Landini v State of New South Wales - [2008] NSWSC 1280

CITATION: LANDINI v STATE OF NEW SOUTH WALES & ORS [2008] NSWSC 1280

HEARING DATE(S): 29, 30, 31 March 2006, 4, 5, 6, 7, 10, 11, 12, 19, April 2006, 2 June 2006, 29 August 2006, 18, 21, 26, 27 September 2006, 4, 5, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 24, 25, 26, 27, 31 October 2006, 2 February 2007, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 March 2007, 15, 18 May 2007, 13, 24 July 2007, 11, 12, 13 December 2007

JUDGMENT DATE :
17 December 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (1) THE 1980 CHARGE
There is to be judgment for the plaintiff in relation to the cause of action in malicious prosecution based upon the 1980 charge to include the following:-
(a) Consequential economic loss (legal expenses) - $5,000.00
(b) Injury to person and restriction of liberty - $35,000.00
(c) Aggravated damages - $30,000.00
(d) Exemplary damages - $160,000.00
Total - $230,000.00
The plaintiff and first defendant to bring in short minutes of order to give effect to the judgment. In relation to the question of interest and costs, in the event that the parties are unable to reach agreement, written submissions are to be lodged with my associate by 4.00 pm on 6 February 2009.
(2) THE 1982 CHARGES
On the basis of the findings set out above, there is to be judgment in favour of the first, second, third, fourth and fifth defendants in relation to the cause of action in malicious prosecution based upon the 1982 charges.
In relation to the question of costs, any written submissions to be lodged with my associate by 4.00 pm on 6 February 2009.

CATCHWORDS: TORTS – Malicious prosecution – separate criminal charges – allegations of fabrication of evidence in relation to each – what constitutes maintenance or continuation of proceedings - whether suppression of fabricated evidence of itself constitutes maintenance of criminal proceedings - vicarious liability of the Crown at common law and under the Vicarious Liability Act considered - STANDARD OF PROOF – principles applicable to malicious prosecution action – circumstantial evidence principles in relation to proof of criminal conduct in civil proceedings – principles guiding application of the Briginshaw standard – evidentiary analysis of facts and events of some antiquity – credibility of former police officer in relation to disclosures concerning the fabrication of evidence in relation to the first charge (1980) – disclosures in evidence to Royal Commission into the New south Wales Police Service – proof of elements in establishing absence of reasonable and probable cause – circumstantial evidence – what material available for prosecutor’s consideration – not restricted to admissible evidence – allegations of fabrication of evidence – significant circumstantial evidence – provided a reasonable basis for a conclusion of a belief in the prosecutor as to the plaintiff’s guilt – reasonableness of the belief established on the basis of investigations regardless of alleged fabricated evidence – no fabrication of evidence established – DAMAGES – principles in the assessment of damages including exemplary damages in an action for malicious prosecution

LEGISLATION CITED: Australian Federal Police Act 1979 (Cth)
Crimes Act 1900
Crown Proceedings Act 1988
Customs Act 1901 (Cth)
Evidence Act 1995
Law Reform (Vicarious Liability) Act 1983
Police Act 1865
Police Legislation Amendment (Civil Liability) Act 2003
Police Regulation Act 1899
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: A v State of New South Wales (2007) 230 CLR 500
Abrath v The North Eastern Railway Company (1882-1883) 11 QBD 440 at 449 to 450
Ahern v Crown (1988) 165 CLR 87
Allen v Allen (1894) P at 252
Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419
Amin v Bannerjee [1947] AC 322 at 330
Attorney General for NSW v Perpetual Trustee Co Limited (1951-1952) 85 CLR 237
Attorney General v Radloff (10 Ex at 101 Platt B)
Baume v Commonwealth (1906) 4 CLR 97
Bradshaw v McEwans Pty Limited (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunne (1894) 7 C & P 408
Cassell & Co Limited v Broome [1972] AC 1027
Chamberlain v Regina (No 2) (1984) 153 CLR 521
Coleman v Buckingham's Limited [1963] SR NSW 171
Commercial Union Assurance Co of NZ Limited v Lamont [1980] 3 NZLR 187
Commonwealth Life Assurance Society Limited v Brain [1934-1935] 53 CLR 343
Conway v The Queen (2002) 209 CLR 203
Costa Vraca Pty Limited v Berrigan Weed & Pest Control Pty Limited (1998) 155 CLR 714
Cureton v Blackshaw Services Pty Limited [2002] NSWCA 187
Daniels v Telfer (1934) 39 SR (NSW) 99
Davis v Gell (1924) 35 CLR 275
Day v Perisher Blue Pty Limited [2005] 62 NSWLR 731
Doney v The Queen (1990) 171 CLR 207
Enever v The King (1906) 3 CLR 969
Fitzjohn v Mackinder (1861) SC 30 LJCP 257; 142 ER 199
Gianoutsos v Glykis (2006) 65 NSWLR 539
Griffiths v Haines [1984] 3 NSWLR 653
Holloway v McFeeters (1956) 94 CLR 470
Houda v State of New South Wales [2005] NSWSC 1053
Houghton v Oakley (1900) 21 LR (NSW) 26
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Johnston v Australia & New Zealand Banking Group Limited [2006] NSWCA 218
Jones v Dunkel (1958-1959) 101 CLR 298
Knight v New South Wales [2004] NSWSC 791
Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122; [2001] 3 All ER 193
Lamb v Cotogno (1987) 164 CLR 1
Landini v State of New South Wales & Ors (unreported 12 October 2006)
Lane v The Queen (1996) 66 FCR 144
Little v Law Institute of Victoria [1990] VR 247
Longman v The Queen (1989) 168 CLR 79
Merest v Harvey (1814) 5 Taunt 442 (128 ER 761)
Murray v The Queen (1987) 11 NSWLR 12
Neat Holdings Pty Limited v Karajan Holdings (1992) 67 ALJR 170
New South Wales v Ibbett (2006) 231 ALR 485; (2006) 229 CLR 638
Noye v Robbins [2007] WASC 98
Oriental Foods (Wholesalers) Co Pty Limited v Commonwealth (1983) 50 ALR 452
Palmer v Dolman [2005] NSWCA 361
Plomp v Regina (1963) 110 CLR 234
Pollitt v The Queen (1992) 174 CLR 558
Prior v State of New South Wales (CA 40615/96 unreported, 2 September 1998)
QIW Retailers Limited v Felview Pty Limited [1989] 2 Qld R 245
Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674
Re H & Ors (Minors) [1996] AC 563
Regina v Morex Meat Australia Pty Limited (1996) 1 Qd R 418
Regina v Rogerson (1992) 174 CLR 268
Regina v Stanbouli (2003) 141 A Crim R 355
Regina & Attorney General (Cth) v Associated Northern Collieries (1911) 14 CLR 387
Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147
Shellharbour City Council v Stewart [2008] NSWLEC 151
State of New South Wales v Eade [2006] NSWSC 84
State of New South Wales v Ibbett (2005) 65 NSWLR 168
State of New South Wales v Riley [2003] NSWLR 496
Thomas v State of New South Wales [2008] NSWCA 316
Thompson v Commissioner of Police of Metropolis [1998] QB 498
Tiger Nominees Pty Limited v State Pollution Control Commission (1992) 25 NSWLR 715
Transport Industries Insurance Co Limited v Longmuir (1997) 1 VR 125
Tripodi v Regina (1961) 104 CLR 1
Union Government (Minister of Justice) v Van der Vlies [1931] OPD 79
Walton v The Queen (1988-1989) 166 CLR 283
XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1984-1985) 155 CLR 448

TEXTS CITED: The Laws of Australia (Volume 33.8.1630)
The Vicarious Liability of the State for the Delicts of the Police (1967) 84 SALJ 25 by J L R Milton

PARTIES: HENRY CHARLES LANDINI v
STATE OF NEW SOUTH WALES & ORS

FILE NUMBER(S): SC No 20525 of 2002

COUNSEL: P: C. Steirn SC/P Barham/P Strain
1D: J Maconachie QC/D Mallon
2D: A Katzmann SC/I Butcher
4D: P Strickland SC/M Gerace
5D: L Tyndall/G Pulsford

SOLICITORS: P: Burn & Company
1D: I V Knight
2D: Australian Government Solicitor
4D: Dibbs Barker Gosling
5D: Duffield & Duffield

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 17 DECEMBER 2008

No. 20525 of 2002

HENRY CHARLES LANDINI v. STATE OF NEW SOUTH WALES & ORS

JUDGMENT

HIS HONOUR:
(1) INTRODUCTION

1 Henry Charles Landini (“the plaintiff”) commenced proceedings on 20 November 2002 by way of statement of claim filed on that date seeking damages for malicious prosecution in respect of two charges on which he was indicted (referred to as “the 1980 charge” and “the 1982 charges”). Those charges arose from separate and independent events. In summary, they were:-

(1) A charge that on or about 15 January 1980 he supplied a prohibited drug, namely, heroin ( “the 1980 charge” ).

“the 1982 charges”

2 The plaintiff pleads his case in relation to the charges upon the basis of the tort of malicious prosecution. No other cause of action was pleaded to support the claims made.

3 The plaintiff’s claims were for damages for loss and damage, deprivation of liberty and economic loss, aggravated and exemplary damages.

4 He is presently aged 64 years (date of birth, 7 July 1944).

5 In respect of the 1980 charge, the plaintiff appeared before the Central Local Court on 16 January 1980. On that date, he was released on bail upon payment of a surety of $10,000. In 1981, he was committed for trial. On 11 October 1983 and before the hearing of the proceedings in relation to the 1980 charge, the plaintiff was found guilty of the 1982 charges in respect of which he was subsequently sentenced to a period of imprisonment of 16 years with a non-parole period of six years. The term of the sentence was to commence on 19 July 1982, being the date upon which he was arrested and taken into custody in relation to the 1982 charges.

6 It was the plaintiff’s case that in 1984, having been sentenced for the 1982 charges, he decided to plead guilty to the 1980 charge in the expectation that the sentence imposed with respect to that charge would be made to operate concurrently with the sentence imposed in 1983.

7 On 7 June 1984, he was sentenced in relation to the 1980 charge to a period of imprisonment for 15 years to date from 19 July 1984 concurrent with the sentence imposed with respect to the 1982 charges with a non-parole of four years expiring on 18 July 1988.

8 The plaintiff was released to parole on 12 August 1987 having served five years and 25 days imprisonment.

9 On 2 November 2001, the Court of Criminal Appeal set aside the convictions in respect of the 1980 charge and the 1982 charges and entered an acquittal in respect of each charge. The applications to the Court of Criminal Appeal that led to the acquittals being entered followed upon evidence being given by Mr Trevor Haken and a former Federal police officer referred to in these proceedings as “Mr X” to the Royal Commission into the New South Wales Police Service. The applications to the Court were not opposed by the Crown.

10 The present proceedings were commenced the next year.

11 At the hearing of proceedings in this Court, the plaintiff was represented by Mr C Steirn SC, Mr P Barham of counsel and Mr P Strain of counsel. The State of New South Wales was represented by Mr J E Maconachie QC, who appeared with Mr P D Mallon of counsel and in respect of the causes of action based on both the 1980 and the 1982 charges, Ms A Katzmann SC appeared with Mr I F Butcher of counsel on behalf of the Commonwealth of Australia and Mr P M Strickland SC appeared on behalf of the fourth defendant, Mr Dennis Reginald Pattle in respect of the cause of action based on the 1982 charges. The fifth defendant, Mr Glen John Matinca was not represented, apart from a short period when Mr L Tyndall of counsel appeared with Mr G Pulsford of counsel on his behalf. He was called to give evidence in the plaintiff’s case and, at one point, Mr Tyndall appeared on his behalf on a question of privilege.

12 The statement of claim was amended several times. At an early stage of the hearing application was made for leave to further amend the plaintiff’s claim. That application was strongly opposed by the first defendant, the State of New South Wales.

13 On 12 October 2006, I granted leave to the plaintiff to amend (Landini v State of New South Wales & Ors (unreported 12 October 2006). The plaintiff, accordingly, proceeded on the basis of the Fifth Further Amended Statement of Claim.

14 The plaintiff claimed against the first defendant, the State of New South Wales, in respect of the 1980 charge in relation to the alleged acts of then Detective Sergeant Third Class Les Knox, Detective Senior Constable Glen Ross, Detective Senior Constables Michael Leary, Trevor Haken, Stephen Chidgey and Michael Gardiner. The plaintiff, in relation to the 1982 charges, claimed against the State of New South Wales in respect of the alleged acts of Ray Donaldson and against the Commonwealth of Australia (second defendant), Dennis Reginald Pattle (fourth defendant) and Glen John Matinca (fifth defendant) in respect of the 1982 charges. Pattle and Matinca were at the relevant time police officers employed by the Australian Federal Police.

15 The proceedings against the State of New South Wales, were, in part, based upon the Crown Proceedings Act 1988. Section 5 of that Act authorises a claim to be brought against the Crown under the title “State of New South Wales” in any court of competent jurisdiction by “any person having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown”. The “Crown” is defined in s.59 of the Act to include the Crown in the right of New South Wales.

16 The plaintiff also relied upon Police Legislation Amendment (Civil Liability) Act 2003 and the Law Reform (Vicarious Liability) Act 1983 (the “Vicarious Liability Act”) which Act commenced on 28 October 1983.

17 The Commonwealth of Australia was sued in relation to the 1982 charges pursuant to the Australian Federal Police Act 1979 (Cth).

18 The hearing of the proceedings commenced on 29 March 2006 and thereafter continued on a number of split hearing dates. Final oral submissions were made on 13 December 2007.

(a) The action for malicious prosecution

19 In order for the plaintiff to establish the tort of malicious prosecution, he has the onus of establishing that:-

(1) Actionable proceedings were instituted or continued by the Crown in the right of the State of New South Wales (referred to in this judgment as “The State” ) in respect of the 1980 prosecution and the Commonwealth and the individually named defendants in respect of the 1982 prosecution.

(2) The proceedings were terminated in his favour.

(3) The proceedings were initiated or continued without reasonable and probable cause.

(4) The respective defendants were motivated by malice.

(5) Special injury or damage was caused to the plaintiff.

The Laws of Australia

20 The tort of malicious prosecution, it has been observed, involves and protects complex interests. The public interest is safeguarded in not permitting legal procedure to be used for improper motives and without reasonable cause. However, the public interest is also protected in allowing the judicial process to proceed in appropriate cases without fear of a malicious prosecution action: see The Laws of Australia, 33.8.1640.

21 The absence of reasonable and probable cause is a specific element of the cause of action in an action for malicious prosecution and is a central matter in these proceedings. It is not to be gauged by simply identifying weaknesses in the Crown case or by an analysis directed to establishing a reasonable doubt as to the plaintiff’s guilt of the charges upon which he was indicted. Accordingly, the exposure of inconsistencies or doubt, many years after a trial culminating in a guilty verdict, will not suffice nor will it in many circumstances assist a plaintiff in a malicious prosecution action. A plaintiff will need to go well beyond that.

22 In the present case, the factual matters concerning the 1980 occurred on one day– 15 January 1980 – whereas the investigation that led to the 1982 charges was more protracted and complex. The plaintiff’s case in relation to the 1980 charge is essentially based on his allegation that particular police officers conspired with one another to fabricate evidence against him by stopping him in his Mercedes vehicle, placing bags of heroin in the boot of his car and then claiming that the bags of heroin were being transported by him. They were found by Mr Ross during a search.

23 The plaintiff, additionally claims that the same thing happened a little later on the same day when Mr Gardiner, in Mr Ross’ presence, searched the boot of a Ford Landau which belonged to the plaintiff and which was positioned in a carport at his home in Leonay. He claimed that police placed bags of heroin into the well of the boot of that vehicle.

24 The facts associated with the 1980 charge will be analysed later in this judgment.

25 In relation to the 1982 charges, the issue of reasonable and probable cause is to be determined by materials that were available to the prosecutor at the time the plaintiff was indicted and during the period in which the proceedings were maintained.

26 In the submissions for the plaintiff, reference was made on more than one occasion to the contention that the case against the plaintiff in respect of the 1982 charges was no more than guilt by association. A fundamental question is whether, at the relevant times, the prosecutor, in fact, had available material that established an agreement between the plaintiff and others to supply heroin.

27 An agreement or combination to engage in a common enterprise to that end is the essence or nub of the offence: Ahern v Crown (1988) 165 CLR 87.

28 Criminal liability ensures once such an agreement is made and it is unnecessary for anything to be done to execute the agreement (Regina v Rogerson (1992) 174 CLR 268 per Brennan and Toohey JJ at 281) though conspiracy is often proved through inference from evidence of what was subsequently done.

29 The Crown relied upon circumstantial evidence to establish that the plaintiff had entered into such an agreement. In considering whether or not to prosecute him, it was essential that the prosecutor had admissible evidence to establish his involvement or association in the unlawful enterprise alleged in the indictment.

30 In the majority judgment in Ahern (supra), it was observed, at 93:-

“… Conspiracy is the agreement of two or more persons to do an unlawful act or to do an unlawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must, in almost all cases, be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay …”

31 The Court in that case referred to the observations in Tripodi v Regina (1961) 104 CLR 1 at 6 wherein the High Court said that proof of the crime of conspiracy “may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment”.

32 In this case, the Crown’s contention was that the conspiracy involved a sophisticated joint enterprise involving 10 or more persons including persons by the name of Pak, Merle Thompson, Donald Thompson, Waddell, Smittant, Naktrakul, Wong and the plaintiff. For the purpose of investigation, police investigators employed physical and electronic surveillance in detecting the alleged activities and movements of the conspirators over a lengthy period of time especially in the period between 4 July 1982 to 19 July 1982. In the latter period, police investigators gathered materials involving the location, the activities and the communications between various of the participants on various dates which collectively suggested pre-concert or a joint enterprise between them.

33 The evidentiary materials available to the prosecutor before the plaintiff’s arrest on 19 July 1982 came from a number of sources. Evidence against two or more of the conspirators of separate activities that were close in time indicative of pre-concert was a basis from which a combination could be inferred. Such evidence would be admissible evidence against each alleged conspirator. In Ahern’s case, at 94, it was stated:-

“… it would be possible to reach the conclusion, admitting the evidence for the purpose described

and considering it against each accused separately, not only that there was a conspiracy but also that each of the … accused was a participant.”

34 The High Court in Ahern (supra) cited dicta in Regina & Attorney General (Cth) v Associated Northern Collieries (1911) 14 CLR 387 wherein it was observed that both the fact of combination and the participation of the participant may be proved by the same evidence. In that case, the Court said:-

“… though primarily each set of facts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.”

35 The element of reasonable and probable cause in the tort of malicious prosecution is not a purely objective one. It is not a concept regardless of the knowledge or belief of the prosecutor that there was reasonable and probable cause for a charge to be laid but also involves the issue as to whether the prosecutor had reasonable and probable cause to do what he did: A v State of New South Wales (2007) 230 CLR 500 at 514.

36 The question as the High Court observed in that case “… involves both an objective and a subjective aspect”.

37 In establishing an absence of reasonable and probable cause, the High Court in A (supra) emphasised that the relevant circumstances of the particular case must be considered. These include:-

(1) The nature of the allegations . In the present case, the allegation in relation to the 1980 charge was that the evidence relied upon was fabricated by “loading” the plaintiff with bags of heroin. In relation to the 1982 charges, he alleged that evidence had been fabricated and particular evidence was falsified.

(2) The known facts . In relation to the 1980 charge, Mr Ross claimed that police had received information from a police informer of an intended supply of drugs by the plaintiff. In relation to the 1982 charges, police investigators claimed that the facts establish a liaison between the plaintiff and a Mr Donald Thompson as an integral part of a conspiracy formed for the purpose of supplying heroin.

(3) Actual knowledge of the facts . The extent to which the prosecutor was aware of relevant facts. The materials gathered by police were the relevant source of the prosecutor’s knowledge.

(4) The particular Prosecutor . The prosecutor’s experience and capacity to form a sound judgment on the known facts are material to his or her capacity to assess the basis and viability of the Crown case.

(5) An assessment of the case. The relevant assessment required an opinion be formed as to the strength and reliability of the case based on known facts.

An honest belief

38 The element of reasonable and probable cause is not established by the plaintiff only seeking to prove that he was innocent. In Abrath v The North Eastern Railway Company (1882-1883) 11 QBD 440 at 449 to 450 (cited by the High Court in A v State of New South Wales (supra) at 515, footnotes 30, 31 and 32) Brett MR stated:-

“In order to shew that there was an absence of reasonable and probable cause for instituting the prosecution for conspiracy, I cannot doubt that the plaintiff was bound to give some evidence of the circumstances under which the prosecution was instituted, and I wholly differ from the suggestion that it is sufficient for the plaintiff to shew that he was innocent of conspiracy, and that in the end there was no substantial ground for charging him with conspiracy. If the plaintiff merely proved that, and gave no evidence of the circumstances under which the prosecution was instituted, it seems that the plaintiff would fail; and a judge could not be asked, without some evidence of the circumstances under which the prosecution was instituted, to say that there was an absence of reasonable and probable cause. The evidence, which is to determine the question whether there was reasonable and probable cause, must consist of the existing facts or the circumstances under which the prosecution was instituted …”

39 The issue of reasonable and probable cause, accordingly, requires a court to examine evidence as to the facts and circumstances that were available to the prosecutor at the time or times the charges were laid and maintained and to determine whether reasonable care was exercised by the prosecutor informing himself or herself as to the true state of the circumstances as then known.

40 The plaintiff’s onus, in the present case, is to establish that the facts and circumstances established in evidence concerning each prosecution instituted in 1980 and in 1982 were inconsistent with the existence of reasonable and probable cause.

41 A prosecutor, in making an assessment for the purposes of making a sound judgment as to whether to charge an individual with a criminal offence, is entitled to have regard to all information held. This includes both information which constitutes admissible evidence in a criminal trial and other information which, though not admissible as evidence, may nonetheless have value in evaluating or assessing the reliability of evidence that is admissible: Thomas v State of New South Wales [2008] NSWCA 316 at [105] per Gyles AJA, with whom Hodgson and Campbell JJA expressed agreement on the point:-

“105 The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate’s decision as to committal for trial or a trial judge’s ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. (See Lister v Perryman (1870) LR 4 HL 521 per Lord Westbury at 538, Lord Colonsay at 540 and 542; Hicks v Faulkner (1878) 8 QBD 167 at 173-4; Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 at 202-3; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469-471).”

42 It is a commonplace fact that “police intelligence” and circumstantial evidence are, in combination, utilised in the investigation stage to further investigations and may be examined in the pre-prosecution stage in the decision-making process leading to the laying of criminal charges. I will return below to the role of police intelligence in the assessment of admissible evidence in determining the reliability of evidence.

43 In Abrath (supra), Bowen LJ observed at 459:-

“… The question whether there was want of reasonable and probable cause depended upon the materials which were in the possession of the prosecution at the time it was instituted, and also on the further point whether those materials were carefully collected and considered. Now there might be two views of the materials which were in the possession of the prosecution. It may be said that the materials were evidently untrustworthy, or that they were obviously trustworthy, according as the one view or the other is taken of the facts. The burden of shewing carefulness in the inquiry would be shifted according to the view of the facts adopted. If the materials were admittedly untrustworthy, that would be a strong reason for throwing on the defendants the burden of shewing that they, nevertheless, had been misled, after all their care, into relying upon worthless materials. If the materials were obviously trustworthy, they would be enough prima facie to justify those who trusted to them …”

44 In the present case, the plaintiff, by virtue of the fact that the convictions against him were set aside, is to be treated as innocent of the charges. However, that, as observed by Brett MR in Abrath (supra), is insufficient to establish the case of malicious prosecution pursued in the present proceedings. Bowen LJ in Abrath (supra), in that respect, also observed at 462:-

“Something has been said about innocence being proof, prima facie, of want of reasonable and probable cause. I do not think it is. When

mere innocence

wears that aspect, it is because the fact of innocence

involves with it other circumstances

which shew that there was want of reasonable and probable cause; as, for example, when the prosecutor must know whether the story which he is telling against the man whom he is prosecuting, is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent, if he exercises reasonable care, it is only an identical proposition to infer that if the accused is innocent there must have been want of reasonable and probable care. Except in cases of that kind,

it never is true that mere innocence is proof of want of reasonable and probable cause

. It must be

innocence accompanied by such circumstances

as raise the presumption that

there was a want of reasonable and probable cause

…”

(b) The onus of proof on the plaintiff

45 The onus of proving each of the elements of the tort lies with the plaintiff. In that respect, given the serious nature of the allegations made by him as to fabrication of evidence the relevant principles concerning proof of serious impropriety apply. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 363 Dixon J observed that:-

• Reasonable satisfaction is not a state of mind attained or established independently of the nature and consequence of the fact or facts to be proved.

• The seriousness of an allegations, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.

“Reasonable satisfaction”

46 In the submissions made on behalf of the State, reliance was placed upon the observations of the High Court in Neat Holdings Pty Limited v Karajan Holdings (1992) 67 ALJR 170 to the effect that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. In particular, “cogent or strict proof” was said to be necessary when so serious a matter as fraud is to be found and that a judicial approach requires that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of engaging in fraudulent or criminal conduct.

47 In Re H & Ors (Minors) [1996] AC 563, Lord Nicholls of Birkenhead at 586 adverted to the fact that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and in deciding whether, on balance, the event occurred. The more probable the event, the stronger must be the evidence that it did not occur before, on the balance of probability, its occurrence will be established.

(c) Landini’s background and reputation

48 The plaintiff’s evidence in chief was that he left school at the age of 14 and three months. He was then in third year of high school. He said that after leaving school he worked as a storeman for approximately a year. He ran away from home as he said he did not have a good relationship with his step-father and went to Western Australia. He was charged there with fare evasion and at some point returned to New South Wales where he said he was in the “Boys’ House”. He was placed there, he said, by reason of “assault and rob and break and enter” matters. He said that his first sentence was served at the age of 15 in the “Boys’ Home”. He agreed he had served the majority of time in custody up until about 1976.

49 He said that in 1966, he served a three year term of imprisonment. The offence for which he was sentenced did not involve prohibited drugs. At some later time in 1966, he was arrested on a break and enter charge and, on 27 May 1966, he was sentenced by the Sydney Court of Petty Sessions at Darlinghurst to an 18 month term of imprisonment. He was released in November 1968.

50 Following release, he worked at the Centennial Hotel, Paddington but then spent time in custody apparently in respect of a malicious wounding charge in respect of which he obtained an acquittal.

51 He said that he worked as a waiter at the Centennial Hotel for approximately 18 months. He subsequently served a further term of imprisonment in about 1969 or 1970. He received a term of imprisonment of two years with a non-parole period of one year and three months in respect of a conviction for malicious wounding.

52 On 9 April 1971, he was convicted at Central Court of Petty Sessions on a charge of receiving possession of a firearm and was sentenced to six months hard labour.

53 On 23 April 1971 at the Waverley Court of Petty Sessions, he was convicted of consorting and having goods suspected of being stolen in his custody. He said he served a term of imprisonment in respect of that matter.

54 His criminal history otherwise included the following:-

(1) A charge of stealing at the Cronulla Children’s Court.

(2) In April 1961 he was committed to an institution for break, enter and steal and assault and robbery.

(3) In 1962 he served a six months sentence of imprisonment for larceny of petrol and illegal use of a motor vehicle.

(4) In 1963, he was charged with an offence of stealing and on 28 April 1963 in Brisbane he was sentenced to a term of imprisonment of two years for breaking and entering a dwelling with intent and receiving stolen property.

(5) In August 1964, he was charged with an offence of stealing and goods in custody.

(6) In 1964, he was dealt with for an offence of living on the earnings of prostitution.

(7) In 1965, he was dealt with on a charge of receiving stolen property.

(8) In May 1966, he was sentenced to 18 months’ hard labour cumulative on two charges of breaking and entering and stealing.

(9) In May 1966, he was charged with receiving stolen goods.

55 The plaintiff gave evidence that on 20 June 1972 he was convicted at the St Kilda Magistrates’ Court, Victoria in respect of a charge of possession of the drug LSD and a second charge of possession of Indian hemp. He was sentenced in his absence.

56 On 15 December 1972 at the Central Court of Petty Sessions, he pleaded guilty to being in possession of Indian hemp for which he received a sentence of 10 days’ hard labour.

57 On 4 May 1978, he was convicted in the Kogarah Court of Petty Sessions of being in possession of Indian hemp and fined $200.

58 The plaintiff gave evidence that, prior to 1980, he had never been charged with supplying or being in possession of heroin. He said that in the year 2001 he pleaded guilty to being in possession of cocaine for which he received a suspended sentence.

59 The plaintiff accepted that from 1960, he was convicted in respect of a number of “crimes of dishonesty”.

60 In cross-examination in relation to his past history of dishonesty, Ms Katzmann, on behalf of the Commonwealth, put to him:-

“Q. You are prepared to lie in order to obtain a benefit for yourself, aren’t you?

A. I have. I have.

Q. You have on many occasions, haven’t you?

A. I said I have, yes.

Q. And on many occasions?

A. On a number of occasions.

Q. Most of your life, haven’t you?

A. Some of it, yes.

Q. Most of it, I suggest to you?

A. Well, some of it, yes.

…”

61 It was put to him that at his trial in 1983 he had told the Court that he resided at 48 Parklands Avenue, Penrith with his wife and his three year old son but that he said in the present proceedings the evidence in that respect was false but that there was “… a reason for that”.

62 It was then put to him by Ms Katzmann:-

“Q. You don’t have any problems then about telling lies in court, do you?

A. Neither do many others.

…”

63 In later cross-examination, the plaintiff said that he had at different times used a number of different names. Exhibit 9 includes as alias names, Reeves, Charles Medina, Moore, Lando and Little. He accepted that he could have used the names “Danny Reeves”, “Michael Charles Madina” and “Daniel Moore”. When asked why he had called himself by different names, he responded “Well, I, I don’t remember”. He accepted that on 27 February 1982, he represented to police that his name was “Daniel Lando”:-

“Q. You represented that your name was Daniel Lando on that occasion because you, yourself, didn’t have a driver’s license, did you?

A. That’s correct.

…

Q. It was a matter of complete indifference to you, wasn’t it, whether you drove a car lawfully or unlawfully?

A. I have to answer that as yes.”

64 The plaintiff rejected the suggestion that whether he complied with the law was a matter of complete indifference to him. He acknowledged the warrant of commitment upon a conviction or order for a penalty recorded against “Daniel Lando” driving with a high PCA at Yalla on 27 February 1982 and agreed that it, in fact referred to a conviction against him. The address on the document 2/16 Duntroon Street, Hurlstone Park, which he acknowledged was Judy Waddell’s address. Ms Waddell was indicted in 1982 with him in relation to the 1982 charges. He acknowledged that he gave “a false license” under that name.

65 It was put to him by Ms Katzmann in cross-examination that he used different names to avoid arrest:-

“Q. I put it to you that the purpose of your different names was in order to avoid lawful arrest; you would agree with that, wouldn’t you?

A. Well, I don’t know what for. I know that those names had been there on me record for years.

Q. But the purpose of you describing or calling yourself different names was in order to avoid lawful arrest, wasn’t it?

A. I don’t agree with that.”

66 A little later it was put to him:-

“I asked you yesterday whether at one stage you called yourself Peter Krysyna; do you remember?

A. Yes, I do.

Q. I can’t now recall what your answer was. What do you say about that?

A. I can remember an incident going back to about 1988 when I just moved down the South Coast where I was stopped by a police officer …

Q. … Did you come before the Narooma Local Court on or about 17 September 1988?

A. Yes, I did.

Q. You came before the court on that occasion because you were up on a charge of fraudulently using a license, weren’t you?

A. That was the charge, yes.

…

Q. The circumstances in which you came before the court were that you produced a license to a policeman which was a license in the name of Peter Krysyna, pretending that it was your license, didn’t you?

A. Yes.”

67 The plaintiff accepted in cross-examination that he had spent an amount of time during his career in gaol for a variety of offences including offences involving violence and dishonesty.

68 In respect of trading in drugs, it was put to him by Ms Katzmann in cross-examination:-

“Q. No, we’re obviously at cross-purposes, Mr Landini. You admit to selling cocaine in a period of time at least up until your arrest in January 1998, don’t you?

A. Yes, for about four months prior, yes.

Q. Do you accept that at least for that period of time you could be described as a seller of hard drugs?

A. Yes.”

69 The plaintiff, over the years, continued to maintain his association with persons with criminal backgrounds as acknowledged in the Plaintiff’s Submissions (p.22).

70 Ms Katzmann specifically referred to the evidence that established:-

• The plaintiff’s use of aliases over the years.

• The likelihood, on the evidence, that he misled a finance company to secure finance for the Leonay property.

• Misleading information given to his solicitor, Mr Meakin, and to the Parole Board in order to secure parole.

• False evidence given to the jury at his trial as to his place of residence.

• The incorrect evidence as to having lodged tax returns for the period 1976 to 1980 and subsequent admissions that he would not have done so (on the premise that he did, in fact, work as claimed).

71 Ms Katzmann submitted that, the plaintiff having lied in order to obtain a benefit for himself in the past, there is no good reason as to why he would not do so in the present proceedings when he stands to gain a considerable financial benefit in doing so. The plaintiff’s past dishonesty must be taken into account in assessing his credibility. However, the assessment fundamentally turns upon an analysis of all the evidence called in the plaintiff’s case and that called by the defendants.

(2) THE 1980 CHARGE

72 The plaintiff’s case is premised upon the vicarious liability of the State of New South Wales at common law in respect of the alleged actions by certain police officers on 15 January 1980 in fabricating evidence. In particular, the contention is that the State is liable for actions taken before and after 28 October 1983 (on which date the Law Reform (Vicarious Liability) Act 1983 came into operation). After that date, the plaintiff alleges that the prosecution of the 1980 charge proceeded upon the basis of fabricated evidence. He contended the pursuit of the charge up to the date upon which he was sentenced involved maintaining the prosecution on a false basis.

73 I will deal, firstly, with the basis relied upon to establish vicarious liability in the Crown in the right of the State of New South Wales in respect of the alleged actions of the relevant police officers prior to the institution of proceedings and subsequently in maintaining them.

(a) Questions as to the vicarious liability of the Crown in respect of the actions of police officers before 28 October 1983

74 The Crown at common law enjoyed an immunity in respect of the exercise of the independent discretion of a constable of police officer in the exercise of powers incidental to his or her office. The relevant principle underpinning this position was that, if the law charges a public officer with a discretion and a responsibility in the execution of an independent legal duty, that public officer is solely responsible for tortious acts which may be committed in the course of the office. The government or body, which he or she serves or which appointed the officer, incurs no vicarious liability for such acts: The Laws of Australia, 33.6.610. This doctrine was enunciated by the High Court in Enever v The King (1906) 3 CLR 969.

75 The relevant police officers in respect of the 1980 charge were constables appointed under s.6 of the Police Regulation Act 1899. Section 6 of that Act provided as follows:-

“6(1) The Commissioner may, subject to disallowance by the Governor, appoint so many sergeants and constables of police, of such grades as are specified by rules made under this Act, as he deems necessary for the preservation of the peace throughout New South Wales.

(2) Such constables shall, unless and until their appointments respectively are disallowed by the Governor, have all such powers, privileges, and advantages and be liable to all such duties and responsibility as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any statute now or hereafter in force in New South Wales.”

76 The State relied upon the principle in Enever (supra) in support of its contention that it was not vicariously liable at common law.

77 In Enever (supra), the appellant was wrongfully arrested in a public street in Hobart by a police constable purporting to act in discharge of his duty and detained by him upon a false charge that he had committed a breach of the peace.

78 The appellant brought an action against the Government of Tasmania and a jury returned a verdict in his favour.

79 In determining whether or not the Government was responsible for the police officer’s wrongful act in arresting a person without a warrant pursuant to the Police Act 1865, it was necessary for the Court to consider the nature of the office of a constable and what, according to the law of Tasmania, was the nature of the relationship between a constable and the Executive Government by whom he was appointed.

80 In his judgment in Enever, Griffith CJ observed that at common law the office of constable or peace officer was regarded as a public office and the holder of it as being, in some sense, a servant of the Crown. The Chief Justice held that the Full Court of the Supreme Court of Tasmania, had been correct in holding that the constable, in effecting the arrest, was not acting as an officer, agent or servant of the Government of Tasmania, so as to make the Crown responsible for his act.

81 The analysis that led to this conclusion was based, firstly, upon the nature of the office and, secondly, on the relationship between the Government and the police officer. At common law, constables had large powers that were necessarily incidental to the discharge of their functions as peace officers or conservators of the peace, amongst which the most important was the authority to arrest on suspicion of felony. Griffith CJ observed (at 976), that it was settled law that, although a peace officer was himself responsible for unjustifiable acts done by him in the intended exercise of his lawful authority, no responsibility for such acts attached to those by whom he was appointed.

82 As to the second aspect, Griffith CJ considered the general doctrine of the law of agency applied in the case of a constable. That was said to lead to the same conclusion as the first of the two bases for his analysis. The Chief Justice observed that the powers of a constable, qua peace officer, whether conferred by common law or statute, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the Chief Justice stated, the suspicion must be his suspicion, and must be one that is reasonable to him.

83 Accordingly, Griffith CJ concluded that a constable, when acting as a peace officer, is not exercising a delegated authority. His authority is an original one, and the general law of agency has no application.

84 In the same case, Barton J (at 982), dealt with the argument that the appellant police officer was, on the occasion in question, acting as the servant of the Government in such a sense that the maxim respondeat superior applies. His Honour rejected the proposition and dealt with the question as to the responsibility residing in a superior based upon that maxim. His Honour stated that for it to apply, it was plain that the person to whose act it is sought to attach responsibility to the superior “… must have been under the control of that superior at the time of the doing of the act … It appears to me that in order to establish that position, it must be shown that the control, if any, under which the person acted was that of the Executive Government of the State. The difficulty of sustaining that position was obvious …” (at p.982).

85 The question of “control” was raised in the submissions for the plaintiff in the present case, in that it was argued that “… from the hierarchical structure of the NSW Police Force, that junior officers were, in preparing statements of evidence in preparing the matter for hearing, were under the direction and control of superior officers. The superior officers were Knox and Ross, with Knox being the superior officer. The planting of the evidence, the planning of the operation, the arrest, the charging, the preparation of witness statements and the prosecution was all done under the direction and control of the superior officers, Knox and Ross, but particularly Knox …” (p.19).

86 It was submitted on behalf of the State that it had no control, power or authority over the police officers in question in these proceedings for any of the acts that they were alleged to have carried out such as to give rise to vicarious liability.

87 It was also submitted on behalf of the State that the fundamental proposition as expressed by Lee J in Griffiths v Haines [1984] 3 NSWLR 653 was that a constable of police performed a public duty and exercised an original authority which was not subject to the control of the Government. It was observed in submissions that that independent authority came from the common law and from s.352(1) and (2) of the Crimes Act 1900 (relating to the power to apprehend without a warrant in circumstances referred to in each sub-section).

88 The State also relied upon dicta of the High Court in New South Wales v Ibbett (2006) 229 CLR 638 in which (at paragraph [4]) reference was made to Enevers case and Griffiths v Haines (supra) and wherein it was stated:-

“In former times, the circumstance that police officers often acted in the exercise of common law or statutory powers and according to ‘independent’ discretions would have taken an action such as that of [the appellant] outside the scope of the vicarious liability of the Crown.”

89 It was, accordingly, argued on behalf of the State that, for there to be vicarious liability, the State must be “the master exercising control over the police officer and not the ‘superiors of the police officers’ (Plaintiff’s Submissions of 25 June 2007, pp.19 and 20) …” (First Defendant’s Outline of Submissions, paragraph [61]).

90 I accept the State’s submission on his aspect. The control as alleged by the plaintiff by Messrs Knox and Ross is not, in my opinion, control of a kind that, at common law, would make the State liable under the maxim respondeat superior. For that principle to apply the control under which the police officer or officers acted must be that of the Executive Government of the State. There is, of course, no suggestion of such control in the present case.

91 In the final submissions for the plaintiff, it was accepted that, where a police officer exercises an independent discretion, the State is not vicariously liable for the wrongful exercise of that discretion (p.19). However, reliance was placed upon what were said to be the observations of Yeldham J in Oriental Foods (Wholesalers) Co Pty Limited v Commonwealth (1983) 50 ALR 452.

92 However, the passage relied upon by the plaintiff in Oriental Foods (supra) was, in fact, an extract from the text, Liability of the Crown (1971) by Professor Hogg at p.104 to 106 which text was quoted by Yeldham J in his Honour’s judgment.

93 Oriental Foods (supra) involved an application for summary disposal of the plaintiff’s claim against the Commonwealth of Australia for damage to and loss of food stuffs imported into Australia. Certain goods were opened and examined by Customs officials under the Customs Act 1901 (Cth). It was held that there was no question of the exercise of an independent authority but rather the performance of a purely ministerial and somewhat menial task and this did not involve “special duties’ and discretions of the type considered by the High Court in Baume v Commonwealth (1906) 4 CLR 97. I do not consider that Oriental Foods (supra) is of any assistance to the plaintiff’s case on the question of vicarious liability of the Crown at common law.

94 On the facts of the present case, even if it be assumed for the purpose of analysis that there were acts by police officers by way of fabricating evidence and otherwise acting improperly in relation to the arrest and charging of the plaintiff at the direction of superior officers, those superior officers, like other officers were themselves subordinate officers, albeit of a higher rank. As I have earlier noted, there is no evidence that any such acts were performed under or by reason of any form of control exercised by the Executive Government.

95 In Attorney General for NSW v Perpetual Trustee Co Limited (1951-1952) 85 CLR 237 (a case involving injury to a member of the Police Force of New South Wales sustained in a road accident, in which it was alleged that the Crown was thereby deprived of his services by reason of his disability), Dixon J observed at 252 that:-

“… in most respects, a member of the Police Force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organisations military and civil, public and private. It is only when, in the course of his duties as a servant of the Crown, he is confronted with the situation involving the liberty or rights of the subject, that the law places upon him a personal responsibility of judgment and action.”

96 The alleged actions of the police officers in fabricating evidence leading to the plaintiff’s arrest, would involve the liberty or rights of the subject. The power of arrest and charging the plaintiff with a criminal offence in such a case would involve the personal responsibility of judgment and action of the individual officers responsible for the exercise of such powers.

97 Professor Hogg, in his text quoted by Yeldham J in Oriental Foods (supra), footnoted (footnote 45) a number of cases concerning with the commission of torts by policemen performing general police duties under the direction and control of superiors. That footnote cites a South African article entitled The Vicarious Liability of the State for the Delicts of the Police (1967) 84 SALJ 25 by J L R Milton. The learned author of the article considered the question of control exercised by the State over police officers. Two types of “control” are identified. The first is the control which a master exercises over his servant. The legislature may lay down circumstances in which police officers may be said not to be acting as servants. The other source lay in State control of police by virtue of the fact that they are members of the relevant police force. The South African Police Acts of 1958 and the Regulations thereunder were said to create an obligation in a member to obey all lawful orders given by superiors in the Police Force. The learned author continued quoting from a South African case, Union Government (Minister of Justice) v Van der Vlies [1931] OPD 79 at 85 to 86 in which it was stated:-

“Here is a servant who is acting under a legal duty of such a nature as to deprive the Crown of the power to direct or control the carrying out of the duty, but, in spite of that, the Crown intervenes by means of a direct order to the servant (who is still a servant in the Crown’s employ even though acting under a legal duty) … now it seems to me,

if the Crown intervenes and … issues a direct order to the servant and if the servant then acts under that order

, in obedience to that order,

and not in obedience to his legal duty

, then the Crown becomes liable under the ordinary principles of the law of master and servant.”

98 That analysis, in my opinion, emphasised the distinction between “control” of the Executive Government and “control” as exercised by superior officers over subordinate officers in the performance of police functions.

99 Although, as earlier noted, the written submissions for the plaintiff relied upon the abovementioned passage which has been attributed to Yeldham J (but, as I have said, was in fact an extract from Professor Hogg’s text) an examination of the authorities referred to by Professor Hogg does not support the proposition contended for the plaintiff in this case, namely, that, at common law, if superior police officers at an intermediate level in the hierarchy, direct or involve other officers in unlawful activity or misconduct in the arrest and charging of a citizen, that that thereby constitutes an exception to the principle enunciated by the High Court in Enever’s case.

100 It is clear from the authorities to which Professor Hogg refers that an exception to the Enever principle at common law may arise where there is a lawful order issued by the Crown requiring police officers to act in obedience to the direction or order given. However, as I have stated above, that is not the case here.

101 In Griffiths v Haines (supra), Lee J similarly observed that, in terms of vicarious liability, “control” referred to control by the Government as distinct from any control exercised by subordinate officers. See also, in this respect, the observations of O’Connor J in Enever (supra) at 993 to 994 wherein his Honour referred to the arrest made by a police officer in the discharge of his duties as a holder of the officer of constable and “… not by the direction or under the control of the Government”.

102 As earlier indicated, the submissions for the plaintiff, with respect, incorrectly proceeded upon the basis that, for the purposes of applying the abovementioned common law exception, those alleged to have fabricated incriminating evidence was acting under the orders of “superior officers”, namely, Messrs Knox and Ross. Even if it could be said those two officers, who were higher in the police hierarchy, gave such “orders” it could not be said, for the purposes of the common law, that they did so as agents of the Government or State of New South Wales.

103 Finally, as to the submission made on behalf of the plaintiff in the Plaintiff’s submissions in reply, paragraph 5, to the effect that the State “through the Attorney-General, could have no billed the prosecution at any time” any action taken in that respect by the Attorney-General could not provide a basis for retrospectively converting the earlier alleged actions of the police officers involved in the plaintiff’s arrest and prosecution into actions for which the State can then be said to be vicariously liable. Any failure to exercise the power to no bill, in my opinion, could not, in law, create a basis for such vicarious liability. A failure to exercise the power to no bill a prosecution could not, in other words, impose either a direct or an indirect liability in the State.

104 Accordingly, I am of the opinion that prior to the Vicarious Liability Act, there could not arise at common law in the State of New South Wales liability in respect of the alleged fabrication of evidence leading to the plaintiff’s arrest on 15 January 1980.

(b) The Vicarious Liability Act – operative 28 October 1983

105 The State’s fundamental contention was that it cannot be vicariously liable after the Vicarious Liability Act came into operation on 28 October 1983 in respect of the alleged manufacture of evidence against the plaintiff. It conceded that each of the relevant officers were constables appointed under s.6 of the Police Regulation Act 1899 and that officers Michael Leary, Trevor Haken, Glen Ross, Stephen Chidgey and Michael Gardiner were Detective Senior Constables. Mr Les Knox and Mr Ray Donaldson (the latter in respect of the 1982 charges) were Detective Sergeants, Third Class (Exhibits W and AD).

106 The Vicarious Liability Act was assented to on 22 April 1983.

107 Section 2 provides that ss.1 and 2 commence on the date of the assent to the Act.

108 Section 2(2) provides:-

“Except as provided by sub-section (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.”

109 Section 3 importantly provides:-

“This Act does not apply to or in respect of a tort committed by a person or arising out of a wrongful act or omission occurring before the day appointed and notified under s.2(2).”

110 The date appointed under s.2(2) was 28 October 1983.

111 Section 6 provides that, for the purposes of the Act, a member of the Police Service shall be deemed to be a person in the service of the Crown and not a servant of the Crown.

112 Section 7, Vicarious liability of masters, provides that, notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by his servant in the performance or purported performance by the servant of an independent function whether performance or purported performance of the function:-

“(a) is in the course of his service for his master or is an incident of his service (whether or not it was a term of his contract of service that he perform the function); or

(b) Is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of his master.”

113 Section 8, Further vicarious liability of the Crown, provides as follows:-

“(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:-

(a) is in the course of the person’s service with the Crown or is an incident of the person’s service (whether or not it was a term of the person’s appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

(2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:-

(a) carried on by the person on the person’s own account, or

(b) carried on by any partnership, of which the person is a member, on account of the partnership.”

114 The State has pleaded, in its defence, not only that vicarious liability cannot arise at common law but also that there were no active steps by way of prosecution that occurred after 28 October 1983 that could make it vicariously liable under the Vicarious Liability Act.

115 In the State’s Outline of Submissions, reference is made to the written submissions for the plaintiff which contended that there was “uncontroverted evidence that various of the first charge officers attended court proceedings after the introduction of the Vicarious Liability Act and as such they took ‘active steps’ in relation to the prosecution of the plaintiff after 28 October 1983”.

116 In the defendant’s Outline of Submissions, it is recorded:-

“71. It is respectfully submitted that evidence of merely ‘attending court’ after 28 October 1983 could not satisfy this Court to the requisite standard that there was any active step of prosecution by any one of the police officers post 28 October 1983.

72. It appears from the record of 31 October 1983, that it was a date set for the trial of the plaintiff. There is no evidence to suggest that Mr Knox was present to ‘instruct’ the Crown Prosecutor. At the highest, on that date, he was to give evidence, but never did so. Accordingly, there was no actual prosecution by Mr Knox on that day.

73. Again on 19 March 1984 there is a reference to ‘all police present’ but there is no evidence to suggest that any of the police officers ‘instructed’ the Crown Prosecutor on that day as is alleged. Again, the plaintiff had been remanded for trial on that day and, if anything, any police officers who were present were there to give evidence, but this never occurred. Accordingly, there was no act of prosecution by them on that day.

74. There is also a record of 19 March 1984 that facts and antecedents were tendered. There is no evidence to suggest that the ‘facts’ tendered was a ‘fact sheet’ prepared by Mr Knox and was tendered in his presence.

…”

117 In the fifth amended statement of claim, the plaintiff alleges that after 28 October 1983, the relevant police officers “failed to inform the police prosecutor or anyone else in a position to cause the prosecution of the plaintiff to be terminated” that statements made by them contained false evidence or otherwise failed to cause the termination of the prosecution.

118 In the State’s Outline of Submissions, reliance was placed upon dicta of Harvey ACJ in Daniels v Telfer (1934) 39 SR (NSW) 99 in answer to the plaintiff’s case “… that the police officer should have ‘come clean’” (see paragraph 52 of the Plaintiff’s Submissions of 27 July 2007 and paragraph 75 of the State’s Outline Submissions).

119 I will return to consider Daniels (supra).

120 It was submitted for the State that, in the present case, “inactivity” by the State after 28 October 1983 was insufficient to support a claim for malicious prosecution.

121 Mr Maconachie submitted for the State that the only inference that could be drawn from relevant court notations on the court file (Exhibit W) commencing 23 February 1983 was that whilst police had attended on various listings of the matter, the only conclusion available was that they had attended merely for the purpose of giving evidence at the trial (first defendant’s outline of submissions, paragraph 77).

122 When the matter was listed for trial on 19 March 1984, the Crown Prosecutor was noted as appearing on the record and “all police present”. A plea of guilty was then entered. The circumstances which are said to have given rise to the guilty plea are referred to below. There then followed the tender of facts and antecedents by the Crown. The police officers, it was contended for the State, were there only in the capacity of witnesses for the purpose of giving evidence if required. Issue was taken with the submission for the plaintiff that the relevant police officers were present to assist the prosecutor in the performance of his function. It was contended that the evidence of Mr Ross - that he had secured the presence of a member of the arrest team on “each adjournment” in order to assist the prosecutor - was evidence related merely to the position in the lead up to the committal proceedings and that these listings took place well prior to 28 October 1983. There was no evidence given in the present proceedings by Mr Ross, it was contended, which related to the position after that date.

123 Exhibit W comprises the documents relating to the prosecution in the then Court of Petty Sessions. The documents within that exhibit confirm the following matters:-

(1) The apprehending officers were Detective Sergeants Ross, Knox and Chidgey from the Drug Squad.

(2) That the plaintiff was charged on 16 January 1980 with supplying a prohibited drug, namely, heroin “… in that he did have in his possession a quantity of such prohibited drug in excess of the quantity prescribed in respect of that drug” .

(3) On 20 August 1980, the proceedings were listed before the Court on which occasion Mr Conomos of counsel appeared for the plaintiff. The proceedings were adjourned by consent, bail to continue.

(4) The proceedings were again listed on 2 April 1981 when a committal hearing commenced.

(5) On 3 April 1981, the plaintiff was committed to the Sydney District Court for trial on which occasion bail was continued.

(6) On 6 January 1983, the Secretary of Justice advised the solicitors for the plaintiff, Messrs Colin W Love & Co, that the Attorney General had directed that the case against the plaintiff was to proceed to trial.

(a) 28 February 1983: proceedings stood over to 25 July 1983.

(b) 25 July 1983: on an application by the defence stood over by consent to 5 August 1983 (noted Supreme Court drug conspiracy trial to commence on 5 September 1983).

(d) 14 October 1983: application to vacate trial date by accused. The application was refused and the trial date confirmed.

“possibly plea?”

“all police present”

(g) 29 March 1984: stood over.

(h) 7 June 1984: sentence – a term of imprisonment of 15 years to date from 19 July 1984 concurrent with existing sentence. Non-parole period to expire on 18 July 1988. Noted Detective Sergeant Knox present.

124 It was contended for the plaintiff that there was evidence that the relevant police officers, including in particular Mr Ross, had attended court proceedings after the Vicarious Liability Act had come into operation on 31 October 1983 and, that by attending court, they had taken “active steps” in relation to the prosecution of the plaintiff after that date.

125 It was submitted for the State, as earlier noted, that the evidence of “attending court” could not constitute the taking of an active step by way of prosecution by any one of the police officers after 28 October 1983.

126 For reasons set out in paragraphs [71] to [74] inclusive of the Outline of Submissions for the State (extracted in paragraph [116] above), it was contended that there was no act by way of prosecution by the relevant police officers after 28 October 1983.

(c) Interpretation and application of the Act

127 In s.5(1) of the Vicarious Liability Act, Definitions, the following expressions are defined:-

“

Independent function

, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant’s master or the Crown, as the case may require.

Office

includes the office of special constable within the meaning of Part 4 of the Police Offences Act 1901.

Police tort claim

– see s.9B(1).”

128 Section 5(2) provides that a reference in the Vicarious Liability Act to “a function” includes reference to a power, authority and duty and the “performance of a function” includes a reference to the exercise of the function and the failure to perform or exercise the function.

129 Section 6, as earlier noted, provides that, for the purposes of the Vicarious Liability Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown.

130 Part 2 of the Vicarious Liability Act entitled Vicarious Liability of Masters for independent functions contains s.7 which is set out in paragraph [112].

131 In Part 3 of the Vicarious Liability Act entitled Vicarious liability of Crown for persons in its service, the Crown is made vicariously liable in respect of a tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function falls within the provisions of s.8(1)(a) or (b).

132 In Part 4 of the Vicarious Liability Act entitled Legal proceedings for damages for torts by police officers, s.9B provides as follows:-

A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the

police officer concerned

) in the performance or purported performance of the officers’ functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.

(4) …”

133 I have earlier set out the provisions of s.3 (paragraph [109], which states that the Vicarious Liability Act does not apply “to or in respect of a tort committed … or arising out of a wrongful act or omission occurring before the day appointed and notified …”.

134 It was contended for the plaintiff that, in attending court, the police officers who participated in the plaintiff’s arrest on 15 January 1980 assisted the Prosecutor and that their attendance was part of the performance or purported performance of a police officer’s function (written submissions, p.20).

135 Mr Steirn, for the plaintiff, specifically relied in this respect upon submissions made on behalf of the plaintiff in support of the application to amend the statement of claim and upon final written and oral submissions made in the substantive proceedings concerning the application and operation of the Vicarious Liability Act.

136 In paragraph 38 of the last-mentioned submissions, it was contended, in relation to both the first and second charges, that the Crown was vicariously liable for the commission of a tort committed by a “… large number (of) police officers, and not in the exercise of an independent discretion whilst arresting somebody, but while performing general police duties under the direction and control of superiors in the action of planting false evidence upon the plaintiff, manufacturing cases against the plaintiff and then prosecuting the plaintiff …” (p.18).

137 Insofar as the plaintiff relied upon the Vicarious Liability Act as supporting the action against the State, reliance was also placed upon what was said to be a failure by police officers after 28 October 1983 or an omission “… to inform the police prosecutor or anyone else in a position to cause the prosecution of the plaintiff to be terminated”. This referred to a failure to advise the police prosecutor that evidentiary statements were fabricated or “concocted” evidence. It was also claimed that this constituted conduct by omission in failing to cause the termination of the prosecution.

138 Section 8 of the Vicarious Liability Act makes it clear that the plaintiff cannot rely upon the provisions of the Act with respect to the vicarious liability of the Crown with respect to either a “tort committed” by a person or one “arising out of a wrongful act or omission” occurring prior to October 1983.

139 The tort of malicious prosecution may arise from either the institution of proceedings or the maintenance of proceedings. That is evident in the High Court’s judgment in A’s case where consistent reference is made by the Court to “instituting or maintaining” or “commencing or maintaining” proceedings.

140 Further in A’s case, the Court expressly referred to the temporal dimension in the tort of malicious prosecution:-

“… the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was

commenced or maintained

without reasonable and probable cause directs 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

. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to

commence

maintain

the prosecution not whatever material may later have come to light.”

141 The temporal dimension in the present case concerns (a) the alleged absence of reasonable and probable cause as at the date Mr Ross laid the charge (15 January 1980) and (b) the absence of reasonable and probable cause in the period during which the proceedings were maintained up to 7 June 1984, being the date on which the plaintiff was sentenced. The maintenance of proceedings would, in my opinion, include all acts by “the prosecutor” after October 1983 in maintaining and pursuing the proceedings including the re-listing of them for ultimate hearing and disposal by conviction and sentence.

142 The significance of later steps in a prosecution independently of the preferring of an indictment in constituting the same as malicious proceedings has been established long ago. In Fitzjohn v Mackinder (1861) SC 30 LJCP 257; 142 ER 199, M sued F in the County Court for a debt. F claimed a set-off in answer to which M produced his ledger containing an acknowledgment signed, as he swore, by F. F denied the signature, which he averred to be a forgery. However, the trial judge, induced partly by the statement of M and partly by the conduct of F when giving evidence, disbelieved F’s denial. The judge committed him for trial for perjury and bound M over to prosecute. M did pursue the prosecution but F was acquitted. F then brought an action against M for maliciously and without probable cause causing him to be prosecuted on an unfounded charge.

143 The Court held on appeal, by majority, that the action was maintainable. Bromwell B noted, at p.205, that the action was not one for damages for preferring the indictment. The proceedings were only for what was referred to as “the residue of the prosecution and the damage consequent upon it”. Bromwell B then observed (at pp.205 to 206):-

“… Where an action is maintainable in respect of the whole prosecution, including the preferring of the bill

it is in part maintainable for the subsequent stages and conduct of it

, - then why should it not be maintainable for those parts, even where it is not for the mere preferring of the bill …”

144 Similarly, Cockburn CJ stated (at p.208):-

“Without, however, going thus far – assuming that the defendant ought not to be held responsible for the act of the judge in directing the prosecution of the plaintiff, I am still of the opinion that the defendant is liable in this action …”

145 At 208 to 209 it was further observed:-

“But the main argument relied on in favour of the defendant is that he did not originate the proceedings or, as the phrase is, set the law in motion … I do not feel at all pressed by this argument … a prosecution, though in the outset not malicious … may nevertheless

become malicious in any of the stages through which it has to pass

, if the prosecutor, having acquired positive knowledge of the innocence of the accused, preservers malo animo in the prosecution with the intention of procuring per nefas a conviction of the accused …”

146 Similarly in Daniels (supra), observations were made as to the significance to an action of malicious prosecution of the co-existence of the element of malice at a time, after proceedings commenced, with active steps taken in the pursuit of the proceedings. Harvey ACJ observed at p.102:-

920 He said he gave evidence at the committal and told the truth on that occasion (part of Exhibit BA). He also gave evidence at the trial (Exhibit BD).

921 He said that he did not hear Donaldson ask “who heard Landini’s admissions?”. He said he did not hear Pattle ever say “I heard the admissions”. He said that he did not hear Donaldson say to Pattle “who had the gun? Who saw Landini in possession in the gun? Who corroborates who here”.

922 Mr Meredith was cross-examined at some length as to the observations conducted by him on 5 July 1982. He confirmed that after Thompson came back from the city, he met up with the plaintiff by walking to the plaintiff’s Mazda vehicle and entering it. This is contrary to the plaintiff’s evidence as to how the initial meeting took place. He acknowledged that there was an inconsistent entry in the surveillance sheet which recorded that Thompson and the plaintiff walked to the Mazda vehicle. There was, however, other surveillance evidence referred to above of Mr Thompson being observed crossing the road and entering the plaintiff’s vehicle.

923 A good deal of the cross-examination of Mr Meredith was directed to the specific surveillance carried out on 5 July 1982 and other matters concerning events on that day, the purpose of which was to challenge Mr Donaldson statements that the plaintiff had been involved in a drug transaction on 5 July 1982. I note that the detail and accuracy of surveillance material which was put to Mr Meredith in cross-examination in the present proceedings were not matters pursued with him at the trial. The cross-examination on these matters did not, in my opinion, materially assist on the question of alleged fabrication of evidence or generally on the issue of the absence of reasonable and probable cause. Although the evidence did not plainly establish that there had been money and drugs exchanged on 5 July 1982, the circumstances and meetings between Smith, the plaintiff, Waddell, Thompson and Pak on that date all constituted cogent circumstantial evidence as part of the overall Crown case against the plaintiff.

924 Mr Meredith was cross-examined at length about the events that occurred at the KFC premises. His evidence in chief as to what he said he saw there, at least so far as the plaintiff was concerned, was brief indeed. A good deal of the cross-examination focussed on the position of vehicles, lighting, the speed with which Mr Meredith passed the premises and other physical features associated with the site. Mr Meredith’s statement (Exhibit 4) had referred to events after 8.15 pm on 19 July 1982. He recorded the Thompsons’ trip to the La Rustica Restaurant and the Thompsons entering the plaintiff’s vehicle. After being driven a short distance, he said Thompson left the vehicle carrying the umbrella and multi-coloured plastic bag. He was then followed to George Street in the city where he soon after, according to Meredith, entered the Hilton Hotel.

925 A short time later he was seen to travel to the Crest Hotel and later leave it with Naktrakul. He observed him entering the taxi driven by Paynter carrying a brown plastic carry bag.

926 He recorded in his statement then following the vehicle to the KFC premises. However, his evidence as to what he saw there, as recorded in paragraph 11 of his statement, was extremely restricted. Mr Meredith said in cross-examination that his attention was on Thompson rather than on the plaintiff. He confirmed that he did not see anybody assault the plaintiff whilst at those premises.

927 In paragraph 12 of his statement, Mr Meredith recorded the events on his attendance with other police at 16 Duntroon Street, Hurlstone Park. He recorded finding the Victorian Police Journal. When Waddell was asked by police whose papers they were, she replied “it’s Danny’s, it’s got something to do with a property he’s getting”. There was no significant challenge to Mr Meredith’s account as to what happened at Ms Waddell’s premises later that night.

928 He confirmed that it was he who actually found the piece of white paper inside the Victorian Police Journal. I have no reason to doubt Mr Meredith’s evidence and I accept it as credible evidence.

(j) Mr William Harrigan

929 Mr Harrigan was a retired AFP officer.

930 In 1979, he accepted a position with the then Federal Bureau of Narcotics. In 1980, he was appointed to the AFP and worked in that service’s Drug Squad.

931 In 1981, he was transferred to the Organised Crime Branch.

932 In 1981, he was transferred to the then National Crime Authority. At that time, he held the rank of Detective Superintendent. He remained there until June 1992. He retired on 2 February 1996. He said he accepted an offer of redundancy that was made to everyone on the AFP at that time.

933 As at 19 July 1982, he was a member of the JTF. He said that an investigation into Thompson by the Organised Crime Branch of the AFP had crossed over investigations being made by the JTF. As a result, a joint operation came into being. The joint operation became known as Operation Snooker/Pickaxe.

934 A copy of his statement dated 23 August 1982 is in Exhibit BF1, Tab 32.

935 In his statement, Mr Harrigan stated that, on the night of 19 July 1982, he observed Thompson enter the cab driven by Paynter. He said that, as he drove towards the KFC premises, he saw Thompson running across Parramatta Road with Paynter in pursuit. He said later that night he took possession of the five cylinders containing the heroin and that he spoke to Thompson. It was during this discussion as recorded in Mr Harrigan’s statement (p.3) that Thompson is recorded as saying, inter alia, “… Danny will kill me for this, they have my wife and they will kill her too …”. Thompson is recorded as saying that his wife could have been at Waddell’s home. He said, otherwise, “… I don’t know where she is, they took her away when they gave me the money”.

936 Mr Harrigan’s statement recorded Thompson as saying that he had obtained the cylinders of heroin from “… a Chow at the Hampton Court Hotel”.

937 Mr Harrigan referred to then having travelled to Thompson’s home and the premises were then searched. He said he there had a discussion with Thompson.

938 Mr Harrigan recorded showing the cylinders of white powder to Thompson at the CIB and Thompson acknowledged that they were the one that he had thrown away and that they contained heroin. It was in this discussion that he said that Thompson disclosed that he “… got the money in that bag from Danny and gave it to Judy Parker [sic] at the Hilton tonight …”.

939 Mr Harrigan gave evidence in a straightforward manner. He said that Thompson in his record of interview “… was completely frank and open …”.

940 Mr Harrigan also stated in evidence:-

“… I recall asking Mr Thompson how much he paid for the kilo of heroin, when he went to the Crest Hotel. He said ‘$96,000’. I asked him where he got the money from. He told me he got it from Mr Landini and he took the heroin out to Mr Landini or for Mr Landini. I can recall those questions, that just followed, and his answers, and he signed the records of interview and he was served with a copy …”

941 Mr Harrigan said there was a debriefing shortly after the arrest. He said it occurred at the JTF offices. He said that no-one was directed to give or asked to give false evidence. He said that he never heard Mr Donaldson issue such a direction and that he never agreed with anyone to give false evidence. He said that at no time after the arrest was he informed that there was a “gap” in the evidence.

942 He said that he had never heard any suggestion being made to the effect that the plaintiff had never had a gun when arrested. He also said that he did not hear any suggestion of the plaintiff having been bashed, loaded or verballed or that evidence had been fabricated against him.

943 He said that Donaldson did not issue any instruction that no-one was to mention any assault on the plaintiff or that they were not to mention any shots having been fired at the scene of the arrest.

944 He said that he had no recollection of Mr Pattle saying that he had heard Mr Landini make admissions nor people reacting by laughing at a statement to that effect. He said he did not recall Mr Donaldson saying to Mr Pattle “now how did you disarm him again?”, referring to the plaintiff.

945 In cross-examination, Mr Harrigan stated that he typed his own statements. For that purpose, he used his own notes and his recollection of events. He thought that he would have started work on the statement soon after the events. He said he probably took notes when he interviewed Don Thompson.

946 In relation to the events at the KFC premises, Mr Harrigan said he did not see Pattle or Donaldson with a gun and nor did he see the plaintiff in possession of one.

947 I was impressed by Mr Harrigan’s evidence, which was not shaken in cross-examination. He gave the impression of being a truthful and objective witness. I accept his evidence as credible.

Consideration

(a) The prosecutor of the 1982 charges

948 In relation to the 1982 charges, the initial question involves identifying the prosecutor(s) of proceedings. The plaintiff has contended that, in addition to Mr Donaldson, both Mr Matinca and Mr Pattle were prosecutors of the charges against him, by reason of their role and, in particular, by fabricating evidence against him.

949 The first and second defendants, the State and the Commonwealth of Australia and the fourth defendant, Mr Pattle, disputed the plaintiff’s contention in this respect. They each submitted that there was no evidence that would support such a finding.

950 In the written submissions for the fourth defendant, Mr Strickland adopted the submissions made on behalf of the second defendant. In particular, in this respect, he contended that Mr Pattle did not lay the charges against the plaintiff nor was he consulted about the charges. Further, it was contended that there was no evidence that he was involved in any decision in relation to the charging or continuation of the prosecution against the plaintiff. Further, it was contended there was no evidence that the fourth defendant exercised any independent judgment or discretion in charging the plaintiff.

951 Mr Strickland additionally submitted that Mr Pattle had no authority to lay charges in relation to suspected criminal offences committed under New South Wales law. He was not sworn in as a special constable and was not a New South Wales Police officer. His role was such that he was not consulted in relation to the facts sheet and he had no role in compiling the brief and was not consulted in relation to it. It was also contended that he did not have any discussion with Mr Donaldson about the matter after he completed his statement. His main role throughout the relevant period said to have been as a surveillance officer and, in that respect, his involvement was very limited prior to 19 July 1982. His evidence was that he had no recollection of attending briefings in relation to Operation Snooker/Pickaxe before 19 July 1982.

952 In Commonwealth Life Assurance Society Limited v Brain [1934-1935] 53 CLR 343 at 379 to 380, Dixon J considered whether, in that case, it was open to the jury to find that the appellant company had “instigated” the prosecution for conspiracy such as to be responsible civilly in an action for malicious prosecution.

953 In the course of that case, Dixon J observed:-

• It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as a result of an independent discretion on the part of that authority.

954 Dixon J stated (at 379):-

“The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.”

955 Accordingly, even though a prosecution may be brought be a prosecutor on behalf of the State as an exercise of prosecutorial discretion, if it were the case that individual officers conspired to fabricate evidence in alleging criminal conduct by another, by instigating the prosecution in that way, in accordance with the principles discussed by Dixon J in Brain (supra), such officers, for the purpose of the tort of malicious prosecution, would be regarded as prosecutors.

956 In the present proceedings, in relation to the 1980 charge, it was the plaintiff’s case that the prosecution had been instigated by the officers involved in the plaintiff’s arrest and that that prosecution by them continued through the bail and committal hearings, the plea and sentence. Whilst most of that process occurred prior to the enactment of the Law Reform (Vicarious Liability) Act 1983, it was contended that, nonetheless, the sentencing process occurred after the enactment of that Act.

957 In Johnston v Australia & New Zealand Banking Group Limited [2006] NSWCA 218, Basten JA, with whom Giles and Santow JJA agreed, stated:-

“36. That a person who is not legally a party to a prosecution may nevertheless be sued is beyond doubt. In

Davis v Gell

(1924) 35 CLR 275 at 282, Isaacs ACJ stated:-

‘For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge .... The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.’”

958 In the present case in relation to the 1982 charges, it was claimed for the plaintiff that Donaldson, as the case officer and the one who laid the charges against the plaintiff, was a prosecutor and that Pattle, by “backing him up” and thereafter providing a false statement of what had occurred in the carpark at the KFC premises, brought him within the “extended definition” of a prosecutor. Reliance was placed, in particular, on the High Court’s judgment in Brain (supra): Plaintiff’s Submissions, 27 July 2007 at [16]. It was also claimed that “at the very least Pattle aided and abetted Donaldson in relation to the laying of charges and thereafter the maintenance (also called continuation) of the prosecution of Landini. It is therefore alleged that Pattle was a prosecutor, on the same basis as in Brain’s case. Critically, Pattle was there in the KFC carpark at the relevant time and his evidence as to those matters is essentially identical to that of Donaldson, which evidence was also made up, obviously in concert with Donaldson” (Plaintiff’s Submissions, 27 July 2007 at [16]).

959 In the plaintiff’s submissions dated 27 July 2007, it was contended at [19] that Messrs Pattle and Matinca were active in the investigation and “… although there is no evidence that Matinca discussed with Donaldson charges which were to be laid, he was part of an entire Taskforce which played an active role in setting the proceedings in motion and thereafter continuing them” (at [19]).

960 It is also there alleged “Matinca aided and abetted Landini being charged. Matinca adopted and continued the proceedings by his deliberate participation in the provision of false material for inclusion in the prosecution brief”.

961 The second defendant, in contending that neither Matinca nor Pattle was a prosecutor, supported the submission at two levels. The first was the need for the plaintiff to demonstrate as a matter of fact that the evidence that each gave implicating the plaintiff in a conspiracy to supply heroin and the possession of an unlicensed firearm was, in fact, false. The second was that any such false evidence, in fact, led, persuaded or influenced the Crown to prosecute.

962 The second defendant supported its submissions, firstly, by reference to the principles that were said to determine who was a prosecutor and secondly, on the facts of the matter, that Donaldson was the prosecutor, he having signed the charge sheet and prepared the brief and having effectively directed and controlled the operational aspects leading to the plaintiff’s arrest.

963 In support of the submissions, reliance was placed upon the authorities that established that the mere provision of false information was not enough to constitute a person a prosecutor. In that respect, the dicta of Richardson J in Commercial Union Assurance Co of NZ Limited v Lamont [1980] 3 NZLR 187 at 199 was relied upon. In essence, it was contended that the simple furnishing of information, whether false or not, was not sufficient to establish whether the person instigated the prosecution. Applying that principle to the present case, it was submitted:-

“For the plaintiff to succeed against the Commonwealth, he must first prove that either Pattle or Matinca set the proceedings in motion so that this was in substance Pattle’s or Matinca’s prosecution in the sense that, in reality, the Crown was the agent an instrument of Pattle or Matinca or that Pattle or Matinca intentionally supplied the prosecutor with information that they knew was false for the purpose of persuading or influencing and which persuaded or influenced the Crown to prosecute”

964 Reliance was placed upon the principle in Browne v Dunne (1894) 7 C & P 408 as far as the proposition was not put to Donaldson as to whether he would have preferred a charge against the plaintiff without the allegedly false evidence of Matinca or Pattle.

965 On the evidence, in my opinion, neither Mr Matinca nor Mr Pattle were or could be considered to have been prosecutors in respect of the 1982 charges. Mr Matinca’s role was a limited one, largely confined to surveillance work. The false evidence which he said he gave at the direction of Mr Donaldson was not evidence that was admitted in the Crown case against the plaintiff. There is no basis for a finding that he fabricated evidence against Mr Landini and, in accordance with the relevant principles referred to above, there is no basis in law for a finding that he was a prosecutor of the 1982 charges.

966 Similarly, in relation to the Mr Pattle, on the findings I have made, the plaintiff has not adduced evidence to the requisite standard establishing that Mr Pattle gave false evidence or fabricated evidence against the plaintiff. He was in a not dissimilar position to Mr Matinca. His role was a very limited one, the details of which have been discussed earlier.

967 Applying the relevant principles to the evidence in the case, Mr Pattle was not a prosecutor of the 1982 charges.

(b) Reasonable and probable cause

968 The premise of the plaintiff’s case, namely, that the defendants did not have reasonable and probable cause to prosecute him has a two-fold aspect. The first is the plaintiff’s contention that evidence was fabricated against him. The second is that surveillance and other evidence relied upon suggesting that he was a party to the criminal conspiracy to supply heroin went no higher than supporting a conclusion of guilt by association.

969 The first aspect requires a determination as to whether evidence against the plaintiff was fabricated by Mr Donaldson, and/or Matinca and/or Mr Pattle and/or others, whether at Mr Donaldson’s direction or not.

970 The second aspect requires an assessment of the strength and the reliability of the relevant evidence available to the prosecutor.

971 In support of the allegation that the defendants (in particular, Mr Donaldson) acted maliciously, namely, that he or they acted for an improper purpose and not for the purpose of carrying the law into effect, the plaintiff largely relied upon the alleged fabrication of evidence against him by Mr Donaldson and Mr Pattle as well as a supposed intention to secure a conviction in circumstances where the available materials could do no more than support a suspicion.

972 In relation to the issue of reasonable and probable cause:-

(1) The issue of the alleged fabrication of evidence and the giving of false evidence relied upon by the plaintiff, depended largely upon acceptance of his own evidence and the evidence of Mr X. The fabrication of evidence having been denied, in particular, by Mr Donaldson and Mr Pattle, for the plaintiff to succeed he is required to prove the allegation to the Briginshaw standard. He has not, for reasons discussed, above, done so.

973 In the present case, so far as Mr Donaldson is concerned, it is to be observed that he fulfilled three roles. At a critical point in the investigation, he assumed the role as case officer for Operation Pickaxe. He also became a witness of fact as to what is said to have occurred on the evening of 19 July 1982 at the KFC premises. Thirdly, he fulfilled the role of prosecutor in laying the charges against the plaintiff.

974 The sources of Mr Donaldson’s knowledge of material facts was two-fold. The evidence established that he kept abreast of investigations in Operation Pickaxe carried out by other officers in the JTF. In addition, he was also an eye witness, by virtue of his presence at the scene of the critical events at the KFC premises and which were directly relevant to the issues concerning the offences charged.

975 On the analysis and evidence to which I have earlier referred, I have found that Mr Donaldson improperly caused Mr Matinca to give false evidence in two respects. That evidence was admitted against the plaintiff’s co-accused, Waddell and Don Thompson only. The question is then whether Mr Donaldson, in addition, gave false evidence against the plaintiff and/or persuaded others to give false evidence against him.

976 The truthfulness of the evidence of Mr Donaldson and Mr Pattle is not to be examined in a vacuum. Before the events at the KFC premises took place and about which Mr Donaldson and Mr Pattle both gave evidence at trial and in the present proceedings, there existed a very large amount of significant evidence pointing to the fact of the plaintiff’s participation in a conspiracy to supply heroin. This evidence must be taken into account in determining the plausibility of what Mr Donaldson and Mr Pattle said took place at the KFC premises. Additionally, the very fact of Mr Thompson’s presence at those premises with 1.1 kilograms of heroin in his possession and his intended meeting up with the plaintiff late at night is evidence that supports the plausibility of events as both Mr Donaldson and Mr Pattle recorded them in their statement, including in particular, the central fact, corroborated by Paynter, of the actions of Mr Thompson in the process of passing the cylinders out of the taxi window to the plaintiff.

977 The evidence of Mr X having been rejected as wholly unreliable leaves the plaintiff’s version without corroboration. The plaintiff has not established that the prosecutor knew or believed at any point in time that there was some fact or facts that was/were exculpatory or inconsistent with his guilt. Additionally, it has not been established in the present proceedings that the facts established by the investigations were, in any material respects, lacking in terms of either reliability or strength. Finally, it has not been established that Mr Donaldson, Mr Pattle or Mr Matinca did not hold an honest belief as to either the plaintiff’s guilt of the facts said to have justified his prosecution.

978 On the evidence to which I have referred, I do not consider that there is an evidentiary basis for a finding that Mr Donaldson fabricated evidence against the plaintiff or persuaded others to do so. I am equally satisfied that there is no basis for a finding against Mr Pattle to support the allegation that he fabricated evidence against the plaintiff.

Findings: 1982 charges

979 The surveillance evidence constituted an important part of the circumstantial evidence in the Crown case. The evidence based on surveillance was not challenged in any significant way at trial and has not, in my opinion, been established in the present proceedings as having been lacking in integrity or reliability.

980 I find that the evidence of Mr Matinca establishes that he, in fact, falsified two aspects of surveillance evidence. That evidence, however, was not admitted at trial against the plaintiff.

981 The evidence that Thompson was caught in the act of attempting a hand over of the cylinders containing heroin to the plaintiff at the moment police intervened was corroborated by the evidence of Paynter. There is no basis for a finding that Paynter’s evidence was, in any way, fabricated or false evidence. His evidence corroborated Donaldson’s account and I accept the evidence of both as reliable in that respect.

982 The facts and circumstances concerning the events at the KFC premises on 19 July 1982 combined with circumstantial evidence provided objective material constituting reasonable and probable cause to charge the plaintiff with being party to the conspiracy to supply a commercial quantity of heroin.

983 The evidence establishes that Mr Donaldson, as prosecutor, held a belief, based on the materials available to him, that those materials warranted setting the process of the criminal law in motion against the plaintiff.

984 The whole of the material available to the prosecutor at the time of commencing the processes of the criminal law against the plaintiff, in my opinion, constituted a reasonable basis for Mr Donaldson’s belief in setting those processes in motion.

985 The evidence does not establish that Mr Donaldson fabricated evidence against the plaintiff or that he sought to persuade others to do so. The evidence does not establish that Mr Pattle fabricated evidence against the plaintiff.

986 Neither Mr Pattle nor Mr Matinca were prosecutors within the extended meaning of that concept: Commonwealth Life Assurance Society Limited v Brain (supra).

987 It follows from the above findings that the plaintiff has not established a want of reasonable and probable cause for the 1982 charges.

988 It also follows that the plaintiff has not established that the 1982 charges were laid for an improper purpose.

Orders

(a) The 1980 charge

989 In relation to the findings made and the assessment of damages set out in paragraph [536], there is to be judgment for the plaintiff in relation to the cause of action in malicious prosecution based upon the 1980 charge to include the following:-

(1) Consequential economic loss (legal expenses) $5,000.00

(2) Injury to person and restriction of liberty $35,000.00

(3) Aggravated damages $30,000.00

(4) Exemplary damages $160,000.00

Total $230,000.00

990 The plaintiff and first defendant to bring in short minutes of order to give effect to the judgment. In relation to the question of interest and costs, in the event that the parties are unable to reach agreement, written submissions are to be lodged with my associate by 4.00 pm on 6 February 2009.

(b) The 1982 charges

991 On the basis of the findings set out above, there is to be judgment in favour of the first, second, third, fourth and fifth defendants in relation to the cause of action in malicious prosecution based upon the 1982 charges.

992 In relation to the question of costs, any written submissions to be lodged with my associate by 4.00 pm on 6 February 2009.

**********

CITATION:	LANDINI v STATE OF NEW SOUTH WALES & ORS [2008] NSWSC 1280
HEARING DATE(S):	29, 30, 31 March 2006, 4, 5, 6, 7, 10, 11, 12, 19, April 2006, 2 June 2006, 29 August 2006, 18, 21, 26, 27 September 2006, 4, 5, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 24, 25, 26, 27, 31 October 2006, 2 February 2007, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 March 2007, 15, 18 May 2007, 13, 24 July 2007, 11, 12, 13 December 2007
JUDGMENT DATE :	17 December 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(1) THE 1980 CHARGE There is to be judgment for the plaintiff in relation to the cause of action in malicious prosecution based upon the 1980 charge to include the following:- (a) Consequential economic loss (legal expenses) - $5,000.00 (b) Injury to person and restriction of liberty - $35,000.00 (c) Aggravated damages - $30,000.00 (d) Exemplary damages - $160,000.00 Total - $230,000.00 The plaintiff and first defendant to bring in short minutes of order to give effect to the judgment. In relation to the question of interest and costs, in the event that the parties are unable to reach agreement, written submissions are to be lodged with my associate by 4.00 pm on 6 February 2009. (2) THE 1982 CHARGES On the basis of the findings set out above, there is to be judgment in favour of the first, second, third, fourth and fifth defendants in relation to the cause of action in malicious prosecution based upon the 1982 charges. In relation to the question of costs, any written submissions to be lodged with my associate by 4.00 pm on 6 February 2009.
CATCHWORDS:	TORTS – Malicious prosecution – separate criminal charges – allegations of fabrication of evidence in relation to each – what constitutes maintenance or continuation of proceedings - whether suppression of fabricated evidence of itself constitutes maintenance of criminal proceedings - vicarious liability of the Crown at common law and under the Vicarious Liability Act considered - STANDARD OF PROOF – principles applicable to malicious prosecution action – circumstantial evidence principles in relation to proof of criminal conduct in civil proceedings – principles guiding application of the Briginshaw standard – evidentiary analysis of facts and events of some antiquity – credibility of former police officer in relation to disclosures concerning the fabrication of evidence in relation to the first charge (1980) – disclosures in evidence to Royal Commission into the New south Wales Police Service – proof of elements in establishing absence of reasonable and probable cause – circumstantial evidence – what material available for prosecutor’s consideration – not restricted to admissible evidence – allegations of fabrication of evidence – significant circumstantial evidence – provided a reasonable basis for a conclusion of a belief in the prosecutor as to the plaintiff’s guilt – reasonableness of the belief established on the basis of investigations regardless of alleged fabricated evidence – no fabrication of evidence established – DAMAGES – principles in the assessment of damages including exemplary damages in an action for malicious prosecution
LEGISLATION CITED:	Australian Federal Police Act 1979 (Cth) Crimes Act 1900 Crown Proceedings Act 1988 Customs Act 1901 (Cth) Evidence Act 1995 Law Reform (Vicarious Liability) Act 1983 Police Act 1865 Police Legislation Amendment (Civil Liability) Act 2003 Police Regulation Act 1899 Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	A v State of New South Wales (2007) 230 CLR 500 Abrath v The North Eastern Railway Company (1882-1883) 11 QBD 440 at 449 to 450 Ahern v Crown (1988) 165 CLR 87 Allen v Allen (1894) P at 252 Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 Amin v Bannerjee [1947] AC 322 at 330 Attorney General for NSW v Perpetual Trustee Co Limited (1951-1952) 85 CLR 237 Attorney General v Radloff (10 Ex at 101 Platt B) Baume v Commonwealth (1906) 4 CLR 97 Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunne (1894) 7 C & P 408 Cassell & Co Limited v Broome [1972] AC 1027 Chamberlain v Regina (No 2) (1984) 153 CLR 521 Coleman v Buckingham's Limited [1963] SR NSW 171 Commercial Union Assurance Co of NZ Limited v Lamont [1980] 3 NZLR 187 Commonwealth Life Assurance Society Limited v Brain [1934-1935] 53 CLR 343 Conway v The Queen (2002) 209 CLR 203 Costa Vraca Pty Limited v Berrigan Weed & Pest Control Pty Limited (1998) 155 CLR 714 Cureton v Blackshaw Services Pty Limited [2002] NSWCA 187 Daniels v Telfer (1934) 39 SR (NSW) 99 Davis v Gell (1924) 35 CLR 275 Day v Perisher Blue Pty Limited [2005] 62 NSWLR 731 Doney v The Queen (1990) 171 CLR 207 Enever v The King (1906) 3 CLR 969 Fitzjohn v Mackinder (1861) SC 30 LJCP 257; 142 ER 199 Gianoutsos v Glykis (2006) 65 NSWLR 539 Griffiths v Haines [1984] 3 NSWLR 653 Holloway v McFeeters (1956) 94 CLR 470 Houda v State of New South Wales [2005] NSWSC 1053 Houghton v Oakley (1900) 21 LR (NSW) 26 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 Johnston v Australia & New Zealand Banking Group Limited [2006] NSWCA 218 Jones v Dunkel (1958-1959) 101 CLR 298 Knight v New South Wales [2004] NSWSC 791 Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122; [2001] 3 All ER 193 Lamb v Cotogno (1987) 164 CLR 1 Landini v State of New South Wales & Ors (unreported 12 October 2006) Lane v The Queen (1996) 66 FCR 144 Little v Law Institute of Victoria [1990] VR 247 Longman v The Queen (1989) 168 CLR 79 Merest v Harvey (1814) 5 Taunt 442 (128 ER 761) Murray v The Queen (1987) 11 NSWLR 12 Neat Holdings Pty Limited v Karajan Holdings (1992) 67 ALJR 170 New South Wales v Ibbett (2006) 231 ALR 485; (2006) 229 CLR 638 Noye v Robbins [2007] WASC 98 Oriental Foods (Wholesalers) Co Pty Limited v Commonwealth (1983) 50 ALR 452 Palmer v Dolman [2005] NSWCA 361 Plomp v Regina (1963) 110 CLR 234 Pollitt v The Queen (1992) 174 CLR 558 Prior v State of New South Wales (CA 40615/96 unreported, 2 September 1998) QIW Retailers Limited v Felview Pty Limited [1989] 2 Qld R 245 Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674 Re H & Ors (Minors) [1996] AC 563 Regina v Morex Meat Australia Pty Limited (1996) 1 Qd R 418 Regina v Rogerson (1992) 174 CLR 268 Regina v Stanbouli (2003) 141 A Crim R 355 Regina & Attorney General (Cth) v Associated Northern Collieries (1911) 14 CLR 387 Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147 Shellharbour City Council v Stewart [2008] NSWLEC 151 State of New South Wales v Eade [2006] NSWSC 84 State of New South Wales v Ibbett (2005) 65 NSWLR 168 State of New South Wales v Riley [2003] NSWLR 496 Thomas v State of New South Wales [2008] NSWCA 316 Thompson v Commissioner of Police of Metropolis [1998] QB 498 Tiger Nominees Pty Limited v State Pollution Control Commission (1992) 25 NSWLR 715 Transport Industries Insurance Co Limited v Longmuir (1997) 1 VR 125 Tripodi v Regina (1961) 104 CLR 1 Union Government (Minister of Justice) v Van der Vlies [1931] OPD 79 Walton v The Queen (1988-1989) 166 CLR 283 XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1984-1985) 155 CLR 448
TEXTS CITED:	The Laws of Australia (Volume 33.8.1630) The Vicarious Liability of the State for the Delicts of the Police (1967) 84 SALJ 25 by J L R Milton
PARTIES:	HENRY CHARLES LANDINI v STATE OF NEW SOUTH WALES & ORS
FILE NUMBER(S):	SC No 20525 of 2002
COUNSEL:	P: C. Steirn SC/P Barham/P Strain 1D: J Maconachie QC/D Mallon 2D: A Katzmann SC/I Butcher 4D: P Strickland SC/M Gerace 5D: L Tyndall/G Pulsford
SOLICITORS:	P: Burn & Company 1D: I V Knight 2D: Australian Government Solicitor 4D: Dibbs Barker Gosling 5D: Duffield & Duffield