Irving v Pfingst - [2021] QCA 280

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 1999

DIVISION:

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 notes were inaccurate and contained false statements – where the appellant relied upon the report of an expert in forensic linguistics to determine whether it was likely that the notes were prepared from memory or transcribed from a recording – where the trial judge concluded that parts of the report were inadmissible as expert opinion because the matters covered were matters of inference that could be drawn by lay people – whether parts of the report ought not to have been excluded as they contained reference to research in the field – whether the exclusion of parts of the report detracted from the effect given to the balance of the report

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTION: DOCUMENTS – GENERAL PRINCIPLES – STATEMENT – where the appellant was charged by the respondent as an accessory after the fact to armed robbery – where the respondent gave evidence-in-chief at the committal hearing for the charge – where the appellant complained to the Criminal Justice Commission (CJC) that the respondent gave false evidence – where the respondent was interviewed by the CJC in respect of the complaint – where there was no available recording of the interview – where, in this trial, the appellant alleged that the respondent gave false evidence to the CJC – where it was not established that the transcript was an accurate reflection of the interview – where the respondent did not adopt the transcript as her own statement pursuant to s 92(4) Evidence Act 1977 (Qld) – whether the trial judge erred in excluding the transcript from evidence

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – JURISDICTION TO GRANT NEW TRIAL AND OTHER MATTERS – where there was an application for a retrial – where an appeal by way of rehearing was a remedy available to the appellant – where the provisions of Chapter 18 of the Uniform Civil Procedure Rules 1999 (Qld) provide that the Court of Appeal may exercise its jurisdiction to order a new trial – where the appellant argued that the trial judge made factual errors which were critical to the outcome – whether there was some substantial wrong or a miscarriage of justice so as to warrant a new trial

Criminal Code (Qld), s 7, s 8, s 10, s 544, s 569
Evidence Act 1977 (Qld), s 92
Uniform Civil Procedure Rules 1999 (Qld), r 745, r 746, r 765, r 766, r 770

A v New South Wales (2007) 230 CLR 500; [2007 HCA 10], considered
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23, considered
George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, considered
Hussien v Chong Fook Kam [1970] AC 942; [1969] UKPC 26, considered
McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70, considered
Mitchell v Pacific Dawn Pty Ltd[2003] QCA 526, considered
Musgrove v McDonald (1905) 3 CLR 132; [1905] HCA 50, cited
Orr v Holmes (1948) 76 CLR 632; [1948] HCA 16, cited
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21, considered
R v Carter and Savage; Ex parte Attorney-General (Qld) [1990] 2 Qd R 371, cited
R v Kirkby [2000] 2 Qd R 57; [1998] QCA 445, cited
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited

COUNSEL:

G R Mullins with E M Gass for the appellant
S A McLeod QC, with M R Wilkinson, for the respondents

SOLICITORS:

Maurice Blackburn Lawyers for the appellant
G R Cooper, Crown Solicitor for the respondents

FRASER JA: On 19 March 1993 there was an armed robbery of a bank in Cairns. That crime was investigated by one of the respondents, Ms Pfingst, who was then a detective in the Queensland Police Service, and other police officers. On 18 May 1993 Ms Pfingst charged the appellant, Mr Irving, with the offence of being an accessory after the fact to the robbery (“the Accessory Charge”). After Mr Irving had been held in custody for a week on the Accessory Charge, on 25 May 1993 Ms Pfingst charged him with the offence of armed robbery (“the Robbery Charge”). The Accessory Charge was later withdrawn. Thereafter, Mr Irving remained in custody for more than four and a half years, first on remand and then whilst serving a sentence of imprisonment imposed upon his conviction after a trial of the Robbery Charge. He was released in December 1997 after the Director of Public Prosecutions conceded during a hearing in the High Court that he had not been given a fair trial.
Mr Irving sued Ms Pfingst and the other respondent, the State of Queensland, for damages for false imprisonment and for malicious prosecution by Ms Pfingst of the Accessory Charge and the Robbery Charge. The claim was dismissed after a trial. Mr Irving appeals against the dismissal of his claims for damages for malicious prosecution. In relation to the claim in respect of the Accessory Charge, Mr Irving seeks orders setting aside the judgment against him and substituting a judgment in his favour for damages to be assessed, or alternatively a retrial of that claim. So far as Mr Irving’s appeal concerns the Robbery Charge, it is in the nature of an application for a new trial.
Mullins JA would dismiss the appeal. McMurdo JA would allow the appeal against the dismissal of the malicious prosecution claim in respect of the Accessory Charge, give judgment for Mr Irving on that claim for damages to be assessed, remit the proceeding to the Trial Division for the assessment of those damages and consideration of appropriate orders for costs, and otherwise dismiss Mr Irving’s claim against Ms Pfingst and the State of Queensland.
I agree with McMurdo JA’s reasons for dismissing the appeal against the rejection of Mr Irving’s claim for malicious prosecution of the Robbery Charge. My reasons relate only to the appeal against the rejection of Mr Irving’s claim for malicious prosecution of the Accessory Charge.
There is no issue about the applicable law. Those elements of a cause of action for malicious prosecution that are in issue in this appeal required Mr Irving to prove Ms Pfingst acted maliciously in initiating or maintaining the Accessory Charge and her prosecution of that charge was commenced or maintained without reasonable and probable cause. In a passage in the judgment of the plurality of the High Court in A v New South Wales[1] which is cited in McMurdo JA’s reasons, the question whether a prosecution was commenced or maintained without reasonable and probable cause was said to involve both a subjective and objective aspect, so as to require the material available to the prosecutor at the relevant time to be assessed in two ways: “What did the prosecutor make of it? What should the prosecutor have made of it?” The plurality observed, “The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion”[2] and, in a case of this kind where the prosecutor acts upon material provided by others, “unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution” (the subjective aspect) “or to have formed that view on an insufficient basis” (the objective aspect) “the element of absence of reasonable and probable cause is not established.”[3] The element of the cause of action that the prosecutor acted maliciously required Mr Irving to prove Ms Pfingst’s sole or dominant purpose in prosecuting the Accessory Charge was a purpose other than the proper invocation of the criminal law.[4]
[1][2007] HCA 10; (2007) 230 CLR 500 at 514 [58].
[2](2007) 230 CLR 500 at 525 [71].
[3](2007) 230 CLR 500 at 528 [80].
[4](2007) 230 CLR 500 at 531 [91] and 532 [93], cited at [49] of McMurdo JA’s reasons.
The trial judge found Mr Irving had not proved the absence of reasonable and probable cause for bringing the Accessory Charge[5] or that Ms Pfingst acted maliciously in bringing that charge.[6] Mullins JA concludes that, because Ms Pfingst had no evidence the person named as the robber in the Accessory Charge (“Wayne Suthers”) was the robber, the trial judge erred in failing to find Mr Irving had discharged the onus of proving (upon the objective test) the absence of reasonable and probable cause. Mullins JA would reject Mr Irving’s challenge to the trial judge’s finding that Mr Irving failed to prove Ms Pfingst did not honestly believe that there was a proper case for prosecuting the Accessory Charge against Mr Irving. Mullins JA also concludes Mr Irving failed to show the trial judge erred in finding Mr Irving had failed to prove malice in relation to that charge.
[5]Trial judge’s reasons at [282] – [285].
[6]Trial judge’s reasons at [286] – [299].
I agree with McMurdo JA’s conclusion that the trial judge erred by failing to find that Mr Irving proved both the absence of reasonable and probable cause for prosecuting the Accessory Charge, in relation to both the objective and the subjective aspect of that element of the claim,[7] and that Ms Pfingst acted maliciously in bringing that charge.
[7]Trial judge’s reasons at [282] – [285].
The trial judge found Ms Pfingst was an honest and reliable witness. Her Honour’s rejection of Mr Irving’s claim for malicious prosecution of the Accessory Charge was based in part upon acceptance of Ms Pfingst’s evidence of her state of mind when she brought that charge. In particular, the trial judge’s acceptance of that evidence was important for her Honour’s finding Mr Irving had not proved Ms Pfingst had not honestly formed the view that there was a proper case for prosecution of the Accessory Charge (the subjective aspect of absence of reasonable and proper cause) and for the related finding Mr Irving had not proved Ms Pfingst acted maliciously in bringing the Accessory Charge. Mullins JA concludes that the well known limitations upon appellate interference with findings of fact influenced by a trial judge’s impression about the credibility of a witness[8] preclude appellate interference with those findings.
[8]See Fox v Percy (2003) 214 CLR 118.
In these reasons, I discuss only part of the relevant evidence at the trial. Acknowledging that the evidence I discuss must be assessed in the context of all of the relevant evidence, my reasons focus upon what I consider to be the most important evidence justifying appellate correction of the trial judge’s findings of fact about Ms Pfingst’s state of mind when she brought the Accessory Charge.
In evidence in chief Ms Pfingst was shown a document which records the Accessory Charge. The Accessory Charge charged Mr Irving that on 19 March 1993 at Cairns “one Wayne Suthers stole … with actual violence” money the property of [the bank] when “Suthers was armed with a dangerous weapon, namely a sawn-off shot gun”, and that between 18 March and 18 May 1993, Irving “knowing that the said Wayne Suthers had committed t[h]e said crime assisted him in order to enable him to escape punishment”. With reference to that document, Ms Pfingst gave the following evidence:[9]
“This is a charge of accessory to armed robbery. Did you charge Terry Irving with accessory to armed robbery on the 18^th of May 1993?--- Yes, I did.
At the time you charged Mr Irving with that offence, what was your belief as to the innocence or guilt of Mr Irving of that charge?--- Guilty.
What was your belief as to whether you had sufficient information to warrant charging Mr Irving? --- Yes, I believe we had sufficient information.
And what was your belief as to whether or not there was a proper case for prosecution when you charged him?--- Yes, there was a proper case.”
That evidence conveyed that at the time Ms Pfingst bought the Accessory Charge she believed Mr Irving had assisted Suthers in order to enable him to escape punishment for the crime Suthers had committed of stealing with actual violence money from the bank whilst armed with a sawn-off shotgun, she had sufficient information to warrant that charge, and she believed there was a proper case for prosecution of that charge.
[9]Transcript 18 November 2019, p 6-89.
The trial judge relied upon that evidence in finding Mr Irving had not established the subjective aspect of the element that the prosecution was commenced or maintained without reasonable and probable cause:
“Ms Pfingst gave evidence that she honestly believed there was sufficient evidence for a proper case for prosecution and that she believed at the time she charged him, that there was a proper case for prosecution of that charge. I accept that evidence. I do not find that Mr Irving has demonstrated an absence of reasonable and probable cause with regard to the First Alleged Malicious Prosecution.”[10]
(The “First Alleged Malicious Prosecution” is the allegedly malicious prosecution of the Accessory Charge.)
[10]Trial judge’s reasons at [285].
The trial judge summarised what her Honour found to be objectively sufficient evidence for charging Mr Irving with the Accessory Charge:[11]
[11]Trial judge’s reasons at [282].
“(a)The evidence of Mr and Mrs Kerr [witnesses at the scene of the robbery] was that they had both identified a vehicle leaving the driveway of the block of units that they had seen the person that they were following enter. That was to a lesser extent, supported by Ms Adkins who had also followed the Robber once he left the Bank, saw him run into the driveway of the flats and then saw a vehicle exit shortly after;
(b)The registration of the vehicle Mr and Mrs Kerr saw matched Mr Irving’s registration;
(c)Mr Irving’s car had not been reported stolen;
(d)Mr Irving had stated to Ms Pfingst and Mr Sturgess on 17 May 1993 that he was aware of the Robbery and had not reported the fact that the car registration was his car;
(e)That he had stated that he had lent Mr Suthers his car at the time of the robbery and that he had been gone for some time;
(f)That after he knew about the Robbery and that the registration of the vehicle that was being sought in connection with the Robbery was his car;
(g)Mr Irving had stated that he had put a tarp over the car and hidden the registration plates under concrete “So youse wouldn’t find it”;
(h)Mr Irving stated that he did not approach the police “because of the car and the description, it all pointed to [him]”; and
(i)That even though there was one Robber in the Bank and there was no evidence that Mr Suthers was that person, there was evidence that another person was seen to be driving the getaway vehicle. Mr Suthers was nominated as having possession of the vehicle at the time of the Robbery. Therefore, the evidence supported that he was a co-offender in the Robbery.”
As is reflected in sub-paragraph (i), upon the evidence there was only one robber and Ms Pfingst gave evidence, which the trial judge accepted,[12] that when she charged Mr Irving with the Accessory Charge she had no evidence Suthers had committed the robbery. In relation to sub-paragraphs (e) and (i), the only information available to Ms Pfingst that Suthers might have participated in the robbery is a statement to police by Mr Irving that he had lent his car to Suthers during the period in which the robbery took place. In a statement on oath dated 23 June 1993 Ms Pfingst set out statements she said in evidence were made by Mr Irving before Ms Pfingst brought the Accessory Charge. Ms Pfingst attributed to Mr Irving the following statements relating to any role of Suthers in the robbery:
[12]Trial judge’s reasons at [270].
“Detective Sturgess, Terry Irving and I then went into the interview room.
He said, “This is about my car isn't it.”
I said, “Well, yes. Your·car was seen leaving the scene of the armed hold up at the ANZ Bank at Portsmith. Actually the male who held up the bank was seen to get into the back seat of the vehicle.”
He said, “I knew you were looking for the car.”
I said, “Look Terry I have to get this conversation on tape.”
IRVING cuts in and says, “No, tapes, I've been through this before, no tapes. I'll talk to you about it, but not on record.”
I said, “OK fair enough. How do you know we were looking for your car.”
He said, “OK I'll tell you what happen. I was down at the pub drinking and playing pool with a guy by the name of Wayne.”
I said, “Which pub.”
He said, “The Big O”
I said, “Who is Wayne.”
There was a pause and then he said, “Suthers.”
I said, “Where does he live.”
He said, “Don't know, don't know anything else about him.”
I said, “How old is he.”
There was a pause and then he said, “30.”
I said, “OK go on.”
He said, “He said could he borrow my car for 10 minutes but he was gone for a couple of hours. I was really pissed off with him. When he came back I asked where he had been and he said there was a hold up at the hospital. He said he had been at the hospital seeing his mrs.”
I said, “OK, how did you know we were looking for your car.”
He said, “I was driving down Sheridan Street and l heard on the radio that the Police were looking for a car used in a hold up. Then I nearly shit myself. They said my rego number. Then I shit myself and went back to the hotel that night to get Wayne but he didn't front.””

Upon the face of that account it seems unpersuasive. According to Ms Pfingst’s evidence, Mr Irving gave that account after she told him his car had been seen leaving the scene of the robbery. The account was self-serving to any extent to which it inculpated Suthers in the robbery. Mr Irving indicated he was willing to talk to police only off the record. Mr Irving paused before answering each of her simple questions seeking information about the man to whom he said he had lent his car. The only information Mr Irving conveyed about that man was that Mr Irving played pool with him at the pub, his name was Wayne Suthers, and he was 30 years old; yet Mr Irving, who professed to know nothing else about the man, lent the man his car.
In cross examination, Ms Pfingst was again shown the document which records the Accessory Charge. Counsel read the charge aloud to Ms Pfingst. She agreed the first element of the charge was “Wayne Suthers committed the robbery”. Ms Pfingst did not reject the suggestion she “had no evidence that Suthers committed the robbery”. Instead, she said, “Well, that was the only person we knew of because that’s who Terry Irving had nominated as the person who had his car and did the robbery.”[13] Upon Ms Pfingst’s own evidence, Mr Irving had not nominated Mr Suthers as the person who did the robbery.
[13]Transcript 19 November 2019 at p 8-16.
In answer to the next question in cross examination, Ms Pfingst conceded that when she brought the Accessory Charge she had no evidence Suthers had committed the robbery:[14]
“No, Mr Irving never said that Suthers did a robbery, did he?---No, he said he had his car.
Yes?---And his car was used in the – in the armed hold up.
And so that’s the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery?---At the time that he was charged, we knew that he had knowledge of the – that Terry Irving had knowledge of the armed hold up because he had heard it on the radio. He admitted that. We had his car. We had his numberplates and he had nominated Wayne Suthers. So we were still doing inquiries on Wayne Suthers.
He had nominated Wayne Suthers as borrowing his car?---Yes.
You had no evidence that Wayne Suthers has committed the robbery? ---No.”
[14]Transcript 19 November 2019 at pp 8-16 and 8-17.
In re-examination, Ms Pfingst gave the expected answer “Wayne Suthers” to the question, “And in him telling you that Wayne had the vehicle at – at the times he said Wayne had the vehicle, who – who did you take him to be telling you had the vehicle at the time of the armed robbery.”[15] The only other evidence Ms Pfingst gave upon the topic in re-examination was as follows:
“Now, you were asked some questions about what you had at the time you charged Mr Irving with the offence of accessory. What was the basis upon which you charged him?---Well, we already had the car, the number plates, the hiding of the number plates, the tarp over the car. We had some identification of photo boards and identification of clothing.
Okay?---And Wayne Suthers didn’t exist. …”[16]
[15]Transcript 20 November 2019, at p 8-89.
[16]Transcript 20 November 2019, at p 8-90.
Ms Pfingst did not at any point in her evidence say she had ever believed Mr Irving’s account or that Suthers had committed the robbery.
The trial judge sought to reconcile Ms Pfingst’s evidence in cross examination that she had no evidence Suthers committed the robbery with the Accessory Charge that Mr Irving had assisted Suthers to escape punishment for the armed robbery whilst knowing Suthers had committed the armed robbery; the trial judge reasoned that Ms Pfingst’s evidence “supports the fact that she was relying on Mr Suthers being involved in the Robbery, such that Mr Suthers would be liable for the offence by reason of s 7 or 8 Criminal Code rather than being the person who robbed the bank himself” and “the most probable explanation” for the wording of the charge referring to Mr Suthers having the shotgun “is that was an incorrect particular in the wording of the charge”.[17] That analysis is inconsistent with the effect of Ms Pfingst’s evidence in chief, which the trial judge accepted (see [10] and [11] of these reasons). It is also difficult to reconcile with Ms Pfingst’s agreement in cross examination that one of three elements of the Accessory Charge is that “Wayne Suthers committed the robbery” and her failure to mention any mistake in the text of the Accessory Charge in her answer to the question, “And so that’s the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery?” (see [15] and [16] of these reasons).
[17]Trial judge’s reasons at [271] and [272].
The objective insufficiency of the material to warrant the Accessory Charge is demonstrated by the absence of material in Ms Pfingst’s possession to warrant the allegation that Suthers had committed the robbery. That allegation is not merely a particular. It is at the heart of the Accessory Charge. The insufficiency of the material was so obvious as of itself to supply support for an inference that Ms Pfingst could not honestly have formed the view that there was a proper case for prosecution of the Accessory Charge.[18] The trial judge did not take that into account.
[18]See A v New South Wales & Anor at 531 [90], cited at [50] of McMurdo JA’s reasons.
A related issue concerns evidence that when Ms Pfingst brought the Accessory Charge against Mr Irving she suspected he was the robber. The trial judge considered that the fact that Ms Pfingst suspected Mr Irving had committed the armed robbery was not inconsistent with her having at the same time believed that he was an accessory after the fact.[19] In a footnote the trial judge referred to the distinction between belief and suspicion drawn in George v Rockett.[20] The relevant discussion in George v Rockett was directed to the meaning of the terms “suspecting” and “believing” in s 679 of the Criminal Code (Qld).[21]
[19][2020] QSC 280 at [265] and [268].
[20](1990) 170 CLR 104, cited in footnote 280 in the trial judge’s reasons.
[21](1990) 170 CLR 104 at 115 – 119.
The question is whether Ms Pfingst’s evidence in chief that she believed she had sufficient information to warrant the Accessory Charge against Mr Irving and there was a proper case for prosecution of that charge should be accepted. That question must be answered with reference to all of the relevant evidence. The evidence about Ms Pfingst’s suspicion is indirectly relevant to that question, at least insofar as such a suspicion might make it seem less likely that Ms Pfingst would have believed what she said was Mr Irving’s account that at the time of the armed robbery he had lent his car to Suthers; and that evidence is also directly relevant to the question whether Ms Pfingst had the requisite belief about the Accessory Charge. That is not to say that it automatically should be assumed that a witness will use the words “suspicion” and “belief” or derivatives of them in the senses in which those words were construed in George v Rockett; what matters in this respect is instead the evidence – which in this case includes but is not limited to Ms Pfingst’s evidence – about the nature and strength of what the witness describes as a suspicion or a belief.
As McMurdo JA explains, there was overwhelming evidence that when Ms Pfingst brought the Accessory Charge she suspected Mr Irving had committed the armed robbery. The strength and enduring character of that suspicion is revealed by the evidence that she was then in the midst of conducting investigations upon that topic. Of particular importance in that respect is Ms Pfingst’s own evidence,[22] accepted by the trial judge,[23] in which she admitted that only hours before she brought the Accessory Charge she showed witnesses to the armed robbery a shirt owned by Mr Irving, thereby admittedly “pursuing a line of investigation that was, Mr Irving was the robber.” It is also significant that after speaking to Mr Irving, Ms Pfingst put in train an enquiry about “Wayne Suthers”, and that Ms Pfingst brought the Accessory Charge before receiving any response to that enquiry.
[22]Transcript 20 November 2019, at p 8-15.
[23]Trial judge’s reasons at [268].
In answer to the question in cross examination following the admission quoted in the preceding paragraph, Ms Pfingst agreed that was what she believed to be the case. The trial judge preferred other evidence given by Ms Pfingst that, “When I was doing the investigation, he was a suspect. I didn’t think he was the offender.”[24] In that passage of the reasons,[25] however, the trial judge focused upon a contrast between a suspicion that Mr Irving was the armed robber and an honest belief that Mr Irving was an accessory after the fact. The trial judge did advert to Ms Pfingst’s evidence about the shirt which is described in the second last sentence of the preceding paragraph. But the trial judge did not take into account the substantial damage done to Ms Pfingst’s very general evidence in chief quoted in [10] of these reasons by the combined effect of the apparent weakness of the account attributed to Mr Irving that he lent his car to Suthers (which was the only material that Suthers might have had any role in the robbery), the obvious insufficiency of the material to warrant the allegation in the Accessory Charge that Suthers was the robber, the evidence that when Ms Pfingst brought the Accessory Charge she was in the midst of investigating her substantial and enduring suspicion that Mr Irving was himself the armed robber, and the evidence that Ms Pfingst had put in train and was then awaiting the results of an enquiry about “Wayne Suthers”.
[24]Transcript 20 November 2019 at p 8-16; trial judge’s reasons at [268].
[25]Trial judge’s reasons at [265] – [269].
Subject only to these reasons, which I consider are substantially consistent with the reasons given by McMurdo JA, I agree with his Honour’s reasons. I also agree with the orders proposed by McMurdo JA.
McMURDO JA: The appellant, Mr Irving, claimed damages for malicious prosecution against Ms Pfingst, at relevant times a detective in the Queensland Police Service, and the State of Queensland, which was said to be vicariously liable for her actions. After a nine day trial by a judge in the Trial Division, Mr Irving’s claim was dismissed.[26] He appeals against that judgment.
[26]Irving v Pfingst [2020] QSC 280 (Judgment).
The case arose from a bank robbery in Cairns on the afternoon of 19 March 1993. The robber, whoever he may have been, entered the bank, alone and wearing a beret, dark glasses and a scarf which covered some of his face. He was armed with a sawn-off shotgun. He left the bank with about $6,000 in cash. As he did so, he was followed by one of the bank officers, who called out “[w]e have been robbed”. Two people who worked in a nearby shop heard that and they joined in the pursuit. The robber ran into the driveway of premises from which a car soon emerged. One of the pursuing group noted the registration number of the vehicle. The driver was not the man they had been following, but one of the group saw another man, lying facedown on the back seat of the car and wearing a shirt the same as the one he had seen worn by the man they had been following.
The car was registered in Mr Irving’s name and he admitted that it was his. On 14 May 1993, it was found in a street in Cairns. Its registration plates had been removed.
Three days later, Mr Irving was found by police at Atherton. He went with them back to Cairns, and showed them where he had hidden the registration plates to his car, beneath a concrete slab underneath the house where he had been living. According to notes which Ms Pfingst said she had made of her conversations with him to that point, Mr Irving told her that he had heard on the radio that police were looking for a car which had been used in a holdup, and that the car had the registration number of his car. He told her that he had met a man called Wayne Suthers at a hotel in Cairns, and after some drinking, he had agreed to lend his car to Suthers for about 10 minutes. He said that Suthers then borrowed it and returned it after a couple of hours. He also said that he did not know where Suthers lived or anything else about him.
On the same day, 17 May 1993, he was charged with failing to appear in the Magistrates Court in the previous month, and with the possession of cannabis, and he was then detained in the watchhouse.
On 18 May 1993, Ms Pfingst charged Mr Irving with one count of being an accessory after the fact to the offence of this robbery. I will refer to this charge, as the trial judge did, as the Accessory Charge. The charge named Suthers as the robber. It was in the following terms:
“That on the 19th day of March 1993 at Cairns in the State of Queensland one Wayne SUTHERS stole from one Ruth Mary OASTLER with actual violence a sum of money namely $6100.00, the property of one Australia and New Zealand Banking Group and at the time aforesaid the said Wayne SUTHERS was armed with a dangerous weapon, namely a sawn-off shotgun AND THAT Terry IRVING between the 18th day of March 1993 and the 18th day of May 1993 at Cairns in the State of Queensland, knowing that the said Wayne Suthers had committed the said crime assisted him in order to enable him to escape punishment.”
At that time Ms Pfingst knew almost nothing about the man whom she alleged was the robber. In her evidence in this case, Ms Pfingst accepted that she had no evidence that Suthers was the robber. All that she knew about Suthers had come from Mr Irving’s statement that Suthers had borrowed his car at the relevant time. That provided no reasonable basis for a charge in these terms, which had it been pursued, would have required the prosecution to prove that it was Suthers who had robbed the bank.
But the accessory charge was not pursued. Only a week later (on 25 May 1993) Mr Irving was charged with having been the robber himself. I will refer to this charge, as the trial judge did, as the Robbery Charge. The Accessory Charge was withdrawn on 2 July 1993.
On 8 December 1993, Mr Irving was tried in the District Court by a jury on the Robbery Charge. The prosecutor closed his case early in the afternoon and Mr Irving neither gave nor called evidence. The prosecutor addressed the jury for about 10 minutes and defence counsel addressed the jury for about 20 minutes. After that, the judge’s summing up was given over the next half hour. The issue was whether the prosecution had proved that it was Mr Irving who was the robber. The judge told the jury that the prosecution case depended significantly on the identification evidence given by witnesses who had inspected a photoboard and selected Mr Irving from among those whose photographs appeared there. It was Ms Pfingst who had the witnesses undertake that exercise. Remarkably, Ms Pfingst was not called as a witness at the trial, although at the beginning of the day, the prosecutor told the jury that she was a person who might be called.
The jury retired at 4.25 pm and returned with their verdict about 10 minutes later. Mr Irving was convicted, and on the following day, he was sentenced to a term of seven years and five months’ imprisonment, having regard to the seven months which he had spent in custody.
By then without legal representation, Mr Irving appealed against his conviction. At the hearing of the appeal, he sought to adduce evidence which was not tendered at the trial, in the form of recordings of the photoboard identifications, together with transcripts of what could be heard on those videos. He was endeavouring to demonstrate that Ms Pfingst had led the witnesses, or at least some of them, in the photoboard identification. He told the Court that his trial counsel had not followed his instructions in cross-examining those witnesses about the photoboard identification. His appeal was dismissed.[27]
[27]R v Irving – CA No 9 of 1994; BC 9404299.
Some years later, in 1996, Mr Irving applied for special leave to appeal to the High Court. The application first came before three judges on 15 August 1997, when Brennan CJ told the parties that having read the written submissions, the Court had decided to adjourn the application with the expectation that the Crown would provide Mr Irving and the Court with a full transcript of the trial, and a written explanation by reference to that transcript of why Ms Pfingst was not called as a witness. On the adjourned date, by which time Mr Irving had the benefit of legal representation, the Crown conceded that it would “have a lot of difficulty” in contending that Mr Irving had received a fair trial. By that stage, the High Court had an affidavit sworn by Ms Pfingst, which offered an explanation for why she, as the Arresting Officer in the matter, had not been a witness at the trial. One week prior to the trial, she had undergone throat surgery and been released from hospital on that day. She said that she was then absent from work for the week which concluded on the day on which the trial occurred, and that as a result of the operation she was not able to talk properly for a couple of weeks. A transcript of the sentencing proceedings (on the morning after the trial) recorded the judge observing that “Detective Pfingst has just left the Court” (when there was discussion about obtaining Mr Irving’s criminal record). In her affidavit, Ms Pfingst acknowledged that reference, and also a record of her attendance at Court on that day in her work diary, but she said that she had no recollection of being there and that she returned to work on 9 December 1993.
Brennan CJ, speaking for the Court, said that in the light of the concession which counsel for the Crown had properly made, it would be ordered that special leave to appeal be granted, the appeal be heard instanter, the appeal be allowed, the order of the Court of Appeal be set aside and that in lieu thereof the conviction be quashed and a new trial ordered.[28]
[28]Irving v The Queen B19/1996 [1997] HCA Trans 405: ARB 891.
On 25 January 1999, a nolle prosequi was entered by the Crown, and the Robbery Charge was thereby terminated in Mr Irving’s favour. He had been in custody on the Accessory Charge for one week, and from then, on the Robbery Charge until his release in December 1997 upon those orders being made by the High Court.
In the present case, he claimed damages for two causes of action for malicious prosecution. He said that each of the Accessory Charge and the Robbery Charge had been made by Ms Pfingst maliciously. He said that each charge had been made without any honest belief by her in his guilt on that charge and without evidence to support it, and that it was brought for an improper purpose. None of those allegations was proved to the judge’s satisfaction, and he failed on both causes of action.[29]
[29]He also failed on a claim that he was falsely imprisoned from the time of his arrest on 17 May 1993 to the time of his first bail application on 20 May 1993. It appears that no submissions were ultimately made by him in support of that claim, although it was not formally abandoned: Judgment [593]. There is no appeal in relation to that claim.
For the reasons that follow, I have concluded that his appeal should be allowed, to the extent that he should have a judgment against the respondents on his claim that he was maliciously prosecuted on the Accessory Charge. However I have concluded that his appeal in relation to the Robbery Charge, which is more precisely an application for a re-trial, should be dismissed.
The elements of the cause of action
The trial judge identified that on each cause of action, Mr Irving had to establish that:
(a)the criminal proceeding was instituted or maintained by Ms Pfingst, such that she could be relevantly regarded as the prosecutor of the proceeding;
(b)the proceeding terminated in Mr Irving’s favour;
(c)Ms Pfingst, in initiating or maintaining the criminal proceeding, acted maliciously; and
(d)the prosecution was commenced or maintained without reasonable or probable cause.[30]
[30]Judgment [9].

It was common ground that on each charge, the criminal proceeding was terminated in Mr Irving’s favour.[31] It was also common ground that Ms Pfingst was the prosecutor for the Accessory Charge,[32] and it is now accepted, as the judge found, that she was the prosecutor for the Robbery Charge insofar as she was responsible for the laying of that charge and the preparation of the prosecutor’s brief for the committal hearing.[33]
[31]Judgment [20].
[32]Judgment [252].
[33]Judgment [548].
In each case, the trial judge found that Mr Irving failed to establish the absence of a reasonable or probable cause for the prosecution[34] and that Ms Pfingst acted maliciously.[35]
[34]Judgment [285], [564].
[35]Judgment [299], [585].
The elements of this cause of action were explained by the High Court in A v New South Wales.[36] The plurality observed that in a jury trial of an action for malicious prosecution, where a question relevant to the issue of reasonable and probable cause is left to a jury, it is usual for that question to precede the question concerning malice.[37] It was said that the element of the absence of reasonable and probable cause does not involve a question which is “abstract or purely objective”. Rather, the question is whether the prosecutor had “reasonable and probable cause to do what he [or she] did; not whether, regardless of the prosecutor’s knowledge or belief, there was reasonable and probable cause for [the] charge to be laid.”[38] Their Honours said that the question thereby involved both an objective and subjective aspect,[39] and that:[40]
“[T]he inquiry about reasonable and probable cause has two aspects. That is, to decide whether 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. What did the prosecutor make of it? What should the prosecutor have made of it?”.
[36][2007] HCA 10; (2007) 230 CLR 500 (“A’s Case”).
[37]A’sCase at 515 [43] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.
[38]A’sCase at 514 [38].
[39]A’sCase at 514.
[40]A’sCase at 520 [58].
The plurality said that an action for malicious prosecution has a “temporal dimension”,[41] in that the inquiry about reasonable and probable cause must direct attention “to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution.”[42]
[41]A’sCase at 520 [59].
[42]A’sCase at 520 [59].
They discussed what has to be demonstrated, insofar as the subjective aspect of reasonable and probable cause is concerned. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies,[43] the absence of reasonable and probable cause will be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or probably was, guilty.[44] Where the prosecutor may not be supposed to know where the truth lies, but has acted on material provided by third parties, the question will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the process of the criminal law in motion.[45]
[43]For which the Court instanced Sharp v Biggs (1932) 48 CLR 81.
[44]A’sCase at 525 [71] and 526 [76].
[45]A’s Case at 526 [76] and 528 [80].
As to the objective aspect of reasonable and probable cause, the plurality observed that it was not sufficient to show only that there were further inquiries that could have been made before a charge was laid.[46] Their Honours endorsed what was said by Lord Atkin in Herniman v Smith:[47]
“It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution.”[48]
[46]A’s Case at 529 [86].
[47][1938] AC 305 at 319.
[48]Quoted in A’s Case at 530 [86].
As to the separate question of what will constitute malice in this context, the plurality said that it has to be demonstrated that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law, and that the improper purpose was the “sole or dominant purpose actuating the prosecutor”.[49] Although the proof of malice will often be a matter of inference, “it is proof that is required, not conjecture or suspicion.”[50]
[49]A’s Case at 531 [91].
[50]A’s Case at 531 [93].
Their Honours further observed that proof of particular facts may supply the evidence of both the element of the absence of reasonable and probable cause and the element of malice. They said that, 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.”[51]
[51]A’s Case at 531 [90].
The Accessory Charge
Section 10 of the Criminal Code provides that:
“[a] person who receives or assists another who is, to the person’s knowledge, guilty of an offence, in order to enable the person to escape punishment, is an accessory after the fact to the offence.”
Section 544(1) of the Code provides that if a person becomes an accessory after the fact to a crime (such as robbery), the accessory commits a crime. The offence committed by an accessory after the fact is a different offence from that committed by the person whom the accessory receives or assists. In that respect, the accessory’s criminal responsibility differs from that of a person who, by s 7(1)(b), (c) or (d) or s 8 of the Code, is deemed to have taken part in the commission of the same offence as that committed by the person whose act or omission constituted the offence.
Both an accessory after the fact, and an accessory in the sense of a party to an offence by s 7 or s 8, are subject to s 569 of the Code. By that provision, an accessory “may be charged in the same indictment with the principal offender, and may be tried with the principal offender or separately, or may be indicted and tried separately, whether the principal offender has or has not been convicted or is or is not amenable to justice.” Nevertheless, as noted, the commission of the principal offence must be proved, [52] and the Accessory Charge here would have required the prosecution to prove that it was Suthers who had robbed the bank.
[52]R v Kirkby [2000] 2 Qd R 57 at [39] per McMurdo P citing R v Carter and Savage; Ex parte Attorney-General (Qld) [1990] 2 Qd R 371 per Carter J at 378.
At this point it is necessary to discuss more of the events around the Accessory Charge being laid.
On 19 March 1993 Ms Pfingst noted a description of the robber on the police “Running Sheet” which recorded the progress of the investigation. It read:
“DECSCRIPTION: Australian, 20’s, olive complexion, 6’, black hair with a 6” pony tail. Wearing a long sleeve pastel shirt with dark 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.”
From at least 19 March 1993 it appears that Mr Irving was treated as a “suspect”. On 19 March 1993, an entry on the Running Sheet reads: “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.” The trial judge considered that this “appear[ed]” to be a reference to the criminal history of Mr Irving.[53] On the same day the Running Sheet recorded that enquiries were made with Ms Parker (Mr Irving’s former partner) in an attempt to find Mr Irving’s whereabouts. From 20 March 1993 there were further entries which appear to refer to Mr Irving as “the suspect”.
[53]Judgment [85].
On 17 May 1993, Ms Pfingst and a colleague, Detective Sergeant Sturgess, travelled to Atherton. By then, police had made several unsuccessful attempts to locate Mr Irving. At 1 pm, or sometime before then, the Cairns CIB received a call from an employee of the Commonwealth Bank in Atherton, alerting them to the fact that Mr Irving was, or soon would be, at the branch. Upon arriving at the branch, Ms Pfingst and Mr Sturgess approached Mr Irving and he agreed to accompany them to the Atherton police station to discuss the Cairns robbery. He answered a number of questions and was apparently told that he had to accompany Ms Pfingst and Mr Sturgess back to Cairns because his lawyer was there, and there was an issue with him failing to appear in relation to a bail undertaking. Mr Irving then also agreed to show the police where he had hidden the registration plates from his car. After further questioning at the Cairns CIB Mr Irving refused to take part in an interview. Ms Pfingst then arrested him for the possession of cannabis and a failure to appear. She added “I’ll be making further inquiries in relation to the armed hold up”.
Later on 17 May 1993 Ms Pfingst and another colleague travelled to the Port Douglas area. Upon speaking to other detectives, she took possession of a shirt which was located in a bag of clothing apparently owned by Mr Irving.
On the morning of 18 May 1993, an operation described as Operation 3UP was established in the Cairns CIB. Its purpose was to investigate whether three recent bank robberies in Cairns, this one included, were linked, and whether the same person had been the robber in each case.[54] The three robberies were the subject of individual investigations, and Ms Pfingst was investigating only the robbery which occurred on 19 March 1993. However, as a result of the 3UP operation, Ms Pfingst saw photographs depicting another of the robberies, which had occurred in late 1992.[55] In her evidence, she accepted that there were similarities between the descriptions given by witnesses of that robbery, and those given of the robber in the subject case.[56]
[54]Judgment [478], [482].
[55]Judgment [485].
[56]Judgment [486].
On the same day, 18 May, Mr Irving was before the Magistrates Court on the failure to appear and possession of cannabis charges. His bail application was opposed and adjourned to 20 May 1993. The QPS court brief for this application, dated 17 May 1993, included the following within the relevant facts:
“On the 19th of March, 1993 there was an armed robbery at the ANZ Bank, Hartley St, Portsmith, Cairns. A Motor vehicle registered to this defendant was used in this Robbery.
…
On Monday the 17th Day of May, 1993 the defendant was located by Police and spoken to about his non appearance at the Court regarding this matter. He informed them that he did not appear because HE KNEW THAT THE POLICE IN CAIRNS WERE LOOKING FOR HIM REGARDING THE ARMED ROBBERY and wanted to avoid them for this reason. …”
(emphasis in original)
Mr Irving was arrested on the Accessory Charge early on the afternoon of 18 May. Later that day, Ms Pfingst returned to the watchhouse and asked him whether he would be willing to take part in a line-up and provide samples of his hair and saliva. He refused to do so.
On the following day, 19 May, Ms Pfingst applied to a magistrate for permission to take those samples. Mr Irving’s solicitor opposed that application, but the permission was granted, and samples were taken that evening by a doctor, under the supervision of another detective and in the presence of Mr Irving’s solicitor.[57] The magistrate’s approval was given under what was then s 259 of the Criminal Code, which provided that when a person was in lawful custody upon a charge of committing an offence, a medical practitioner might examine the person and take samples of his blood, saliva or hair and collect from his person any substance or thing, if that could not cause bodily harm to the person. It further provided that this could not be done, absent the consent of the person in custody, without the approval of a magistrate.[58]
[57]Judgment [213].
[58]s 259(4).
In her written request for the magistrate’s approval, Ms Pfingst expressed her belief that the examination might afford evidence of the commission of the offence which was alleged by the Accessory Charge. At the same time, she did so in terms which suggested that it was Mr Irving who had been the robber:
“The person IRVING is in custody charged with the above matter. Clothing used during the commission of the offence has been located by Police. Amounts of hair are contained throughout that clothing and they have been taken by possession of by Police. These samples are required for comparison to those found on that clothing. IRVING has admitted to Police that he hid the vehicle used in the commission of this offence. IRVING also admitted to removing the plates from the vehicle and hiding the same under cement. IRVING has also admitted that he knew that the Police were looking for the vehicle in relation to the armed robbery offence. IRVING has a similar build to the description of the offender supplied by bank staff. Clothing belonging to the offender has been identified as that being worn by the offender during the commission of the offence.”
Notable is the fact that Ms Pfingst described Mr Irving as having a similar build to “the offender”, as described by bank staff, when according to the Accessory Charge, it was Suthers, and not Mr Irving, who would have been seen by them. Further, Ms Pfingst wanted samples of Mr Irving’s blood, saliva or hair in order to compare them with what was found on clothing said to have been “used during the commission of the offence”, which was an apparent reference to the offence of the robbery.
Further again, Ms Pfingst was wrong to say there that clothing worn by the robber had been identified by any witness. At about 5 pm on the previous afternoon (18 May), after Mr Irving had been arrested, one of the bank officers who had witnessed this robbery, Ms Adkins, was asked to look at the shirt which Ms Pfingst had retrieved from the place where Irving had stayed at Port Douglas, as well as some trousers and a pair of shoes which had been left by someone at a beach just north of Cairns. Ms Adkins had previously given a statement, on the day after the robbery, in which she had described the robber wearing “a peachy shirt, with pink and purple swirls through it … [and with] long sleeves” which was “a trendy style shirt”. She had described the robber as wearing “a pair of dark grey trousers” and dark shoes, which “weren’t runners as in adidas, or dunlop or that type of runner”. When Ms Adkins was shown the shirt which Ms Pfingst had retrieved from Port Douglas (on the afternoon of 18 May), she said that the sleeves were the same as the shirt worn by the robber, but the cuffs were different. She did not then recognise the shirt as that worn by the robber. (However in a statement which she subsequently signed on 24 May 1993, she said that she could say that this was the shirt that this man was wearing, and she identified the shoes and trousers, which belonged to Mr Irving, as those worn by the robber although the trousers were black and the shoes were sandshoes.)
Earlier on 18 May, before Mr Irving’s arrest, Ms Pfingst had had another eyewitness, Ms Redgen, look at the shirt, to see whether she recognised it. She said that it was not the shirt worn by the robber. And on the morning of 19 May, Ms Pfingst showed the clothing to another eyewitness, Ms Oastler, who was unsure whether it was the clothing worn by the robber.
What is important, for Mr Irving’s case about the Accessory Charge, is that by having the witnesses look at these items of clothing, Ms Pfingst was investigating the possibility that it was Mr Irving who had been the robber.
The trial judge said that the application under s 259 referred to “facts which were relevant to the Accessory Charge but also facts pertaining to the Robbery as to the clothing which Ms Pfingst referred to as the shirt and the trousers consistent with the fact that she was at the same time also investigating the possibility of Mr Irving having committed the Robbery.”[59]
[59]Judgment [242].
On 20 May, Mr Irving was dealt with for failing to appear, possessing cannabis and also for driving whilst unlicensed. From then, he was to be held in custody only on the Accessory Charge. At the same time, he applied for bail. Ms Pfingst prepared the brief to the police prosecutor to oppose bail, which was dated 19 May 1993. She there wrote, amongst other things:
“[He] is a suspect for three armed hold ups in the Cairns area since December 1992 … [He] is the [subject] of a number of other inquiries being conducted by the Cairns CIB. Further charges are pending at a later date.”
Bail was refused by the magistrate.
On the same day, 20 May, Ms Pfingst and Detective Senior Constable Kinbacher who was the principal investigator for one of the other robberies, went to see Mr Irving’s former partner, Ms Parker. Mr Kinbacher brought photographs which had been taken in one of the other robberies (December 1992 robbery), in which that robber could be seen, and Ms Parker was asked whether she could identify that person. In the 3UP running sheet it was recorded that she “could not say that the person was or was not IRVING”. In his evidence in the present case, Mr Kinbacher said that Ms Parker made “no clear statement one way or the other” in response to the photographs. At the same time, Ms Parker was shown items of clothing, which Mr Kinbacher described as “a shirt and some footwear from [an] unrelated, potentially linked offence.” He said that Ms Parker was unable to identify these as items of clothing which she had seen Mr Irving wearing.
I go then to the evidence of Ms Pfingst in the present case which was relevant to the Accessory Charge.
In answer to a series of questions in examination-in-chief, Ms Pfingst said that when she laid the Accessory Charge, she believed that he was guilty of that offence, that police had sufficient information to warrant charging him under that offence and that there was a proper case for the prosecution of that charge.
In cross-examination, Ms Pfingst agreed that when she showed the shirt to Ms Adkins and Ms Redgen, she believed that the shirt was owned by Mr Irving and that it had been worn in the robbery. She agreed that at that time she was “pursuing a line of investigation that … Mr Irving was the robber”, and that this was “what she believed to be the case”.
Again in cross-examination, she was taken to the terms to the Accessory Charge, and agreed that the charge had three elements, the first of which was that Suthers had committed the robbery. The cross-examination then continued as follows:
“Now, a few moments ago you told the court that you believed that the plaintiff committed the robbery?---When I was doing the investigation, he was a suspect. I didn’t think he was the offender.
A few moments ago I asked you the question - - -?---You’re starting to confuse me, sorry.
A few moments ago I asked you the question, did you believe that the plaintiff committed the robbery and you said yes?---At what time?
At the time of - - -?---Is this at the time of - - -
At the time of your questioning Redgen and Atkins in respect of the shirt?---But I thought I had already done this charge and then I interviewed the witnesses.
You always believed, from the time of the commencement of Operation 3UP, that Mr Irving had committed the robbery, didn’t you?---By the time – because they’re going from the running sheet of the ANZ to – to this one. Yes, he was arrested on the – the 18^th of May.
He was arrested on the 18^th of May for accessory after the fact to the armed robbery by Suthers?---Yes.
You had no evidence that Suthers committed the robbery?---Well, that was the only person we knew of because that’s who Terry Irving had nominated as the person who had his car and did the robbery.
No, Mr Irving never said that Suthers did a robbery, did he?---No, he said he had his car.
Yes?---And his car was used in the – in the armed hold up.
And so that’s the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery?--- At the time that he was charged, we knew that he had knowledge of the – that Terry Irving had knowledge of the armed hold up because he had heard it on the radio. He admitted that. We had his car. We had his numberplates and he had nominated Wayne Suthers. So we were still doing inquiries on Wayne Suthers.
He had nominated Wayne Suthers as borrowing his car?---Yes.
You had no evidence that Wayne Suthers has committed the robbery?---No.
All right. In addition, you had no evidence that Mr Irving had done anything to assist Wayne Suthers?---I believe he had.”

It was then suggested to her that she believed that Mr Irving had hidden the number plates of his car “to help himself, not Wayne Suthers”, to which Ms Pfingst answered, “No, I disagree.” However, at a previous (aborted) trial of the present case, she had said otherwise. In her evidence in that trial, she said that she had believed that the plates were hidden because Mr Irving “didn’t want us interviewing him about the armed robbery”, and not to assist Suthers, but to assist himself.
The cross-examination (in this trial) continued:
“I suggest to you that you charged Mr Irving with being an accessory after the fact when you did not believe that he was guilty of that offence?---Not correct.
And you had no evidence to support that he had committed that offence?---No.
And you did so because you wished to hold him in custody while you further investigated the robbery?---No. We still had to make inquiries to locate Wayne Suthers. And I still say that he did certain acts to protect himself and to blame Wayne Suthers.
Now, it’s certainly the case, isn’t it, that you believed that you had – you didn’t have enough evidence, certainly as at 17 May of 1993, to charge Mr Irving with the robbery?---The actual robbery, no.”
Ms Pfingst was challenged by the cross-examiner about what she had written in the application made under s 259.[60] She disagreed that what she had written suggested that Mr Irving was the robber and that the evidence to which she referred was consistent with him being the robber.
[60]See above at [62].
At the end of the cross-examination, Ms Pfingst accepted that, as at 17 May 1993, there was insufficient evidence to arrest Mr Irving on an armed robbery charge.
In re-examination, she admitted to a suspicion, having seen photos of the earlier bank robbery, that the robber in this case was Mr Irving. She was then asked for the basis upon which she charged him with the Accessory Offence, and she answered:
“Well, we already had the car, the number plates, the hiding of the number plates, the tarp over the car. We had some identification of photo boards and identification of clothing. … And Wayne Suthers didn’t exist …”.
The trial judge had other evidence which was relevant to Ms Pfingst’s investigation of Mr Irving at this time. There was a substantial issue at the trial, which is raised again in the appellant’s argument in this Court, as to what passed between Mr Irving, Ms Pfingst and another detective, Detective Sturgess, on 17 May 1993. The evidence of Ms Pfingst was that on the evening of 17 May, she and Detective Sturgess recorded their conversations with Mr Irving on a laptop at the Cairns CIB. She said that she then transferred notes from the laptop to her police notebook and the notes were then signed by her and Mr Sturgess. Those notes were tendered at Mr Irving’s committal hearing. Ms Pfingst said in this case that the conversations had not been recorded, in that there was no video or audio recording of them. Mr Irving said that certain parts of the laptop notes were falsifications of what had been said, and he alleged that the detectives’ interviews of him on that day must have been recorded but that the tapes had never been disclosed.
In support of that argument (in the present trial), Mr Irving’s counsel tendered an opinion of Associate Professor Heydon, whom the trial judge accepted as holding qualifications in linguistics.[61] Professor Heydon was of the opinion that the linguistic style of the laptop notes were unusual for a document which had been prepared only from memory some hours after a conversation. The trial judge excluded her evidence in so far as it contained conclusions which, her Honour said, required no expert knowledge or experience, and her Honour gave little weight to the balance of the report.[62] The judge rejected the evidence of Mr Irving that the laptop notes were an inaccurate record.[63]
[61]Judgment [162].
[62]Judgment [167].
[63]Judgment [168].
Her Honour’s exclusion of that evidence, and her assessment of the balance of the report of the witness, are the subject of complaints in this Court, which I will discuss later in this judgment in respect of Mr Irving’s argument for a re-trial of his claim about the Robbery Charge. At this point what matters is that it is unnecessary to accept Mr Irving’s case about the laptop notes, in order to conclude that the trial judge erred in her findings about Ms Pfingst’s state of mind in making the Accessory Charge.
The Accessory Charge: the Reasons of the trial judge
The trial judge considered that the evidence of Ms Pfingst supported the fact that Ms Pfingst suspected that Mr Irving was “involved in the robbery”.[64] Her Honour noted Ms Pfingst’s concession that as at 18 May 1993, there was insufficient evidence to charge him with the robbery itself. Her Honour said that, “the fact that Ms Pfingst considered Mr Irving a person of interest or a suspect does not establish that she held the belief that he was the robber.”[65] That must be accepted.
[64]Judgment [265].
[65]Ibid.
However, her Honour then said that “[h]olding a suspicion someone is a principal offender and holding an honest belief based on the evidence that the person is guilty of being an accessory after the fact are not necessarily incompatible.”[66] In my respectful opinion, that revealed an important error of the trial judge.
[66]Ibid.
Suspicion and belief are different states of mind.[67] The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.[68]
[67]George v Rockett (1990) 170 CLR 104 at 115 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 26.
[68]Ibid.
In Hussien v Chong Fook Kam[69], Lord Devlin said:
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.”[70]
In Queensland Bacon Pty Ltd v Rees,[71] Kitto J said that “[A] suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it.”[72]
[69][1970] AC 942 at 948.
[70]Cited in George v Rockett (1990) 170 CLR 104 at 115.
[71](1966) 115 CLR 266 at 303; [1966] HCA 21.
[72]Cited in George v Rockett.
A belief has been described as “an inclination of the mind towards assenting to, rather than rejecting, a proposition”.[73] The Australian Oxford Dictionary gives as one meaning of belief: “a firm opinion my belief is that he did it”. According to the Macquarie Dictionary, the word belief may mean “an accepted opinion” or a “conviction of the truth or reality of a thing, based upon grounds insufficient to afford positive knowledge”.
[73]George v Rockett (1990) 170 CLR 104 at 116.
Unambiguously, Mr Irving was charged with being an accessory after the fact to an offence of armed robbery which was committed by Suthers. Mr Irving could not have been both the robber and an accessory after the fact to his own offence. Therefore, Ms Pfingst could not have held an honest belief that Mr Irving was guilty of the offence charged if, at the same time, she suspected that it was Mr Irving, and not Mr Suthers, who had robbed the bank.
Her Honour continued:
“The evidence supports the proposition that Ms Pfingst held suspicions Mr Irving was responsible for [the] Robbery, but not that she believed he was the Robber and did not believe he was an accessory after the fact.”[74]
Respectfully, that statement involved the same error. Similarly, that was evident in her Honour’s further statement that:
“Holding a suspicion that Mr Irving may be a robber is not inconsistent with and does not mean that Ms Pfingst could not also have held a belief, on the basis of evidence she had at the time, that he was an accessory after the fact and based on the evidence, that it warranted prosecution.”[75]
[74]Judgment [266].
[75]Judgment [268].
Her Honour noted a submission, for the present respondents, that “it is possible for a person to be both a principal offender by operation of ss 7 and 8 of the Criminal Code and to do an act which also makes them an accessory after the fact”,[76] which appears to have induced her Honour to reason as follows:
“[271] Much was made by Mr Irving as to the terms of the charge and the fact it identified Mr Suthers as the Robber, when Ms Pfingst accepted that there was no evidence that Mr Suthers was the person who had actually robbed the Bank, or had a gun, as stated in the charge. Ms Pfingst’s evidence supports the fact that she was relying on Mr Suthers being involved in the Robbery, such that Mr Suthers would be liable for the offence by reason of s 7 or 8 Criminal Code rather than being the person who robbed the bank himself.
[272]While Mr Suthers is said to be the principal offender in the Accessory Charge, it is apparent from the evidence given by Ms Pfingst that it is likely that she was acting on the basis that Mr Suthers was a party to the Robbery because he had Mr Irving’s car and someone other than the Robber was observed driving the car when it was exiting the driveway after the Robbery. The evidence supported Mr Irving’s car being used as the getaway vehicle, which would make Mr Suthers liable for the principal offence if he was driving the vehicle carrying the Robber. It is apparent from Ms Pfingst’s evidence that she was focused on the fact that Mr Suthers had Mr Irving’s car at the time of the Robbery in identifying him as principal offender, rather than having committed the Robbery itself. That is consistent with the fact that she relied upon Mr Irving’s knowledge the car had been used in the Robbery, and that he had hidden the registration plates and had put a tarp over the car as being the relevant evidence supporting Mr Irving being an accessory after the fact. I accept as correct, the submission of the Defendants that a person can be charged with being accessory after the fact, helping [any one] of the principal offenders by the operation of s 7 of the Criminal Code and that the evidence of Ms Pfingst did not exclude, but in fact supported, the submission that she regarded Mr Suthers’ involvement in the Robbery as based upon the fact that he had Mr Irving’s vehicle, which was used in the getaway. While the wording of the charge referred to Mr Suthers having the shotgun, I find that the most probable explanation is that was an incorrect particular in the wording of the charge. This was Ms Pfingst’s first armed robbery as senior investigating officer.”
(Footnotes omitted.)
[76]Judgment [269].
That reasoning cannot be accepted. The terms of the charge unambiguously identified Suthers as the person who robbed the bank. At no time did Ms Pfingst suggest that she had mistakenly described the offence of Mr Suthers, in drafting the charge, because she meant to allege that Suthers had participated in the robbery in another way, such as being the driver of a getaway vehicle.
Her Honour then discussed evidence of Ms Pfingst, as who it was, in Ms Pfingst’s view, who was to be protected by hiding the registration plates. Her Honour noted the cross-examination to which I have referred earlier at [73].[77] Nevertheless, she accepted an argument (for the present respondents) that the evidence should be interpreted as a belief that Mr Irving was “seeking to assist himself … in regard to him not being interviewed about the Robbery, not regarding Mr Irving hiding the registration plates, which Ms Pfingst had previously identified as being to assist Mr Suthers.”[78] Her Honour said:
“While the hiding of the registration plates and the car was open to being interpreted as being done to hide the evidence that Mr Irving was the Robber, at the point in time when the Accessory Charge was laid and Mr Suthers was nominated as having the car, it was also capable of supporting the fact that Mr Irving hid the registration plates and the car to assist Mr Suthers to escape punishment for his part in the Robbery.”[79]
[77]Judgment [263]-[274].
[78]Judgment [275].
[79]Judgment [275].
In my opinion, that analysis was not open on the evidence. Ms Pfingst was adamant in her statement that “I still say that he did certain acts to protect himself and to blame Wayne Suthers.”[80]
[80]My own emphasis.
Her Honour continued as follows:
“[279]I do not find that the evidence supports the fact that at the time the Accessory Charge was laid:
(a)Ms Pfingst believed without any adequate or reasonable foundation that Mr Irving committed the Robbery and was not an accessory after the fact, nor that there was insufficient evidence to support the charge;
(b)That while Ms Pfingst had conceded that there was no evidence that Mr Suthers had committed the Robbery, there was evidence that he was liable as a principal offender by virtue of the fact that he had the car used in connection with the Robbery, and she relied on that as supporting the Accessory Charge; or
(c)That the evidence did not support that Mr Irving did anything to assist Mr Suthers to escape punishment.
[280]I do not find that Ms Pfingst did not honestly believe that Mr Irving had done an act to assist Mr Suthers by removing the registration plates, placing them under concrete and putting a tarp over the car when he had knowledge that the car was suspected of being used in the Robbery.
[281]I therefore do not find that the three facts which Mr Irving contends emerged from the evidence in respect of the Accessory Charge on the balance of probabilities. I do not find that she laid the Accessory Charge in order to keep him in custody to build a case against him for the Robbery or other robberies being investigated by Operation 3UP not having honestly formed the view that there was a proper case for prosecution. That is further supported by the fact that laying the Accessory Charge would not of itself lead to Mr Irving not being granted bail and being held in custody.”
(Footnotes omitted.)
Her Honour found that objectively, there was sufficient evidence for charging Mr Irving with the Accessory Charge.[81] Her Honour reached that conclusion by reasoning as follows:
“That even though there was one Robber in the Bank and there was no evidence that Mr Suthers was that person, there was evidence that another person was seen to be driving the getaway vehicle. Mr Suthers was nominated as having possession of the vehicle at the time of the Robbery. Therefore, the evidence supported that he was a co-offender in the Robbery.”
(Footnotes omitted.)
In a footnote to the penultimate sentence in that passage, were added the words “And could be liable if he drove the getaway car or gave it to somebody for use in the Robbery.” A footnote to the last sentence referred to “s 7(a) & s 7(b) or (c)” of the Code. Again, it is evident that her Honour interpreted the charge, incorrectly, as one in which the offence could be proved by proving that Suthers was a participant in the offence of robbery, whilst not being the robber himself.
[81]Judgment [282].
Her Honour declined to find that Ms Pfingst lacked an honest belief that there was sufficient evidence to lay the charge.[82] Her Honour concluded, as to Ms Pfingst’s subjective state of mind, as follows:
“Ms Pfingst gave evidence that she honestly believed there was sufficient evidence for a proper case for prosecution and that she believed at the time she charged him, that there was a proper case for prosecution of that charge. I accept that evidence. I do not find that Mr Irving has demonstrated an absence of reasonable and probable cause with regard to the First Alleged Malicious Prosecution.”[83]
[82]Judgment [283].
[83]Judgment [285].
The trial judge rejected an argument that Ms Pfingst had laid the Accessory Charge in order to ensure that Mr Irving remained in custody while she built a case against him “as the principal offender or for one of the other robberies that were being investigated by Operation 3UP.”[84] Her Honour repeated her finding that Ms Pfingst considered that there was sufficient evidence to support the Accessory Charge and that it warranted prosecution.[85] The judge accepted Ms Pfingst’s denial that she had charged Mr Irving so that she could further investigate the robbery. Her Honour said: “I accept her evidence in that regard. There is no incompatibility with Mr Irving being charged with the Accessory Charge where there is evidence to lay that charge and continuing to investigate him in relation to his involvement in the robbery.”[86]
[84]Judgment [287].
[85]Judgment [290].
[86]Judgment [295].
Conclusions on the Accessory Charge
The challenge to the trial judge’s conclusions on the Accessory Charge meets the difficulty that the trial judge reached those conclusions having seen and heard the evidence and having formed an impression that Ms Pfingst was honest and reliable in her testimony. An appellate court should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.[87]
[87]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687; [2016] HCA 22 at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ, citing Fox v Percy (2003) 214 CLR 118 at 128 [28]-[29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-481; [1993] HCA 78; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at 381 [76].
However, in this case the judge’s critical findings of fact are demonstrated to be wrong by a review of the evidence, including the evidence of Ms Pfingst, and by an understanding of the different bases of criminal responsibility which the judge discussed.
The starting point is that the Accessory Charge was unambiguous in defining the case which the prosecution would have had to prove. The prosecution would have required proof that Suthers was the person who robbed the bank, and that Mr Irving did something to assist Suthers in order to enable to Suthers to escape punishment for doing so. The charge would also have required proof that Mr Irving knew that it was Suthers who had robbed the bank. The terms of the charge did not allow for the possibility that Suthers was a party to the offence of the robbery of the bank, not as a person who did the act which constituted that offence (s 7(1)(a)), but as otherwise a party who was deemed to have committed the offence by s 7(1)(b), (c) or (d) or s 8 of the Code.
Nor did the charge allow for the possibility that the criminal responsibility of Mr Irving was as a co-offender in the robbery offence (by s 7 or s 8), rather than as a person who had committed the distinct offence of being an accessory after the fact.
In her evidence, Ms Pfingst did not suggest that she was mistaken in her drafting of the charge. She did not suggest that she thought that she was alleging that someone else may have robbed the bank, and that Suthers was a party to that offence in some way.
Although, in her evidence-in-chief, Ms Pfingst did say that she believed that Mr Irving was guilty of the Accessory Charge, such a belief was disproved by other evidence, including her own. She admitted that she knew nothing about Suthers, apart from what she had been told by Mr Irving. She accepted that she had no evidence that Suthers was the robber. She suspected that Mr Irving was the robber. The evidence of that suspicion was overwhelming. She was pursuing a line of enquiry that one of Mr Irving’s shirts was that of the robber. In several documents which she prepared by then, she described him as a suspect for the robbery itself.[88] She could not have held, at the same time, a belief that Suthers was the robber whilst suspecting that Mr Irving was the robber.
[88]Documents indicating suspicion before 18 May 1993: Entries on the ANZ Bank Running Sheet refer to Mr Irving as a “suspect” as early as 19 or 20 March. See also, Queensland Police Service Brief. Documents indicating suspicion after 18 May 1993: Objection to Bail, dated 19 May, Section 259 Application.

The listing of the conditions in Mitchell v Heine of which a plaintiff must negative at least one to prove absence of reasonable and probable cause shows it is possible for a defendant to honestly believe that it is proper to bring a charge on the basis of the information then available to the defendant, even though there may objectively be insufficient grounds for the charge. As Kitto J observed in Trobridge v Hardy (1955) 94 CLR 147, 164, “there is always the possibility that a belief which appears unreasonable may nevertheless be honestly held, either because the person concerned pursues an unreasonable train of thought or because he is forgetful of or inattentive to factors in the situation, the absence of which would make his belief reasonable”. This means there can be a deficiency in the police officer’s reasoning as to why there is a proper case for charging an offender without detracting from the honest belief of the police officer that it is such a proper case. The trial judge’s conclusion about Ms Pfingst’s honest belief rests on the credit findings made by the trial judge in accepting the evidence of Ms Pfingst and Mr Sturgess and rejecting Mr Irving’s evidence where it was relevant to whether Ms Pfingst’s evidence was accepted.
The trial judge’s acceptance of Ms Pfingst’s evidence relevant to her honest belief at the time Mr Irving was charged as an accessory was made on the basis of strong findings of credit in her favour. This is therefore not a case where the trial judge’s conclusion that Mr Irving failed to show that Ms Pfingst did not have that honest belief can be characterised as “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy at [29].
The fact that there was no evidence that Ms Pfingst engaged in reasoning that the accessory charge could proceed on the basis of Mr Suthers being a party to the robbery rather than the robber himself which was contrary to the explanation attributed by the trial judge (at the conclusion of [271] of the reasons) for the form of the charge did not detract from the acceptance by the trial judge of Ms Pfingst’s evidence as to her honest belief there was a proper case for charging Mr Irving as an accessory. That means he cannot now succeed in challenging the trial judge’s conclusions (at [278]-[280] of the reasons) that Mr Irving failed to prove that Ms Pfingst did not honestly believe there was a proper case for prosecution of Mr Irving on the accessory charge. The objective basis of that element of the tort is a different matter.
Mr Irving was a person of interest in the investigation of the robbery from the date it occurred, because of the identification of his vehicle in connection with the robbery. Without locating Mr Irving until 17 May 1993, the investigation of the robbery had stalled. Until Mr Irving disclosed that name of Mr Suthers, the police did not have any idea as to the identity of another person who may have been involved in the robbery. The question arises whether the police officer of “ordinary prudence and caution” would have accepted as the truth Mr Irving’s statement that he lent his car to Mr Suthers and concluded that Mr Suthers was involved in the robbery. The information provided on 17 May 1993 by Mr Irving about Mr Suthers gave Ms Pfingst a line of inquiry. It was premature for Ms Pfingst to charge Mr Irving as an accessory on 18 May 1993 without having checked his story about giving his car to Mr Suthers on the day of the robbery or making the inquiries to locate or better identify Mr Suthers or ascertain there was such a person. It was speculation to jump from Mr Irving’s disclosure about the borrowing of his car by Mr Suthers when the robbery took place to charging Mr Irving as an accessory on the basis Mr Suthers was the principal offender, when Ms Pfingst had no evidence to prove that principal offence against Mr Suthers. There was an insufficient basis or no reasonable grounds for Mr Irving to be charged as an accessory to a robbery alleged to have been committed by Mr Suthers so early in the investigation of the robbery.
The trial judge should therefore have concluded that Mr Irving discharged the onus he bore to prove that there was an absence of reasonable and probable cause in relation to the FMP on the objective test. This conclusion does not impeach the trial judge’s credit findings in favour of Ms Pfingst.
It is therefore necessary to consider whether there was any error made by the trial judge in rejecting Mr Irving’s case of malice in charging him as an accessory on 18 May 1993.
In A’s case, it is stated at [91] that “to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law” and “[t]hat improper purpose must be the sole or dominant purpose actuating the prosecutor”. As was observed in A’s case at [93], proof of malice will often be a matter of inference and it is proof that is required, not conjecture or suspicion. It was recognised by Kitto J in Trobridge at 163 that malice can be proved by proving that the defendant’s conduct is not explained by the existence of a right motive:
“Evidence which tells against the probability that a right motive was the sole or predominant cause of the conduct goes to provide a foundation on which the jury may reason, through the presumption that there must be some explanation of what the defendant did, to the conclusion that he must have been actuated by an inadmissible motive of some kind or other.”
The joint judgment in A’s case gives some guidance on whether malice can be proved where the finding is made that the relevant police officer had formed the subjective view that a charge should be brought against the plaintiff. The relevant police officer who was the second respondent in A’s case charged the plaintiff with sexual offences alleged to have been committed against his stepsons C and D. During the committal hearing, C admitted that his evidence-in-chief was false and that he had told lies to help his brother. The plaintiff was discharged in respect of the charges involving both C and D. In the action brought by the plaintiff against the State of New South Wales and the second respondent claiming damages for malicious prosecution, the plaintiff’s solicitor gave evidence of conversations he had with the second respondent. The effect of the conversations was the second respondent conveyed he had felt he was under pressure to charge the plaintiff, because the plaintiff was an employee of the police service, and that if it had been up to him, he would not have charged the plaintiff. The judge who tried the malicious prosecution claim accepted the plaintiff’s solicitor’s evidence and made a finding that the second respondent laid both charges against the plaintiff “not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to the pressure from officers of the Child Protection Enforcement Agency to charge the plaintiff because he worked for the Police Service” and that the plaintiff had therefore proved the second respondent acted maliciously. The judge also made findings that the charge concerning D was a proper case to bring to court, but in relation to the charge concerning C, the judge was satisfied the second respondent “did not believe that the plaintiff had committed the offence, or alternatively, that if he did believe, then such belief was not based upon reasonable grounds”. The plaintiff therefore succeeded at trial in the claim of malicious prosecution for the charge concerning C, but not for the charge concerning D.
That outcome was ultimately upheld in the High Court. In addressing the first issue identified in [101] of A’s case of whether there was a difficulty presented by the trial judge’s expressing in alternative terms the finding about reasonable and probable cause in respect of the charge concerning C, the observations in the joint judgment in A’s case at [104] are pertinent:
“The absence of an adequate objective basis for the formation of the requisite opinion made it unnecessary to decide whether the second respondent had in fact formed the opinion that the material considered warranted laying a charge in respect of C. Further, the finding about malice, that neither charge was laid for the purpose of bringing a wrongdoer to justice, would be inconsistent with a conclusion that the second respondent had formed the subjective opinion that a charge should be laid in respect of C. But there is no inconsistency in the trial judge concluding, as he did, that either the second respondent did not believe there was a case fit for prosecution or, viewed objectively, the material then available did not warrant forming such an opinion.”
Ms Pfingst was candid in her evidence that she had suspicions that Mr Irving may have been the robber, even when she charged Mr Irving with being an accessory. See the findings of the trial judge (at [265]-[268] of the reasons) that Ms Pfingst held those suspicions.
It is critical to the trial judge’s conclusion on malice that her Honour accepted (at [295] of the reasons) Ms Pfingst’s denial that she charged Mr Irving as an accessory, so she could further investigate the robbery and found that:
“There is no incompatibility with Mr Irving being charged with the Accessory Charge where there is evidence to lay that charge and continuing to investigate him in relation to his involvement in the Robbery.”
A similar statement was made by the trial judge at [268] of the reasons.
The matters that were relied on by Mr Irving on the appeal to show that the trial judge erred in concluding that he failed to prove malice were the same matters relied on to challenge the trial judge’s conclusion that Mr Irving had failed to prove absence of reasonable and probable cause on the subjective basis.
Consistent with the observation in A’s case at [104] that there would be inconsistency in concluding that the relevant police officer had formed the subjective opinion that a charge should be brought with a finding of malice, the trial judge’s conclusion (at [283] of the reasons) that Mr Irving has failed to prove Ms Pfingst did not honestly believe at the time she laid the accessory charge there was insufficient evidence to do so precluded Mr Irving’s proving malice on the part of Ms Pfingst.
Although Mr Irving on this appeal has succeeded in showing error on the part of the trial judge in concluding that Mr Irving had failed to prove there was an absence of reasonable and probable cause in relation to the FMP on the objective test, Mr Irving has failed otherwise in challenging the dismissal of his claim for the FMP of the appeal.
Ground 8 - the alleged errors in relation to the objection to bail
There were aspects of the objection to bail documents for the accessory charge relied on by Mr Irving before the trial judge to assert that Ms Pfingst embellished the evidence. The trial judge rejected (at [224]-[233] of the reasons) the so-called embellishments. Mr Irving submits that the trial judge erred in looking at each of these aspects individually and whether there was an explanation for each aspect. Mr Irving submits that the proper approach was to look at the cumulative effect of the embellishments to consider whether there was a course of conduct to embellish the evidence to make the case against Mr Irving appear stronger.
The QP9 that was signed by Ms Pfingst as the arresting officer included the allegation that “the offender was followed by one of the female tellers and a male person and the offender was seen to get into the back door of a grey toyota sedan and it will be alleged that the vehicle beared the registration number 682BUI”. The QP9 is a summary of the facts relied on by the police to charge an offender. Neither Ms Adkins from the bank nor Mr Kerr actually saw the robber get into Mr Irving’s vehicle, but they did see him go into a driveway and they saw a grey car (that bore the registration number of Mr Irving’s vehicle) exit the same driveway. Mr Kerr had stated that the male person he had been following was face down lying across the back seat of the grey car and was able to identify the car registration. There was also supporting evidence from Mrs Kerr that she had seen the male person they were following run into a set of units and that a car driven by another man came out of the units. As the trial judge accepted (at [230] of the reasons) it was not strictly correct to assert the offender was seen getting into the back of Mr Irving’s car, but the logical and obvious inference was that the offender was at the back of Mr Irving’s car while it exited the driveway. To the extent it was an embellishment, it was therefore immaterial.
The other complaints about the QP9 were based on the 17 May 1993 record of conversations/interview which the trial judge had accepted was accurate and therefore found (at [231] of the reasons) that those admissions taken from the record of interview did not amount to an embellishment or manipulation of the evidence.
It was common ground that the criminal history that Ms Pfingst obtained from the QPS Information Bureau for Mr Irving was incorrect, but the trial judge found (at [232] of the reasons) that Ms Pfingst was not aware of the errors in the criminal history and therefore Ms Pfingst’s relying on the criminal history in support of the objection to bail could not be characterised as an embellishment.
Before the matters relied on by Mr Irving as embellishments can be accumulated, they have to be found to be embellishments. There was one aspect in relation to the bail hearing that was attributable to Ms Pfingst which was an immaterial embellishment in relation to whether the offender was seen to get into the grey car rather than it being an inference from the evidence of the eyewitnesses that the offender got into the grey car. There were no other errors for which Ms Pfingst was responsible that were found to be embellishments that could be considered in a cumulative way with that embellishment.
Mr Irving has not established ground 8 of the appeal.
Grounds 5 and 6 – whether the CJC transcripts of interview should have been excluded
According to the s 259 application made by Ms Pfingst in relation to the accessory charge, the police had taken possession of clothing that related to the robbery that contained samples of hair. At the committal hearing for the robbery charge, the multi coloured long sleeve shirt was tendered as an exhibit, in addition to the trousers found by Mr Jetson. According to Ms Pfingst’s evidence in chief at the committal hearing, the shoes found by Mr Jetson had been sent to the scientific section of QPS and passed onto the University of Queensland for examination together the Dunlop sandshoes taken from Mr Irving on 17 May 1993 and a pair of blue rubber thongs (which Mr Irving was wearing when Ms Pfingst took them from him on 1 June 1993). Ms Pfingst was cross-examined at the committal about the trousers and shoes found by Mr Jetson and responded that they were similar to the trousers and shoes described by witnesses. Ms Pfingst was then cross-examined on whether there were any results from the samples taken from Mr Irving pursuant to s 259 of Code soon after his arrest on the accessory charge and replied “No, there was nothing on the clothing after it was examined”. It was apparent from her next answer at the committal that in relation to clothing, she was referring at least to the multi coloured long sleeve shirt. Ms Pfingst’s answer that there was nothing on the clothing after it was examined formed part of Mr Irving’s complaint to the CJC about Ms Pfingst. Ms Pfingst was interviewed by the CJC in respect of Mr Irving’s complaint.
Mr Irving had made two allegations in the statement of claim to the effect that Ms Pfingst gave false evidence to the CJC on 25 October 1994. The first allegation was that Ms Pfingst gave false evidence that she consulted Ms Birchley, a scientific officer with the QPS at Cairns, between 19 and 30 May 1993 and provided Ms Birchley with forensic examples, and based on Ms Birchley’s response, omitted to cause the samples to be further tested for the presence of human hair. The second allegation was that Ms Pfingst gave false evidence that she had a conversation with Ms Birchley, during which Ms Birchley had stated to her that forensic samples were dog hair and that, based upon that response, Ms Pfingst omitted to cause the samples to be further tested for presence of human hair. Mr Irving alleged that Ms Pfingst had not provided the forensic examples to Ms Birchley and that no such conversation between Ms Pfingst and Ms Birchley had taken place. In the defence, the respondents denied the allegations and relied on the evidence given by Ms Pfingst to the CJC on 25 October 1994 that clothing and other samples containing hair were provided to Ms Birchley who looked at them, it was considered unnecessary to have the samples further tested, and that Ms Birchley had said the samples were dog hair.
These grounds of appeal relate to the question of whether the trial judge erred in law in excluding from evidence the respective transcripts of interviews by the CJC with Ms Pfingst on 25 October 1994 and Ms Birchley on 29 November 1994. The trial judge dealt with the CJC evidence at [462]-[477] of the reasons.
As Mr Irving’s purpose of adducing evidence from Ms Birchley was endeavouring to prove that the evidence given by Ms Pfingst to the CJC was false, it is logical to deal first with the question of the admissibility of the transcript of the interview with Ms Pfingst (ground 6). The transcript of Ms Pfingst’s CJC interview had to be adduced in evidence, before Mr Irving could then go the next step of adducing evidence to show that Ms Pfingst had given false evidence. The facts in issue were therefore the content of the evidence given by Ms Pfingst in the CJC interview and whether that evidence was false. Ms Pfingst’s CJC interview took place after Mr Irving had been convicted of the robbery. The allegation of the giving of false evidence was relied on by Mr Irving as relevant to the issue of Ms Pfingst’s state of mind at the time relevant to the SMP, on the basis that (with other evidence) it supported an inference she was prepared to tell lies about the state of the evidence relied on to support the robbery charge.
The starting point is Ms Pfingst’s evidence at trial about her recollection of that interview. When Ms Pfingst was cross-examined at the trial, she disclosed that she had read the transcript of the interview prior to giving evidence and that she did not think it was very accurate. She explained that she was “pretty stressed” on the day at the CJC interview. When cross-examined as to whether she recalled having a conversation with Ms Birchley “about the hair”, Ms Pfingst responded “I don’t remember now”. Ms Pfingst said she did not deny that she told the CJC that she had a conversation with Ms Birchley about the hair samples on the clothing being dog hair, but stated that she did not remember the conversation with Ms Birchley. On further cross-examination by being taken to pages of the transcript of the interview, she could recall that she had a conversation with the CJC interviewer, but did not remember the conversation. She stated that she did not think the transcript of the interview was very accurate, because there were wrong names in the transcript and some of the sentences did not make sense.
Mr Kerry Kelly who was an investigator with the CJC gave evidence on a voir dire before the trial judge that he interviewed Ms Pfingst on 25 October 1994. The interview was recorded and subsequently transcribed. The recording of the CJC interview with Ms Pfingst was not available at the trial. On the basis of Mr Kelly’s evidence, including that he was careful when he reviewed transcripts against the recordings, the trial judge concluded (at [477] of the reasons) that the transcript was prepared by an administrative assistant, but it was not probable that it was subsequently reviewed by Mr Kelly, because of the errors with peoples’ names, there were some “nonsensical parts” of the transcript and other obvious errors which were not detected. The trial judge concluded (at [477]) that the errors in the transcript would have been corrected, if Mr Kelly had reviewed the transcript of the Pfingst interview. Even though the recording itself would have been admissible pursuant to s 92 of the Evidence Act, the trial judge concluded (at [477] of the reasons) that the transcript that had been provided by the CJC of the interview was not admissible, as s 92(4) was not satisfied.

Section 92(4) of the Evidence Act provides:
“For the purposes of this part, a statement contained in a document is made by a person if—
(a)it was written, made, dictated or otherwise produced by the person; or
(b)it was recorded with the person’s knowledge; or
(c)it was recorded in the course of and ancillary to a proceeding; or
(d)it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing.”
If the actual recording of Ms Pfingst’s CJC interview had been available, that recording would have been admissible under s 92 of the Evidence Act on the basis the interview was recorded with Ms Pfingst’s knowledge and therefore complied with paragraph (b) of s 92(4) or possibly complied with paragraph (c) of s 92(4) on the basis that it was recorded in the course of a proceeding. (Because the recording was not available, it is not necessary to determine conclusively whether the CJC interview was within the definition of “proceeding” for the purpose of s 92(4).) Despite Mr Irving’s submission otherwise, the relevant parts of the transcript on which Mr Irving was relying could not be said to have been “written, made, dictated or otherwise produced” by Ms Pfingst, pursuant to paragraph (a) of s 92(4), when the trial judge concluded on the basis of Mr Kelly’s evidence that it was not established that the transcript was an accurate reflection of the recording. There was never any adoption by Ms Pfingst in writing that the interview was her statement that would satisfy paragraph (d) of s 92(4). There was therefore no error in the trial judge’s exclusion of the CJC transcript of Ms Pfingst’s interview as s 92(4) of the Evidence Act was not satisfied.
When Ms Birchley gave evidence at the trial, she had refreshed her memory by reference to her police notebook and was able to confirm that either Detectives Hartwell or Cooper had delivered the clothing and shoes (brown fluffy shirt/jumper that had dark brown pinstripes, black pants, black sneakers and an Akubra style hat) found on Holloways Beach that was suspected of being involved in the NAB robbery. She was able to extract hair samples from the clothing. There was nothing in her notes to say there was anything unusual about the hair. She did not specifically recall having a conversation with Ms Pfingst about the hair samples. She had no notes in relation to the multi coloured shirt that was tendered at the committal in respect of the robbery charge against Mr Irving. In cross-examination, Ms Birchley accepted she had no independent recollection either way about having a conversation with Ms Pfingst about the hair samples.
It is strictly not necessary to consider ground 5 of the appeal, as Ms Birchley’s evidence in the transcript of her CJC interview was relevant only if the transcript of Ms Pfingst’s CJC interview was admitted into evidence. I will nevertheless deal briefly with the exclusion of the transcript of Mr Birchley’s interview with the CJC. Ms Birchley was interviewed by the CJC by telephone on 29 November 1994 and a transcript was made of the interview. Before Ms Birchley was called by Mr Irving to give evidence at the trial, the trial judge ruled that the Birchley transcript was inadmissible under s 92 of the Evidence Act, because the transcript did not tend to establish a relevant fact, and even if it did, the trial judge exercised the discretion under s 98 of the Evidence Act to exclude it on the basis that the interview was so lacking in any probative value that it would be inexpedient in the interests of justice to admit the statement.
Ms Birchley was asked in that interview whether she recalled sometime around May 1993 making a comment to Ms Pfingst that it was her opinion that the hairs on the clothing were dog hair and her response was “No” which was interpreted for the purpose of considering the admissibility of the interview under s 92 of the Evidence Act that she did not recall making that comment. The basis for the trial judge’s ruling was that Ms Birchley’s evidence in the CJC transcript was that she did not recall a conversation with Ms Pfingst that the hairs on the clothing were dog hair and therefore Ms Birchley’s evidence was of a lack of recollection and not of a positive fact that no such conversation occurred.
Before the trial judge, Mr Irving sought to rely on the evidence of Ms Birchley contained in the CJC transcript to establish the statement made by Ms Pfingst to the CJC about the conversation she had with Ms Birchley about the dog hair was false.
Mr Irving made a very serious allegation against Ms Pfingst that she gave false evidence to the CJC about that conversation. In that context, the trial judge did not err in concluding (at [475] of the reasons) that the Birchley transcript did not prove the allegation, as the evidence at its highest was that Ms Birchley did not recall having such a discussion with Ms Pfingst about hair samples.
Mr Irving does not succeed in showing the trial judge was in error in excluding the CJC transcripts of interview with Ms Pfingst and Ms Birchley.
Ground 7 – the credibility findings relating to Mr Irving, Ms Pfingst and Mr Sturgess
Ground 7 is conditioned on the basis that Mr Irving succeeds on grounds 3 to 6 of the appeal in showing that the trial judge failed to give adequate weight to the evidence of A/Professor Heydon and erroneously excluded the CJC transcripts and that it follows the credibility findings of the trial judge in relation to Mr Irving, Ms Pfingst and Mr Sturgess should be set aside which would have a consequential effect for the claim based on the SMP.
In view of the conclusions reached above in respect of grounds 3 to 6, Mr Irving cannot succeed on ground 7 of the appeal.
Orders
It follows that the appeal should be dismissed. Neither party sought in their written submissions to make submissions on costs after the appeal was determined. There is no reason that costs should not follow the event. The formal order that should be made is: Appeal dismissed with costs.

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 1999
DIVISION:	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 notes were inaccurate and contained false statements – where the appellant relied upon the report of an expert in forensic linguistics to determine whether it was likely that the notes were prepared from memory or transcribed from a recording – where the trial judge concluded that parts of the report were inadmissible as expert opinion because the matters covered were matters of inference that could be drawn by lay people – whether parts of the report ought not to have been excluded as they contained reference to research in the field – whether the exclusion of parts of the report detracted from the effect given to the balance of the report EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTION: DOCUMENTS – GENERAL PRINCIPLES – STATEMENT – where the appellant was charged by the respondent as an accessory after the fact to armed robbery – where the respondent gave evidence-in-chief at the committal hearing for the charge – where the appellant complained to the Criminal Justice Commission (CJC) that the respondent gave false evidence – where the respondent was interviewed by the CJC in respect of the complaint – where there was no available recording of the interview – where, in this trial, the appellant alleged that the respondent gave false evidence to the CJC – where it was not established that the transcript was an accurate reflection of the interview – where the respondent did not adopt the transcript as her own statement pursuant to s 92(4) Evidence Act 1977 (Qld) – whether the trial judge erred in excluding the transcript from evidence APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – JURISDICTION TO GRANT NEW TRIAL AND OTHER MATTERS – where there was an application for a retrial – where an appeal by way of rehearing was a remedy available to the appellant – where the provisions of Chapter 18 of the Uniform Civil Procedure Rules 1999 (Qld) provide that the Court of Appeal may exercise its jurisdiction to order a new trial – where the appellant argued that the trial judge made factual errors which were critical to the outcome – whether there was some substantial wrong or a miscarriage of justice so as to warrant a new trial Criminal Code (Qld), s 7, s 8, s 10, s 544, s 569 Evidence Act 1977 (Qld), s 92 Uniform Civil Procedure Rules 1999 (Qld), r 745, r 746, r 765, r 766, r 770 A v New South Wales (2007) 230 CLR 500; [2007 HCA 10], considered Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23, considered George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, considered Hussien v Chong Fook Kam [1970] AC 942; [1969] UKPC 26, considered McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70, considered Mitchell v Pacific Dawn Pty Ltd[2003] QCA 526, considered Musgrove v McDonald (1905) 3 CLR 132; [1905] HCA 50, cited Orr v Holmes (1948) 76 CLR 632; [1948] HCA 16, cited Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21, considered R v Carter and Savage; Ex parte Attorney-General (Qld) [1990] 2 Qd R 371, cited R v Kirkby [2000] 2 Qd R 57; [1998] QCA 445, cited Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited
COUNSEL:	G R Mullins with E M Gass for the appellant S A McLeod QC, with M R Wilkinson, for the respondents
SOLICITORS:	Maurice Blackburn Lawyers for the appellant G R Cooper, Crown Solicitor for the respondents