to be relied up upon and, if so, to plead with specificity the basis of liability not only of the sixth defendant but also of each of the other four officers.

41 Mr Cowan also mounted arguments about the relevance of some of the particulars set out in par 21. It is not necessary to resolve those arguments at this stage. Again, they are matters to which the plaintiff should give attention, focusing upon the elements of absence of reasonable and probable cause and malice.

Conclusion

42 Accordingly, the plaintiff should have leave to file an amended statement of claim but, in the light of the matters raised about the document mfi1, should have the opportunity to give further consideration to its terms. An amended statement of claim in its final form should be filed within twenty- eight days. The plaintiff should also have leave to join the proposed sixth defendant unless the first defendant concedes vicarious liability in respect of him. I am not unmindful of the lengthy procedural history of this matter (to which, it must be said, I have contributed by my delay in delivering this judgment). Nevertheless, given the gravity of the claims which are made and the difficulty of some of the issues which have been argued, I am satisfied that the plaintiff is entitled to those orders.

43 I reserve liberty to the parties to apply. If necessary, I shall hear argument on costs.

**********