Irving v Pfingst & Anor; Pfingst & Anor v Irving
[2022] HCATrans 114
[2022] HCATrans 114
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B3 of 2022
B e t w e e n -
TERRY IRVING
Applicant
and
HELEN MAREE PFINGST
First Respondent
STATE OF QUEENSLAND
Second Respondent
Office of the Registry
Brisbane No B5 of 2022
B e t w e e n -
HELEN MAREE PFINGST
First Applicant
STATE OF QUEENSLAND
Second Applicant
and
TERRY IRVING
Respondent
Applications for special leave to appeal
KEANE J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO BRISBANE
ON FRIDAY, 17 JUNE 2022, AT 1.38 PM
Copyright in the High Court of Australia
____________________
KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.
MR B.W. WALKER, SC appears with MS E.M. GASS for the applicant in B3/2022 and for the respondent in B5/2022. (instructed by Maurice Blackburn Lawyers)
MR S.A. McLEOD, QC appears with MR M.R. WILKINSON for the first and second respondents in B3/2022 and for the first and second applicants in B5/2022. (instructed by Crown Law (Qld))
KEANE J: Yes, Mr Walker.
MR WALKER: May it please the Court. Can I take your Honours to pages 178, 179 of the application book, please, paragraph [119] of Justice McMurdo’s reasons. It throws us to the middle of things. His Honour refers to:
The findings which ought to have been made –
That is, the Court of Appeal’s decision…..judge:
concerning Ms Pfingst’s state of mind and purpose in laying the Accessory Charge –
Ms Pfingst was the relevant detective. Her state of mind and purpose obviously concerned the requisite elements of the tort of malicious prosecution. The accessory charge, as your Honours know, is a reference to criminal liability, not as the principal offender, for the robbery in question. Accessory charge and robbery charge were distinguished. It was common ground, in that fashion. His Honour in [119] says that:
The findings which ought to have been made –
in relation to the accessory charge:
would reflect poorly upon her credibility in a general way.
We would flesh that out by observing that the conduct of the detective showed a concerted and persistent maintaining of the charge of accessory, notwithstanding what the Court of Appeal held in relation to the lack of any honest or genuine state of mind in her concerning that and, in particular, that combined with what was to be inferred from the lack of an objective basis for the suspicion of the supposed principle of the robbery charge so far as concerned our client and the accessory charge. But then the tables turn and, as your Honours know, the next sentence in [119]:
It does not follow, however, that those findings –
which have been said to reflect poorly upon her credibility in a general way:
would have significantly affected the credibility of her evidence that she believed that [our client] should be prosecuted on the Robbery Charge, and that she did so for the proper purpose.
That all comes about because, as your Honours know, the difficulty for the detective or for the trial judge’s findings about the detective with respect to the accessory charge, was the finding of good grounds to suspect our client of the robbery charge - and that is by definition not the accessory charge - but that if that were so, so runs the reasoning informing paragraph [119], then at least that component, which is not the whole of the elements, but at least that important component of the tort in relation to the robbery charge would of course be made out, rather than the contrary.
We say that this is a case which presents a misunderstanding of what this Court has said about common form provisions for the ordering of a new trial, to which I will come in a moment, in cases where credibility has been found to have been affected in a general way.
Now, can I first take your Honours please to page 229 of the application book for rule 770 of the Uniform Civil Procedure Rules providing in familiar terms for a new trial. The general power in its ground is in subrule (1). Then the critical…..in subrule (2), for which it is expressed negatively and has as its pivotal provision for present purposes the notion of the court considering some substantial wrong or miscarriage having happened.
This case for which we seek special leave would not challenge but rather seek to turn to account the received wisdom in this Court such as in Calin v Greater Union 173 CLR 33 at 41, which the Court of Appeal appropriately cited at their paragraph [181] concerning the considerable burden or barrier to the order of a retrial where there is a question concerning the findings of fact below. As your Honours know, there is a discrimination which the jurisprudence creates between questions of fact and law, not assisted by…..questions of mixed fact and law. That again is not an area of jurisprudence that we would seek to open in any way in the argument for which you seek special leave.
We have pointed out in our written outline that there is a sense in which, of course, there are questions of law involved, even if not exclusively, then what was done below concerning the ultimate findings of fact. But, in our submission, what the Court of Appeal should have appreciated was the significance of the matters to which we have drawn attention in our paragraph 35 at application book page 224.
We there draw to attention what we submit are ready analogies where, with respect to either – I start again - where, with respect to the outcome of cases in the criminal jurisdiction, doubts that need to be felt about credibility in relation to a witness’ evidence can and should be considered in relation to the appropriate appellate relief with respect to our counts.
KEANE J: Mr Walker, this does seem to be an effort, albeit an heroic one, to elevate matters of fact and what one does with the evidence into a question of principle. Is it not the case that these are in the heartland of issues of fact?
MR WALKER: The answer is yes, that they are in the heartland of questions of fact. But the exercise we would seek the Court to undertake is when that is true and when credibility has been affected in the estimation of the Court of Appeal in a general way, that a retrial is indicated for that
which is not being, as it were, definitively overturned in the Court of Appeal, and that is here with respect to the robbery charge.
It is for those reasons, as your Honours have seen, that the approach that we submit should have been taken in the Court of Appeal but was not can be seen to be presaged in the New South Wales decision of Mastronardi [2007] NSWCA 54, to which we draw attention on pages 242 and 243 of the application book and, in particular, the quotation from Justice Basten on page 243.
EDELMAN J: Mr Walker, do you accept that under UCPR 770, the onus was on your client before the Court of Appeal to establish the substantial wrong or miscarriage?
MR WALKER: Yes.
EDELMAN J: And, really, the only thing that you say went wrong in the Court of Appeal’s reasoning was that the Court of Appeal, on your client’s case, should have drawn an inference that it did not draw.
MR WALKER: No, no. It should have observed that credibility having been affected in a general way must have had an effect in relation to the other count, the other tort and, therefore, with respect, because the Court of Appeal was not in a position to resolve matters of fact, including by inference, which depended upon determinations of credibility, there should have been a retrial. It is because credibility was affected in a general way that this is not a matter about resisting an inference drawn or not drawn by the Court of Appeal.
EDELMAN J: So, the Court of Appeal should have concluded that it was open to draw the inference then?
MR WALKER: That is right - or – no. The intermediate step, which is the important step, is they should have reached the position that they could not for themselves determine the credibility of the witness and because it would turn on the credibility of the witness…..been retried. It is because this was not a matter, credibility being at the heart, where in one breath the Court of Appeal can see the detective’s credibility affected in a general way but in the next breath say that not so much as to cast any adverse light on her relevant state or states of mind concerning the robbery charge. That is the point. May it please your Honours.
KEANE J: Yes, Mr McLeod.
MR McLEOD: In respect to the point of ordering, as the appellant sought before the Court of Appeal, a new trial, in our submission, the manner in which Justice McMurdo went about addressing whether or not such an order should be made was done in the sense that in respect to the majority judgment where they basically found that the first malicious prosecution had been established by Mr Irving on appeal, it did not automatically follow that in respect to the allegation that Mr Irving was unsuccessful in respect to the second malicious prosecution involving the charge of the robbery that it automatically followed that the fact that credit findings had been made against Ms Pfingst in relation to the first malicious prosecution would then effectively infect her credibility in relation to matters that they dealt with in respect to the robbery charge.
The manner in which Justice McMurdo dealt with that issue and applying Calin, in our submission, he did not misstate the test to be applied and, in particular, when one has regard to the relevant rule here, rule 770, what needed to be identified – and as Justice Edelman raised with my learned friend – there needed to be effectively – the onus, I should say, rested with them to demonstrate that some substantial wrong or miscarriage happened.
As the evidence fell and the findings by the majority here in respect to the two malicious prosecutions, they were distinct and effectively separate matters that were dealt with and the evidence relating to effectively the second malicious prosecution that was alleged, it did not follow automatically that the fact that credibility findings had been made adversely to Ms Pfingst automatically then flowed into the manner in which she dealt with the robbery charge and how she undertook that investigation process.
So, in short, in our submission, there was no error by the Court of Appeal in effectively not ordering a retrial as was sought under rule 770 of the Uniform Civil Procedure Rules. They are my submissions.
KEANE J: Thanks, Mr McLeod. Mr Walker, anything in reply?
MR WALKER: No, your Honours.
KEANE J: Very well, we will pause there, and we will go on now with B5. Mr McLeod, we will hear what you have to say in relation to your application in B5.
MR McLEOD: Certainly. Your Honours, we contend that the majority of the Court of Appeal fell into error when they overturned important findings of fact made by the trial judge, and in the face of the trial judge’s careful rejection of the evidence upon which the majority actually relied upon, by concluding that the trial judge was in error in finding that Pfingst honestly believed that there was a proper case for the prosecution of the accessory charge against Irving.
What feeds into that finding by the majority is a contention that they also erred in concluding that Pfingst’s suspicion but not belief that Irving may have been the robber meant that Pfingst could never have honestly believed the evidence warranted the accessory charge being laid when it was laid on ‑ ‑ ‑
EDELMAN J: Mr McLeod, does this amount to anything more than a request for this Court to undertake a second assessment of the facts of this particular case?
MR McLEOD: It does require an assessment of the facts of the case, but in our submission, the manner in which Justice McMurdo in particular analysed the facts in light of the manner in which the trial judge analysed the facts reveals error, and when one has regard to the strong findings that the trial judge made in respect to the issues involving the arresting and charging officer, Pfingst, effectively she made no favourable findings whatsoever in relation to Irving, and, as Justice Mullins, who dissented, found on the evidence and the findings that were made by the learned trial judge, those findings were open and were not glaringly improbable as in the Fox v Percy situation, and they were not, in addition, contrary to any compelling inferences.
So, I accept, your Honour, that it does require the Court to undertake that task, but in my submission it would undertake the task in effectively correcting the errors we say that Justice McMurdo and Justice Fraser entered into in coming to the conclusion that effectively the fact that Pfingst had the belief that and, on the evidence before her, an honest belief that there was a basis upon which to charge Irving with the accessory charge, there was some purported incompatibility which Justice McMurdo found that you could not, at the same time, have a suspicion that Irving could have been the robber. So, in our submission, the manner in which in particular Justice McMurdo dealt with the issue, reveals error.
Could I just remind the Court that at paragraph [248] at application book 203, Justice Mullins – and it was common ground that when – and she accurately sets out the evidence with respect that:
At the time that Mr Irving was charged with the accessory charge, the only concrete evidence to link him in any way with the robbery was the fact that his car was seen by witnesses driving away from units in the vicinity of the bank that was robbed –
on the day in question, and one witness had:
identified a man lying on the back seat of the car as the man who had been followed from the bank after the robbery.
In addition to that, Irving had explained to Pfingst and Sturgess, and it is referred to:
in the laptop notes that on the day of the robbery he had lent his car to one Wayne Suthers –
Additionally, two men:
had been seen in connection with the robbery, namely the man who entered the bank and robbed it and the second man who –
had been seen driving Irving’s car. Then what followed on the evidence was that Irving became aware of the fact that his car had been used in an alleged robbery by way of obtaining that information by way of hearing it on the radio, and his registration number was read out, it came over the radio. What he subsequently did was he removed the number plates from his car, hid them, and placed a tarpaulin over the car, because he knew the police were looking for his car as he had heard, as I just said, on the radio, that his car had been used in the robbery. Now, as found by the trial judge at paragraph [266], application book 71, on the evidence:
Pfingst held suspicions Mr Irving was responsible for Robbery, but not that she believed he was the Robber –
at the time she charged him with the accessory charge.
Now, in dealing with this question, the trial judge had to grapple with the question whether Pfingst had an honest belief that Irving was guilty of the accessory charge and, as part of the trial judge’s analysis, was to reconcile Pfingst’s evidence of the suspicion that Irving may have been the robber held at the same time that Pfingst is said to believe there was sufficient evidence to charge him with being an accessory. The manner in which the trial judge dealt with that question was at paragraph [265] at application book 71 where she concluded:
Holding 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.
What Justice McMurdo did at paragraph [82], application book 171 - he held that:
that revealed an important error –
because, he concluded at paragraph [86] at application book 172, that:
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 . . . she suspected that it was Mr Irving . . . who had robbed the bank.
In our submission, that finding, with respect, was erroneous because the correct approach that was identified to this point was that done by Justice Mullins at paragraph [251] at pages 203 and 204, where it was open, her Honour found, on the evidence when Pfingst charged Irving as an accessory that Irving was no more, at that time, a suspect for the robbery. In our submission, what Justice McMurdo did, with respect, was to blur the concept of the fact that Pfingst had a belief that Irving was involved as an accessory to the robbery but, at that time, also had a suspicion that he might be the robber.
With respect, there is no inconsistency with that sort of approach because, as we have said in our written outline, that is part of the policing investigation process that will be undertaken whereby the investigation might reveal further adverse matters to a particular alleged offender, or the investigation might reveal matters that are favourable to a potential offender.
So, in our submission, the manner in which, in particular, Justice McMurdo dealt with this point was an error because he went against when there was no basis, with respect, the strong credibility findings that the learned trial judge had found in relation to the basis upon which Pfingst charged Irving with the accessory after the fact charge because, at that time, on the evidence that she had before her, she held an honest belief that there was a basis upon which he could be charged for that offence.
In addition, there was the point taken by – against the learned trial judge’s reasoning that the fact that Suthers was named on the charge as a principal offender gave support to the majority’s reasoning that the charge could not have been brought and, by extension, had been brought maliciously by Pfingst in order to effectively keep him in custody whilst she was further investigating the robbery. But again, with respect, the fact that Suthers had been mentioned in the accessory charge does not take anything away from the fact that at the time, Pfingst gave no evidence and was not aware of the fact that Suthers had actually robbed the bank or had the gun, which was also stated in the accessory charge.
Importantly, in order for her to form the required and requisite belief here to charge him with the accessory charge, Pfingst gave evidence and the trial judge and Justice Mullins in dissent concurred with the manner in which the trial judge dealt with this point. There was a proper basis to charge Irving because he had – because Suthers had - on the evidence that she had been provided, Irving had given his car to Suthers and someone other than the robber was observed driving the car after the robbery and Pfingst relied upon Irving’s knowledge that the car had been used in the robbery and had subsequently then hidden the registration plates and covered the car with the tarpaulin.
All this evidence, we contend, was open and properly given the appropriate weight by the trial judge which supported the finding that the learned primary judge had concluded that there was evidence before Pfingst in order to charge Irving as an accessory after the fact. In doing so, we contend that Pfingst had the honest belief, having regard to that evidence, that Irving was liable and had a basis upon bringing the accessory charge.
Justice Mullins at paragraph [252] at page 55 of the application book accepted the trial judge’s finding that the evidence of Pfingst supported the fact she was relying on Suthers being involved in the robbery such that Suthers would be liable for the offence by reason of either section 7 or 8 of the Criminal Code.
So, in our submission, the trial judge’s conclusion about Pfingst’s honest belief in charging Irving as an accessory rested on making credit findings on this point and, as Justice Mullins concluded at paragraph [263] – 58 of the application book – she accepted that Pfingst’s evidence was relevant in relation to the matters that she relied upon, but more importantly the trial judge, and endorsed by Justice Mullins, made the point that there were strong credit findings that were made in relation to Pfingst on this point and it is not as case, with respect, in which Pfingst’s honest belief can be characterised as the majority has done as glaringly improbable or contrary to compelling inferences, as per Fox v Percy.
If I could then move to ground 2 of the application, and this raises the second point we contend where ‑ ‑ ‑
EDELMAN J: You are just about down to your last minute, Mr McLeod.
MR McLEOD: Yes, I have heard the buzzer, your Honour. That concerns the circumstances in which malice can be proved in a malicious prosecution when there is an absence of reasonable and probable cause for the charge and the police officer’s suspicion but not belief that the accused may be guilty of a different offence. In our submission, it was not open to find malice in relation to the manner in which and the basis upon which
Pfingst charged Irving because of the fact that she had an honest and reasonable belief based on the evidence that she had on the time that justified her in laying the charge against Irving.
In short, the manner in which Justice McMurdo appears to have dealt with the malice point is contrary to what was said in A v New South Wales at paragraph 43 at page 515 of the report where he has merged the two concepts together, that the fact that there was an absence of reasonable and probable cause in relation to laying the accessory charge, it then followed that the charge itself had been maliciously brought by Ms Pfingst. In our submission, the trial judge and the manner in which Justice Mullins dealt with this point in particular at paragraphs [271] and [275] was the correct approach. They are our submissions.
KEANE J: Thanks, Mr McLeod. Mr Walker.
MR WALKER: May it please the Court. In our submission, there is nothing appropriate for grant of special leave. First, it is not suggested that the majority in the Court of Appeal misdirected themselves about their powers and the inhibitions properly to be felt in exercising them in an appeal by way of rehearing.
Second, the notion that the named principal offender was, as it were, a mere incidental in relation to considering the tortious states of mind with respect to the accessory charge is just unable to be maintained, and that was the beginning obviously of the showing of error.
Third, the fact that there was, in any event, absolutely nothing to support the involvement of that person as the principal offender on the findings which are not really challenged by the Court of Appeal adds further to the impetus that ultimately concluded in a completely ordinary appeal by way of rehearing approach and their Honours decided that there was of course information concerning a subjective state of mind to be gained from considering the evidence including in relation to the objective basis for the charge.
In our submission, there is no question of principle at all involved in a court - in an appeal by way of rehearing, considering all the material, in reviewing a trial judge’s decision, in this case as to the absence of the requisite state of mind subjectively to make out the tort for the accessory charge.
As we have drawn to attention in our paragraph 22 on application book 263, it can scarcely be resisted that an officer of high competence is somebody who may well provide support for an inference that to proceed to
lay an accessory charge when the objective bases were absent informs – does not conclude – informs a view concerning the lack of subjective belief.
It is for those reasons, in our submission, that the case is simply not one for special leave because all our friend is seeking is another go at an appeal by way of rehearing and that, with respect, ought not to be regarded as in the mainstream of this Court’s grant of special leave. May it please the Court.
KEANE J: Mr McLeod, anything in reply?
MR McLEOD: No, your Honour, thank you.
KEANE J: Thank you very much. The Court will adjourn for a moment to consider the course it will take in relation to these applications. Adjourn the Court, please.
AT 2.14 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.16 PM:
KEANE J: The appeal foreshadowed by each of these applications would turn on matters of fact. Neither appeal would turn on an issue of principle such that would warrant the grant of special leave to appeal. Each application is therefore dismissed with costs.
Adjourn the Court, please.
AT 2.17 PM THE MATTERS WERE CONCLUDED
0