Irving v Pfingst & Anor; Pfingst & Anor v Irving

The proceedings before the High Court of Australia concerned applications for special leave to appeal in two related matters, *Irving v Pfingst & Anor* (B3/2022) and *Pfingst & Anor v Irving* (B5/2022). The dispute centred on claims of malicious prosecution, specifically concerning a charge of accessory after the fact to a robbery and a separate charge of robbery itself. The core of the disagreement involved the state of mind and purpose of Detective Pfingst in laying these charges against Mr Irving, and whether her credibility findings by the Court of Appeal in relation to one charge should have impacted findings regarding the other.

The legal issues before the High Court included whether the Court of Appeal erred in its application of rule 770 of the Uniform Civil Procedure Rules concerning the ordering of a new trial. Specifically, the court was asked to consider whether the Court of Appeal correctly assessed whether a substantial wrong or miscarriage of justice had occurred, particularly in circumstances where credibility findings were made against Detective Pfingst in relation to the accessory charge, but not necessarily to the same extent regarding the robbery charge. A further issue was whether the Court of Appeal correctly determined that a suspicion that Mr Irving might have been the principal offender was incompatible with an honest belief that he was guilty as an accessory after the fact, and whether this constituted an error in the assessment of malice for the purposes of malicious prosecution.

The High Court considered arguments regarding the distinction between questions of fact and law in appellate review, and the considerable burden required to overturn findings of fact. The applicant argued that where credibility is affected in a general way, a retrial may be indicated, even if the appellate court cannot definitively resolve all factual matters. Conversely, the respondents contended that the Court of Appeal correctly applied the principles from *Calin v Greater Union* and rule 770, finding that the findings of fact in relation to the two distinct malicious prosecution claims were separate and that adverse credibility findings against Detective Pfingst concerning the accessory charge did not automatically infect her credibility in relation to the robbery charge. The respondents also argued that the Court of Appeal’s finding that a suspicion of being the principal offender was incompatible with an honest belief of being an accessory was a correct interpretation of the evidence and the law.