Irving v Pfingst - [2020] QSC 280

SUPREME COURT OF QUEENSLAND

CITATION: Irving v Pfingst [2020] QSC 280
PARTIES: TERRY IRVING
(Plaintiff)
v
HELEN MAREE PFINGST
(First Defendant)
THE STATE OF QUEENSLAND
(Second Defendant)
FILE NO/S: BS 234 of 1999
DIVISION: Trial Division
PROCEEDING: Trial
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 10 September 2020
DELIVERED AT: Brisbane
HEARING DATE: 11, 12, 13, 14, 15, 19, 20, 21 November 2019 and 6 February
2020
JUDGE: Brown J
ORDER: The order of the Court is that:

1. The plaintiff’s claim is dismissed.
2. The parties provide submissions as to costs within 7
days of the delivery of judgment.

CATCHWORDS:

TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – GENERALLY – where first defendant
arrested plaintiff for accessory after the fact for an armed

robbery on 18 May 1993 – where two other armed robberies occurred in in late-1992 and mid-1993 – where plaintiff
contends first defendant abused process in taking body

samples – where plaintiff contends first defendant mislead court during bail application – where plaintiff contends first defendant did not honestly believe guilt of accessory charge –
whether reasonable and probable cause in prosecuting
accessory charge – whether first defendant actuated by motive
other than proper invocation of criminal law in prosecuting
accessory charge

TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – GENERALLY– where first defendant
arrested plaintiff for the armed robbery on 25 May 1993 –
where plaintiff contends exculpatory evidence omitted from

evidence – where plaintiff contends first defendant gave false evidence at committal – where plaintiff contends first defendant only made inculpatory evidence into statements –
where plaintiff contends first defendant embellished and

manipulated evidence to strengthen case – whether first defendant prosecutor in maintaining armed robbery charge –
whether reasonable and probable cause in prosecuting armed
robbery charge – whether first defendant actuated by motive
other than proper invocation of criminal law in prosecuting
armed robbery charge

TORTS – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT – GENERALLY – where plaintiff was arrested for accessory to armed robbery – where plaintiff imprisoned for three days prior to a bail application – where magistrate denied bail – whether there was lawful justification
for imprisonment

Beckett v State of New South Wales (2013) 248 CLR 432,
cited
Briginshaw v Briginshaw (1938) 60 CLR 336, considered
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136,
cited

A v State of New South Wales (2007) 230 CLR 500, followed considered
McFadzean v Construction, Forestry, Mining and Energy

Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466,
followed
Myer Stores Ltd v Soo [1991] 2 VR 597, considered
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67
ALJR 170, considered
Nguyen v Cosmopolitan Homes [2008] NSWCA 246,
considered

Unit [2007] 20 VR 250, cited considered
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, cited

Seabrook v Asher [2006] QCA 238, considered
Skrijel v Mengler [2003] VSC 270, considered
Transport Industries Insurance Co Ltd v Longmuir [1997] 1
VR 125, considered
Trobridge v Hardy (1955) 94 CLR 147, considered
Watson v Foxman (1995) 49 NSWLR 315, cited

Sahade v Bischoff [2015] NSWCA 418, considered followed
COUNSEL: G Mullins and E Gass for Mr Irving
K Mellifont QC, S McLeod QC and M Wilkinson for the
Defendants
SOLICITORS: Maurice Blackburn for Mr Irving
The Crown Solicitor for the Defendants

CONTENTS
Introduction ........................................................................................................................ 5

Applicable legal principles ................................................................................................. 7

Malicious prosecution ................................................................................................ 7
The prosecutor ................................................................................................... 7
Favourable Termination of the Proceedings ..................................................... 9
Absence of Reasonable and Probable Cause .................................................... 9
Subjective test .................................................................................................. 11
Objective test ................................................................................................... 12

False imprisonment .................................................................................................. 15

The standard of proof ...................................................................................................... 17

Mr Irving’s submissions .......................................................................................... 17
Legal principles ........................................................................................................ 19
The passage of time and credibility ......................................................................... 22

Witnesses called ................................................................................................................ 24

The investigations relevant to the Accessory Charge .................................................... 24

Mr Irving’s evidence ................................................................................................ 28
Cindy Parker interviews and photographs of Mr Irving ........................................ 29
Ongoing investigations ............................................................................................ 31
Arrest of Mr Irving and 17 May 1993 conversations in Atherton and Cairns ...... 32
17 May 1993 Corridor Conversation and the watch house .................................... 47

The Accessory Charge ...................................................................................................... 56
First bail application ........................................................................................................ 57
Body Samples .................................................................................................................... 61

Conclusions as to the first alleged malicious prosecution ............................................. 63

Was the first defendant a prosecutor? ..................................................................... 64
Was the prosecution terminated in favour of Mr Irving? ...................................... 64
Absence of Reasonable and probable cause ........................................................... 65
Evidence in support of the charge ........................................................................... 66
Malice ....................................................................................................................... 72

Subsequent events leading to second alleged malicious prosecution ........................... 75

Second Bail Application ........................................................................................... 77
Photo board evidence ............................................................................................... 78
Photoboard ............................................................................................................... 80
Photoboard evidence and shirt identification by the bank officers ........................ 80
Evidence of Ms Adkin, Ms Redgen and Ms Oastler ............................................... 81
Ms Adkins ........................................................................................................ 81
Ms Redgen ....................................................................................................... 84
Ms Oastler ....................................................................................................... 84
Ms Pfingst ........................................................................................................ 85
Consideration .................................................................................................. 86

Evidence post 25 May 1993 .............................................................................................. 91

Mr Keith Kerr ........................................................................................................... 91
Mrs Ann Kerr ........................................................................................................... 92
Ms Andrews .............................................................................................................. 95
Ms Lovell .................................................................................................................. 96
Identification evidence consideration ..................................................................... 98

Evidence withheld ............................................................................................................. 99

Ms Paynter ................................................................................................................ 99

Ms Pfingst’s evidence at committal hearing ................................................................ 101

Criminal Justice Commission evidence ........................................................................ 104

Admissibility of transcript ............................................................................. 105

Operation 3UP ................................................................................................................ 108
Ms Pfingst did not give evidence at the District Court trial ....................................... 116

Other matters .................................................................................................................. 119

Withholding of tapes and transcripts. ................................................................... 119
Recording of interviews with Mr Irving ................................................................ 120
Remaining matters ................................................................................................. 121

Conclusions as to the second alleged malicious prosecution ...................................... 121

Was Ms Pfingst the prosecutor? ............................................................................ 121
Termination of the prosecution in favour of Mr Irving ....................................... 125
Was there an absence of reasonable and probable cause? .................................. 125
Malice ..................................................................................................................... 129

Credit findings ................................................................................................................ 134
False imprisonment ........................................................................................................ 135
Conclusions ..................................................................................................................... 136
Orders .............................................................................................................................. 138

Introduction

An armed bank robbery took place at the ANZ Bank in Cairns (the Bank) on 19 March 1993 (the Robbery). On 18 May 1993 Terry Irving, the Plaintiff, was charged with being Accessory after the fact in relation to the Robbery (the Accessory Charge). That charge was withdrawn. On 25 May 1993, Mr Irving was subsequently charged with the offence of armed robbery in relation to the Robbery (the Armed Robbery Charge). Ms Pfingst, the First Defendant, was the officer in charge of that investigation. She was a Detective Senior Constable with the Cairns CIB at the time. Mr Irving was committed for trial in October 1993. On 8 December 1993, he was convicted of one count of armed robbery by a jury in the District Court in Cairns. He was sentenced to eight years imprisonment, inclusive of 7 months already spent in custody.
Mr Irving’s appeal to the Queensland Court of Appeal in 1994, which was dismissed.
In August 1997, his special leave application was heard before the High Court, at which time the High Court ordered legal aid be provided to Mr Irving and that Ms Pfingst provide an affidavit explaining her absence from the District Court trial.
In December 1997, the High Court ordered that Mr Irving be granted special leave to appeal, that the appeal be heard instanter and the appeal be allowed. The Crown conceded before the High Court that it was difficult to contend that what occurred was a fair trial.[1] The Crown characterised the error as arising from to a combination of factors, the principal of which was that the summing up by the learned trial judge
misled the jury.[2] No reasons were given by the High Court. Mr Irving’s conviction
was quashed and a new trial was ordered. On 2 October 1998, he was advised that the Crown would be entering a nolle prosequi on the Armed Robbery Charge, which was subsequently entered into on 25 January 1999. Mr Irving remained in custody from the time of his arrest on 17 May 1993 until his release in December 1997.
[1] Exhibit 1 at 378.
[2] Exhibit 1 at 378. Brennan CJ however, referred to other matters giving rise to misgivings about the circumstances of the case, particularly the photoboard identification evidence, including the Crown not calling Ms Pfingst and the Court being misinformed about her condition.
As a result of the termination of the proceedings against Mr Irving in respect of the Accessory Charge and Armed Robbery Charge, Mr Irving contends that Ms Pfingst is liable for damages for two malicious prosecutions and false imprisonment. The State of Queensland is the Second Defendant, and is alleged to be vicariously liable for the actions of Ms Pfingst. The Defendants deny any liability. The Court must determine whether Mr Irving has established either claim.
Mr Irving issued these proceedings in 1999. The proceedings have been much delayed with the latest statement of claim being the Seventh Further Amended Statement of Claim filed on 4 September 2019 (7FASOC). The delay cannot be attributed solely to Mr Irving’s conduct of his case.[3] The hearing of the matter before me occurred

some 26 years after the events in question. That delay inevitably took a toll on the
[3] A previous hearing in 2018 had to be abandoned after a number of days hearing.
recollection of witnesses.

Mr Irving pleaded some 61 particulars to support his allegations.[4] His case is largely a circumstantial one. In his opening, counsel for Mr Irving stated that Mr Irving would prove 21 evidentiary events to prove the state of mind of Ms Pfingst and demonstrate
an absence of reasonable and probable cause. Mr Irving’s counsel stated that he would
rely on those 21 evidentiary events from which the Court would be asked to draw inferences from the facts proved about those evidentiary events, that Ms Pfingst did not subjectively believe that there was a proper case for either prosecution. Alternatively, Mr Irving contends that Ms Pfingst had an insufficient basis for pursuing the prosecutions in that a person of ordinary prudence and caution, knowing all the facts that were known to Ms Pfingst, would not have believed that it was an appropriate case for prosecution. As to malice, Mr Irving contends that Ms Pfingst pursued the Accessory Charge in order to keep him in custody and build a case against him in relation to a charge or charges of robbery. Mr Irving further contends that, because of the harassment to which Ms Pfingst was exposed in the Cairns CIB, she was driven to pursue a case of armed robbery that was not appropriate to prosecute in order to get a feather in her cap and to prove herself to other officers in the Cairns CIB.
[4] 7FASOC at [50].
Clearly the fact that Mr Irving’s conviction for armed robbery was set aside by the
High Court demonstrates that errors were made in his prosecution. He also suffered from changes to his defence team. However, the present case seeking to make Ms Pfingst bear liability for the malicious prosecutions is not well founded and I have not found any claim to have been established.
I will therefore address the following matters in order to determine the dispute between the parties:

(a) The relevant legal principles with respect to malicious prosecution and false imprisonment;
(b) The nature of the investigation and the standard of proof;
(c) The investigations carried out leading to Ms Pfingst laying the Accessory Charge, which is the subject of the first alleged malicious prosecution (the First Alleged Malicious Prosecution), in which I make findings of fact;
(d) Whether the Defendants are liable for the First Alleged Malicious Prosecution. In particular:
(i) Whether the First Alleged Malicious Prosecution was instituted without reasonable and probable cause;
(ii) Whether there was malice in the circumstances in which the First Alleged Malicious Prosecution was instituted and/or maintained;

(e)

The investigations carried out leading to Ms Pfingst laying the Armed Robbery Charge, which is the subject of the second allegation of malicious prosecution (the Second Alleged Malicious Prosecution), in which I make findings of fact;
(f) The events after the Armed Robbery Charge was instituted;

(g)

Whether the Defendants are liable for the Second Alleged Malicious Prosecution. In particular:

(i)

Whether Ms Pfingst was a prosecutor for not only instituting the prosecutions but maintaining them;

(ii)

Whether the Second Alleged Malicious Prosecution was instituted without reasonable and probable cause;

(iii)

Whether there was malice in the circumstances in which the Second Alleged Malicious Prosecution was instituted and/or maintained;

(h)

Whether Mr Irving was falsely imprisoned, which was not actively pursued in this hearing; and
(i) What the relevant damages are in the event the Court determines that Mr Irving is successful in establishing either or both the First Alleged Malicious Prosecution and Second Alleged Malicious Prosecution were malicious.[5]
[5] The parties agreed that, in the event that the Court dismissed the claim in its entirety, the Court was not required to determine what damages would have been if Mr Irving had been successful.

Applicable legal principles
Malicious prosecution

In order to succeed in an action for damages for malicious prosecution, Mr Irving must establish that:

(a) the criminal proceedings, were instituted or maintained by Ms Pfingst against Mr Irving, such that she can be relevantly regarded as the prosecutor of the proceedings;
(b) the proceedings terminated in his favour;
(c) Ms Pfingst, in initiating or maintaining the criminal proceedings, acted maliciously; and
(d) the prosecution was commenced or maintained without reasonable or probable cause.

The first, third and fourth elements are the subject of some dispute in these proceedings. The second element is not in issue between the parties in relation to either of the alleged malicious prosecutions.
Commonly, courts consider reasonable and probable cause before considering malice and I will adopt the same approach in this decision.[6]
[6] Bailey v Director-General, Department of Natural Resources [2015] NSWCA318 at [17] per Basten JA.
The prosecutor

The High Court relevantly in, A v State of New South Wales (A’s Case),[7] noted that:
“The identification of the appropriate defendant in a case of malicious
prosecution is not always straightforward. ‘To incur liability, the
defendant must play an active role in the conduct of the proceedings,
as by 'instigating' or setting them in motion’.” (footnotes omitted)
[7] (2007) 230 CLR 500 at [34].
It follows that for the Defendants to be liable, Mr Irving must show that Ms Pfingst was the prosecutor of the criminal proceedings, either because she was the actual prosecutor or because she was instrumental in initiating and later maintaining the
proceedings. In order to be a “prosecutor” relevant to the tort of malicious
prosecution, Ms Pfingst need not be the “prosecutor” in the formal sense. Holmes J
(as her Honour then was) in Seabrook v Asher,[8] observed that:
[8] [2006] QCA 238 at [12].
“[12] Malicious prosecution is an action for “setting the criminal law
in motion”. It has long been established that a defendant to such
an action need not be the prosecutor in a formal sense:
‘… the law looks beyond theory and regards the person
in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge
…’
Provision of information to investigating authorities in good faith cannot occasion liability, but
‘… if the [prosecutorial] discretion is misled by false
information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought
about the prosecution are responsible.’” (footnotes
omitted)
Gleeson JA (with whom Basten JA and Beech-Jones J agreed) in Sahade v Bischoff,[9] referred to:
“The common feature in the authorities is the requirement that the
defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was
known to be false.”
[9] [2015] NSWCA 418 at [121].
Nettle J in Skrijel v Mengler:[10]
“…being ‘actively instrumental’ means either instituting or continuing
the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding
as to be regarded as really taking that action through them.”
[10] [2003] VSC 270 at [200].
As was noted by Fullerton J in Wood v State of New South Wales (Wood),[11] the
question is of some importance since, as the High Court noted in A’s case:[12]
“For the reasons explained by the House of Lords in Glinski v
McIver, justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he 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 a subjective aspect.”
[11] [2018] NSWSC 147 (Wood) at [580].
[12] A’s Case at [38].
Fullerton J also referred to the decision of Brook LJ (with whom other members of the House of Lords agreed) in Mahon v Rahn (No 2),[13] where his Honour paraphrased the passage from Lord Keith in Martin v Watson,[14] as a series of tests.
[13] [2000] 1 WLR 2150.
[14] [1996] 1 AC 74 at 84.
The Defendants do not dispute that Ms Pfingst was the prosecutor of the criminal proceedings, insofar as she was responsible for the laying of the charges. The Defendants, however, contend that after the laying of the charges, the matter was in the hands of the Queensland Police Service (QPS) and the Director of Public Prosecutions (DPP), such that Ms Pfingst ceased to maintain the prosecution in any sense relevant to a malicious prosecution action. Mr Irving, however, contends that
Ms Pfingst’s role was significantly greater than that, and that she was the prosecutor
for the purposes of maintaining the proceedings. Mr Irving further contends that Ms Pfingst was the only person who had comprehensive knowledge of all of the evidence and, to a large extent, it was evidence that was withheld, rather than that which was produced that was significant. Mr Irving also contends that she was actively involved
in the prosecution after committal and beyond Mr Irving’s sentencing.
Favourable Termination of the Proceedings
Mr Irving must show that the proceedings of which he complains have been terminated in his favour. The termination of prosecution proceedings by the entry of a nolle prosequi is sufficient to establish that the proceedings have been terminated in favour of Mr Irving.[15]
[15] Beckett v State of New South Wales (2013) 248 CLR 432.
As stated above there is no issue that the criminal proceedings arising out of Accessory Charge and the Armed Robbery Charge were both terminated in favour of Mr Irving.
Absence of Reasonable and Probable Cause
In Mitchell v John Heine & Son Ltd,[16] (John Heine) Jordan CJ identified five conditions which must be satisfied for a prosecutor to have reasonable cause, namely:
[16] (1938) 38 SR (NSW) 466 at 469.

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 by him to be true;
4. This belief must be based on reasonable grounds; and

5.

The information possessed by the 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.

In A’s Case, the majority emphasised that, in relation to malicious prosecution, the
plaintiff must establish a negative, namely the absence of reasonable and probable cause in an action for malicious prosecution. That would depend on the forensic nature of the case being considered, particularly whether it is a private or public prosecution.
In the case of malicious prosecution, it is for the plaintiff to prove that one or more of those conditions did not exist. The conditions referred to by Jordan CJ in John Heine were not however intended to, directly or indirectly, provide a list of elements to be
established at the trial of an action for malicious prosecution.[17] The High Court in A’s
Case noted that the conditions identified by Jordan CJ were more apt to where the prosecutor had personal knowledge of the facts rather than relying on third party material.
[17] At [66].
In A’s Case, the High Court commented on the forensic difficulty of proving a
negative. The High Court stated that:[18]
“It is important to recognise that, in an action for malicious
prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate
the negative question — whether the defendant prosecutor acted without reasonable and probable cause — into the different question
— what will constitute reasonable and probable cause to institute
criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise.
Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by
inference and, if the defendant gives evidence, by cross-examination.”
(emphasis in original)
[18] A’s Case (2007) 230 CLR 500 at [60]–[61].
The absence of reasonable and probable cause can be established by satisfying a subjective test or the objective test (or both), namely:[19]
[19] A’s Case at [77].

(a) That Ms Pfingst, as prosecutor, did not “honestly believe” the case that was
instituted or maintained (the subjective test); or

(b)

That Ms Pfingst, as prosecutor, had no sufficient basis for such an honest belief (the objective test).

The majority in A’s Case said that in order to decide whether or not the prosecutor
did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways: [20]
[20] A’s Case at [58] and [70]. The former enquiry is subjective and the latter is objective.

(a) What did the prosecutor make of it?
(b) What should the prosecutor have made of it?

The relevant time to consider the question is when the prosecution was commenced, or when the prosecutor is alleged to have maintained the prosecution.[21] The High Court majority noted the temporal dimension necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light.[22]
[21] A’s Case at [59] and [77].
[22] A’s Case at [59] and [77].
In A’s Case, the majority recognised that the absence of reasonable and probable
cause will not be established in every case where the prosecutor had no positive belief that the accused person was, or was not, probably guilty. In particular, the majority
in A’s Case stated that where a police officer prosecutes a person on the basis of
statements by third parties, there are evidential difficulties in applying the test of reasonable and probable cause which would be satisfied by demonstrating only that the subjective state of mind of the prosecutor fell short of a positive persuasion of guilt. That would often not be consistent with what should desirably be the objective assessment and analysis of material provided by others.[23]
[23] A’s Case at [73].
The High Court summarised the relevant approach to be:
“Where a prosecutor has not personal knowledge of the facts
underlying the charge but acts on information received the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell
short of a positive persuasion of guilt. …it is whether the plaintiff
proves that the prosecutor did not honestly form the view that there was a proper case for prosecution or proves that the prosecutor formed
the view on an insufficient basis.”[24]
[24] A’s Case at [118].
Subjective test
Where a prosecutor relies on third party material a relevant question in determining whether the subjective test is established in respect of the absence of reasonable and probable cause will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion.[25]
[25] A’s Case at [80].
The majority stated that in deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In that regard, the High Court stated:[26]
“In particular, if the prosecutor was shown to be of the view that the
charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not
established.”
[26] A’s Case at [80].
In order to prove a subjective absence of reasonable and probable cause, Mr Irving must establish that, at the time the proceedings were instituted or maintained against him, Ms Pfingst did not honestly believe or conclude that there were reasonable grounds to justify prosecuting him. Given Ms Pfingst largely relied upon third party
material, a relevant question is whether an examination of Ms Pfingst’s state of
persuasion as to the sufficiency of the evidence as warranting setting the criminal process against Mr Irving in motion, shows that she did not honestly conclude that such material warranted the initiation of a criminal prosecution.[27]
[27] Wood at [239].
In the absence of some admission by Ms Pfingst, Mr Irving must make the case that the subjective test has been established by inference and by cross-examination.[28]
[28] A’s Case at [61].
Objective test
As to the objective aspect of reasonable and probable cause, the question for the court
to decide is whether “the grounds which actuated the [prosecutor] suffice to constitute
reasonable and probable cause”.[29] The High Court noted that the objective element is
sometimes couched in different terms such as, by reference to the “ordinarily prudent and cautious man placed in the position of the accuser” or “whether a reasonable man
might draw the inference, from the facts known to him, that the accused person was guilty”.[30] Regardless of the formalisation, the High Court stated that what is plain is
that the appeal is to an objective standard of sufficiency.[31]
[29]           A’s Case at [82].
[30]           A’s Case at [83].
[31]           A’s Case at [84].
The majority noted that the question is ultimately one of fact and the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient upon the material upon which the prosecutor acted in instituting or maintaining the prosecution. That is an assertion which may depend upon evidence demonstrating a further inquiry should have been made.[32]
[32] A’s Case at [85].
Importantly, the absence of reasonable and probable cause is not demonstrated by showing only that there were further enquiries that could have been made before a charge was laid.[33] The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case.[34]
[33] A’s Case at [86].
[34] A’s Case at [87].
In Wood, Fullerton J stated that[35]:
“The objective test for an absence of reasonable and probable cause
will be met where, in the Court’s assessment, a prudent and cautious
prosecutor in the prosecutor’s position would not have come to that
view, there being insufficient grounds for it.”
[35] Wood at [235]. The New South Court of Wales dismissed the appeal ([2019] NSWCA 313), indicating that there was no dispute her Honour had correctly identified the relevant legal principles.
As to the prosecution being without reasonable or probable cause, Mr Irving alleged that:

[36] 7FASOC at [50].
[37] 7FASOC at [50].

(a) Ms Pfingst did not honestly believe, based on information and evidence in her possession, or on reasonable grounds, that Mr Irving was guilty or likely to be found guilty of the charges as executed and maintained;[36] or
(b) A person of ordinary prudence and caution could not have honestly believed, based on the information and evidence in the possession of Ms Pfingst or on reasonable grounds that Mr Irving was guilty or likely to be found guilty of the charges as instituted and maintained.[37]

The plaintiff’s formulation in (a) above mixes the subjective and objective, however
counsel for Mr Irving, in their closing submissions adopts the formulation in A’s
Case.
Maliciously instituted or maintained the prosecution
In A’s Case, the High Court described malice “as acting for purposes other than a
proper purpose of instituting criminal proceedings”.[38]
[38] A’s Case at [55].
The High Court in A’s Case explained that:

“[89] Fleming rightly said that “‘[m]alice’ 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 set out earlier in these reasons, had spoken of the law giving protection to prosecutors even where there is no reasonable and probable cause for the
prosecution, but losing that protection “if the person abuses his
privilege for the indulgence of his personal spite”.
….
[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, but malice is never evidence of want of reasonable cause — 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”. That improper purpose must be the sole or dominant
purpose actuating the prosecutor.
[92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. 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…
[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. 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.” (emphasis added and
footnotes omitted)

The element of malice therefore requires a focus upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.[39]
[39] A’s Case at [93].
Malice may be proved by showing what the actuating purpose of the prosecution was
and that it was not a proper purpose. It may also be demonstrated by the “indirect”
route namely, “proving that the conduct is not to be explained by the existence of a
right motive”. The indirect route of establishing malice was recognised by Kitto and
Taylor JJ in Trobridge v Hardy[40] adopting the judgment of Cave J in Brown v Hawkes, whereby malice could be proved by showing that the circumstances are such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. In the present case, Mr Irving relies on both routes to establish malice.
[40] (1955) 94 CLR 147.

In A’s Case, the High Court majority commented that the organisational setting in
which a decision to prosecute is decided could be of factual importance in deciding the issue of malice.[41] In particular, the High Court stated that it may be more difficult to prove malice in a case of a prosecution instituted in a bureaucratic setting where the prosecutor’s decision is subject to layers of scrutiny and to potential review.[42]
[41] A’s Case at [41].
[42] A’s Case at [42].
Mr Irving alleges that Ms Pfingst was actuated by malice or improper purpose amounting to malice in bringing and maintaining the Accessory Charge and the Armed Robbery Charge by reason of:

(a) The matters set out in the particulars in [50] of the 7FASOC relied upon in respect of the lack of reasonable and probable cause;
(b) Ms Pfingst seeking to improve her reputation as a detective in the Cairns Criminal Investigation Bureau (Cairns CIB);
(c) Her endeavour to secure a conviction in an operation described as Operation 3- UP;
(d) Her endeavour to obtain kudos or recognition within the Cairns CIB for obtaining a conviction in respect of the Robbery; and
(e) The context of her arresting, causing to be restrained in custody and obtaining the conviction of Mr Irving, ensuring a term of several years of imprisonment.

The Defendants in the present case contend that Mr Irving’s case has not risen above

conjecture or suspicion, given that the inferences sought to be drawn by Mr Irving are
not available on the evidence.
False imprisonment

Mr Irving pleads that he was falsely imprisoned by Ms Pfingst and the State of Queensland from the time of his arrest until the time of his first bail application on or about 20 May 1993. This allegation was not the subject of submissions by Mr Irving, although it was not formally abandoned.
The essence of the tort of false imprisonment is compelling a person to stay at a particular place against their will.[43] Mr Irving must prove the imprisonment. Any total restraint of the liberty of the person by confinement is an imprisonment.[44]
[43] McFadzean v Construction, Forestry, Mining and Energy Unit [2007] 20 VR 250 at [41].
[44] Myer Stores Ltd v Soo [1991] 2 VR 597.
To establish false imprisonment, it is not necessary that there be actual force involved. An arrest which initiates detention may be effected without the application of any force or violence, but may nonetheless attract damages if the other elements of the tort are made out.[45] Mr Irving does not need to establish malice or any improper motive on the part of the alleged tortfeasor in order to establish false imprisonment. The imprisonment must, however, be intentional.[46]
[45] Nye v State of New South Wales & Ors [2003] NSWSC 1212 (Nye) at [28].
[46] Ferguson v The State of Queensland [2007] QSC 322 at [13].
The imprisonment must be directly caused by the Defendant.[47] If imprisonment is proved, it is for the Defendant to prove a lawful justification for the imprisonment in order to escape liability.[48] The usual defence to an action for false imprisonment is that the Defendant has not acted unlawfully because the arrest was authorised or justified by law.[49]
[47] Ruddock v Taylor [2003] 58 NSWLR 269 at [30].
[48] Carnegie v The State of Victoria (unreported, VSC, Full Court, No 998 of 1976, 14 September 1989) referred to by Lyons J in Ferguson v The State of Queensland [2007] QSC 322 at [14].
[49] Ferguson v The State of Queensland [2007] QSC 322.
A period of false imprisonment which arises from wrongful arrest commences with the arrest of the Plaintiff, but will not extend beyond a decision by a Magistrate to remand a person in custody. Being remanded in custody as a result of the decision of a Magistrate is a judicial act and no liability can be attached to the police officers for that.[50]
[50] Nye at [33].
At the time Mr Irving was arrested, s 546 of the Criminal Code Act 1899 (Qld) provided that, to be a lawful arrest, the police officer must believe on reasonable grounds that an offence had been committed, and that any person has committed it. The police officer must make it plain to the person being arrested that they are under arrest.[51] The police officer must also, if practicable, give notice of the cause of arrest to the person arrested.[52]
[51] Dellit v Small; Ex parte Small [1978] Qd R 303.
[52] Criminal Code Act 1899 (Qld) sch 1 (Criminal Code), s 255(2) as it then was in 1993.
The learned author of “Flemming’s The Law or Torts” explains the distinction
between false imprisonment and malicious prosecution as follows:[53]
“False imprisonment arising from an improper arrest of a suspect bears
a resemblance to the tort of malicious prosecution, which consists in maliciously and without reasonable and probable cause instituting a groundless criminal prosecution. The distinction between them lies in
whether the restraint of the plaintiff’s liberty is directly imposed by
the defendant, acting either personally or by his or her agent, or whether there is interposed the exercise of an independent discretion. A person who brings about an arrest by merely setting in motion the formal process of law, as by making a complaint before a justice of the peace or applying for a warrant, is not liable for false imprisonment, because courts of justice are not agents of the prosecutor and their acts are not imputable to the informer. There is liability, if at all, only for the misuse of legal process by procuring an arrest for an improper purpose, for which the appropriate remedy is an action for malicious prosecution. This rule provides a valuable protection against liability for mere error in the course of legal
proceedings.” (emphasis in original and footnotes omitted)
[53] 10th Ed, J. G Fleming, (2011), The Law Book Company Pty Ltd, Sydney at 40.
The standard of proof
False imprisonment and malicious prosecution both involve the abuse of power.[54] A finding as to either has serious consequences.
[54] Nye at [8].
The allegations made against Ms Pfingst as to the carrying out of her duties while she was a police officer are very serious. It was accepted by both parties that the principles in Briginshaw v Briginshaw[55] applied in the present case. There is some disagreement, however, as to when those principles should apply.
[55] (1938) 60 CLR 336.
Mr Irving’s submissions
As stated, Mr Irving relies upon 21 evidentiary facts from which he contends
inferences should be drawn[56] about Ms Pfingst’s state of mind. In particular, it is said
[56] Some of these are directly pleaded, while others reformulate what is pleaded.
these events demonstrate that Ms Pfingst was embellishing and manipulating evidence, omitting exculpatory evidence and gave misleading evidence from which it is to be inferred that she knew the case against Mr Irving was weak and that she did not honestly believe that such material warranted the initiation of the prosecution. Mr Irving also relies on inadequacies in the evidence to contend there was insufficient evidence for the prosecution and that the absence of reasonable and probable cause is established on the basis of the objective test. In summary,[57] Mr Irving contends that:
[57] In a number of cases, multiple circumstances are relied upon and inferences are asked to be drawn.

(a)

That on 19 March 1993, a description was obtained of the Robber and checks were made of a criminal history of Mr Irving and references made to a previous conviction for an armed hold-up and that Ms Pfingst strongly suspected him of committing the Robbery;

(b)

That on 17 May 1993, Ms Pfingst and Mr Sturgess went to the Commonwealth Bank and arrested Mr Irving and conversations occurred at Atherton and on the return journey to Cairns, which were the subject of contemporaneous notes written by Ms Pfingst and Mr Sturgess that night (the Laptop Notes). The Laptop Notes are in some respects disputed by Mr Irving, which he contends were secretly recorded and doctored by Ms Pfingst, and further that the tapes were not disclosed. That is said to be supported by other instances where Mr Irving was not informed of the recordings and an expert opinion;

(c)

That a conversation occurred on the way from the Cairns CIB to the Cairns watch house where Ms Pfingst indicated that she was going to ensure he was convicted;

(d)

That Mr Irving was charged with the Accessory Charge when Ms Pfingst believed that he was the Robber;

(e)

That an application for body samples obtained was made by Ms Pfingst on 19 May 1993 pursuant to s 259 of the Criminal Code, which is said to have been brought to establish that he was the Robber and where subsequent events cast
doubt upon Ms Pfingst’s credit;

(f)

That there was an incorrect criminal history relied upon in the objections to bail document and the evidence of witnesses is said to be overstated, which are said to be embellished, by Ms Pfingst in the objections to bail document and court
brief to strengthen the Crown’s case;

(g) That there had been non-disclosure of Operation 3UP, which was formed on 18 May 1993 by the Cairns CIB to investigate three robberies in Cairns of the National Australia Bank (NAB) in December 1992 and May 1993 and the Bank. Mr Irving contends that there were 11 similarities between of the robber in the 1992 NAB robbery and the Robbery. Mr Irving contends that he was not linked to the other NAB robberies and that it should be inferred that a prosecutor would say it was not a proper case for prosecution given the likelihood of the same person having committed the robberies and that the information was improperly held;
(h) That Ms Pfingst had undisclosed visits with Cindy Parker, Mr Irving’s former
partner, in which either Ms Pfingst or other police officers obtained
photographs of Mr Irving;
(i) That photographs were shown to witnesses by Mr Hogan and Officer Reid, said to be the photographs taken by Ms Parker and those witnesses later viewed the photoboard, which Ms Pfingst must have known about;

(j) That there was a strengthening of identification evidence of both a shirt, owned by Mr Irving said to have been worn in the Robbery, and arising out of a photoboard between the record of interview and the statement when prepared;
(k) That statements from witnesses who did not identify the shirt and/or Mr Irving on the photoboard were not prepared by Ms Pfingst, from which it is said it is to be inferred that Ms Pfingst stopped investigating and was only pursuing evidence to convict Mr Irving and not evidence that was exculpatory;
(l) That Ms Pfingst overstated evidence in the second bail application to strengthen the case against bail being granted;
(m) That there was an absence of a statement from Carla Paynter and Ms Pfingst
stated at the committal that Ms Paynter had not seen the Robber’s face when
there were circumstances from which it is to be inferred she would have;

(n) That Ms Pfingst gave false evidence at the committal hearing to bolster the prosecution case;
(o) That Ms Pfingst did not attend at the District Court trial in order to avoid giving evidence and being exposed for manipulating evidence; and
(p) That Ms Pfingst did not provide a fulsome affidavit to the High Court in order to ensure that the full story was yet again, not revealed to Mr Irving.

Some of the matters ultimately submitted were not pleaded nor was Ms Pfingst cross- examined about them, which will be dealt with below.
Mr Irving bears the onus of proving each of the elements of malicious prosecution and false imprisonment. In the case of malicious prosecution that includes proving a
negative, “the absence of reasonable and probable cause”, which is generally

regarded as more difficult than proving a positive and will usually be established by
[58] Nye at [9].
inference.[58]
Legal principles

The relevant standard of proof is the civil standard, namely the balance of probabilities. Given the nature and seriousness of the allegations, the principles in Briginshaw v Briginshaw,[59] will apply. Dixon J in Briginshaw v Briginshaw,[60] stated:
“Except upon criminal issues to be proved by the prosecution, it is
enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the
reasonable satisfaction of the tribunal. In such matters, ‘reasonable
satisfaction’ should not be produced by inexact proofs, indefinite
testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of the two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral
delinquency.”
[59] (1938) 60 CLR 336.
[60] (1938) 60 CLR 336 at 361- 362.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[61] (Neat Holdings) the majority elaborated on the statement by Dixon J in Briginshaw as follows:
“The ordinary standard of proof required of the party who bears the
onus in civil litigation in this country is proof on the balance of probabilities. That remains so even when the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statement often been made to the effect that
clear or cogent or strict proof is necessary ‘where so serious a matter
as fraud is to be found’ Statements to that effect should not, however,
be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil
litigation has been guilty of such conduct….”
[61] (1992) 67 ALJR 170 at 170–171.
Counsel on behalf of Mr Irving takes issue in relation to the Defendant’s application
of the Briginshaw test, insofar as the Defendants had considered whether each of the factual matters relied upon by Mr Irving had been established and in some cases contended that given the serious nature of the fact which Mr Irving seeks to prove that the Briginshaw standard would apply. Counsel for Mr Irving submits that his case is circumstantial and that the Court should only consider the effect of the facts relied upon cumulatively in determining whether the relevant element of the tort, or the ultimate fact, is established and only at the point the Court should apply the Briginshaw principles.
Mr Irving submitted that the proper approach was set out in the decision of Transport Industries Insurance Co Ltd v Longmuir (Longmuir),[62] where the Victorian Court of Appeal warned against the danger of compartmentalising facts in a circumstantial case. In particular in that case, in determining whether the ultimate fact that the respondent lit the fire had been proved, Winneke P stated:[63]
“The task of the learned judge was to consider the weight of the
culmination of facts proved to his satisfaction and then to determine whether the combined weight of those facts and circumstances supported the inference, as a matter of probability that the respondent lit the fire. The onus of proof is only to be applied at the final stage of the reasoning process. It is erroneous to divide the process into stages and at each stage apply some particular standard of proof. To do so
destroys the integrity of the circumstantial case.”
[62] [1997] 1 VR 125, particularly the statements by Winneke P.
[63] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 (Longmuir) at 129.
The above was referred to with approval by Ward J in In the matter of Idyllic Solutions
Pty Ltd – Australian Securities Investment Commission v Hobbs.[64] In that case, her
Honour also referred to Ipp J (with whom Tobias and Basten JJA agreed) in Palmer v Dolman[65] where his Honour stated that:
“The more recent authorities to which I have referred, and s 140 of the
Evidence Act (1995) (NSW) make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,
has the allegation been proved on a balance of probabilities.”
[64] [2012] NSWSC 1276 at [1533].
[65] [2005] NSWCA 361 at [47].
I accept that the above approach is generally correct and will adopt that approach. However, as is evident from the statement of Winneke P, the Court must still be satisfied of individual facts relied upon which are in issue before determining whether their cumulative effect supports the inference sought to be drawn. In the present case, some of the circumstances relied upon to raise a more probable inference in favour of what is alleged are serious allegations, such as the giving of false evidence. The serious nature of an allegation is still a relevant consideration to which the Court will have regard in order to determine whether it is reasonably satisfied, on the balance of probabilities, of the occurrence of an event or existence of a fact in issue, based upon the evidence presented to prove the facts that is consistent with the statement of the majority of the High Court in Neat Holdings referred to above. Ultimately little turns upon the application of Briginshaw to the facts in the present case.
Mr Irving seeks to have the Court draw inferences based on circumstantial evidence. O’Keefe J in Nye v The State of New South Wales (Nye)[66] discussed when inferences could be legitimately drawn from circumstantial evidence as opposed to speculation, stating:[67]
[66] [2003] NSWSC 1212.
[67] Nye at [140]–[141].
“…In Luxton v Vines (1952) 85 CLR 352 Dixon, Fullagar and Kitto JJ
said:
‘The test to be applied in determining … whether circumstantial
evidence sufficies to support a finding … was restated recently
by this court in Bradshaw v McEwans Pty Ltd ((1951) unreported) and for the purposes of this case it is enough to set
out the following passage from the judgment: ‘Of course as far
as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the
choice between them is a mere matter of conjecture … But if
circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be
regarded as a mere conjecture or surmise’
The distinction between a legitimate inference on the one hand and conjecture on the other is often difficult to determine. This is recognised in the cases, the more important of which have been authoritatively gathered together by Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262. Although that case was concerned with a question of causation and arose in the context of an appeal from the Dust Diseases Tribunal, nonetheless the principles concerning the distinction between conjecture on the one hand and inference on the other are of general application; causation as a fact to be proved, can, like any other fact that requires proof, be established by a process of inference. Spigelman CJ with whom Davies AJA agreed, said:
‘The law in Australia is, in my opinion, as stated by Glass JA in
this court in Fernandez v Tubemakers of Australia Ltd [1975] 2
NSWLR 190 at 197:
“… The evidence will be sufficient if, and only if, the
materials offered justify an inference of probable connection. This is the only principal of law. Whether its requirements are met depends upon the evaluation of the
evidence.”
It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division.
Nevertheless, the distinction exists……
The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, eg, Luxton v Vines (1952) 85 CLR
352 at 358.” (footnotes omitted)

McDougall J (with whom McColl JA and Bell JA agreed) in Nguyen v Cosmopolitan Homes[68] considering the discharge of proof neatly summarised the position:[69]
[68] [2008] NSWCA 246.
[69] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55].
“The position may be summarised as follows:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the
probabilities of the fact’s existence are greater than the
possibilities of its non-existence, the burden of proof on the
balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the
existence of the fact in issue.”

However, the present case, in a number of respects, is not a circumstantial case. There was direct evidence in relation to some matters in issue which were the subject of evidence-in-chief and cross-examination and it is a matter of whether the Court accepts that evidence or not. In other respects, the circumstances relied upon by Mr Irving to support his case must be weighed against the direct evidence of Ms Pfingst and others.
The passage of time and credibility
Significant time has passed since the events which form the relevant factual basis for the causes of action before me.
It is appropriate to bear in mind the dictum of McLelland CJ in Eq from Watson v Foxman:[70]
“Furthermore, human memory of what was said in a conversation is fallible
for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human
experience.”
[70] (1995) 49 NSWLR 315 at 319.
The present case is not one simply of a credit contest between Mr Irving and Ms Pfingst, however, there are some matters in issue which turn upon findings of credit. Lord Pearce’s dissent in Onassis v Vergottis[71] is useful to bear in mind regarding
[71] [1968] 2 Lloyd’s Rep 403.
some of the factual disputes in the present case. Lord Pearce stated:[72]
[72] Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431.
[71] “‘Credibility’ involves wider problems than mere ‘demeanour’ which is
mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or
incontrovertible facts and probabilities must play their proper part.”
As Keane J in Camden v McKenzie[73]stated:
[73] [2007] QCA 136 at [34].
“The rational resolution of an issue involving credibility of a witness
will require reference to and analysis of any evidence independent of the parties which is apt to cast light on the probabilities of the
situation.”
In that respect, it may be relevant for the Court may also have regard to the failure of a witness to make a complaint in assessing their credibility.[74]
[74] Hintze v Tsering [2018] NSWSC 1190.
Witnesses called
Mr Irving gave evidence at this trial and was subject to extensive cross-examination. Ms Birchley, the scientific officer at the Cairns CIB at the time of the investigation was called by Mr Irving in relation to conversations that she had with Ms Pfingst and evidence given to the CJC. Mr Kelly, of the CJC, gave evidence as to the record of interview with Ms Pfingst. Mr Hogan, who was a plain clothes detective senior constable at Cairns CIB at the relevant time, gave evidence as to his involvement in the investigation.
Ms Pfingst was called on behalf of the Defendants and was subject to lengthy cross- examination. Mr Sturgess, who was a Detective Sergeant at the Cairns CIB after being promoted and transferred from Mareeba Police Station on the day of the Robbery , gave evidence of his attendances with Ms Pfingst and his subsequent appearance at the District Court trial. Mr Hartwell, who was acting officer in charge of the Cairns CIB at the time of the investigation and put Ms Pfingst in charge of the investigation into the Robbery, also gave evidence in relation to the set up within the Cairns CIB in relation to investigations.
Detective Senior Sergeant (DSS) Kinbacher, who was a detective senior constable in the Cairns CIB at the time of the investigation of the Robbery, also gave evidence. He attended with Ms Pfingst on Ms Parker and was also the investigating officer in charge of the investigation of a robbery at the NAB in Hannam Street in Cairns on 8 December 1992.
Expert opinions were admitted as evidence in respect of a linguistic analysis of the Laptop Notes made by Ms Pfingst and Mr Sturgess by Dr Heydon,[75] which is the subject of some controversy. Opinions were obtained from Dr Chalk and Dr De Leacy, who gave evidence as to the extent of the injury suffered by Mr Irving as a result of his imprisonment, which was largely the subject of agreement.
[75] Subject to rulings of admissibility made by me.
The Defendants have raised, particularly in the context of allegations that Ms Pfingst influence witnesses in the course of giving their statements, that none of the witnesses were called by Mr Irving and it was open for the Court to draw a Jones v Dunkel inference. Mr Irving however submitted that no such inference should be drawn as
the witnesses were not in either party’s camp. The Defendants ultimately submitted

that the Court should consider the matter in the context of whether Mr Irving has met
the evidential threshold.
The investigations relevant to the Accessory Charge

The Robbery occurred on 19 March 1993. Ms Pfingst was then a Detective Senior Constable in the QPS. She had significant experience, having joined the police force in October 1980. Although she had previously dealt with serious crimes, such as rapes and fraud, the Robbery was the first time she had been a primary investigator for an armed hold-up offence. Mr Hartwell, Ms Pfingst and several other Cairns CIB officers attended the ANZ Bank (the Bank) on 19 March 1993 in response to the report of the armed robbery. Ms Pfingst was made the primary investigator for the investigation. A number of other officers were also involved in the investigation.
Ms Pfingst sought the Bank’s security tape. It was subsequently ascertained that the
Bank’s security camera was not operating at the time of the Robbery and no footage
of the Robbery or photographic evidence was obtained. Therefore the only identification of the robber that could be made was by witnesses who had seen him on that day. Ms Pfingst spoke to three bank officers: Ms Adkins, Ms Redgen and Ms Oastler. Only one person was said to have entered the Bank (the Robber). Descriptions of the Robber were taken by Ms Pfingst from those bank officers. Ms Pfingst did not take formal witness statements on that day, but did so the following day. Mr Hogan took a statement from Keith Kerr[76] and Mr Cooper, who was a detective sergeant in the Cairns CIB at the time, took a statement from Ann Kerr[77] later in the day on 19 March 1993.
[76] Exhibit 1 at 156.
[77] Exhibit 1 at 178.
In her statement of 23 June 1993, Ms Pfingst stated that upon her arrival at the Bank, she spoke to three female tellers and they told her some things. She stated that she had obtained a description of the male who had robbed the Bank and she broadcast it over the police radio. She also obtained details of the vehicle seen leaving the block of units and broadcast the registration number over the police network, which was 682BUI.[78] In cross-examination, she clarified that she had broadcast that information over the police network.
[78] Exhibit 1 at 122.
Witnesses who had followed the Robber after he had left the Bank provided information relating to the description of the Robber and registration details of a vehicle suspected to be involved in the Robbery. Mr and Mrs Kerr worked in a nearby
takeaway business known as “Ginger and Pickles”. According to the statement of Mr
Kerr, he had followed a male with Ms Adkins, the Manager of the Bank, and his wife. He had seen the male walking into a set of units on Kidston Street. He then saw him come out of those units and run into another set of units on Kidston Street. He then
saw a grey coloured sedan leaving that unit block at speed, with the male person “that
I previously had followed lying across the back seat”.[79] He made a mental note of the
[79] Exhibit 1 at 157.
registration number of the vehicle as 682BUI. In his statement of 19 March 1993, Mr Kerr described the person he followed as a male with a brightly coloured long sleeve shirt made up of different colours and had a dark pair of trousers on. The person had a dark complexion. The driver of the vehicle was said to be in his early 20s and of fair complexion.
Mrs Kerr described the male on the basis that she saw him both before and after the Robbery. Mrs Kerr described the male as approximately six feet tall with dark hair tied up in a ponytail, with a dark hat on, a multi-coloured shirt and long, dark coloured pants. She described the driver of the grey vehicle as male, fair hair and in his early 20s. She saw a set of grey coloured or dark coloured trousers on the rear seat of the vehicle as it drove away. She took the registration of the vehicle as 682BUI.
A Running Sheet was maintained by the Cairns CIB for the Robbery. Different officers made entries on in relation to work they had undertaken in the investigation. Ms Pfingst stated she would have created that Running Sheet (ANZ Running Sheet).[80] She stated that if her name is in brackets after an entry, she would not have typed it. If there were no brackets, then she would have typed it.[81] Item 4 of the Running Sheet[82] for 19 March 1993 stated:
[80]           Exhibit 2; T7-57/47 – T7-58/6.
[81]           T7-58/1-87.
[82]           Exhibit 2.
“DECSCRIPTON: Australian, 20’s, olive complexion, 6’, black hair
with a 6” pony tail. Wearing a long sleeve pastel shirt with cark grey
trousers, medium build, shoes (description unknown.) Had a black beret on his head (pony tail later seen to fall from under beret) a dark grey scarf/handkerchief tied around his face under the eyes and reaching down to chest level. Carrying a pale yellow vinyl bag. It was seen that he had small curls at the base of his neck. He was wearing a pair of sunglasses.
(PFINGST)”
On 19 March 1993, point 6.7 of the ANZ Running Sheet had an entry “All computer
checks in all states. Has previous for armed hold ups in NSW. Not wanted in any
other states pervious [sic] for fraud in SA.”[83] That would appear to refer to the
[83] Exhibit 2 at 1.

criminal history of Mr Irving, although the entry does not appear to be made by Ms
Pfingst.

A further entry was made on 19 March 1993 which stated:

“8. Inquiries made with Cindy PARKER of 45 Best St. Advised they broke up some 3 months ago no info re current
whereabouts. KINBACHER”

On 20 March 1993, a number of entries were made in the ANZ Running Sheet which
referred to “the suspect”.[84]
[84] Exhibit 2.
Ms Pfingst took a statement from Ruth Oastler, one of the bank officers on 20 March 1993.[85] She described the male who robbed the Bank to be about six feet tall, medium build, olive complexion and black hair. He had an Australian accent.[86] According to
[85] Exhibit 1 at 175.
[86] Exhibit 1 at 175 – 176.
her, he had a dark grey men’s handkerchief covering his face and it came up to
underneath his eyes and down into a peak below chin level. She saw he had sunglasses on, a pastel shirt with a yellow and black pattern on it, and a pair of trousers. She saw
the shirt had long sleeves. She thought the trousers were “like a faded black colour”.
He was carrying a large faded yellow vinyl bag. She stated that she saw him pull the scarf down as he walked out of the bank, which must be a reference to the handkerchief earlier described.
Ms Pfingst took a statement from Julie-Anne Redgen on 20 March 1993, the day following the Robbery.[87] In that statement, Ms Redgen described the Robber as about
[87] Exhibit 1 at 171.
“six foot tall, medium build, olive complexion, black hair” and stated she saw “little
curls on the base of his neck”.[88] She was sure he had an Australian accent. She
[88] Exhibit 1 at 172.
described him as having a dark grey men’s handkerchief covering his face, which
came up underneath his eyes and down to a peak below his chin. She noticed a black
cap “or something” on his head. He was wearing gold ringed sunglasses, a grey long-
sleeved shirt with black orange, red and yellow swirls through it, and a pair of trousers. He was carrying a large faded yellow vinyl bag. She saw him put the gun into the bag as he exited and pull the scarf down and turned right and walked along Hartley Street. She saw Ms Adkins also going down the street.
Ms Pfingst also took a statement of Marjory Adkins on 20 March 1993.[89] Ms Adkins was the Manager of the Bank. She saw that the male had a mask over his face, but he had pushed it up high so that it came below his eyes. She stated it came into a peak at
[89] Exhibit 1 at 163.
chest level. She described him as “six foot tall, medium build, olive complexion,
black hair” with an Australian accent.[90] She noticed a black beret on his head. She
[90] Exhibit 1 at 163 – 164.
recalled he had sunglasses on, a peachy long-sleeved shirt with pink and purple swirls
through it and a pair of dark grey trousers. She described it as a “trendy style shirt”.
She stated he had dark shoes on. She stated he had a large faded yellow vinyl bag. She saw him pull the scarf down and put the gun into the bag as he exited and turned right along Hartley Street. She walked out after him and followed him along Kidston Street. She saw him pull the beret off his head and stick it in his bag when he was past a new set of flats. She said she saw his ponytail fall down onto his shoulders. When he got to a second set of flats, she stated that he saw her following him and started to run. She started to run as well and then saw Mr Kerr run past her. She saw the Robber run into the driveway of a third set of flats and then saw a small grey car coming out of the driveway. She could not see the driver.
A media release was issued with the registration number and a description of the Robber. Ms Pfingst was not responsible for the terms of that release. According to Ms Pfingst, she communicated the description of the Robber and the registration of the car via police radio,[91] to communications at police headquarters. Ms Pfingst stated that she was not responsible for the media release. That was up to the officer-in- charge to give the details to the media and they had a media liaison officer. Ms Pfingst had attended the Bank that day with Mr Hartwell who was the acting officer-in-charge at the time. Her evidence was not challenged in relation to how she had broadcast details of the Robbery and that she was not involved in the media release. To the
[91] T6-81/20-24; T6-82/4-8.
extent it is alleged, Ms Pfingst was responsible for a “broadcast” of the Robber that

he was six feet tall, aged in his early 20s, had an olive or dark complexion and had
black hair, it is unsupported by the evidence.[92]
[92] Cf 7FASOC at [50.14] and [50.15].

According to Ms Pfingst, as at 22 March 1993, she considered Mr Irving to be a person of interest. She agreed, however, that she had written an entry describing him as being a suspect.[93] She attributed the reference to the fact that the car suspected of being involved in the robbery was registered to Mr Irving. She, however, said that the
[93] Exhibit 2 at 2, T7-64/35-47.
use of “suspect” was probably a misuse of words.[94]
[94] T7-65/1-4.
A number of investigations were carried out up until 25 March 1993. Broadcasts were also made in relation to the wanted vehicle.[95] Ms Pfingst, in evidence, agreed that not much happened in the investigation between 25 March 1993 and 12 May 1993.[96]
[95] Exhibit 2.
[96] T7-66/16-24.
Inquiries made identified Mr Irving as being the owner of the vehicle with registration 682BUI. The car was registered to him at 45 Best Street, Yorkeys Knob.
Mr Irving’s evidence
Mr Irving gave evidence in this trial as to his whereabouts on the day of the Robbery.
Mr Irving was living at 307 Draper Street, Cairns at the time of the Robbery. He had broken up with his partner, Ms Cindy Parker in January 1993. The first night after his relationship with Ms Parker ended he had slept in his car after having too much to drink. He was subsequently charged with failure to supply a specimen of breath (which he says was due to him having asthma) and unlicensed driving. Mr Irving stated that he appeared in the Magistrates Court represented by Myles Thomson on 11 February 1993 and was due to appear again on 6 April 1993. He subsequently went and stayed with Frank Catelan at 307 Draper Street, Cairns.
According to Mr Irving, he had gone to the Oceanic Hotel on 19 March 1993 to procure some marijuana. He stated that he had lent his car to two individuals, Wayne and Allan in order for them to obtain some cannabis for him, after he had indicated he wished to purchase some. Wayne and Allan were gone for some time, described
as a few hours. Mr Irving had Wayne’s bag and keys as a surety. He played pool
while they were away. According to Mr Irving, Wayne and Allan had “just said they were waiting” to explain the length of time they were away. According to Mr Irving,
he was driving home from the Oceanic Hotel at about 5.00pm when he heard a report of the Robbery. Initially, when he heard the report and description of the Robber and vehicle involved in the Robbery over the radio, he did not associate it with his vehicle. It was only when he got out of his vehicle that it dawned upon him that the registration
that had been read over the radio was his car’s registration and he had to check the
RACQ card. He thought it was a mistake and did not think much more about it. He
stated that the description of the Robber given on the radio was “Filipino, early 20s,
skinny, long black hair and driving a purple Toyota.”[97] Given the description was of
[97] T1-61/17-21.

[574]    Mr Irving’s submission that the arrest and conviction would have bolstered Ms
Pfingst’s standing at the Cairns CIB in support of the fact she was motivated by
malice has little support. [566] While one would expect that a police officer would get some kudos for a conviction, Mr Hogan stated that a detective making an arrest for an armed robbery, where the person is ultimately convicted of armed robbery, would not in his view have assisted that officer getting ahead as a police offer, since it was
[566] Plaintiff’s submissions at [332].
more significant in becoming a detective.[567] Ms Pfingst’s evidence also reflected her
[567]         T5-23/23-39.
understanding that the arrest and conviction of Mr Irving would not aid any future promotion nor that she had pursued it to prove herself to the other officers in the Cairns CIB.[568]
[568]         T8-84/14-26.

While I consider that Ms Pfingst wished to be accepted and be a part of the Cairns CIB and to advance her career in the QPS, I consider that she wished to achieve that by showing the quality of her work. Ms Pfingst showed herself to be an intelligent person who valued her professionalism and professional reputation. That is consistent
with her evidence that she saw herself as “a hard-working police officer” and that she
“always adopted a professional attitude.”[569] When it was put to her that she would
[569]         T7-32/17-19.
have been embarrassed if Mr Irving had been acquitted of the Armed Robbery Charge, she denied it and questioned why she would be embarrassed.[570] That reflects an understanding of our justice system. In denying that she continued the prosecution
[570]         T8-84/23-25.
to further her career and prove herself to others in the Cairns CIB, she stated “That’s
not true. I had a number of cases going at the time and I don’t see that an armed
robbery is any more important than a common assault or a shoplifter or a rape case.
They’re all investigations that need to be done.”[571]
[571]         T8-84/14-19.
Overall, I found Ms Pfingst to be a calm, careful and considered witness who gave frank evidence, including stating that she did not recall certain matters which could have been favourable to her had she answered otherwise, indicating her honesty.[572] She was quite precise in the evidence that she gave. Notwithstanding the time that has passed, she could recall some matters providing detail that supported the recollection. She did not shy away from taking responsibility in relation to the investigation.[573] At times she was defensive in relation to the CJC investigation,
[572]         For example, T8-90/30-42.
[573]         T7-52/12-37.
however, that appeared to emanate from moral outrage. She explained that “I was troubled because I didn’t feel like I’d done anything wrong morally or as an
investigator and I didn’t see why I – I was shocked to be investigated at all”.[574] In that
[574]         T8-87/30-33.

regard she explained that the CJC turned up without warning. The suggestion that she
was being investigated for criminal charges came as a terrible shock to her.[575]
[575] T8-87/40-45.

Her recollection has been affected by the passage of time and also the fact that the running sheets she handwrote during the investigation had been largely lost.[576] When she stated that she could not recall details or events given the passage of time I found her answers were candid and she was not seeking to avoid answering questions. Her evidence was also corroborated by documentary evidence which showed her to be diligent in maintaining records, albeit a number have been lost over time such as the video tapes of her interviews.
[576] Exhibit 29.
I have no doubt that given the environment she was in, Ms Pfingst did fight very hard to become a part of the team at CIB Cairns. However, she is an intelligent woman, who I find was well aware of her ability as a police officer and would not have jeopardised her career by engaging in what is tantamount to misconduct, which could result her leaving the QPS in a state of disrepute. In that regard, I note that in her separation interview, in response to listing those aspects of her present position which
she liked most she stated, “Job satisfaction, like working with children at the JAB,
enjoy the experience and challenge. Worked hard at being a good example for junior
police officers.” [577]
[577] Exhibit 28.

[579] While Ms Pfingst considered that Mr Irving was a person of interest or suspect because on the basis of his car, her investigations reflected that she was not closed in her investigation and was following up different avenues early on and did not seek to charge Mr Irving until she had sufficient evidence linking him to the Robbery.

I accept the evidence that Ms Pfingst gave rejecting the matters put to her by Mr
Irving’s counsel as to her motivation.[578]
[578] T8-83 – T8-84.
While the fact that Ms Pfingst was not called to give evidence at the District Court
trial led, at least in part, to the High Court’s determination that Ms Irving’s conviction
should be set aside, those decisions lay with the Crown and also to a certain extent with the Defence who did not press for her to be called at the District Court trial nor did they seek an adjournment. I do not find that it was calculated behaviour by Ms Pfingst to avoid giving evidence. As set out above, I also have not found that the Corridor Conversation, which is said by Mr Irving to be consistent with his submission that she was pursuing and charging him to further her own career, did occur.
Given the findings that I have made and the objective evidence relied upon by Ms Pfingst to support the Armed Robbery Charge, I do not find any evidence to establish
that there was malice by the indirect route in proving that Ms Pfingst’s conduct is not
to be explained by the existence of a right motive.
Ms Pfingst rejected any ulterior motive in cross-examination. Even if I was satisfied that Ms Pfingst had omitted evidence that was favourable to Mr Irving in relation to the identification evidence, Ms Paynter, Operation 3 Up and Ms Parker contrary to the obligation to include all material evidence favourable and unfavourable which could support the hypotheses proffered by Mr Irving that it was to skew the evidence to secure a conviction, I would also need to consider the competing hypotheses. That competing hypotheses would be that she genuinely believed, even if incorrectly and contrary to her obligations of disclosure, that she was not required to make further disclosure than she had through her statement and in taping records of interview and that the material for Operation 3UP and Ms Parker was irrelevant. The latter is
supported by Ms Pfingst’s evidence that she had made disclosure of the lack of
identification by some witnesses in her statement of 23 June 1993. She further stated that in relation to non-disclosure of Operation 3UP that she thought it would have
been unfair to Mr Irving “to include any evidence of Operation 3UP that he could
become suspicious [sic] for a number of holdups rather than just the one he was
charged for.”[579] As set out above she stated that she did not regard Ms Parker’s
[579] T8-83/33-47.
evidence as “neither here nor there” in respect of the Robbery. It is also to be balanced

against her evidence that she considered that she had sufficient evidence to pursue the
prosecution.

In order to find Ms Pfingst was guilty of malice I would need to find that her evidence was dishonest in rejecting the suggestions that she had not sought to skew the evidence in favour of the prosecution and was seeking to secure a conviction to promote her own position. I would have to determine that her evidence was dishonest or so untenable that it must be rejected and infer that malice has been proved by inference by her conduct (accepting that it was proven) and to reach that view to a high level of satisfaction. Ms Pfingst was a witness who was very confident in her own judgement and ability. Even if I acted on the above basis I would not have reached a different conclusion that she was dishonest in seeking to defend her actions
in these proceedings. I have concluded that Ms Pfingst’s evidence and presentation
as witness did not demonstrate she was dishonestly concealing that she had made a deliberate decision to prosecute Mr Irving at all costs and seek a conviction for a purpose unrelated to the legitimate purposes of the criminal law. In the event I had made the findings above that, by her conduct she had skewed the case in favour of the prosecution, I would have concluded that she genuinely thought she was acting in accordance with her obligations as a policewoman.
I do not find that Ms Pfingst acted for any other purpose than the legitimate purpose of the proper invocation of the criminal law. I am not persuaded on the balance of probabilities that Ms Pfingst acted out of malice or with an improper purpose in prosecuting Mr Irving. The case against Ms Pfingst in this regard was scant and in relation to the Corridor Conversation, it was contrived.
Credit findings
Mr Irving has had many years to consider this matter. Having commenced these proceedings in 1999 he has had a large amount of time to dwell on what has occurred and, as I have found above, he has reconstructed many events in response to his perceived unfairness in a way which was favourable to his case.
I have made findings of credit in relation to specific issues above. Although as I stated at the outset the present case did not turn on the credit of Mr Irving, his credit was relevant to a number of issues. Accepting the passage of time and the pain of
incarceration and troubles rebuilding his life after leaving custody, Mr Irving’s
evidence was unreliable, lacking credibility and on a number of occasions was self- serving, evasive and on occasion untruthful. His evidence suffered from the fact that much of it was recent reconstruction, rather than it being a recollection of what had actually occurred.

[588]    There are a number of examples where Mr Irving’s evidence has changed
significantly over time and indeed seemingly his recollection has improved in his favour. For instance, in evidence before this Court as to his returning to the Oceanic Hotel on the night of 19 March 1993 after he had heard about the Robbery changed from his wanting to bump into Allan and Wayne to ask them about marijuana to meeting them to see a strip show.[580] In his affidavit presented to the High Court he had stated he returned to the Oceanic Hotel to ask them whether they had anything to do with the Robbery.[581] His evidence as to how he had gotten into the house at 307 Draper Street after returning from the week away before going away for a month again also changed between the first trial and the second.[582]
[580]         T3-71 – T3-72.
[581] Exhibit 10 at [20].
[582]         T6-6 – T6-7.

Similarly, Dr Leacy’s report does not reveal that he was told that Mr Irving had a
history of using speed when asked whether he had a history of substance abuse. His evidence as to whether he told that to Dr Leacy was evasive and self-serving insofar as he reverted to talking about the fact that he had suffered a lot of pain.[583]
[583] T3-38.
In terms of Ms Pfingst, Mr Irving submitted should find she was not a credible witness and her evidence should be rejected where it conflicted with his evidence. I have set
out above the reasons as to why I considered Ms Pfingst’s evidence should be
accepted over Mr Irving’s evidence.
As to the matters which Mr Irving submits should cause the court to exercise caution, namely that the conversation with Ms Birchley did not occur, Ms Pfingst did not make concessions on obvious issues and the implausibility of she and Mr Sturgess being able to commit several hours of conversations to memory and reproduce it in written form, I have considered those matters above. I considered that Ms Pfingst was generally prepared to make concessions and if she did not she offered a compelling examination as to why she did not make the concession on a number of occasions.
False imprisonment
Mr Irving’s pleaded case is that he was falsely imprisoned by Ms Pfingst and the State

of Queensland from the time of his arrest on 17 May 1993 to the time of his first bail
application on or about 20 May 1993.

No submissions were made by Mr Irving in support of this claim, either in writing or orally, although it was not formally abandoned.
From 17 May 1993 to 20 May 1993, Mr Irving was arrested in relation to:

(a) On 17 May 1993 for a failure to appear on 20 April 1993;584
(b) On 17 May 1993 for a dangerous drug charge – possession of cannabis;585 and
(c) On 18 May 1993, for accessory to armed robbery charge.

Allegations are only raised in relation to the absence of reasonable and probable cause to arrest Mr Irving for the charge of being an accessory after the fact on 18 May 1993. I have found that there was not an absence of reasonable and probable cause. In those
circumstances, Mr Irving’s imprisonment was lawful and justified and not wrongful.
Mr Irving’s false imprisonment claim fails.
Conclusions
By reference to the matters which the Mr Irving submits that the Court should find in its ultimate findings:[586]
[586] Plaintiff’s submissions at [3]-[10]. Based on the probable inference where a number of circumstances

(a)

I do not find that Ms Pfingst did record the conversations between Mr Irving, herself and Mr Sturgess on 17 May 1993, nor was the 17 May 1993 Record of Conversation inaccurate as a result of manipulation by Ms Pfingst;

(b)

Given the finding above, I do not find that Ms Pfingst did not disclose the tape of the 17 May 1993 Record of Conversation because she was aware of inaccuracies in the Laptop Notes;

(c)

I do not find that Ms Pfingst charged Mr Irving with the Accessory Charge on 18 May 1993 in circumstances where she did not believe he was guilty of that charge and knew there was inadequate evidence to support the charge;

(d)

I do not find that Ms Pfingst brought the s 259 Application to take body samples from Mr Irving on 19 May 1993 in circumstances where she intended to use those samples to try and prove that he was the Robber. To the extent that it is alleged that it was in breach of s 259 of the Criminal Code, Mr Irving did not plead that alleged breach nor directly cross-examine Ms Pfingst that she had acted in breach of the Criminal Code but in any event the submission is incorrect at law;

(e)

I do not find that Ms Pfingst made misleading statements on the first and second bail applications, and that she exaggerated the description of the evidence that was available because she believed that the evidence that Mr Irving committed robbery was weak or non-existent. Although errors were made in those documents, and the summation of evidence was too broad-brush in some respects and did not reflect precisely the evidence given, I do not find that they were deliberate acts because Ms Pfingst believed the evidence was weak or non-existent in relation to the Accessory Charge or the Armed Robbery Charge;

(f)

While there were differences between the records of interview and the statements of Ms Redgen, Ms Adkins, Mrs Oastler, Mr Kerr, Mrs Kerr, Ms Lovell and Ms Andrews, and the statements were stronger in some respects than the records of interview, even when I considered the effect of all of those changes together and had regard to statements not being prepared where witnesses did not identify the relevant person, I do not find that the probable inference in all the circumstances relied upon is that the witness statements were produced in stronger terms as a result of Ms Pfingst influencing those witnesses;

(g)

In relation to Ms Paynter, I do not find that Ms Pfingst failed to take a statement from her or gave false evidence that she did not take a statement because Ms
Paynter did not see the male suspect’s face. I accept that Ms Pfingst had been
told she could not give a description of the person she saw, as opposed to the clothes, prior to her meeting with her and recording an interview. While a further enquiry could have been made of Ms Paynter in light of her statement that she saw the front of the shirt, the evidence does not support an inference that the failure to enquire further was more than an oversight or that she made a deliberate decision not to produce a statement as a result of any modus operandi to discard facts that were favourable to Mr Irving;

(h) I do not find that the omission of reference to the interviews and contact with
Cindy Parker or Operation 3UP in Ms Pfingst’s statement of 23 June 1993, or
the brief for the committal hearing, was done for the reason that Ms Pfingst did
not want to disclose to Mr Irving’s criminal defence lawyers that there was
information suggesting that the same person had conducted the three robberies, where photos were available in relation to the 1992 NAB robbery. While Ms Parker did not identify the photograph as being Mr Irving from that robbery, her evidence was not as strong as to assert that the photograph was clearly not Mr Irving. In any event, while there were similarities between the NAB robberies and the Robbery that does not establish the fact that the same person was carrying out all three robberies and that Operation 3UP was established for that purpose. The fact Mr Irving was not charged with the NAB robberies does not give rise to a defence to the Robbery. In particular the circumstances do not support an inference that Ms Pfingst believed the one person committed all three robberies and that as he was not charged with the other robberies he could not be guilty of the Robbery;
(i) The evidence as to what occurred in relation to the testing of samples taken from Mr Irving and the comparative testing of clothing was unsatisfactory and insufficient to establish that Ms Pfingst misled or lied to the Magistrate in relation to the status that testing which was the subject of evidence by Ms Pfingst;

(j) I do not find that Ms Pfingst was present at the District Court trial on 8 December 1993; and
(k) I do not find that Ms Pfingst gave misleading evidence to the CJC (or to the High Court in her affidavit).

Given that I have not been satisfied that Mr Irving established the facts set out above or find the probable inference is that the fact exists, the inference which he seeks to have drawn from those facts, namely that the conduct of Ms Pfingst was consistent with her not having an honest belief in the guilt of Mr Irving and that the evidence did not warrant prosecution.[587] Nor do I find that there was an absence of reasonable and probable cause in respect of either charge on the basis of insufficient evidence given the available evidence to support the charge. In that regard, the evidence relied upon to support the inference of a lack of honest belief of Ms Pfingst was tenuous and did not rise anywhere near the necessary evidential threshold required to be met to draw such an inference, or to cause the Court to reject the direct evidence of Ms Pfingst.
[587] Mr Irving’s submissions also frame it differently in contending that such a belief could not be founded
It must be said that the evidence relied upon to support an inference of malice was in some respects even more tenuous and did not rise anywhere near the necessary evidential threshold required to be met to draw such an inference or to cause the Court to reject the direct evidence of Ms Pfingst

[600] The evidence does not establish that the sole or dominant purpose actuating Ms Pfingst in prosecuting the Accessory Charge or the Armed Robbery Charge was for a purpose other than the proper invocation of the criminal law, in relation to either charge. Nor does the evidence support a finding of malice based on the indirect route on the basis that there was no other rational explanation for charging Mr Irving with either the Accessory Charge or Armed Robbery Charge, such that the Court should conclude she must have been actuated by an improper motive. In any event, I accept

Ms Pfingst’s evidence as to her motivations and beliefs, the fact she did not lack an
honest belief in the charges brought and that she believed that there was a proper case
which warranted prosecution in relation to both charges. I do not accept Mr Irving’s

evidence as to the Corridor Conversation and consider that it was a matter of recent
invention by him to bolster his case.

The claim for false imprisonment was effectively abandoned but in any event I do not find that Mr Irving was falsely imprisoned.
Orders
I therefore order that:

1. The plaintiff’s claim is dismissed.
2. The parties provide submissions as to costs within 7 days of the delivery of
to verify that”, stating she “She – she did say that because we sent Port Douglas Police around to check
it out”: T9-52/41-46.

And could be liable if he drove the getaway car or gave it to somebody for use in the Robbery.
Criminal Code, s 7(a) & s 7(b) or (c).

Exhibit 1 at 210.
(Ms Oastler).
with her, as submitted at [193] of Mr Irving’s submissions, but that the witnesses had not further
conversation with each other.
required for the trial.
Crown, although no further application for leave could be located.

Exhibit 1 at 1.
Exhibit 1 at 133.

were relied upon.
upon reasonable grounds which would lead an ordinary, prudent and cautious person placed in the position of Ms Pfingst to the conclusion that Mr Irving was probably guilty of the alleged offences arising from the Accessory Charge or the Armed Robbery Charge. That is really an application of the objective test. In any event, even in the terms of test framed by Mr Irving I am not satisfied the evidential threshold is met.

CATCHWORDS:	TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – GENERALLY – where first defendant
arrested plaintiff for accessory after the fact for an armed
robbery on 18 May 1993 – where two other armed robberies occurred in in late-1992 and mid-1993 – where plaintiff
contends first defendant abused process in taking body
samples – where plaintiff contends first defendant mislead court during bail application – where plaintiff contends first defendant did not honestly believe guilt of accessory charge –
whether reasonable and probable cause in prosecuting
accessory charge – whether first defendant actuated by motive
other than proper invocation of criminal law in prosecuting accessory charge
TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – GENERALLY– where first defendant
arrested plaintiff for the armed robbery on 25 May 1993 –
where plaintiff contends exculpatory evidence omitted from
evidence – where plaintiff contends first defendant gave false evidence at committal – where plaintiff contends first defendant only made inculpatory evidence into statements –
where plaintiff contends first defendant embellished and
manipulated evidence to strengthen case – whether first defendant prosecutor in maintaining armed robbery charge –
whether reasonable and probable cause in prosecuting armed
robbery charge – whether first defendant actuated by motive
other than proper invocation of criminal law in prosecuting armed robbery charge
TORTS – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT – GENERALLY – where plaintiff was arrested for accessory to armed robbery – where plaintiff imprisoned for three days prior to a bail application – where magistrate denied bail – whether there was lawful justification
for imprisonment
Beckett v State of New South Wales (2013) 248 CLR 432, cited Briginshaw v Briginshaw (1938) 60 CLR 336, considered Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, cited
A v State of New South Wales (2007) 230 CLR 500, followed considered
McFadzean v Construction, Forestry, Mining and Energy
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, followed Myer Stores Ltd v Soo [1991] 2 VR 597, considered Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, considered Nguyen v Cosmopolitan Homes [2008] NSWCA 246, considered
Unit [2007] 20 VR 250, cited considered
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, cited
Seabrook v Asher [2006] QCA 238, considered Skrijel v Mengler [2003] VSC 270, considered Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, considered Trobridge v Hardy (1955) 94 CLR 147, considered Watson v Foxman (1995) 49 NSWLR 315, cited
Sahade v Bischoff [2015] NSWCA 418, considered followed
COUNSEL:	G Mullins and E Gass for Mr Irving K Mellifont QC, S McLeod QC and M Wilkinson for the Defendants
SOLICITORS:	Maurice Blackburn for Mr Irving The Crown Solicitor for the Defendants

“[89]	Fleming rightly said that “‘[m]alice’ 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 set out earlier in these reasons, had spoken of the law giving protection to prosecutors even where there is no reasonable and probable cause for the
prosecution, but losing that protection “if the person abuses his
privilege for the indulgence of his personal spite”.
….
[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, but malice is never evidence of want of reasonable cause — 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”. That improper purpose must be the sole or dominant
purpose actuating the prosecutor.
[92]	Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. 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…
[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. 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.” (emphasis added and
footnotes omitted)

(g)	That there had been non-disclosure of Operation 3UP, which was formed on 18 May 1993 by the Cairns CIB to investigate three robberies in Cairns of the National Australia Bank (NAB) in December 1992 and May 1993 and the Bank. Mr Irving contends that there were 11 similarities between of the robber in the 1992 NAB robbery and the Robbery. Mr Irving contends that he was not linked to the other NAB robberies and that it should be inferred that a prosecutor would say it was not a proper case for prosecution given the likelihood of the same person having committed the robberies and that the information was improperly held;
(h)	That Ms Pfingst had undisclosed visits with Cindy Parker, Mr Irving’s former
partner, in which either Ms Pfingst or other police officers obtained photographs of Mr Irving;

(j)	That there was a strengthening of identification evidence of both a shirt, owned by Mr Irving said to have been worn in the Robbery, and arising out of a photoboard between the record of interview and the statement when prepared;
(k)	That statements from witnesses who did not identify the shirt and/or Mr Irving on the photoboard were not prepared by Ms Pfingst, from which it is said it is to be inferred that Ms Pfingst stopped investigating and was only pursuing evidence to convict Mr Irving and not evidence that was exculpatory;
(l)	That Ms Pfingst overstated evidence in the second bail application to strengthen the case against bail being granted;
(m)	That there was an absence of a statement from Carla Paynter and Ms Pfingst

(n)	That Ms Pfingst gave false evidence at the committal hearing to bolster the prosecution case;
(o)	That Ms Pfingst did not attend at the District Court trial in order to avoid giving evidence and being exposed for manipulating evidence; and
(p)	That Ms Pfingst did not provide a fulsome affidavit to the High Court in order to ensure that the full story was yet again, not revealed to Mr Irving.

(1)	A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)	Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the
probabilities of the fact’s existence are greater than the
possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)	Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)	A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the
existence of the fact in issue.”

“8.	Inquiries made with Cindy PARKER of 45 Best St. Advised they broke up some 3 months ago no info re current
whereabouts. KINBACHER”

(j)	I do not find that Ms Pfingst was present at the District Court trial on 8 December 1993; and
(k)	I do not find that Ms Pfingst gave misleading evidence to the CJC (or to the High Court in her affidavit).