SUPREME COURT OF QUEENSLAND
CITATION:
Irving v Pfingst & Anor [2021] QCA 280
PARTIES:
TERRY IRVING
(appellant)
v
HELEN MAREE PFINGST
(first respondent)
STATE OF QUEENSLAND
(second respondent)FILE NO/S:
Appeal No 10781 of 2020
SC No 234 of 1999DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2020] QSC 280 (Brown J)DELIVERED ON:
14 December 2021
DELIVERED AT:
Brisbane
HEARING DATE:
18 March 2021
JUDGES:
Fraser, McMurdo and Mullins JJA
ORDERS:
1. Allow the appeal.
2. Set aside the orders numbered 1 and 3 made on 18 September 2020.
3. Give judgment for the appellant against the respondents, on the claim for the malicious prosecution of the Accessory Charge, for damages to be assessed.
4. Remit the proceeding to the Trial Division for that assessment of damages, and for consideration of the order or orders for costs which should be made for the proceeding in the Trial division.
5. Otherwise dismiss the appellant’s claim against the respondents.
6. Parties to provide written submissions as to the costs of the proceeding in this Court, not to exceed four pages in length, within 14 days of the delivery of this judgment.
CATCHWORDS:
TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – where the appellant was charged by the respondent as an accessory after the fact to the armed robbery of a bank – where the accessory charge was particularised as having been committed by a Mr Suthers as the principal offender – where there was evidence that the respondent suspected the appellant was the robber –– where the accessory charge provided the basis for the ongoing detention of the appellant while the respondent pursued investigations of the appellant as the robber – whether the respondent honestly believed there was a proper case for prosecution of the appellant as an accessory after the fact when the respondent, at the same time, suspected that the appellant had robbed the bank – whether the accessory charge was laid without reasonable probable cause – whether the appellant proved malice in the respondent charging him as an accessory
EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where the appellant was convicted of armed robbery – where the appellant successfully appealed the conviction – where the prosecution entered a nolle prosequi – where before being charged with armed robbery the appellant had been charged by the respondent police officer with being an accessory after the fact to the armed robbery – where the appellant brought a claim for damages for malicious prosecution in respect of the accessory charge and in respect of the armed robbery charge – where the appellant had conversations with the respondent police officer and another police officer over a period of three and one-half hours – where the respondent and the other police officer made notes of these conversations immediately after they concluded – where the appellant alleged that the conversations were secretly recorded, that the tape was never disclosed, and the…
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- AGLC
- Irving v Pfingst [2021] QCA 280
- Case
- [2021] QCA 280
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether Ms Pfingst honestly believed there was a proper case for prosecution of Mr Irving as an accessory after the fact and if the accessory charge was laid without reasonable and probable cause. Additionally, the Court had to consider whether Mr Irving proved malice in the charging process and whether the trial judge correctly admitted or excluded certain evidence, including an expert report and a transcript of an interview.
The Court of Appeal found that the trial judge’s conclusions on the Accessory Charge were incorrect. The judge had failed to appreciate the strict requirements of the Accessory Charge, which necessitated proof that Mr Irving knew Suthers had committed the robbery and that he assisted Suthers to evade punishment. The judge's findings were demonstrated to be wrong by the evidence and an understanding of the different bases of criminal responsibility. As for the evidence, the Court held that while some parts of the expert report were correctly excluded, the exclusion of other parts containing reference to research in the field was improper and detracted from the effect of the report. The Court also found that the trial judge erred in excluding the transcript from evidence due to its unreliability. These errors amounted to substantial wrongs warranting a new trial.
The Court allowed the appeal, set aside certain orders, and gave judgment for the appellant on the malicious prosecution claim for the Accessory Charge. The case was remitted for assessment of damages and consideration of costs. The parties were directed to submit written costs submissions within 14 days of the judgment.
Orders
Orders of the court
1. Allow the appeal.
2. Set aside the orders numbered 1 and 3 made on 18 September 2020.
3. Give judgment for the appellant against the respondents, on the claim for the malicious prosecution of the Accessory Charge, for damages to be assessed.
4. Remit the proceeding to the Trial Division for that assessment of damages, and for consideration of the order or orders for costs which should be made for the proceeding in the Trial division.
5. Otherwise dismiss the appellant’s claim against the respondents.
6. Parties to provide written submissions as to the costs of the proceeding in this Court, not to exceed four pages in length, within 14 days of the delivery of this judgment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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