Lye v State of New South Wales

[2005] NSWCA 282

CITATION:	Lye v State of New South Wales [2005] NSWCA 282
HEARING DATE(S):	16 August 2005
JUDGMENT DATE:	26 August 2005
JUDGMENT OF:	Giles JA at 1; Tobias JA at 62; Bryson JA at 63
DECISION:	(1) So far as leave to appeal and an extension of the time for appeal be necessary, grant leave to appeal nunc pro tunc and extend the time for filing a notice of appeal up to and including 22 November 2004; (2) Appeal dismissed; (3) Appellant pay the respondent's costs of the appeal including the costs of the notices of motion filed on 22 March 2005 and 8 August 2005.

CATCHWORDS:	Action for malicious prosecution - prosecution found to be without reasonable and probable cause - whether for improper purpose - plaintiff asserted actual purpose of putting pressure on her to cooperate in investigation of other matters - alternatively that should be concluded that was for an improper purpose of some kind - judge not satisfied as to either - whether judge in error - held error not shown. D
CASES CITED:	AW v State of New South Wales [2005] NSWCA 543; Brown v Hawkes (1891) 2 QB 718; Fox v Percy [2003] 214 CLR 118; Trobridgev Hardy (1955) 94 CLR 147;
PARTIES:	Gail Lye - Appellant State of New South Wales - Respondent
FILE NUMBER(S):	CA 40697/04
COUNSEL:	J Priestley - Appellant G Giagios - Respondent
SOLICITORS:	James Fuggle, Lismore - Appellant I V Knight - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 53/03 (Lismore)
LOWER COURT JUDICIAL OFFICER:	Blanch CJDC

CA 40697/04
DC 53/03 (Lismore)

GILES JA
TOBIAS JA
BRYSON JA

Friday 26 August 2005

LYE v STATE OF NEW SOUTH WALES

Judgment

1 GILES JA: The appellant was prosecuted on two charges of making a false instrument and two charges of using a false instrument. The instruments were two credit card debit vouchers, each for $1500. The substance of the charges was that the appellant made and used the vouchers with the intention of causing the card provider to accept them as genuine, when they were not, and to pay out money.

2 When the prosecutions came to be heard the police offered no evidence and the charges were dismissed. The appellant brought proceedings against the respondent, which accepted vicarious liability for the conduct of the prosecutor, claiming damages for malicious prosecution in instituting and/or continuing the prosecutions.

3 Blanch CJDC held that there was not reasonable and probable cause for the prosecutions because, although the prosecutor believed he had a case, he did not at the time he obtained the issue of summonses against the appellant have “evidence … to ground a belief based on reasonable grounds in order to charge or to issue a summons in respect of the plaintiff”. His Honour was not satisfied, however, that the prosecutions were malicious. He declined to find the “actual malice” of an improper purpose of putting pressure on the appellant in relation to another investigation, or to conclude that there must have been an impermissible motive of some kind behind the prosecutions.

4 The respondent did not by notice of contention contest the finding of absence of reasonable and probable cause. The appellant contended that Blanch CJDC had erred in failing to find that the prosecutions were malicious. She sought a verdict in her favour for damages to be assessed and remission for assessment of the damages.

A procedural matter

5 The appellant filed a holding summons for leave to appeal. Her advisers then came to the view that leave to appeal was not required. The time for filing a notice of appeal had expired. The appellant applied by notice of motion for an extension of time, which was granted. She filed a notice of appeal on 22 November 2004. It was arguably not filed in conformity with the extension of time. On 22 March 2005 the respondent filed a notice of motion applying to have the notice of appeal struck out as incompetent, not for disconformity with the extension of time but by the affidavit in support asserting that the appellant had not filed an affidavit showing that more than $100,000 was at stake (Pt 51 r 8 of the Rules; District Court Act 1973, s 127(2)(c)). On 8 August 2005 the appellant applied by notice of motion for an extension of time for filing the notice of appeal until the date on which it had been filed and a variety of orders intended to establish compliance with Pt 51 r 8 or to overcome non-compliance.

6 The notices of motion were stood over to the hearing of the (purported) appeal. The appellant contended that an affidavit of her instructing solicitor sworn on 8 July 2005 satisfied Pt 51 r 8. The respondent contended to the contrary.

7 It is doubtful that the affidavit was sufficient, but it is not necessary to venture into this unhappy morass of errors and disputation. Full argument was heard as if on an appeal as of right. The respondent did not oppose any necessary extension of time. The parties agreed that, if leave to appeal was necessary and the Court considered that it should be given, the costs of the notices of motion should follow the event of the appeal. At the conclusion of the argument the Court indicated that, if leave to appeal was necessary, it would be granted.

The prosecutions

8 Mrs Angela Ethell lived in Tenterfield. She was in Lismore for a time in December 1999. On 9 December 1999 she bought a bunch of flowers from a shop in the Lismore City Motor Inn (“the motel”). She paid by her credit card, by the creation of a debit voucher rather than electronically.

9 In January 2000 Mrs Ethell was told by her bank that her account was overdrawn, and on inquiry was told that on 21 December 1999 there had been two credit card transactions of $1500 each at the motel. Commencing on 12 January 2000, she had a number of face to face and telephone communications with the appellant and others at the motel, but despite a number of different promises did not receive repayment.

10 On 2 March 2000 Mrs Ethell went to the police at Tenterfield, and made a statement as to the transactions and her subsequent communications with the appellant and others. She provided a further statement on 10 March 2000, and on the same day the manager of the branch of her bank, Mr Geoffrey Nye, also gave a statement as to his communications with the appellant.

11 The matter then passed from the Tenterfield police into the hands of the eventual prosecutor, the then Detective Senior Constable Byrne of the Lismore police. At the time he gave evidence he was Sergeant Byrne, and I will refer to him as such. On 17 March 2000 he took a statement from Mr Mark Ethell, a son of Mrs Ethell who had been with her on 9 December 1999 and had participated in or listened to some of the subsequent communications.

12 Summarising sufficiently for present purposes, the various statements recorded -

(a) When Mrs Ethell bought the flowers the woman serving her left the flower shop to get credit card vouchers from the motel office, returned and completed the transaction; that person was not the appellant.

(b) When Mrs Ethell went to the motel on 12 January 2000 she was accompanied by Mr Ethel. According to Mrs Ethell, she saw the appellant, who told her that they had been waiting for her to contact them so they could put things right, and that her account would be credited with the full amount on that day. Mr Mark Ethell gave more and in some respects different detail. They first saw a man, Tom, whom he described, who said that he knew what had happened and had been waiting to see them and took them to the appellant. The appellant said that they had been waiting for Mrs Ethell to come in so they could “sort this out”, and that a mistake had been made and “[w]e had another party staying at the motel and somehow your credit card number got mixed up with their transaction”; and the appellant said that they could “give two credit card vouchers so that the money would be repaid to your credit card”, and wrote out two credit vouchers and gave them to Mrs Ethell.

(c) On later enquiry, Mrs Ethell was told by her bank that “nothing had been done about the transactions at the [motel]”. The statements did not say what Mrs Ethell had done with the credit vouchers (if indeed they had been given to her – ordinarily the merchant would provide debit or credit vouchers to the credit provider).

(d) On 7 February 2000 Mrs Ethell returned to Lismore, obtained from a man at the motel “the copies of two unsigned credit receipts”, and was told by the man that the money had been deposited to her account on 12 January 2000. She replied that it had not. Her statement went no further as to this exchange.

(e) On 22 February 2000 Mrs Ethell saw Mr Nye, who telephoned the appellant. The appellant agreed that funds would be deposited directly to the credit of Mrs Ethell’s bank account, and said that she would do so on 25 February 2000. A letter signed by Mrs Ethell was faxed giving the account number.

(f) The money was not deposited. According to Mrs Ethell, Mr Nye contacted the motel on 28 February 2000 and was told by the appellant that she had been ill and “someone was on there [sic] way up the street at the moment to deposit the money”. Mr Nye’s statement did not refer to this. According to Mr Ethell, but not mentioned in Mrs Ethell’s statements, on 28 February 2000 Mrs Ethell telephoned the appellant, he listening on an extension; the appellant said she had been very busy and the money would definitely be deposited that day.

(g) On 1 March 2000 Mrs Ethell spoke to a man at the motel and told him that she would go to a solicitor if the money was not deposited that day. The man “hung the phone up on me”. On 2 March 2000 Mrs Ethell saw a solicitor, and then attended at the Tenterfield police station.

(h) The bank then agreed to reverse the debits to the account.

(i) According to Mrs Ethell, on 8 March 2000 she was telephoned by Tom, who asked if the money could be repaid by instalments; Mrs Ethell did not agree, and said he would have to deal with the bank and the police. According to Mr Ethell, Mrs Ethell had telephoned Tom, he again listening on an extension; the conversation was to the same effect.

13 Although not specifically identified in the statements, it seems that there were provided to the police the copy credit vouchers which Mrs Ethell said she obtained; they were in the eventual police brief. After several conversations, in July 2000 Mr Nye provided to Sergeant Byrne copies of the debit vouchers for the December 1999 transactions. They were dated 13 December 2000. They bore in handwriting the number of Mrs Ethell’s credit card, and beneath it “G T Freeborn 03/01”. Their description of the goods or services was “deposit”, and they were unsigned.

14 Blanch CJDC said -

“It should also be noted that the evidence about the credit voucher prepared in relation to the sale had numbers of Mrs Ethel’s credit card written on it in handwriting and so did the credit voucher which was written out on the evidence by the plaintiff and given to Mrs Ethel. It is clear, looking at those two vouchers that the same person wrote both of them out, however Detective Sergeant Burns [sic] attention was drawn to the numbers written on the credit voucher and the sales voucher and even though his attention was drawn to it specifically he did not volunteer that he had at that stage noted that the same person had written out the sales voucher as the credit voucher and he does not say that from that he drew a conclusion that it was in fact the plaintiff who had written out the sales voucher.
I should observe at the end of the day the plaintiff says she did in fact write out the sales voucher but of course that is material which did not become available during the course of the investigation because the plaintiff was not interviewed.”

15 The appellant left her position at the motel on 24 August 2000. It went into receivership at about that time. The appellant had been living at Ballina, and remained living there until mid-November 2000 when she moved to Gosford.

16 On 7 September 2000 Sergeant Byrne prepared a breach report, as the basis for an application for summonses charging the appellant. The breach report proposed the charges of making and using false instruments. It gave a brief account of what had occurred, the account including that on 12 January 2000 Mrs Ethell had spoken to “the defendant Gail Lye” who had said that the two transactions were errors and the account would be credited that day. It also included -

“Police have recovered the two vouchers which were prepared in order that Ms Ethell’s Visa account be debited a total of $3,000.00. Those vouchers are each dated the 13 December, 1999 for the amounts of $1500.00 and are in the main hand written.
Both vouchers have recorded upon them the details of the Lismore City Motor Inn (credit provider impression) with Ms Ethell’s Visa card number.
The defendant has not been spoken to about this matter by police. Her whereabouts are unknown. The Lismore City Motor Inn has since gone into receivership.”

17 The commencement of this extract could refer to the copy debit vouchers, or could suggest that the originals of the debit vouchers had been obtained. Sergeant Byrne could not recall whether or not he had obtained the originals.

18 At the end of the breach report it was said, “I have informed – the offender that the matter would be reported and a Summons to appear in Court may be issued.” Sergeant Byrne said that this was a pro-forma part of the breach report which he mistakenly did not delete. He said that he became aware after the summonses were issued that the appellant was living in the Ballina area.

19 Summonses were issued, and were collected by Sergeant Byrne from the Lismore courthouse on 18 September 2000. Neither the summonses nor the informations on which they issued were in evidence. There was an issue at the trial, to which I will return, as to whether Sergeant Byrne then sent the summonses to the Ballina police station for service by general duties police, or sent them specifically to a Sergeant Michael Smith of Ballina police.

20 In early December 2000 Sergeant Byrne, by then of that rank by promotion at some time in September 2000, was transferred from Lismore to Dareton, in the south-west of New South Wales and distant from Lismore. As the informant, he considered that it remained his responsibility to follow through the prosecutions. Blanch CJDC accepted that that was police practice, although saying he found it “difficult to understand”.

21 The summonses had not been served on the appellant. On their return dates, 19 December 2000, the papers were endorsed “non return of service”. In an internal memorandum to Sergeant Byrne, he was informed that he was to “make a thorough check as to a possible change to the address of the defendant”, that once located the summonses were to be extended, and that if there was no satisfaction as to the appellant’s whereabouts warrants were to issue.

22 Sergeant Byrne conducted “basic computer enquiries” to ascertain the appellant’s whereabouts, without success. On 19 September 2001 he obtained at the Wentworth courthouse the issue of warrants for the arrest of the appellant on the charges. The warrants noted that the appellant’s last known address was “unknown”.

23 The appellant was arrested on 17 January 2002 by police from Brisbane Water police station. She was taken before the Gosford Local Court, and in due course was given bail. On 28 February 2002 she was bailed to appear at the Lismore Local Court, to which the charges were adjourned for hearing.

24 The charges came on for hearing on 10 May 2002. The police prosecutor offered no evidence, and the charges were dismissed. In an ensuing enquiry the police prosecutor said after reading the brief and on the evidence at hand he considered that the prosecution would be unable to establish a prima facie case, referring specifically to “the requisite intention” of the appellant.

Other matters

25 There was available to Sergeant Byrne prior to the issue of the summonses other information concerning the appellant. Sergeant Byrne agreed that he took into account, at one point saying “as part of the picture”, the other information of which he was aware in causing the issue of the summonses.

26 A COPS report of April 2000 recorded a complaint of obtaining goods from the Gem Array jewellery store in Ballina by a cheque signed by Gail Lye which was not met on presentation. Sergeant Byrne was aware of this complaint prior to the issue of the summonses.

27 There was “disseminated” to Sergeant Byrne a COPS report of 10 August 2000 recording a complaint by Mr William Nugent that a quantity of diesel fuel had been delivered to “Gail Shields of Lismore City Motor Inn”, that payment had been stopped on a motel cheque signed by Gail Shields, and that Gail Shield’s statement “that it would be fixed up within days” had not been fulfilled. It is tolerably clear that Gail Shields was known as a name under which the appellant went. The COPS report noted that Sergeant Byrne was “in charge of this brief”. Sergeant Byrne said that he did not recall whether or not he was aware of the report, but since it was his brief he must have been; as will be seen, his duty book for 19 September 2000 refers to “Lye petrol fraud”, probably this matter.

28 At some time, it seems in August 2000, a police “Information report summary” came to the notice of Sergeant Byrne. It passed on information in an Australian Federal Police report, the narrative being -

“POI 1 Olis, Vic
POI 2 Lye, Gail
POI 3 Marr Tom
POI 4 Lye, Christopher
Vic Olis & Gail Lye are currently managing the Lismore Motor Inn, Lismore. The leasee is a Tom Marr who is a grub & working in cahoots with Vic & Gail. Vic Olis also has an alias of Vic Lye and a number of other names. Vic & Gail Lye have managed three motels over the past five years. Vic spent 6 months in gaol for fraud offences over some motel & rental business on the gold coast. Gail was in on it but avoided the prosecution. They have since managed three hotels at the Big Run Motel in Grafton, The Jachin how [sic] at Warwich [sic] and now the Lismore Motor Inn. On each occasion they have fun the business into the ground, stripped the funds and left owing money in excess of one million at each place. They have stripped the funds & put them into Gails youngest sons bank account. It is believed that the account balance in Christopher Lye’s name is over half a million dollars.”

29 It seems to have been common ground that Tom Marr (sometimes Maher) referred to in this report was, and was at the time believed to have been, the Tom of Mrs Ethell’s and Mr Ethell’s statements.

30 On 29 August 2000 Sergeant Smith created a COPS entry recording a complaint by Mr Gerard Freeborn concerning Victor Lye, also known as Ollis, and Gail Lye -

“The two POI’s were employed by the Lismore City Motor Inn as Managers. In November 1998 the victim was hired as a handyman at the Motor Inn.
In November, 1999 the POI’s asked if they could use the victims credit card to obtain $1000 credit until the weekend and that they would pay it back. The victim agreed that they could use his credit card on that one occasion.
Between the 19/11/99 and 21/1/00 a number of transactions have been carried out on the victims credit card. The transactions total over $100,000.00. Some money has been debitted [sic] to the account as well. All the credits and debits were without the victims permission.”

31 Sergeant Byrne said that he was aware that Sergeant Smith was conducting an inquiry into another matter involving the appellant, and had some discussion with him. The discussions were not extensive, but he was aware of the Freeborn matter. He had access to the COPS report at some time during his own investigation, but could not recall whether his awareness was from his discussion with Sergeant Smith or from seeing the COPS report.

32 Sergeant Byrne was aware in August 2000 of a complaint by Mr McAlister, “people who had stayed at the Lismore City Motor Inn, and something very similar had happened to their credit card account”. There was reference in evidence to a COPS report, but it was not tendered and his knowledge was not made more clear.

33 I should note also other information concerning the appellant available to Sergeant Byrne after the issue of the summonses.

34 A COPS record created by Sergeant Byrne on 19 September 2000 recorded a complaint by one Nikora, a chef at the motel, that the appellant’s cheque for his wages had not been met on presentation. The matter was passed over to Sergeant Smith.

35 The COPS report for the Freeborn matter recorded that on 17 October 2000 Mr Lye and the appellant were interviewed by Sergeant Smith at Ballina police station. Mr Maher had been added as POI 3. The record included -

“POI 2 stated that she was employed by POI 3, MAHER and was paid about $700 a week. She admitted that she had used Gerard FREEBORN’s credit card to credit monies to the ‘Lismore City Motor Inn’, but stated that she had completed the transactions at the request of her boss, POI 3. She also said that FREEBORN knew about all the transactions and gave his consent.
POI 2 supplied a sample of her handwriting and her fingerprints for comparison against the merchant slips from Freeborns VISA card.
At this stage POI 3 has to be interviewed and the slips have to be examined. FREEBORN claims that he did not give permission for the transactions.
It is anticipated that POI 2 will be summonsed for Obtain Benefit by Deception x 79’ after POI 3 has been interviewed.
…
POI 3 cannot be located and has been circulated as a suspect. If located he should be interviewed about these matters and the narrative updated.”

36 The COPS report for the Nugent matter recorded that the appellant was interviewed on 17 October 2000 and “[d]enied all knowledge of this offence and blamed her employer, the motel leasee [sic], Thomas MAHER”.

Reasonable and probable cause at trial

37 Blanch CJDC directed himself in accordance with the reasons of Jordan CJ in Mitchell v John Heine & Sons Ltd (1938) 38 SR (NSW) 466 at 469. It is not necessary to consider whether the Chief Justice’s statement of the necessary conditions for reasonable and probable cause is fully authoritative, cf Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 at [143] and Ipp “Must a prosecutor believe that the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?”, (2005) 79 ALJ 233. Sergeant Byrne asserted a belief in the appellant’s guilt, and was plainly enough accepted; the deficiency lay in the reasonable grounds for such a belief.

38 After considering the material in the police brief, being the statements earlier mentioned, the copy debit and credit vouchers and some other documents, his Honour observed that it was not surprising that the police prosecutor offered no evidence because it was “significantly inadequate”. He went over the other information known to Sergeant Byrne and “the information which might have been available”, noting and accepting Sergeant Byrne’s evidence that “it was a minor matter as far as he was concerned, he was busy and involved in many other more serious investigations and he is simply unable to remember the detail of what was available to him at the time”.

39 After his observations concerning the handwriting on the vouchers, see [14] above, and reference to Sergeant Byrne’s evidence that he “relied on all the things that he knew but he cannot remember now precisely what he did know apart from the matters that I have already referred to”, his Honour said -

“Looking at all those matters it might be reasonable to assume that he knew that there was a close relationship between Mr Marr who was then running the Lismore City Motor Inn and the plaintiff and that for some reason the Lismore City Motor Inn was in need of funds and that there had been an allegation of illegally obtaining those funds from Freeborn and it might be suspected on that basis that the plaintiff was involved in some way. He had evidence that the plaintiff had apparently mislead Mark Ethel and his mother into believing that funds were being put in for the purpose of reimbursing them, as I have outlined in the statement particularly of Mark Ethel. On that basis he might have come to the conclusion that the plaintiff was somehow involved in activity which was in breach of the law at the Lismore City Motor Inn but in my view there was no evidence that he had – at that stage – to ground a belief based on reasonable grounds in order to charge or to issue a summons in respect of the plaintiff.
For that reason I find that there was no reasonable and probable cause to issue the summons applying the tests that I have enunciated coming from the case of Mitchell v Hine [sic]”.

Malice at trial

40 Blanch CJDC cited as “the classic statement of the law” from Brown v Hawkes (1891) 2 QB 718 at 722 -

“Malice can be proved either by showing what the motive was and that it was wrong or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor.”

41 His Honour noted that this passage had been quoted by Kitto J in Trobridge v Hardy (1955) 94 CLR 147 at 163, and that Kitto J had gone on to refer to evidence which told against the probability that a right motive was the sole or predominant cause of the conduct providing a foundation on which the jury may reason “through the presumption that there must be some explanation of what the defendant did to the conclusion that he must have been actuated by an inadmissible motive of some kind or another”.

42 His Honour first considered the appellant’s submission that “there was actual malice and a purpose can be demonstrated”, the submission being that the appellant had been charged to assist in the investigations of the Freeborn matter by putting pressure on her to cooperate. His Honour considered the arguments put forward by the appellant for that conclusion and the arguments to the contrary. I do not describe the competing arguments so recorded, his Honour’s resolution of them turning on his acceptance of Sergeant Byrne’s evidence; his Honour said -

“The resolution of those submissions depends to some extent on an analysis of what is being put. It also depends to a significant extent on the evidence given by Detective Sergeant Burn [sic]. The plaintiff’s submission about that is that his evidence was hesitant and that he was exhibiting signs of someone who was trying to cover up what had occurred by taking refuge in the fact that these events were a long time ago and that he could not remember the detail and that he was very busy.
Accordingly it is a significant matter to make an assessment of Detective Sergeant Burn’s [sic] evidence. In my view he was an honest witness. He was making a conscientious effort to be truthful about what had occurred. He was being careful not to claim things that he could have claimed which would have given some greater justification to his actions. In my view there is no substance at all to the assertion that he was being deliberately malicious in advancing this prosecution. It may have been an inept prosecution and as I have said there were certainly serious deficiencies in the brief. But ineptitude does not, in this case, constitute malice. His explanation that this was a minor matter and he was involved in many other much more serious matters at the time and that he cannot remember the specific detail of everything that occurred or everything that he knew at the time, appears to me perfectly consistent with common sense and reason and I accept his evidence about that. In my view there has not been demonstrated to be any actual malice in this case.”

43 His Honour then addressed whether he should nonetheless conclude, in the words of Kitto J, whether Sergeant Byrne “must have been actuated by an inadmissible motive of some kind or another”. He repeated his acceptance of Sergeant Byrne’s evidence that could not remember the detail of the investigation, and that at the time he had been very busy and the investigation was minor, and said -

“When I look at all of the evidence which was available at the time that the case was presented I note that there was available material which could have proved that it was the plaintiff who wrote out this document. I note that there was in existence the intelligence report which indicated a strong connection between the plaintiff and Tom Marr. I note there was evidence of financial difficulties at the Lismore City Motor Inn and an interest in obtaining money. I note that the plaintiff was significantly involved in what could be concluded to be obfuscating what had occurred by Tom Marr or whoever was responsible for paying back the money.
In my view the mistakes made by Detective Sergeant Burn in this case were mistakes as to proof, mistakes as to investigation and there are explanations as to how that came about. I accept his assertion that he believed that there was a case. He was certainly wrong in relation to the brief that he prepared. Some of the other matters such as the failure to serve the summons at Ballina are explicable in terms of a failure of the system but that particular fact does not indicate to me a safe basis for concluding that it was a deliberate attempt not to serve the plaintiff with a summons at the time. The subsequent delay in the matter arose clearly again from a system failure within the police force, namely the fact that Detective Sergeant Burn [sic] was left with the conduct of this case once he had been moved from Lismore to Dareton in the south-west of New South Wales.
In my view I would be wrong to draw the conclusion that can be drawn in some of these cases that there must have been an impermissible motive.”

Malice on appeal

44 The appellant maintained the alternative contentions that Blanch CJDC erred in failing to find, as “actual malice”, that the prosecutions were brought for the improper purpose of extract[ing] information from [the appellant] in relation to the Freeborn matter by placing pressure on her”, or that his Honour erred in failing to conclude that Sergeant Byrne acted for an improper motive notwithstanding that it could not be specifically identified. She contended also that Blanch CJDC erred in failing to consider malice in the continuation of the prosecutions, as distinct from in their commencement.

(a) “Actual malice”

45 Important in the appellant’s submissions was her challenge to his Honour’s finding that Sergeant Byrne sent the summonses to the Ballina police station for service by general duties police. She submitted that his Honour should have found that they were sent to Sergeant Smith, in aid of her further submission that Sergeant Byrne and Sergeant Smith were acting together with a view to putting pressure on the appellant in Sergeant Smith‘s investigation of the Freeborn matter.

46 Sergeant Byrne’s duty book recorded that on 13 September 2000 he “spoke to Det Smith re Lye frauds”; this could not be further explained, but showed communication prior to Sergeant Byrne picking up the summonses from the Lismore courthouse. The duty book recorded for 19 September 2000, the day after the summonses were picked up, “then fwd document [? documents] re Lye fraud to Det Smith of Ballina then create case for Lye petrol fraud allocate [to?] Det Smith”.

47 Sergeant Byrne said that he would not have sent the summonses to Sergeant Smith because summonses were always sent for service by the general duties police. The appellant submitted that he was unable to explain in cross-examination what document (or documents) might have been sent to Sergeant Smith if the summonses were not sent, but I do not think that is a fair reflection of the cross-examination. Sergeant Byrne said that he could not remember what was sent, and his evidence was consistent with there being another document (or documents). The police interest in the appellant was such that a document (or documents) could have been sent in the normal course for Sergeant Smith’s information, for example something to do with the Nugent matter (the “Lye petrol fraud”) or, given Mr Freeborn’s name on the debit vouchers, copies of the debit vouchers. His Honour accepted Sergeant Byrne in this respect. I do not think that, within the principles of appellate restraint recently affirmed in Fox v Percy [2003] 214 CLR 118, his Honour’s finding should be held to have been erroneous.

48 The appellant’s submissions otherwise took up the matters on which she submitted that it should be concluded that Sergeant Byrne must have been actuated by an impermissible motive of some kind or another, see later in these reasons. Perhaps less than explicitly, the substance of the submission was that the matters to which she referred for that purpose founded the inference of an impermissible motive, and that putting pressure on the appellant in relation to the Freeborn matter should be inferred to have been that impermissible motive. It was said in particular that there was significance in the temporal concurrence of the issue of the summonses, after delay since early 2000 or at least since the copies of the debit vouchers were obtained in July 2000, shortly after the COPS entry recording Mr Freeborn’s complaint was made, followed by the interview in relation to that matter on 17 October 2000.

49 Finding the “actual malice” for which the appellant contended is difficult if the summonses were sent to the Ballina police station for service by general duties police. It is even more difficult when there was no evidence that the prosecutions were used to put pressure on the appellant. On the contrary, on the appellant’s evidence, when she was interviewed by Sergeant Smith on 17 October 2000 Sergeant Smith made “a flippant remark about an elderly pensioner at Tenterfield”, she said it was just an error, and there was nothing more. So far as the evidence showed, the appellant did not know of the prosecutions until she was arrested on 17 January 2000.

50 Blanch CJDC accepted Sergeant Byrne as an honest witness, and that he believed that the appellant had a case to answer. The belief does not preclude that Sergeant Byrne caused the summonses to issue for the improper purpose of putting pressure on the appellant. But when it was put to him that his “main interest in conducting these proceedings was to find out information about either or both of Tom Maher and Vic Lyle” he denied it, and when it was put to him that one of his reasons was “to obtain information about Victor Lye” be answered emphatically, “Why? Why?”. His Honour’s finding that Sergeant Byrne was not being “deliberately malicious” must have been based at least in part on acceptance of his honesty.

51 Taking account of the matters considered in the following portion of these reasons, I am quite unpersuaded that the “actual malice” was established. In my opinion, no error has been shown in Blanch CJDC declining to find it.

(b) An impermissible motive of some kind or other

52 In Brown v Hawkes Lord Esher MR said at 726-7 -

“Now, although it is correct to say that want of reasonable and probable cause for the prosecution is some evidence of malice, it goes before the jury with the other facts of the case which go to establish the existence of malice. In this case the jury have found that the defendant did honestly believe in the full charge that he laid before the magistrates. Under these circumstances, we have to see whether there was any evidence beyond the absence of reasonable and probable cause on which the jury might find that the defendant was malicious in fact. It might be shewn that although the defendant thought the plaintiff was guilty, yet in preferring the charge he was not acting upon that view but from some indirect motive. No such evidence has been pointed out to us, and, indeed, its existence is negatived by the finding of the jury as to the honest belief of the defendant.”

53 Bowen LJ referred at 727-8 to the need for evidence from which malice could be inferred where, although there was absence of reasonable and probable cause, the prosecutor “believed honestly that the man was guilty”. Kay LJ said at 728 -

“Now, if he honestly believed the charge which he made against the plaintiff, some distinct evidence is required to prove malice, and the only question before us is, what is relied on as evidence of malice. As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper enquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question put to the jury, that the defendant did not take proper care to enquire into the facts of the case, would, without more, determine the action in favour of the plaintiff. That cannot be so, and when I look at the evidence (as I have done with care) to find what evidence there was of sinister motive, I can find none on which the jury could reasonably find that the defendant was actuated by malice.”

54 Even if a plaintiff cannot point to a particular impermissible motive, the plaintiff can seek to prove “that the defendant’s conduct is not to be explained by the existence of a right motive”. These are words of Kitto J in Trobridge v Hardy at 163, and at 163-4 his Honour gave the example -

“An example may be found in the case of evidence which shows that the defendant in an action of malicious prosecution had no reasonable or probable cause. That is a question for the judge, though in order to answer it he must accept any findings of the jury on relevant questions of disputed fact. The jury’s findings on such questions may have importance, not only for the judge on the question he has to decide, but for themselves on the question of malice which it is for them to decide. They may find that facts were known to the prosecutor such that a reasonable man who knew them would not believe in the guilt of the accused. That may seem to them to make it improbable that the prosecutor in fact believed in the guilt of the accused, although, as they should recognize, there is always the possibility that a belief which appears unreasonable may nevertheless be honestly held, either because the person concerned pursues an unreasonable train of thought or because he is forgetful of or inattentive to factors in the situation, the absence of which would make his belief reasonable. If they think it more probable than not that the prosecutor lacked a belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was.”

55 Understanding belief by the prosecutor in the guilt of the accused as, or as including, belief that the accused has a case to answer, the belief will generally preclude a finding that the prosecutor was actuated by an impermissible motive of some kind. The belief will generally sufficiently explain the prosecution, and on ordinary reasoning establishing an impermissible motive will require persuasion of an actual improper motive. The appellant submitted that AW v State of New South Wales [2005] NSWCA 543 at [270] illustrated a finding of improper motive of some kind despite the prosecutor’s belief in the accused’s guilt, but her reliance on that case was misplaced; an impermissible motive of some kind was inferred because, although the prosecutor may have believed the accused was involved in the criminal conduct, when required to particularise the charges “he must have realised that he did not know”. That is, the prosecutor did not have a belief that the accused had a case to answer.

56 Sergeant Byrne gave evidence that he believed that there was a case to answer, and Blanch CJDC accepted him. The appellant rather faintly submitted that the acceptance could be overturned on appeal, saying that it was undermined by Sergeant Byrne’s lack of recollection of the details of his investigation and conduct. His Honour was alive to, and found acceptable, the inability to recall, and plainly enough considered that Sergeant Byrne’s evidence of his belief was nonetheless genuine and reliable. In my opinion, it was well open to his Honour so to find.

57 The appellant submitted that a number of matters, going beyond an absence of reasonable and probable cause, warranted (at one point she said mandated) the finding that Sergeant Byrne must have acted from an impermissible motive. There was a degree of overlap and repetition, and some of the matters were quite insignificant. I consider that they can be sufficiently summarised as follows -

· according to normal procedure, the appellant should have been interviewed before the summonses were issued, but that was not done;

· the breach report did not assert that the appellant created the false instruments;

· the breach report was incorrect insofar as it said that the appellant had been informed of a possible prosecution;

· the summonses were issued although the original debit vouchers had not been obtained, and this notwithstanding that a possible explanation given for the failure to interview the appellant was that the original debit vouchers were not held;

· the summonses were issued at the time the Freeborn matter was under investigation;

· Senior Constable Byrne did not seek to locate the appellant after the issue of the summonses;

· the summonses were not served although the appellant was living in Ballina until November 2000 and was at the Ballina police station on 17 October 2000;

· there was considerable delay before the prosecution was advanced by the issue of the warrants;

· generally, Sergeant Byrne was unable to explain his conduct in detail.

58 The investigation and the conduct of the prosecutions was not ideal. According to normal procedure, the appellant should have been interviewed; Sergeant Byrne thought he was waiting for the originals of the debit vouchers before interviewing her, and it was fairly questioned why the summonses were issued probably, on the evidence as a whole, without the originals. The breach report was not well written, but there could be no doubt that it was alleged that the appellant created the false instruments (this would no doubt have been apparent from the informations). There was unexplained failure to locate the appellant, and to serve her while she was still in Ballina. There was undesirable delay, although his Honour plainly accepted the reality as expressed by Sergeant Byrne -

“I mean, as I explained to you in my evidence-in-chief, that, without trying to reduce the importance of these proceedings, a $3000 fraud matter where the victim has been compensated by the bank – when you’re dealing with sexual assaults, murders, bikie shootings, people committing fraud offences currently, those sorts of things; I mean, on a priority rating, they slip back down the scale. We give them attention when we can. It was a very busy time.”

59 Some ineptitude in a prosecution in which the prosecutor believes there is a case to answer, and police resources and procedures such that there is incomplete attention to and undesirable delay in the prosecution, falls short of malice in the tort of malicious prosecution. Once it is accepted that Senior Constable Byrne believed that the appellant had a case to answer, I do not think that the matters on which the appellant relied warrant the inference that he must have been acting for an impermissible motive; certainly, I do not think that it has been shown that the conclusion of Blanch CJDC was in error.

(c) Continuation of the prosecution

60 The reasons of Blanch CJDC appear to focus on the commencement of the prosecutions, with little if any separate regard to their continuation. If malice was not established in relation to the commencement of the prosecutions, however, I am unable to see that malice was otherwise established in their continuation. The appellant submitted that there was “the added fact that in the course of a whole year the police have made no attempt to locate the person the subject of the summons”. That pays inadequate regard to the evidence to the effect that Sergeant Byrne retained responsibility for the prosecution, was extremely busy, and made the “basic computer enquiries” to locate the appellant; but in any event failure to locate the appellant in the circumstances should not be seen as more than undesirable failure to progress the prosecutions with due despatch. I do not think it adds materially to a case of impermissible motive of some kind, and in my opinion malice was not made out in the continuation of the prosecutions.

Orders

61 I propose the following orders -

1. So far as leave to appeal and an extension of the time for appeal be necessary, grant leave to appeal nunc pro tunc and extend the time for filing a notice of appeal up to and including 22 November 2004.

2. Appeal dismissed.

3. Appellant pay the respondent’s costs of the appeal including the costs of the notices of motion filed on 22 March 2005 and 8 August 2005.

62 TOBIAS JA: I agree with Giles JA.

63 BRYSON JA: I agree with Giles JA.

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