Elliott v The State of South Australia

[2013] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ELLIOTT v THE STATE OF SOUTH AUSTRALIA AND ORS

[2013] SADC 140

Judgment of His Honour Judge Slattery

25 October 2013

TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - MALICIOUS CRIMINAL AND CIVIL PROCEEDINGS

Plaintiff charged with failing to comply with a traffic light signal. Plaintiff contested the charge before the Magistrates Court, where the charge was dismissed. Plaintiff claims defendants were negligent in the manner in which they prosecuted the action in the Magistrates Court. Plaintiff alleges defendants failed to establish a proper evidential chain in order to successfully prosecute the plaintiff. Plaintiff alleges first defendant vicariously liable for actions of second to seventh defendant. Plaintiff alleges second defendant prosecuted the action negligently and/or maliciously. Plaintiff alleges third to seventh defendants were negligent by their conduct. Second to seventh defendants deny allegations of negligence. Defendants argue no duty of care owed to the plaintiff. Defendants submit there is no case to answer. Defendants elect not to call any evidence.

Held: Particulars in Plaintiff’s statement of claim do not amount to pleadings of negligence; Defendants did not owe the Plaintiff a duty of care in the circumstances; Plaintiff’s claim in negligent investigations and or negligent prosecution dismissed as a matter of law; No duty is owed at common law or under statute and so no breach of duty made out against the defendants; Defendants have no case to answer. Plaintiff’s claim struck out.

Plaintiff claims defendants maliciously and/or without reasonable or probable cause prosecuted plaintiff in Magistrates Court proceedings. Plaintiff alleges defendants failed to establish evidential chain sufficient to obtain a prosecution of the plaintiff. Plaintiff allegedly suffered loss of reputation, and was put to considerable expense and suffered inconvenience as a result. First defendant accepts vicarious liability for second to seventh defendants. Defendants argue no duty of care owed to the plaintiff. Second to seventh defendants deny allegations of malice. Defendants submit there is no case to answer. Defendants elect not to call any evidence.

Held: Plaintiff failed to prove any malice by the third to seventh defendants; Plaintiff failed to prove that on any basis the second defendant or any of the defendants acted without reasonable cause in bringing the prosecution against the plaintiff; Plaintiff failed to prove malicious prosecution by second defendant; Plaintiff failed to prove any loss or harm caused; Defendants have no case to answer. Plaintiff’s claim struck out.

PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - OFFENCES - MISFEASANCE IN PUBLIC OFFICE

Plaintiff claims second defendant guilty of misfeasance in a public office by proceeding with prosecution. Plaintiff claims first defendant is vicariously liable for the actions of the second defendant. Plaintiff claims the prosecution was unlawful on the basis of insufficient evidence. Plaintiff claims he has suffered loss and damage as result. Defendants argue no duty of care owed to the plaintiff. Second to seventh defendants deny allegations of misfeasance. Defendants submit there is no case to answer. Defendants elect not to call any evidence.

Held: Plaintiff failed to establish that the conduct of the second defendant or any of the defendants could or did constitute misfeasance in public office; Plaintiff failed to establish any factual basis to support allegation; No duty of care was owed to the Plaintiff; Plaintiff failed to lead any evidence to show that the first or second defendants or any of the defendants acted maliciously in discharge of public duties; Plaintiff failed to prove any loss or harm caused; Defendants have no case to answer. Plaintiff’s claim struck out.

Australian Road Rules  Law 59(1); Road Traffic Act s79B; South Australia Police v Tony Elliot  [2004] SAMC: (Ms C Deland SM) 1 March 2004; Civil Liability Act 1936 s3, s31, s32.s34 and s35; The Law of Torts, 9th edition  (1998) Fleming, pp 512, 676., referred to.
A v New South Wales (2007) 230 CLR 500; Adeels Palace Pty Ltd v Moubarak 239 CLR 420; Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1; Emanuele v Hedley (1997) 137 FLR 339; Jones v Dunkel (1959) 101 CLR 298; Modbury Triangle Shopping Centre Pty Ltd v Anzil 205 CLR 254; Northern Territory v Mengel (1994-95) 185 CLR 307; Protean (Holdings) Limited (Receivers and Managers appointed) & Ors. v American Home Assurance Co. [1985] VR 187; Rasomen Pty Ltd v Shell Company of Australia Limited (1997) 75 FCR 216; Residues Treatment and Trading Co Limited & Anor. v Southern Resources Limited & Ors. (1989) 52 SASR 54; Sanders v Snell (1998) 196 CLR 329; Tru Floor Service Pty Ltd v Jenkins (No.2) (2006) 232 ALR 532, applied.
Australian Securities and Investment Commission v Healey (2011) 196 FCR 291; Bradshaw v Waterlow & Sons Ltd [1915] 3 KB 527; Bourgoin SA v Ministry of Agriculture. Fisheries and Food [1986] QB 716; Cran v State of New South Wales (2004) NSWLR 95; Farrington v Thomson (1959) VR 286; Grimwade v State of Victoria (1997) 90 A Crim R 526; Herniman v Smith [1938] AC 305; Martin v Watson [1996] 1 AC 74; Owen v Homan (1853) 4 HLC 997; Preston v Dowell (1987) 45 SASR 111; Tame v State of New South Wales (2002) 211 CLR 317; Tampion v Anderson (No.2) [1973] VR 715; Wilson & Ors. v State of New South Wales [2001] NSWSC 869, considered.

ELLIOTT v THE STATE OF SOUTH AUSTRALIA AND ORS
[2013] SADC 140

Judge Slattery

1. In this proceeding commenced in 2010, the plaintiff Tony Elliott (Elliott) sues the defendants in respect of a charge brought against him by the Police dated 1 March 2003 for failing to comply with a traffic light signal pursuant to Law 59(1) of the Australian Road Rules in s79B of the Road Traffic Act.

2. Elliott was charged with failing to comply with a traffic light signal for traffic turning right from The Golden Way into The Grove Way, Golden Grove (hereinafter referred to as the intersection). That intersection is controlled by traffic lights and there is a turn right arrow that regulates traffic turning right from The Golden Way into The Grove Way. The charge against Elliott brought by the police was that Elliott failed to comply with the traffic light signal because he entered the intersection when the turn right light showed red. This was alleged to be a breach of Law 59(1) of the Australian Road Rules and s79B of the Road Traffic Act.

   The Magistrates Court proceedings

3. In those proceedings before the Magistrates Court, Elliott challenged the charge and the matter was heard before Ms C Deland SM. On 1 March 2004 the learned Magistrate handed down her judgment and dismissed the charge against Elliott. At the conclusion of her judgment, her Honour found that: “…the factual matters which the prosecution must prove in order to invoke the statutory presumption as an aide to proof had not been established and accordingly I find the defendant not guilty.”[1]

   [1]    Judgment number [2004] SAMC: South Australia Police v Tony Elliott (Ms C Deland SM) 1 March 2004 [35] (hereinafter referred to as the Magistrate’s judgment).

4. In the Magistrates Court judgment, the learned Magistrate found that the case against Elliott relied upon two photographs which were exhibited before the Court that were said to be reproductions of photographs taken by a red light camera on 1 March 2003 at 09 31.05 hours and 09 31.06 hours. Those photographs appear to show a motor vehicle bearing registration number WGG 637 travelling through the intersection and turning right at a time when the red arrow is indicated on the lights.[2] In these proceedings, Elliott acknowledged that he was the owner of the relevant vehicle carrying that registration number. In her judgment the learned Magistrate then considered the relevant parts of and the operation of the Australian Road Rules and the operation of s79B of the Road Traffic Act. [3]

   [2] Magistrates Court judgment [2].

   [3] Section 79B.

   (2) Where a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section.

   (9) In proceedings for an offence against this section, a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other member of the police force of or above the rank of inspector, and purporting to certify that the defendant had, before the prosecution was commenced, been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act will be accepted as proof, in the absence of proof to the contrary, of the facts so certified.

   (10) In proceedings for an offence against this section or proceedings for a prescribed offence—

   (a) a photograph or series of photographs produced by the prosecution will be admitted in evidence if—

   (i) the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and

   (ii) the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device, and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and

   (b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other member of the police force of or above the rank of inspector, and purporting to certify—

   (i) that a specified device used at a specified location during a specified period was a photographic detection device; and

   (ii) that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period, will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and

   (c) where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.

5. Before the learned Magistrate, Elliott asserted that no offence had been proved to have been committed because the evidence presented to the Court was unreliable. The same case was put in the matter before me and in particular before me, Elliott alleged that the particular photographs had been “photoshopped” by the police or the police prosecutor (according to his assertion).

6. In the learned Magistrate’s decision, her Honour decided that in order to take advantage of s79B(10) of the Road Traffic Act and the evidentiary assistance given to the prosecution, it is necessary that the requirements of the subsection are strictly complied with  and that the integrity of the photographic detection device and the photographs taken by the device is maintained. Her Honour found as follows:-

   “[30] It is only by being satisfied as to the identity of a photographic device which has produced a photograph that the Court can be satisfied that the criteria under the Act have been fulfilled.

   [31] The prosecution in this case have been at great pains to establish the camera located at the corner of The Golden Way and The Grove Way, Golden Grove satisfied the requirements under the Act.

   [32] …The magazine is referred to in Mr Sawtell’s statement as 3610 but in the statements of Hughes, Mills and Crammond as 89/3610. This does not therefore establish an evidential chain with respect to the camera unit and film magazine place at The Golden Way and The Grove Way, Golden Grove to the police photographic section. I note there was no evidence before me from either Mr Mills or Mr Crammond that the photographs exhibit P4 were processed by the photographic section.

   [33] The two photographs, Exhibit P4, do not have on them any identification number corresponding with either the film magazine 89/3610 or 3610, the twin check number referred to by Ms Mills, 9618 or indeed canister No.11243. There is nothing in the evidence before me which relates the photographs in P4 to the magazine referred to in the affidavit of Stefan Hughes and that of Graham Sawtell. The best evidence with respect to that comes from Mr Crammond in which he notes the information shown on the top of the photograph P4. He says:

   ‘It would require someone from the expiation notice branch to explain each one but my understanding of it is along the top you have, it’s got a section for the speed in kilometres per hour. That function isn’t turned on currently in red light cameras but the camera actually has the ability to record speed as well as the fact that the vehicle has travelled through the red light. The second portion relates to the time so the time of this offence was 9.31.05. The date was 13.03 and the code, I believe, relates to the location that the camera was at. Then my understanding is that the following figures relate to the actual activation of the loops but I am not sure of that. The following photo 009A would relate to the frame number.’

   [34] In short there is no evidence before me the photographs exhibited P4 were in fact taken by the camera at the location specified or alternatively if indeed they were taken at that location that they were taken from the camera which has been proved to be a photographic detection device.”

7. Having made those findings, her Honour held that the factual matters which the prosecution needed to prove in order to invoke the statutory presumption as an aide to proof were not established. She found the defendant not guilty.

8. In the present case, despite the fact that I have serious misgivings about the approach of the learned Magistrate in this matter, those misgivings are immaterial to the questions before me. All that is necessary to state is that the decision of the learned Magistrate to find Elliott not guilty in those proceedings forms the basis for these proceedings.

   The Statement of Claim in these proceedings

9. In the further amended Statement of Claim filed in these proceedings (FDN37), after reciting some of the material facts of the matter, Elliott pleads the following:-

   “7. The plaintiff says:

   7.1the defendant or any of them were negligent in the manner in which they prosecuted the action; and/or

   7.2maliciously prosecuted the plaintiff in the Holden Hill Magistrates Court proceedings; and/or

   7.3in pursuing the prosecution in the manner they did, the defendants committed the tort of misfeasance in a public office.”

10. There are three potential causes of action pleaded by Elliott against each of the defendants. There is no discernment between the roles of any of the defendant within the pleadings brought by Elliott. Each of the defendants are alleged to have been negligent in the manner in which they have prosecuted the action, each of them are alleged to have maliciously prosecuted the action and each of them are alleged to have committed the tort of misfeasance in public office by pursuing the prosecutions.

11. Each defendant filed a separate defence. The first defendant, the State of South Australia, pleaded a number of substantial matters, including an admission that it is vicariously liable for the acts of the second to seventh defendants. Each of the second to seventh defendants have provided defences in a largely similar form.

12. Before dealing with the defences, it is first necessary to identify the particulars of the causes of action. The first is the negligent investigation and or prosecution. Those particulars are set out in paragraph 8 of the amended Statement of Claim which reads as follow:-

    “8. The plaintiff says:

    8.1 The defendants failed to properly establish an evidential chain with respect to the camera unit and the film canister in place at the intersection of Golden Way and the Grove Way, Golden Grove and therefore had no prospect of proving the charge as against the plaintiff;

    8.2 had the case been prepared properly and consideration given to the evidential chain of evidence regarding the photograph the plaintiff says that prosecution would not have been brought in the first place;

    8.3 The first defendant is vicariously liable for the actions of the second through to the seventh defendants in respect of the prosecution and liable pursuant to Section 65 of the Police Act;

    8.4 The second defendant was at all times the Prosecutor responsible for prosecuting the action and the plaintiff says did so maliciously and/or negligently as it was never going to succeed;

    8.5 The third defendant gave evidence at the hearing as to his involvement with red light camera duties on 7 March 2003 and 8 March 2003 and the plaintiff says he performed his work negligently;

    8.6 The plaintiff says that the fourth defendant gave evidence at the hearing that she processed the red light cameras with I.D. numbers and corresponding film magazine 89-3610 with the twin check number of 9618 which was the film being placed in canister 11243 but did not identify any photograph in evidence processed by her;

    8.7 The plaintiff says that the fifth defendant was involved in the prosecution in that he gave evidence about the unlocking and dispatch of a bag and removal of the film which allegedly included film magazine number 89-3610 and there was no evidence that the films relied upon were processed by the police photographic section;

    8.8 The plaintiff says that the sixth defendant gave affidavit evidence that he secured photographs in magazine number 3610 and formed part of the prosecution process which was performed negligently;

    8.9 The plaintiff says that the seventh defendant he provided a certificate that indicated the plaintiff had been allowed an opportunity to expiate an expiation notice pursuant to the Expiation of Offences Act 1996 and the plaintiff says that he also formed part of the necessary step in the course of the prosecution against the plaintiff which was performed maliciously and/or negligently.”

13. All particulars are pleaded against all defendants. There is no pleading of how one particular defendant might have given consideration to any particular step in an evidential chain of evidence when that defendant was not in any way involved in any decision making process to do with the prosecution.

    The failure of the plaintiff to particularise a claim against specific defendants

14. Considering each in turn, there is no allegation of fact by Elliott connecting a failure to properly establish an aspect of the alleged evidential chain and the prospects of proving the charges against Elliott. In my view, the first particular does not in any way support an assertion of negligence because it pleads a conclusion and not a fact. The same considerations apply to the second particular of negligence. The third particular is a pleading of law.

15. The fourth particular is directed to the conduct of the second defendant Ms Rachel Morton who was the police prosecutor. It alleges that Ms Morton was responsible for prosecuting the action and that she did so maliciously and or negligently. The particular of malice and negligence is that the prosecution was never going to succeed. In my view, and for the same reasons as expressed in relation to particular 8.1, the particularity pleaded in paragraph 8.4 is neither a pleading of malice nor can it be a pleading of negligence. If there is something to be made of the pleading, further material facts would need to be pleaded. None are forthcoming from Elliott.

1. The pleading in paragraph 8.5 is directed to the third defendant and merely pleads that he did his work negligently. There is no pleading of any material fact supporting this assertion of how he may have done his work negligently. The sixth particular is directed at the fourth defendant who was alleged to have processed red light camera film magazine. It alleges that she did not identify any photograph in evidence processed by her. Again, without more, this is not a particular of negligence.

2. The seventh particular is directed towards the fifth defendant. The involvement of the fifth defendant was to unlock and dispatch a bag of film. It is alleged against the fifth defendant that there is no evidence that the films relied upon were processed by the police photographic section. In my view, this is not a particular of negligence on any basis.

3. The eighth particular refers to the task performed by the sixth defendant. The only particular of negligence is that what was done by the sixth defendant formed part of the prosecution process and there is then pleaded an unfounded allegation that the prosecution process was performed negligently. In my view and for the same reasons this is not a particular of negligence alleged against the sixth defendant.

4. The ninth particular is an allegation against the seventh defendant that he provided a certificate concerning the Expiation of Offences Act. The allegation is that this is a necessary step in the course of the prosecution but the allegation is that the prosecution was performed maliciously and or negligently. There are no particulars of malice. There are no particulars of any action by the seventh defendant which could ground any claim in negligence; the particular is as non sequitur and does not in any way support any cause of action.

5. There is also an allegation of malice in this particular but there is no particularity of malice set out in paragraph 8. Perhaps more fundamentally, there is no pleading of any particular relationship between Elliott and any of the second to seventh defendants that gives rises to a duty that may be recognised by the law as constituting: “… negligent investigation and/or prosecution”.

6. In my researches, I have been unable to identify that such a cause of action is known to the law. I will deal with that matter later but it is necessary to state that the High Court has made it quite clear that in the incremental development of the law in relation to the imposition in any given circumstance of a duty of care,[4] it will always be necessary to establish that in the given factual circumstances that existed a defendant knew of facts requiring a direct intervening act, which would safeguard an (injured) person from a foreseeable risk of harm. There is no pleading of any material facts of: (a) facts requiring a direct intervening act (b) which would safeguard a person from a foreseeable risk of harm.

   [4] Modbury Triangle Shopping Centre Pty Ltd v Anzil 205 CLR 254; Adeels Palace Pty Ltd v Moubarak 239 CLR 420.

7. Paragraphs 9-12 of the amended Statement of Claim reads as follows:-

   “9. On or about 1 March 2003 the defendants or any one of them maliciously and/or without reasonable and probable cause proffered charges against the plaintiff of having contravened Rule 59(1) of the Australian Road Rules and Section 79B of the Road Traffic Act 1961.

   10. Upon hearing the charges against the plaintiff in the Holden Hill Magistrates Court the plaintiff was acquitted of the said charges.

   11. In consequence of the matters aforesaid in paragraphs 9 and 10 the plaintiff had suffered a loss of reputation and was put to considerable expense and suffered great inconvenience.

   12. The charge never could have been proved due to the failure to establish an appropriate chain of evidence which the plaintiff says could not have been established regarding the photographic evidence.”

8. The only pertinent particular is set out in paragraph 12. It is necessary to focus upon the wording used in the paragraph. Elliott alleges that the appropriate chain of evidence could not have been established regarding the photographic evidence. There is no pleading of any material fact concerning that matter. Also, it is not clear at all how it could be said that paragraph 12 was a pleading of a particular of malice.

9. The particulars of misfeasance in a public office are set out in paragraphs 13-16 of the amended Statement of Claim which read as follow:-

   “13. By proceeding with the Prosecution the second defendant through the Prosecution was guilty of misfeasance in a public office in that the Prosecutor at all times was a public officer

   14. The Prosecution was brought about by Prosecutor in the course of her employment in a purported discharge of his public duties and the first defendant is vicariously liable for this action.

   15. The Prosecution was unlawful as there was no sufficient evidence of a factual basis to warrant the prosecution.

   16. As a result of the negligence and/or the malicious prosecution and/or the misfeasance in a public office, the plaintiff has suffered loss and damage.”

10. The first plea, in paragraph 13 is directed to the second defendant. It is only a particular of an allegation. It merely alleges that the second defendant was guilty of misfeasance. It is not a particular of misfeasance. The third particular, in paragraph 15 alleges that the prosecution itself was unlawful as there was no sufficient evidence of a factual basis to warrant the prosecution. There is no basis in fact alleged to support this allegation. Also, there is no basis alleged to identify how it may be said that the prosecution itself was unlawful. Paragraph 16 is an allegation of consequential losses. It is unnecessary at this juncture to consider those matters.

    The defences of the defendants

11. I will deal with each of the defences of the defendants only insofar as they are pertinent and there are points of differentiation. It is appropriate to commence with the defence of the first defendant, the State of South Australia. In paragraph 5 of that defence, the first defendant pleads that Elliott has failed to plead any facts that amount to a cause of action in negligence, malicious prosecution or misfeasance in a public office. That is followed by a plea in paragraph 6 that the first defendant owed no duty of care to Elliott in the circumstances.

12. Paragraph 9 of the defence pleads as follows:-

    “9. States further that it [sic] the first defendant had reasonable and probable cause to bring the prosecution against the plaintiff in that:

    9.1 The plaintiff’s vehicle was detected by a photographic detection device turning right against a red arrow at the intersection of the Golden Way and the Grove Way at Golden Grove on 1 March 2003;

    9.2 The film on which the photograph of the plaintiff’s vehicle was taken was removed from the said detection device and taken to the Police Photographic Section where it was developed;

    9.3 The photograph developed by the Police Photographic Section contained a code at the top that denoted the date, time and location at which the photograph was taken;

    9.4 A certificate that complied with the provisions of Section 79B(10)(b)&(c) of the Road Traffic Act, 1961 was available;

    9.5 Evidence in satisfaction of Section 79B(a)(ii) as to the operation and testing of the said photographic detection device was also available.”

13. I refer in particular to paragraph 9.5. It is a paragraph which does not state an absolute but rather suggest that the evidence that would provide a sufficient level of satisfaction about the operation and testing of the photographic detection device was also available. This suggests that the evidence, although available, was not led in the prosecution. This will become important later for a number of reasons.

14. The pleading generally pleads denials of the allegations of negligence, malicious prosecution and misfeasance in public office. It alleges that there is no particularity pleaded in order to enable a case to be made out against any of the defendants.

15. The pleadings of the second to seventh defendants may be summarised by reference to the pleading of the second defendant. They are not materially different although each will be slightly different having regard to the task performed by them.

16. The defences generally plead the material facts concerning the prosecution. In the case of the second defendant, she was the police prosecutor assigned to prosecute the charge laid against Elliott; he was charged on complaint dated 3 June 2003 that on 1 March 2003 at Golden Grove in the State of South Australia he failed to comply with a traffic light signal in breach of the Road Rules and the Road Traffic Act. The second defendant pleads the findings of the learned Magistrate and the failure to plead any material facts to support any allegation of negligence, malicious prosecution or misfeasance in public office.

17. The defendants plead denials that any of them owed a duty of care in the circumstances or at all and if any such duty was owed (which is denied) there was no breach of that duty. In relation to the malicious prosecution plea, the defendants allege that they did not act without reasonable and proper cause and did not act with any malice towards Elliott.

18. The second defendant plead the following matters:-

    1.   The… defendant was at all material times motivated by the proper administration of justice;

    2.   The… defendant acted without malice;

    3.   The… defendant at all times acted lawfully and within power;

    4.   The… defendant had reasonable and probable cause to continue the prosecution against the plaintiff.

19. That pleading is confined to the pleading of the second defendant and the pleadings of the third, fourth, fifth, sixth and seventh defendant plead general denials or failures to plead any proper cause of action against them. On the question of the prosecution in the Magistrates Court, the principal focus is upon the first and second defendants: as the entity vicariously liable and as the prosecutor in the proceedings.

    The roles of the defendants

20. I turn then to the evidence given in these proceedings and the way it developed. It is necessary to identify each of the defendants and their roles. The first defendant is the State of South Australia. The second defendant, Rachel Morton is the police prosecutor who was involved in the prosecution of Elliott before the Magistrate. The third defendant was employed in the Police Security Services Division Traffic Camera Unit. He removed the film from the camera and transported the film to the police photographic section. The fourth defendant was employed in the Police Photographic Section. She processed the camera film to produce negatives and photographs. The fifth defendant, Ian Cramond received camera film from the Police Photographic Section. The sixth defendant, Stefan Hughes was employed in the Police Security Services Division Traffic Camera Unit. He installed the film in the camera. The seventh defendant, John Webber issued a certificate as to the postage of expiation notices and a certificate as to the camera operating and testing.

21. It is apparent that the third to seventh defendants did not have a part in any decision to commence a prosecution against Elliott. They were involved in the “mechanical” steps involved in bringing a prosecution, the responsibility for which fell upon the second defendant. It is not in contention that they did not know Elliott personally nor know of him in any other way and they did not have any role in making any decisions about whether to prosecute Elliott in the Magistrates Court. Each performed a separate role that was, to an extent, independent of the other although it is apparent that each would have known of the logical progression of a prosecution[5] in carrying out the particular tasks with which they were involved. That general knowledge is not pertinent in these circumstances because the allegation of Elliott is that each of the defendants owed some duty of care to him, each of the defendants acted maliciously towards him and that each of the defendants were guilty of the tort of misfeasance in a public office. Elliott pleads that each of the third to seventh defendants occupied a public office for the purposes of that tort.

    [5] A distinction must be maintained between the fact of a prosecution on the one hand and the prosecution against the plaintiff on the other. The third to seventh defendants’ involvement is limited to the first limb and only the second defendant had an involvement in the second limb.

    Some issues of evidence: the plaintiff and the defendants

22. The hearing before me occupied five hearing days in whole or in part. During the hearing, there were 10 exhibits tendered into evidence. The first five exhibits were tendered by the defendant. They were marked D1 to D5: D1 was a roll of film from canister 89/3610 which carried twin check number 9168; D2 was the police prosecution file in relation to Tony Elliott for alleged breach of Australian Road Rules consisting of 78 pages; D3 was a photograph of the relevant intersection showing a time 9:31:05; D4 was a photograph showing a time 9:31:06 and D5 was transcript of proceedings held before Ms Deland SM at Holden Hill Magistrates Court on Friday 20 November 2003 consisting of 38 pages. Some of these exhibits were tendered by the defendants prior to the evidence of Elliott and some were tendered in cross examination.

23. Elliott tendered five exhibits. P6 was a photograph of the relevant intersection; P8 was the photographs exhibits D3 and D4 and with tracing paper; P9 was correspondence between Elliott’s previous solicitors and the Attorney General’s Department; P10 was a letter from Elliott’s previous solicitors to Elliott dated 30 March 2011 and P11 was a letter from the Attorney General’s Department to Johnston Withers dated 24 May 2011. I also marked for identification a document MFIP7 which was a photocopy of a photograph taken by Hawke Eye Aerial Photography with serial number 0765-8. I gained very little if any assistance from the documents tendered by Elliott.

24. From the commencement of this case, the defendants informed me of their intention to make a no case to answer submission. Notwithstanding that early indication of the intention of the defendants, the first five exhibits tendered in evidence in the proceedings were those of the defendants. Elliott gave evidence and was cross examined and during cross examination the defendants tendered some exhibits. At the end of his cross examination, the no case to answer submission was made. For the purposes of consideration of that submission, it is necessary that I give a summary of the evidence given by Elliott.

25. Elliott first made reference to the photograph exhibit D3. This is a black and white photograph which shows his vehicle turning right at the intersection. It shows a time taken of 9:31:05 hours on 1 March 2003. It carries a code 010038 and there are various other references upon that photo. It is identified as photo 009A. Exhibit D4 is a photograph taken shortly thereafter at 9:31:06 hours some 1 second after the first photograph exhibit D3. It contains the same references in respect of the code and the photo number. The other references are slightly different.

26. The evidence received from Elliott was also to be understood essentially as his submissions and consisted largely of a series of assertions about the content of the evidence. For example, Elliott referred to the fact that exhibits D3 and D4 were black and white photographs and therefore could not prove that there was a red traffic light operating. He gave evidence about levels of illumination and reflection from traffic lights; the texture of the arrow shown in the photograph and the inability of the prosecution to prove that, in a black and white photo, he “ran a red light”.

27. Elliott contended that there must be evidence showing the actual position of a car crossing the white line against a red light and exhibit D3 is taken when the vehicle is some 15 feet into the intersection and well past the trigger point for a red light camera to operate. The significance of this assertion was that the sensors for the traffic light are triggered by the front of the vehicle. He contended that the camera should have been triggered before this; the photograph cannot show the depiction of the camera being triggered, that his car is “plastic” and does not trigger red light camera sensors which are triggered by metal; he has no idea about the speed that he was travelling going around the corner and that, conversely, the trigger point of the photograph proves that his vehicle entered the intersection on an amber light.

28. Elliott then gave evidence in relation to coils placed beneath the road which assist in the operation of the lights and which indicate the presence of motor vehicles either waiting to proceed through a traffic intersection or waiting to turn left or right, as the case may be, in any given situation. A series of propositions were put by Elliott in evidence concerning the operation of these coils. In my view, all of this evidence was unsubstantiated conjectural allegations that did not assist the matter one way or the other.

29. Elliott then attempted to show through a comparison of photographs that the photographs tendered by the prosecutor before the learned Magistrate (which are now exhibits D3 and D4 in this matter) were falsified because of the differences in particular shadows cast by signs, light poles and other permanent structures such as trees. He also pointed out the “turn left with care” sign at the intersection which he alleges are not shown in exhibits D3 or D4. In my opinion, these matters are easily explained by reference to the point from which photographs were taken. They are speculative, they are unfounded and they provide no assistance. Elliott also attempted to prove his point by using tracings of photograph D3 but, as was pointed out by Mr Golding for the Crown, the tracing was done on different versions of photographs not D3 itself.

30. Turning to more substantial matters, Elliott gave evidence in relation to the films and the canister. He said the film had been assigned a serial number 893610.[6] He then pointed out that the number on the photographs was different namely 01000380. [7] He said that there was no documentation relating to the second number ever being put into a canister nor put on the film nor that the film was produced. However, it is plain on a review of those matters, and as Elliott was advised, the numbers correspond to the camera location and the camera position. The film canister number is 11245[8] and the canister ID is 893610. Elliott gave evidence that the film serial number 893610 had a twin check number 9618 but the number of the film is 3610 which indicates location and camera number.[9] These matters are not contentious. The only question that Elliott could postulate is: where does the number 101038 come within the overall scheme of things[10] as there is no evidence of it ever being processed and there are no records relating to it.

    [6] T67.11.

    [7] T67.19.

    [8] T68.18.

    [9] T69.3-4.

    [10] T69.10.

31. Further, in relation to exhibit D2, Elliott pointed out that in some places, the object in D2 is called a magazine and at other places it is called a cassette number. Elliott asserted that this was a contentious issue. I reject the assertion: it is unfounded and there is no significance in the different nomenclature. The only point that he made was that there was no mention of number 1038.

32. There were some other ancillary points of the same nature made by Elliott. None of them are of any significance from my review of the evidence nor, in my opinion, were they particularly relevant in relation to the prosecution notwithstanding the decision of the learned Magistrate.

33. Elliott was cross examined. He confirmed in relation to Ms Morton, the police prosecutor in the Magistrates Court, that he thought that she did not show any malice towards him.[11] However, this was later changed[12] because of the fact that she acted as prosecutor. That is, the aspect of malice alleged against Ms Morton as a defendant is only the fact that she acted as prosecutor.

    [11] T75.36.

    [12] T77.25.

1. In relation to the defendant Graham Sawtell, the aspect of malice alleged against him by Elliott was that he provided a witness statement and in doing so, Elliott believed that he showed malice towards him.[13] The aspect of malice was the fact that Sawtell made a statement for the Magistrates Court action coupled with the fact that the statement was delivered to the second defendant, the prosecutor.[14]

   [13] T76.22.

   [14] T77.17.

2. In relation to the defendant Kerry Mills, Elliott said he believed that she was just a “pawn” in the works and therefore showed no malice towards him.[15] This was notwithstanding that Elliott was prepared to allege malice against Kerry Mills. In the end, in the absence of any evidence concerning Kerry Mills, no case in malice can be made out against her.

   [15] T78.14.

3. In relation to the defendant Ian Cramond, Elliott said that he believed that Cramond displayed the same amount of malice towards him as “Hughes”.[16] It is noteworthy, that there is no mention of what “Hughes” may have done that may constitute malice. The facts are that Stefan Hughes provided a statement tendered at the Magistrates Court[17] and Elliott alleges that Hughes showed malice towards him due to being involved with a prosecution that should never have happened.[18] Similarly, this does not and could not in the circumstances satisfy the requirement of a pleading of malice.

   [16] T78.35.

   [17] T80.25.

   [18] T81.9.

4. Elliott then put a proposition when under cross examination that he believed that the police who made the statements did so to play “happy families”[19] and to gain a false prosecution.[20] It is quite difficult to know what to make of this assertion. It appears to assert that the police were prepared to cooperate or perhaps conspire with each other to bring about a conviction. This suggestion is not pleaded, it is groundless and in my view it is scandalous.

   [19] T80.7.

   [20] T80.13.

5. In terms of the photograph evidence, Elliott acceded to the proposition that the photographic detection device at the intersection did operate as it was designed but he volunteered that there was already evidence of this.[21] Elliott agreed that John Webber was the relevant Manager at the time of the Expiation Notices Branch[22] but Elliott then contended that Webber was malicious because he provided photographs as evidence to prove the facts surrounding the expiation notice (being sent to Elliott) and had not done so to be nice.[23] It is quite unclear what Elliott may have intended by this expression “nice”; it appears to convey a contention to the opposite effect and was an example of sarcasm. It suggests that Elliott considered that the defendant’s motive was acting towards him in some threatening way. If this was Elliott’s intention then it is groundless and equally scandalous.

   [21] T82.17.

   [22] T85.35.

   [23] T83.6.

6. Elliott said that he made a claim in respect of malicious prosecution because he had formed the view that the prosecution provided false manufactured and misleading evidence. He first asserted that exhibits D3 and D4 were manufactured. He was then referred to exhibit D3. He alleged that at the point that at the time that his car entered into the intersection there was no positive proof that the light was already red.[24] He was referred to the entries along the top of exhibit D3. These entries were referred to as the “data block”. I will use the same forms of expression. He was referred to the data block entry “AMB2” and the item below that which says “4.10”. In cross examination he was told that was a reference to how long the light had been on amber before it went red, which was 4.1 seconds.[25] He was also referred to data block entry “RED2” and the data block entry below that which says “000.89”. He was informed that this was a reference to how long the light had been red at the point at which the photograph was taken that is .89 seconds.[26] There were other propositions then put to Elliott on that point. The measurement of the time during which the relevant turn red light had been red (.89 seconds as measured) is a default setting. The default is that it remains red for .5 of a second before the time measurement commences. That is, the relevant period at during which the light had been red was the addition of those two periods of time namely 1.39 seconds.

   [24] T85.2.

   [25] T85.9-13.

   [26] T85.14-17.

7. In cross examination, Elliott accepted what the information on the data block on exhibit D3 appeared to indicate. He accepted the fact that the data block indicated that the red light had been operating for .89 seconds when the photograph was taken. All that Elliott could say was that he could not have entered the intersection when the light was red[27] and he maintained the position that there was no indication in the photographs that his car entered the intersection against the red light[28] and that there was no way he would have entered the intersection if the light was already red.[29] This evidence was largely conjectural.

   [27] T87.1-4.

   [28] T87.8.

   [29] T87.35-T88.1-3.

8. There is an obvious inconsistency between Elliott’s acceptance of what the data block on photograph D3 discloses and the maintenance by him of his contention that his car did not enter the intersection against the red light. The highest he could put it was that there was no way he would have entered the intersection if the light was already red (emphasis added). This is an obvious reconstruction by Elliott and is of no evidentiary value in this case.

9. The correctness of that expressed view is only emphasised by the evidence given by Elliott in cross examination that he had a direct memory of the whole of his car being across the line before the light turned red[30] and that he maintained that the whole scene within exhibit D3 was a fabrication.[31] He said that his car cannot be in the “photograph that was taken in the year 2000” and that the car in D3 has been transferred from an original (data block entry 89/3610) and transposed onto exhibit D3 electronically.[32] Elliott said that he lived in the country in the year 2000 and therefore could not have been present at The Grove Way intersection.[33] Ultimately, he said that there were two photographs an original (89/3610) and a superimposed fabricated version.[34] He said that the truck shown in exhibit D3 in the photograph travelling in the opposite direction to his car had also been superimposed.[35] I have assumed that Elliott’s reference to the year 2000 is some form of misapprehension on his part and displays some confusion in his mind.

   [30] T88.15.l

   [31] T88.26.

   [32] T90.5.

   [33] T91.8.

   [34] T94.

   [35] T95.14.

10. I am unable to accept the evidence of Elliott that he would have a direct memory of an event 13 years ago when in fact, he was charged with an offence alleged to have taken place on 1 March 2003. There was no indication before the learned Magistrate that Elliott had a clear memory of his car having been through the lights and into the intersection before the light turned red.

11. Having viewed the photographs exhibits D3 and D4, it is my opinion that it is also incredible to suggest that a truck could be superimposed upon photograph D3 and even more difficult to postulate a circumstance where, in this matter, the police or anybody else would go to the trouble of superimposing a truck vehicle upon the photograph in any event to gain a termination of Elliott.

12. Elliott was also referred to exhibits D3 and D4 and was asked to make a comparison with item 89/3610. I refer to exhibit D2 which was the police prosecution file in relation to this matter tendered by the defendant in the proceedings. At page 31 of the exhibit, there is a reference to camera 10 being used at the intersection of The Golden Way and The Grove Way that is identified as position 38. A reference was then made to page 66 of exhibit D2 which was a red light camera film sheet. At the top it has a reference 89/3610.[36] Next to that is an entry “camera 10”. Further down the page (page 66 of exhibit D2) there is a reference to “location” and the location number identified is “38”.[37] A red light camera film sheet is the document that travels with the film canister and is required to be completed by various police officers or employees.

    [36] T96.1.

    [37] T96.8.

13. A reference to exhibits D3 and D4 show that under the word “code” there was a reference to “010” and then a reference to “0038”.[38] In my opinion, when all of these matters are read together, and as was put by Mr Golding in cross examination of Elliott, this means camera 10 at location 38.[39] Elliott did not strenuously disagree with this proposition but said that the proposition still does not explain the code “89/3610”.[40]

    [38] T96.38.

    [39] T97.2.

    [40] T97.

14. In my opinion, it is quite plain on a proper reading of the documents before me (and which were before the learned Magistrate) that if it is established that the reference to 1038 is to location 10 camera 38, then the reference to 89/3610 is a reference to a film number which equates to or was produced from camera 10 at location 38.[41] However, Elliott would not accept that explanation due to the statements of the defendants Hughes and Sawtell who said that the reference to “89/3610” relates to a film number and or a cassette number.[42] How that is a point of distinction is not completely clear to me. In my view, it is apparent that any reference to “89/3610” is a reference to something other than a camera location and, as a matter of ordinary commonsense, must be a reference to a film number or film canister number. However Elliott was unprepared to accept the statements of the defendants Hughes and Sawtell and asserted that in truth, the police did not want the reference “89/3610 to come to light”.[43] He would not accept, as the Crown contends, that exhibits D3 and D4 are produced from film 89/3610[44] even though, at the very least, intuitively, that must be so.

    [41] T98.29.

    [42] T98.33.

    [43] T99.12.

    [44] T99.15.

15. It is clear when looking at exhibit D2 at page 66 that there is a reference to film number 89/3610 camera 10. There is also a reference to location number 38 and the location of the red light camera is The Golden Way and The Grove Way, Golden Grove. There is a reference throughout that page to those matters. Portions of the document relates to a certification concerning film removal signed by Mr Graham Sawtell. There is a photographic receipt signed by the defendant Cramond. All of these references referred to dates and times concerning film number 89/3610 for camera 10 at location 38 on the corner of The Golden Way and The Grove Way, Golden Grove.

16. For reasons which are not explained, the prosecutor did not tender the red light camera film disposition sheet at the time that she prosecuted the action against Elliott. She may well have considered (perhaps correctly) that is was unnecessary to do so. However, the learned Magistrate formed the view that there was a gap in the evidentiary trail concerning the matter that could not be filled and thus the prosecution failed. What is completely clear to me is that page 66 of exhibit D2 discloses all of the information that any Magistrate would have required to be satisfied of a case to be proved against Elliott and that would have satisfied the Magistrate beyond reasonable doubt. Thus, a Magistrate may be satisfied on the whole of that evidence that the case against Elliott could be proved beyond reasonable doubt, that exhibits D3 and D4 which were tendered in the prosecution before the learned Magistrate disclosed the offence committed by Elliott.[45] The significance of the page in these proceedings is that the case as against the defendants brought by Elliott must be assessed in light of this information tendered in evidence before me.

    [45] It is not pertinent to these reasons that that view could have been formed irrespective of the tender of page 66 of exhibit D2 in these proceedings. That is not a matter for me.

    The “no case to answer” submission: a question of election

17. At the close of Elliott’s case, the defendants applied to make a no case to answer submission and the defendants’ first submission was that they should not be put to an election on the basis that the submissions related to legal submissions and questions as to the sufficiency or weight of the evidence. Before making a ruling on the question of the election, I invited Mr Golding for the defendants to outline the basis of his application.

18. He first said that there was no prospect of success with respect to the negligent prosecution and or negligent investigation allegations as a matter of law. He said that on that basis, there was no question of considering any evidence. He said that in relation to the malicious prosecution and or misfeasance in public office allegations, there was no evidence which could be relied upon to make out various elements of those torts. Mr Golding submitted that where there is a submission based on questions of law combined with a hiatus in evidentiary proof, the defendants should not be called upon to elect.

19. In my opinion, it is appropriate that I first set out the relevant submissions made on behalf of the defendants concerning the no case to answer submission and then to consider the relevant authorities on the question of election. In my opinion, this is particularly important because, as I have stated from the outset, in this matter the first 5 exhibits were all tendered by the defendants. Those exhibits were received in the context that when Mr Golding for the defendants explained the proceedings to me, he also explained the contents of each of the exhibits and in particular exhibit D2 which was the police prosecution file in the matter and then the photographs D3 and D4. D5 is the transcript of proceedings before the learned Magistrate.

20. It is important to state that exhibit D2 in its current form was not before the learned Magistrate. Some portions of it were before the Magistrate but not all of them. I do not need to make reference to each page within exhibit D2 because, to a large extent, the steps that are reflected in most of those pages were accepted by the learned Magistrate as proof beyond reasonable doubt of the matters contained therein. Therefore, the contents of those pages are reflected in the reasons delivered by the learned Magistrate.

21. Page 66 of exhibit D2 was not before the Magistrate. It was explained to me that this document was contained with the canister of film that was installed at the intersection. A review of the page identifies the film number, the camera number, the location number, the zone, the address of the location and what traffic was monitored. The next item block is for the camera installation and testing. That is covered in a separate deposition and in evidence. The next item block is for the film installation and testing. It is completed and signed by the defendant Hughes. It shows when the magazine was installed at the intersection and it carries a comparison check number of 11245. The next item block on the page is in respect of film removal. It is completed and signed by the defendant Sawtell. It relates to the same camera, the same intersection, the same camera number, the same location and discloses that particular film that which was produced from the camera at the location was removed.

22. The next item block is in respect of transportation. It is also completed and signed by the defendant Sawtell. It discloses that the defendant Sawtell lodged the magazine number 89/3610 in a locked safe at the Thebarton Barracks and then it was transported from a locked safe to the photographic section in bag number B2. The final item block is the photographic receipt which is signed by the defendant Cramond. It discloses that the defendant Cramond received the magazine 89/3610 at the police photographic section with the appropriate documentation via locked bag number B2.

23. The evidentiary trail disclosed on this page thus answers any criticism made by the learned Magistrate in relation to any gaps in the evidence. It discloses an answer by the defendants to Elliott’s case.

24. In that background, it is appropriate that I identify and discuss the submissions put on behalf of the defendants concerning the no case to answer submissions. Having discussed those matters, I will deal with the question of election particularly in light of the documentation tendered on behalf of the defendants. A significant feature of those tendered documents is exhibit D2, the police prosecution file which is positive evidence concerning a number of steps taken by the police and I refer again to page 66 of exhibit D2.

25. In addressing the question of the substantive submissions on no case to answer, I think it is appropriate that I state some general applicable principles relevant to such an application that are now well settled. They are as follows:-

    1.   Having regard to all of the evidence brought by the plaintiff in the proceeding (and in this instance, also the evidence tendered by the defendants) am I, as the trier of fact, in a position where I am able to find that the material facts of the claims brought by the plaintiff have been proved on the balance of probabilities.[46]

    2.   I am required to take a view of the evidence that is most favourable to the respondent party.[47]

    [46] Jones v Dunkel (1959) 101 CLR 298 at 304-305 (per Dixon CJ) and at 319-320 (per Windeyer J).

    [47] Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6 per Finkelstein J.

    The causes of action pleaded by the plaintiff

26. In that background, I will turn to the particular causes of action pleaded by Elliott against the defendants. The first is the alleged negligent prosecution/negligent investigation. In any discussion on topics of negligence, it is first necessary for Elliott to establish that some duty of care is owed by the defendants or any of them (that is individually or collectively) to him and how such duty of care may arise.

27. My researches do not disclose that the tort of negligent investigation or negligent prosecution are known to the common law or exist under statute (hereafter collectively referred as the tort of negligence).[48] In my opinion, it would be a strange result for the tort of negligence to operate in respect of investigations by and prosecutions brought by police of particular individuals in society. Although there are some relevant principles concerning a duty of care that may arise, those principles will generally only operate in respect of the manner in which the prosecution behaves in a trial. That is, in the consideration of those principles and their possible application, the anterior question of negligent investigation or negligent prosecution, do not arise. There is no doubt that it is well settled that prosecutors (and by implication investigators) must take reasonable care when conducting prosecutions or investigations to conduct a fair trial.[49] A breach of such a general duty cannot give rise to a right in damages which, by and large, would be un-assessable. In any event, such a duty is counterintuitive because it creates a conflict between the officer’s duty to fully investigate the conduct in question and an obligation to fulfil a duty of care.[50] In Wilson & Ors. v State of New South Wales[51] O’Keefe J held at [63]:-

    “[63] An action for negligence under the common law does not lay in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and... no action for negligence under the common law lays in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body.”[52]

    [48] Civil Liability Act 1936 s3, s31, s32.s34 and s35.

    [49] Grimwade v State of Victoria (1997) 90 A Crim R 526 at 559-260 per Harper J.

    [50] The High Court has given some consideration to this matter. In Tame v State of New South Wales (2002) 211 CLR 317 at [231] Gummow J and Kirby J said: “It is unlikely that an investigating officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer’s duty… fully to investigate the conduct in question.” See also Sullivan v Moody (2001) 207 CLR 562 at 582 on the question of conflict of claims and obligations.

    [51] [2001] NSWSC 869.

    [52] See Cran v State of New South Wales (2004) NSWLR 95 at [50]-[51]; Porter v OAMPS Limited (2005) 215 ALR 327 at [114] per Goldberg J.

1. I accept the submission made on behalf of the defendants that if police officers were to be liable to actions for negligence in connection with investigations that resulted in prosecutions that were unsuccessful, the tort of malicious prosecution would be unnecessary, which would render malice irrelevant. I respectfully adopt the decision of Higgins J (as his Honour then was) in his decision in Emanuele v Hedley (1997) 137 FLR 339 at 359 when his Honour held:-

   “There is no tortious liability towards an accused person for negligently investigating or prosecuting that person. If there was such a cause of action, a prosecutor would be liable for damages notwithstanding that there was no malice and no lack of reasonable and probable cause for the investigation and prosecution in question. That would make malicious prosecution, misfeasance in public office and intentional infliction of harm by an unlawful act, otiose. It would also bypass the torts of defamation and injurious falsehood.”[53]

   [53] Affirmed on appeal in the Federal Court in Emanuele v Hedley (1998) FCR 290.

2. In my opinion, for all of these reasons, Elliott’s claim in negligent investigation and or negligent prosecution fails as a matter of law.

   Malicious prosecution

3. In the decision of the High Court in A v New South Wales[54] Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennon JJ (the plurality) held as follows in relation to the tort of malicious prosecution, (which addresses conduct which is procedurally lawful but carried out for wrongful purposes) as follows:-

   “This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution, the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable or probable cause.”[55]

   [54] (2007) 230 CLR 500 at [1].

   [55] The source cited by the High Court for this statement of principle is Bullen and Leake, Precedents of Pleadings, 3^rd ed. (1868) pages 350-356.

4. The High Court did not give consideration to the existence of a possible fifth element namely that special injury or damage was caused to the plaintiffs.

5. Earlier in these reasons I have identified each of the defendants and the roles that they perform. Vicarious liability has been admitted by the first defendant in respect of the actions of the second to seventh defendants. I have also concluded in these reasons that the third to seventh defendants inclusive did not participate in the prosecutorial decision. Those persons provided evidence that was used by the prosecutor, Ms Morton, the second defendant in and about the prosecution of Elliott.

6. I have also recounted the evidence of and case put by Elliott in support of the allegations against the defendants. Elliott conceded in cross examination that in respect of some defendants, he would make no case against them in respect of malicious prosecution despite the fact that he had pleaded a case against them.

7. In my opinion, this is a significant matter because it is necessary to show that each individual defendant was “actively instrumental in the institution of the proceedings” (Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343).[56] In my opinion, there is no evidence that any of the third to seventh defendant were actively instrumental in the institution of the proceedings. Their involvement was limited to providing evidence and, on the papers that I have viewed, I am satisfied on the balance of probabilities that the evidence they gave was not false in any respect. I am satisfied that on no basis could it be asserted that those defendants provided any false testimony on oath or otherwise.[57]

   [56] See also Martin v Watson [1996] 1 AC 74.

   [57] It is accepted that even if those defendants were found to have committed perjury, that would not amount to the institution or continuation of proceedings: Cabassi v Vila (1940) 64 CLR 130; Cumberland v Clarke (1996) 39 NSWLR 514.

8. There is no evidence before me on Elliott’s case of any particular connection between the third to seventh defendants and the decision made by the relevant person to prosecute the action, whether that be the second defendant or any superior of the second defendant. That being the case, there is also no evidence before me of any of the third to seventh defendants taking any steps to dishonestly prejudice the judgment of the prosecutor or the person who was the superior of the relevant prosecutor who may have made the prosecutorial decision. In those circumstances, there appears to be no basis on the evidence before me to support or sustain the allegation of malicious prosecution against the third to seventh defendants.

9. That then leaves a consideration of the position of the second defendant. In the High Court’s decision in A v New South Wales[58] the plurality said:-

   “the identification of the appropriate defendant in a case of malicious prosecution is not always straight forward… To incur liability, the defendant must play an active role in the conduct of the proceedings, as by instigating or setting them in motion.”[59]

   [58] (2007) 230 CLR 500.

   [59] At page 512 [34]: Fleming, The Law of Torts, 9^th edition (1998) page 676.

10. The High Court held that:-

    “the question is whether the prosecutor had reasonable and probable cause to do what he (she) did; not whether, regardless of the prosecutor’s knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and subjective aspect.”[60]

    [60] (2007) 230 CLR 500 at [38].

11. This is the basis upon which I am required to make assessment of the actions of the second defendant based upon the assertions made against her by Elliott.

12. The plurality also addressed the question of the requirements to successfully proceed in respect of malicious prosecution and held[61] as follows:-

    “[54] It is on this basis that the tort has hitherto been understood as requiring proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). The two requirements meet the two different kinds of case posited in Johnston v Sutton – maliciously taking up a prosecution “for real guilt”, and proceeding upon apparent guilt from circumstances which the prosecutor “really believes”. That is, the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort. A conclusion about malice does not render irrelevant the enquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution (my emphasis).

    [55] For immediate purposes, it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word “malice”. It also suffices to refer for the moment to what the prosecutor “made” or “should have made” of the available material without pausing to explore what is meant by those expressions.

    [56] …Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously “for example because of animus towards the person accused” and the prosecution fails, an action for malicious prosecution should not lay where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper and would have been objectively assessed as warranting the laying of a charge.”

    [61] Ibid at [54], [55] and [56].

13. I conclude from what was said by the High Court that what is involved here is a twofold test. The first part is a requirement to positively prove malice on the part of the prosecutor or prosecuting authority. The second part is a requirement to prove the negative of an absence of a reasonable and probable cause to bring the prosecution. This is an objective test and to be measured by the view that may be formed by the (at arm’s length) ordinary bystander.

14. In A v New South Wales[62] the High Court then considered the concept of malice separately from the question of reasonable and probable cause in prosecuting a crime. The plurality held:-

    [62] (2007) 230 CLR 500 at page 530, paragraphs [88] et seq.

    “[88] Malice

    There remains for separate consideration the question of what will constitute malice. When it is said that malice is demonstrated by showing that the prosecutor acted for purposes other than a proper purpose of instituting criminal proceedings, what kinds of extraneous purpose suffice to show malice?

    [89] Fleming rightly said[63] that malice has proved a slippery word in the law of torts. It will be recalled that Lord Davey in the passage of his speech in Allen v Flood[64] set out earlier in these reasons, have spoken of the law giving protection to prosecutors even where there is no reasonable or probable cause for the prosecution, but losing that protection “if the person abuses his privilege for the indulgence of his personal spite”. To the same effect, Fleming said[65] of the use of the word “malice” in relation to this tort that:

    “at the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aide in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale if the proceedings also happen to be destitute of reasonable cause”

    “Malice” in malicious prosecution is a separate element of the tort. It is to be contrasted with “malice in law” – what Kitto J described[66] citing Shearer v Shields[67] as “the unlawful intent which is present whenever an injurious act is done intentionally and without cause or excuse”.

    [90] No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism – like, absence of reasonable cause is evidence of malice[68], but malice is never evidence of want of reasonable cause[69] – may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated.

    [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique motive”.[70] That improper purpose must be the sole or dominant purpose actuating the prosecutor.[71]

    [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant[72] and to stop a civil action brought by the accused against the prosecutor.[73] But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution – a purpose other than a proper purpose.”

    [63] Fleming, The Law of Torts, 9^th ed (1988) p685.

    [64] [1898] AC 1 at 172-173.

    [65] Fleming, The Law of Torts, 9^th ed (1988) p685.

    [66] Trobridge v Hardy (1955) 94 CLR 147 at 162.

    [67] [1914] AC 808 at 813, 814, 815.

    [68] Varawa v Howard Smith Co Limited (1911) 13 CLR 35 at 100 per Isaacs J: “The want of reasonable and probable cause is always some, though not conclusive, evidence of malice”.

    [69] Johnston v Sutton (1786) 1 TR 510 at 545 per Lord Mansfield and Lord Loughborough: “from the most expressed malice, the want of probable cause cannot be implied”.

    [70] Gibbs v Rea (1988) AC 786 at 804.

    [71] Trobridge v Hardy (1955) 94 CLR 147 at 162 per Kitto J; cf Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ.

    [72] Glinski v McIver [1962] AC 726.

    [73] Springett v London and South-Western Bank (1885) 1 TLR 611.

15. In this matter, in order for Elliott to succeed on the first limb it is necessary for him to prove that the prosecutor had a purpose, identifiable as the sole or dominant purpose which could be identified as one other than the proper invocation of the criminal law. This is properly to be understood as a difficult test to fulfil but that (difficulty) is consistent with the proper administration of justice. It emphasises again the necessity for the independence of the decision makers of the prosecutorial authority. The illegitimate or oblique nature and thus purpose must be identifiable as one other than a proper purpose.

16. The Court then went on to make two further observations about the element of malice that, in my opinion, are pertinent to this matter. The plurality held at paragraph [93] as follows:-

    “[93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion.[74] Secondly, the reference to “purposes other than a proper purpose” might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.”

    [74] cf Gibbs v Rea [1998] AC 786 at 804 per Lord Goff of Chieveley and Lord Hope of Craighead dissenting as to the result of the appeal in that matter.

17. The plurality then went on to conclude at paragraph [95] as follows:-

    [95] However, this does not warrant any conclusion that a failure to take account of relevant considerations, or a taking account of irrelevant considerations, would necessarily constitute malice for the purposes of this tort. The tort of malicious prosecution is a private law remedy that is not available to all who have been prosecuted unsuccessfully. It is available only upon proof of absence of reasonable and probable cause and pursuit by the prosecutor of some illegitimate or oblique motive.”

18. These paragraphs are relevant because of the requirement that in a consideration of the test and of malice I may not stray into a discussion of what may be thought to be analogous principles and remedies. I am required to keep at the forefront of my consideration the fact that the malice is a tort of distinctive character. Analogous discussion can be misleading and may shift focus from the two aspects of malice that are required to be proved.

    Acting without reasonable and proper cause

19. In A v New South Wales[75] the High Court dealt with this aspect of the matter from paragraphs [60] onwards and I have already made references to a number of those paragraphs. At paragraph [64], the plurality of the Court referred to the test as laid down by Jordan CJ in Mitchell v John Heine[76] where his Honour said that there were five conditions to be met if a person was to have reasonable and probable cause for prosecuting another for an offence as follows:-

    “(1) The prosecutor must believe that the accused is probably guilty of the offence.

    (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt not upon mere imagination or surmise.

    (3) The information whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed him to be true.

    (4) This belief must be based upon reasonable grounds.

    (5) The information possessed by prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.”

    [75] Supra.

    [76] (1938) 38 SR (New South Wales) 466 at 469.

20. At paragraph [64], the plurality said, after setting out the five tests above, as follows:-

    “[64] …To succeed on the issue of reasonable and probable cause, the plaintiff had to establish “that one or more of these conditions did not exist.””[77] (Emphasis added).

    Jordan CJ continued:-[78]

    “This, he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds.”

    [77] Ibid at 469.

    [78] Ibid at 469.

21. The plurality then contrasted the five conditions stated by Jordan CJ with what was said by Dixon J in Sharpe v Biggs[79] that there must at least be some belief on the part of the prosecutor that the probability of the accused’s guilt is sufficient to warrant a charge being brought against him and this would constitute reasonable and probable cause. The requirement of reasonable and probable cause would not exist in the event that even though the prosecutor believed that reasonable probable cause existed having regard to the materials before the prosecutor, in the mind of a man of ordinary prudence and judgment was of the view that such reasonable and probable cause did not exist. In Commonwealth Life Assurance Society Limited v Brain[80] it was a matter for the Court’s judgment whether, objectively speaking, the “grounds which actuated him sufficed to constitute reasonable and probable cause” could be identified by the trier of facts.

    [79] (1932) 48 CLR 81 at 106.

    [80] (1935) 53 CLR 343 at 383.

22. After further comparing the decision of Jordan CJ in Mitchell v John Heine and the decisions of Dixon J in Sharpe v Biggs and Commonwealth Life Assurance Society Limited v Brain the plurality held at [66] as follows:-

    “[66] The better view is that the five conditions stated by Jordan CJ may provide guidance about the particular kinds of issue that might arise at trial in those cases where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either, that the prosecutor did not believe the accused to be guilty, or that the prosecutor’s belief in the accused’s guilt was based on insufficient grounds. The five conditions were not, and could not have been, intended as directly or indirectly providing a list of elements to be established at trial of an action for malicious prosecution. It would be wrong to understand them in that way. As Jordan CJ said, a plaintiff had to have established that one or more of those conditions did not exist. And, as will later be explained, the five conditions stated by Jordan CJ should not be understood as completely or exhaustively describing what will constitute a reasonable and probable cause.”

23. In my view, it is apparent that the High Court were not prepared to enter into some form of declension of the meaning of what may constitute reasonable and probable cause. That approach is consistent with the matters that I have already discussed above and reemphasised that the danger in stating a list of categories is that it is always incomplete and the matters to be included in such categories will vary according to the facts.

1. It is not necessary for me to address the third element because there is no doubt that police officers are public officers.[97] The fourth element, the discharge of public duty, is relevant only to the extent that a duty must be owed by the holder of the office to the relevant plaintiff as a member of the public not to commit the act in question. No such duty is disclosed here and in fact, to the contrary, in my opinion, Elliott had committed an offence for which he should have been prosecuted and he was prosecuted. In my opinion, no case to the contrary could be made out by him.[98]

   [97] Farrington v Thomson [1959] VR 286.

   [98] See Tampion v Anderson (No.2) [1973] VR 715 at 720.

2. On the fifth element of loss, in my opinion, there is no loss made out on the evidence that I have heard from Elliott or on any pleadings lodged by him.

   The “no case to answer” submission

3. I then turn to the two relevant aspects of the no case to answer submissions. The first was the defendants’ submission that they should not be put to their election because the submission is one of law that the evidence of Elliott, even if accepted at its highest, was insufficient in law to make out a prima facie case of support for any one of the causes of action pleaded in the Statement of Claim. There is no need to evaluate the credit of witnesses or the weight to be attached to their evidence.[99] The further submissions of the defendants were that as the six individual police officers had been named as defendants, it would put the defendants to considerable costs, expense and inconvenience for those persons to be called to the Court and give evidence and that should not occur unless and until the merits of Elliott’s case has been ruled upon.[100]

   [99] Preston v Dowell (1987) 45 SASR 111 at 116; Compaq Computer Australia Pty Ltd at [7]-[8]; Tru Floor Service Pty Ltd v Jenkins (No.2) (2006) 232 ALR 532 at [27]-[35].

   [100] Compaq Computer Australia Pty Ltd at [9]; Tru Floor Service Pty Ltd v Jenkins (No.2) at [27]-[35]; Australian Securities and Investment Commission v Healey (2011) 196 FCR 291 at [539].

4. Importantly, the defendants point to the serious nature of the allegations and contend that they should not be required to call evidence or submit themselves to cross examination if a sufficient case (or at least prima facie case) of wrong doing has not been established against them. This must be assessed in light of the weakness of Elliott’s case.

5. On the question of election the usual starting point is the decision of Perry J in Residues Treatment and Trading Co Limited & Anor. v Southern Resources Limited & Ors. (Southern Resources).[101]

   [101] (1989) 52 SASR 54.

6. Perry J was required to consider a number of the authorities to that point concerning the question of election. Two of the several parties that had moved the no case submission contended that their clients should not be put to an election. It is not necessary to explore the factual circumstances of that matter. It is sufficient that I set out hereunder, the summary of the position within the judgment of Perry J. At page 68 of the report his Honour said:-

   “In my opinion, the evident good sense in the proposition that, generally speaking, a trial judge should not take a course which could result in him being obliged to review the evidence twice, once before the defendant has called any evidence and again after further evidence has been called, should lead to recognition of the general rule in the terms in which it has clearly been identified in other jurisdictions.

   That is not to say that there is no reason to put counsel to their election if the submission of no case to answer may be advanced in a manner disengaged from any review of the evidence. But that is not the case here.

   As to that aspect of the matter it seems to me that there are primarily four situations in which a submission of no case to answer may be made. They are:

   1.   Where no reference at all to the evidence is required.

   2.   Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.

   3.   Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the causes of action pleaded.

   4.   The situation where it is contended that although there is some evidence to support the plaintiff's claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant…

   As to category 1, this should normally be argued on the pleadings, preferably before the trial commences. No question of election arises in that situation. Likewise, consideration of a submission of no case to answer in category 2 should not involve an election.

   As to categories 3 and 4, these situations should normally be met by the application of what I have referred to as the general rule that counsel should be called upon to elect.

   …

   Before leaving the question of the situations in which a submission of no case to answer may be made, I should say that it seems to me that some confusion has arisen by the use of the expression “question of law”. It has sometimes been suggested that no election should be required if the consideration of the submissions is confined to a question of law.

   But the adequacy of the evidence to support the plaintiff's case is always a question of law. I think it better to say that if consideration of the submission of no case to answer involves the need to evaluate the evidence, other than simply to identify an hiatus of the kind referred to in example 2 above, the moving party should normally be put to his election.”

7. Reference should be made in particular to the form of expression used by Perry J when considering the categories and whether an election should be made. His Honour deliberately used the expression “normally” when considering whether a party should be called upon to elect. In my opinion, his Honour has deliberately used the expression “normally” because it reflects the fact that a trial Judge will always have a discretion in these matters and general rules stated broadly will never interfere with such a discretion.[102]

   [102] Sundberg J in Tru Floor Services Pty Ltd v Jenkins (2006) 232 ALR 532 at [25]: “[25] …But there is one guideline more powerful than any others, namely that the discretion is to be exercised in the light of the facts and circumstances of the particular case.” See also Sundberg J at [28], [29], [30] and [31].

8. I have already stated earlier in these reasons that the proposition put by the defendants at first instance was that they should not be put to their election. The defendant submitted as follows: “both the causes of action of malicious prosecution and that of misfeasance in a public office required proof of malice. The defendant should not be required to call evidence or submit themselves to cross examination if a sufficient case (or at least prima facie case) of wrongdoing has not been established against them (case reference omitted). Further, the overwhelming weaknesses in the plaintiff’s case to be highlighted below in the substantive submissions, indicate that the defendant should not be put to election (citations omitted).”[103]

   [103] The no case submission here relates to all of the causes of action pleaded against the defendants so that the action will not proceed and be completely disposed of if the submission is successful (defendant’s submissions on no case to answer paragraphs 15, 16 and 17).

9. Arguendo, I raised with Mr Golding for the defendant the fact that the first 5 exhibits in the proceeding were tendered both before Elliott made any submissions in opening or, during the time that Elliott was cross examined. I expressed concern to Mr Golding about the question of election (and the interrelationship between the question of election and evidence tendered in cross examination) because of a concern I had about exhibit D2 which was the police prosecution file. I reiterate that the police prosecution file was not before the learned Magistrate at the time she made her decision and in particular the contents of page 66 was not known by the learned Magistrate notwithstanding that it was available to the prosecutor, the second defendant.

10. In my opinion, the position in relation to defendants who tender documentary material or other evidence in cross examination and then made a no case to answer submission is neatly summarised in the decision of the Full Court of the Federal Court of Australia[104] in Rasomen Pty Ltd v Shell Company of Australia Limited.[105]

    [104] Von Doussa, Drummond and Finn JJ.

    [105] (1997) 75 FCR 216.

11. In that case the appellant pleaded a case in contract and promissory estoppel concerning a franchise agreement. It was alleged that the franchise agreement was entered into with the fuel company in January 1998 concerning a Shell service station at Golden Grove. The fuel company obtained the right to operate that service station in October 1995 under the relevant State legislation. There appears to have been no significant challenge to the evidence on which Rasomen Pty Ltd (Rasomen) relied and at the close of Rasomen’s case, the fuel company submitted that the case should be dismissed because there was no case to answer. The trial Judge, Branson J, ruled in favour of the fuel company but did not require the fuel company to make any election to call no evidence. Her Honour made a ruling that there was no evidence which could support a finding of contract or of conduct sufficient to ground a promissory estoppel in the terms pleaded by Rasomen.

12. One of the issues that arose was the question of whether or not the fuel company had gone into evidence. At page 224 et seq of the report of the Full Court said as follows:-

    “It was further contended that the trial Judge erred in exercising the discretion not to require the respondent to elect because the respondent “had gone into evidence”. The respondent had not embarked upon its case in defence when the submission of no case was made. However the appellant contends that because several exhibits had been tendered by the respondent in the course of cross-examining the appellant's witnesses, this fact required the respondent to be put to its election.”

13. The members of the Full Federal Court in Rasomen referred to the decision of Tadgell J in Protean (Holdings) Limited (Receivers and Managers appointed) & Ors. v American Home Assurance Co.[106] where his Honour said that an invitation to the trial Judge to entertain a submission of no case to answer may be made after the moving party has called some but not all of his evidence. These were matters of discretion and are consistent with the forms of expression used by Perry J in Southern Resources.

    [106] [1985] VR 187 (at 237).

14. In the judgment in Rasomen, at page 225,[107] the Full Court said as follows:-

    “There is no general rule that requires that a party seeking to make a submission of no case must elect to adduce no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination.

    In a particular case, the fact that the respondent has taken steps of this kind will be one of the circumstances to be taken into account in the exercise of the discretion. In the present case the nature and importance in the case of the respondent's exhibits, in our view, were of no significance in the exercise of the discretion. The appellant's submissions are directed to three exhibits. The first is a composite street directory map showing the positions of the several service stations referred to in the appellant's evidence. Individual street maps, and the addresses of the service stations, had already been put into evidence by the appellant. The composite document produced by the respondent added no new relevant information (my emphasis). Secondly, the respondent tendered a copy of the transcription of the meeting on 22 December 1987 during cross-examination, but an agreed copy of the transcript had already been placed in evidence by the appellant. Thirdly, as part of a cross-examination of Mr Reichstein directed to a question of credit, the three affidavits of officers of the respondent were tendered for the limited purpose of identifying information known to Mr Reichstein at the time when he swore an affidavit for the purpose of the hearing of the application for an interlocutory injunction. The affidavits were not tendered as proof of the facts asserted in them, and they were not referred to by counsel for the respondent in the course of the no case submission. Contrary to the submission made on the appellant's behalf to this Court, we are satisfied that the affidavits were not part of the evidentiary material relied on by the trial Judge when considering and ruling upon the no case submissions.”

    [107] 75 FCR 216 at 225.

15. I referred the decision of the Full Federal Court in Rasomen to counsel for the defendants for further consideration because the matter that concerned me was the content of the police prosecution file (exhibit D2) and in particular page 66 of that file that was now before me but was not before the learned Magistrate. I reiterated that in my view, one way or the other, page 66 of exhibit D2 assumed particular importance in this matter and that, in those circumstances I asked the defendants to reconsider their position in relation to the question of election.

16. Upon further consideration, counsel for the defendants informed me that the defendants each made an election not to call any evidence. I will therefore consider the no case submission on that basis.

    The determination of the no case submission

17. It is not my role to decide whether the evidence before me (treating it in the most favourable way to Elliott as the respondent to the submission) permitted the inferences to be drawn in favour of the affirmative defences filed on behalf of the defendant.[108] Applying the approach of Tadgell J in Protean, a distinction is to be made between a case where the no case submission is that there is no evidence at all in support of the respondent party’s case and one where it is that, although there is some evidence to support it, the Judge should not act on it because for example, it is so unsatisfactory or inherently unreliable or equivocal that he should find that the burden of proof resting on the respondent party has not been discharged. In Protean Tadgell J said at (at 239):-

    “If a Judge sitting alone receives a submission of the second kind and decides to rule on it, whether the moving party is put to or makes his election or not, he must be entitled in doing so to assess the quality of the evidence.  Were it otherwise the Judge, being the tribunal of fact, would be placed in an impossible position: he would have to assess the validity of the case for the respondent party without being able to assess the worth or weight of the evidence led in support of it.  It has been said that ‘when there is no jury, the proposition ‘no case to answer’ may obviously mean far more than, ‘is there evidence on which a jury could find for the plaintiff?’  It merely means, would you, the Judge, on the evidence given, find for the plaintiff?’”

    [108] Tru Floor Services Pty Ltd v Jenkins (supra) at [37].

18. My answer to the question posited by Tadgell J in respect of this matter is no. My reasons follow.

19. I have already discussed the alleged tort of negligent prosecution/negligent investigation. I am satisfied that these alleged torts are unknown to the common law. I am also satisfied that the ordinary common law tort of negligence does not operate in the circumstances of this case. The same position pertains to the Civil Liability Act provisions. If I am wrong about that matter, there is no evidence before me to justify any assertion of a duty owed or any breach of a duty, or on any question of causation or on any loss that might have been suffered. I agree with the submission of the defendants that Elliott’s claim in that respect must fail as a matter of law.

20. On the issue of malice or malicious prosecution, I am satisfied for the reasons already discussed that no case could be made out against the third to seventh defendants. The only potential defendant was the second defendant who was the police prosecutor and who prepared the prosecution for trial. She appeared as the prosecutor at the trial and the first defendant, the State of South Australia has admitted vicarious liability for her actions. The only connection between the trial and the third to seventh defendants is that they provided evidence for the prosecution case. I am satisfied that there is no evidence to suggest that there was any false evidence given by any of the third to seventh defendants or that they in any way attempted to influence the prosecutor to bring the proceeding by in some way dishonestly prejudicing the judgment of the prosecutor.

21. Turning then to the position of the second defendant, the two aspects of malice and acting without reasonable cause must be proved by Elliott. For the reasons that I have already discussed there is no evidence to disclose that the sole or dominant purpose influencing the prosecution was a purpose other than the proper invocation of the criminal law. There was no illegitimate or oblique motive. In fact there is no evidence of any nature on those topics led by Elliott in the action on this matter. There are a number of assertions, a number of reconstructions and unfounded conclusions drawn from unconnected facts but these do not constitute evidence or material from which an inference could be drawn.

22. As I have already explained, the test of acting without reasonable cause is a negative: it is for Elliott to prove that the prosecutor did not act with reasonable and probable cause. A very high standard of proof is required including proof of the second defendant’s actual belief in instituting the original proceeding. Merely because the learned Magistrate was of the opinion that there was an evidentiary gap in the case put by the second defendant as prosecutor does not and cannot mean that the negative test of acting without reasonable cause has been satisfied and there is no evidence at all of the second defendant’s actual belief in and about the institution of the proceedings.

23. On the question of misfeasance in public office, it is my judgment that none of the relevant elements as identified in the decision of Deane J in Northern Territory v Mengel[109] have been satisfied. There is no evidence that the prosecutor was engaged in any invalid or unauthorised act. The same may be said of all of the second to seventh defendants and my comments that follow are apposite in relation to all defendants. There is also no evidence that there was any act of the defendants which was done maliciously in the purported discharge of his or her public duties and which caused loss or harm to Elliott. For the same reasons as I have outlined above, no malice has been proved or could be proved in my opinion against the second to seventh defendants and certainly no loss or harm has been caused to Elliott.

    [109] (1995) 185 CLR 307 at 370.

24. In those circumstances, it is my judgment that the defendants succeed in their no case to answer submission applying the tests outlined by Finkelstein J in Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6 that I have set out in paragraph [73] of these reasons. In the view that I have formed, the case brought by Elliott is hopeless, it is unsupported by any relevant evidence and was always doomed to fail.

25. The formal Orders are that the plaintiff Elliott’s claim will be struck out. I will hear the parties as to costs and consequential Orders.