Moussa v The State of NSW

[2010] NSWSC 528

CITATION:	Moussa v The State of NSW [2010] NSWSC 528
HEARING DATE(S):	18 May 2010
JUDGMENT DATE :	28 May 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) Leave to file the further reply is granted. (2) The reply is to be filed and served by 4.00 pm on 15 June 2010. (3) The defendant is to pay the plaintiff’s costs as agreed or assessed. (4) The matter is listed for a status conference 22 June 2010 at 9.00 am before the Registrar.
CATCHWORDS:	PROCEDURE - Strike out reply - Leave to file amended reply - Whether prosecutions brought without reasonable and probable cause - Whether same burden and onus of proof - Whether between same parties - Whether issue estoppel applies
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Crown Proceedings Act 1988 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	A v State of New South Wales & Anor [2007] HCA 10; (2007)230 CLR 500 Blair v Curran [1939] 62 CLR 464 Briginshaw v Briginshaw (1938) 60 CLR 336 Clancy v Santoro [1999] 3 VR 783 Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268 Davis v Gell (1924) 35 CLR 275 Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] ALR 333 Earnshaw v Loy (No 1) [1959] VR 248 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; [1965] ALR 636 Haines v Tempesta (1995) 37 NSWLR 24 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Helton v Allen (1940) 63 CLR 691 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; (1987) 73 ALR 545 Kosanovic v Sarapuu [1962] VR 321 Munday v Gill (1930) 44 CLR 38 Nye v State of New South Wales [2003] 1212 R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 EI & BL 780; (1855) 119 ER 288 Hoystead v Commissioner of Taxation (1926) 42 TLR 207 R v Storey (1978) 140 CLR 364; 22 ALR 47 Ramsay v Pigran [1968] 118 CLR 271 Re a Medical Practitioner [1959] NZLR 784 Rejfek v McElroy (1965) 112 CLR 517; [1966] ALR 270 Riley v Riley [2000] NSWCA 64 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417 Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147 Thoday v Thoday [1964] P 181; [1964] 1 All ER 341 Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376; [1956] ALR 49 Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598
TEXTS CITED:	K R Handley and George Spencer Bower, Spencer Bower and Handley Res Judicata, 4th ed (2009) LexisNexis
PARTIES:	Zeina Moussa (Plaintiff) The State of New South Wales (Defendant)
FILE NUMBER(S):	SC 2008/289297
COUNSEL:	A Metcalfe (Plaintiff) P Saidi (Defendant)
SOLICITORS:	Benjamin & Khoury (Plaintiff) Henry Davis York (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 28 MAY 2010

2008/289297 ZEINA MOUSSA v THE STATE OF
NEW SOUTH WALES
JUDGMENT (Strike out reply ; leave to file amended
reply)

1 HER HONOUR: There are two notices of motion before the Court. By notice of motion filed 23 April 2010 the defendant seeks firstly, an order that the plaintiff not be permitted to rely on her reply filed 12 October 2009 until she obtains leave of the court in accordance with Rule 14.4 of the Uniform Civil Procedure Rules 2005; second, that any application to be made by the plaintiff to rely on her Reply be made by notice of motion within a period of 14 days; third, that the plaintiff’s reply filed 12 October 2009 be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules; fourth, in the alternative, that so much of the plaintiff’s reply on issue estoppel be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules.

2 By notice of motion filed 18 May 2010, the plaintiff seeks an order that leave be granted in accordance with Rule 14.4 of the Uniform Civil Procedure Rules for the plaintiff to file and serve a Reply to the defendant’s defence to the amended statement of claim served on 23 April 2010.

3 The plaintiff is Zeina Moussa (“Ms Moussa”). Ms Moussa relied upon two affidavits of Peter Liedtke dated 17 May 2010 and 18 May 2010. The defendant is the State of New South Wales (“the State”). The State relied on the affidavit of Greg Carruthers-Smith affirmed 22 April 2010.

Background

4 Ms Moussa alleges that she was wrongfully arrested and imprisoned by officers of the NSW Police Service. The officers who arrested and imprisoned the plaintiff included Detective Sergeant Sangster and Detective Sergeant Hopper.

5 The 15 informations laid against Ms Moussa were made by Detective Sergeant Hopper on his own behalf and on behalf of Detective Sergeant Sangster. The accepting officer was Sergeant Parsons of Parramatta Police Station. After she was charged Ms Moussa was given conditional bail. She was then directed to show cause in writing as to why her services with the NSW Police should not be terminated. On 13 September 2006, Ms Moussa’s employment with the NSW Police was terminated.

6 On 19 April 2007, 4 July 2007 and 5 July 2007, the prosecution of Ms Moussa came on for hearing before her Honour Magistrate Denes at Parramatta Local Court. Ms Moussa was convicted and placed on a good behaviour bond in respect of charges 1, 2, 7, 8, 12 and 13. She was convicted and dealt with under s 10A on charges 4, 5, 6 and 11. The remaining charges 3, 9, 10, 14 and 15 (the backup charges) were adjourned generally and later withdrawn and dismissed. The proposed reply does not relate to the backup charges.

7 Ms Moussa appealed to the Criminal Division of the District Court. On 7 November 2007, his Honour Judge Ellis upheld the appeal and quashed the conviction in respect of charges 1, 2, 4, 5, 6, 7, 8, 11, 12 and 13 and ordered the State to pay her costs. They were agreed and assessed at $3000.

The pleadings

8 By amended statement of claim filed 25 March 2010, Ms Moussa alleges that she was wrongfully imprisoned, maliciously and falsely prosecuted without reasonable and probable cause as well as having her credit, character and reputation greatly injured. She also alleges that the Police brought a prosecution knowing that they could not establish guilty intent (mens rae). Ms Moussa further alleges that the conduct complained of was due to a failure to properly instruct and advise her as to how and the manner in which she should to carry out her police duties.

9 Ms Moussa alleges that by laying the informations against her and prosecuting her the Police officers acted with reckless indifference to the truth and accuracy of the charges, and that before laying the information and bringing the charges against her the Police failed to obtain proper legal advice. She says that the Police acted in contumelious disregard of her rights and that they did not properly or thoroughly investigate or make proper enquires before laying the informations and bringing the charges against her.

10 Ms Moussa pleads that the prosecutions against her were brought and continued with the knowledge that the Police had no evidence of guilty intent (mens rae) and that the Police were informed of this in writing by her solicitors.

The defence

11 By defence to the amended statement of claim filed 23 April 2010, the State admits that Ms Moussa was charged on 16 August 2006 in relation to 15 offences and that the charging officers were Detective Sergeant Sangster, Detective Sergeant Hopper and that Sergeant Parsons was the accepting officer. [D 4]. The State denies that Ms Moussa was wrongfully arrested and falsely imprisoned on the grounds that Detective Sergeant Hopper suspected on reasonable grounds that it was necessary to arrest Ms Moussa to prevent a repetition or continuation of the offence or commission of another offence; and/or to prevent concealment, loss or destruction of evidence relating to the offence; and/or to protect the integrity of the COPS database.

12 The State denies that it wrongfully imprisoned Ms Moussa and says that she was arrested after being suspected, on reasonable grounds, of having committed the offences. It further denies that it maliciously prosecuted Ms Moussa without reasonable and probable cause and denies all particulars of “malice” and “absence of reasonable and probable cause”. The State does not admit that Ms Moussa has suffered any injury, loss or damage. [D 7].

The proposed reply

13 A reply was filed 12 October 2009. The latest version of the reply is annexed to the affidavit of Peter Liedtke sworn 18 May 2010. Leave is required to file this document. For the purposes of this application, Ms Moussa’s case should be taken at its highest, that is, the matters raised in the latest proposed reply (“the proposed reply”). The State opposed the grant of leave on the basis that it is futile.

14 In the proposed reply Ms Moussa asserts that the Police officers were the person or persons with responsibility for the conduct of the prosecutions in the Local Court and that the State is vicariously liable for acts and omissions of Detective Sergeant Sangster, Detective Sergeant Hopper and/or Sergeant Parsons. It is pleaded that the Office of the Director of Public Prosecutions (“ODPP”) had carriage of Ms Moussa’s appeal to the District Court and that the ODPP represented the State in relation to the appeal and her costs application in relation to the prosecutions in the District Court. I shall return to the topic of the prosecutor, parties and privies later in this judgment.

15 The purpose of the reply is to join issue with paragraphs [4] and [7] of the defence and generally in so far as the defence denies that officers of the Police without reasonable or probable cause prosecuted Ms Moussa by reason of an issue estoppel.

16 Ms Moussa pleads that Ellis DCJ made a finding on the costs application pursuant to s 70 of the Crimes (Appeal and Review) Act 2001 that the public prosecutor in the Local Court failed to properly investigate the issue of mens rae and that it was unreasonable for the prosecution to have been commenced and prosecuted.

17 In a nutshell, Ms Moussa says that the determination of her costs application in the District Court and these proceedings firstly, involve the same fundamental issue, that is, whether the prosecutions were brought without reasonable and probable cause; second, involve the same burden and onus of proof; and third, are between the same parties or their privies. I shall deal with each of these three issues in turn. Further, Ms Moussa says that the issue estoppel does not transgress the general rule that issue estoppel is not recognised in criminal cases.

The law

18 The State seeks to strike out the existing reply and argued that leave should not be granted to file the proposed reply pursuant to Rule 14.28(1) of the Uniform Civil Procedure Rules. Rule 14.28(1) provides that the court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading first, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the court. As is the case here, the court may receive evidence on the hearing of an application.

19 In Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268 Beazley JA (with whom Mason agreed) said (at [11] – [12]):

“11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless” or “would involve useless expense”: see General Steel Industries at 129.

12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602:

‘… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.’ (Citations omitted)”

20 Hence, for the State to succeed in having the existing reply struck out it has to show that it is clear that it raises is no real question to be tried. If Ms Moussa is to be granted leave to file the proposed reply she must establish that the matters raised in the reply are not futile.

Malicious prosecution

21 The elements necessary to found a claim of malicious prosecution are that firstly, the proceedings complained of were instituted or continued by the defendant; second, that the defendant instituted or continued the proceedings maliciously; third, that the defendant acted without reasonable and probable cause; fourth, that the proceedings were terminated in the plaintiff’s favour; and finally, that the plaintiff has suffered the requisite damage: see Savile v Roberts [1698] 1 Ld Raym 374; (1698) 91 ER 1147. It is the third element, namely, that the State acted without reasonable and probable cause that is said to give rise to issue estoppel in the proposed reply.

22 In so far as without reasonable and probable cause is concerned, in A v State of New South Wales & Anor [2007] HCA 10; (2007) 230 CLR 500, the High Court (at [70] – [73]) stated:

“[70] There are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution “made” or “should have made” of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. As has already been noted, two kinds of inquiry are postulated: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a “belief”) in the mind of the prosecutor? What is the subject-matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals (“guilt” or “probable guilt” of the person prosecuted)? Or is it a persuasion about that material’s sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice?

[71] Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor’s state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp ) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell ) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff.

[72] But what of a case like Martin where the prosecutor knows only of the fact that a complaint has been made? What of Glinski , a case arising out of the prosecution of the appellant, Mr Glinski, for offences of conspiracy to defraud and obtaining goods by false pretences? The prosecution had been instituted by the respondent, a detective sergeant of police. The appellant alleged that the prosecution had been brought to punish him for giving evidence, in another case, which the police believed to be perjured.

[73] In a case where a police officer prosecutes a person on the basis of statements by third parties, there are evident difficulties in applying a test of reasonable and probable cause which would be satisfied by demonstrating only that the subjective state of mind of the prosecutor fell short of positive persuasion of guilt. A test of that kind would presuppose the need for a police officer to have some degree of personal commitment to a case. That would, or at least would often, not be consistent with what should desirably be the objective assessment and analysis of material provided by others.” (Citations omitted)

23 In order to ascertain whether the issue estoppel arises in respect of the element of the absence of reasonable and probable cause it is necessary to examine the reasons of Ellis DCJ.

The reasons of Ellis DCJ in relation to the quashing of the convictions and costs

24 His Honour Judge Ellis in his reasons dated 7 November 2007 quashing the convictions stated:

“Of more concern, though, may have been the question of accessing intelligence reports, which may have included perhaps ongoing inquiries into any of those individuals. It may be that there would have been an interest in such individuals knowing whether or not, and in what manner, police, for instance, may have had them under surveillance.
The Crown case is a circumstantial evidence case, and the Crown has to establish the case beyond reasonable doubt, and that means it has to prove that there is no reasonable hypothesis available which is consistent with innocence. The reasonable hypothesis put forward by the accused is that this was a training exercise. There is nothing led by the Crown which actually refutes that. …
…
Even if the court is not prepared to accept her evidence, she bears no onus. And her evidence, even if the court does not accept it, can raise a reasonable doubt. In order for the court to be satisfied, beyond reasonable doubt, it is not a question of whether the court accepts what she says, it is a question of whether the court rejects what she says.
…
The material contained within the record of interview reads truthfully, to me, but even if it did not it is not such that the court would be able to conclude that it could entirely reject what she has said, absent evidence, in quite a number of different areas from the Crown, which could have quite strongly corroborated the Crown’s circumstantial case.”

25 The reason that the convictions were quashed was because the cases against Ms Moussa were circumstantial and the Crown did not establish them beyond reasonable doubt. It did not do so.

26 Ellis DCJ in his extempore judgment on costs dated 23 November 2007 stated:

“… The court has had its attention directed to s 70 of the Crimes (Appeal and Review) Act 2001 and in the court’s view that particular provision provides this court with the authority to make a cost order.
The court notes that costs orders are not normally made against a public prosecutor but in this case the court is of the view that s 70(1)(c) and (d) are both applicable in that the prosecutor was made aware of a significant issue being the issue of mens rea and did not properly investigate that issue. Generally speaking, in the court’s view, it was unreasonable for the matter to have been commenced and prosecuted. Accordingly the court makes the order sought.
This court notes that under s 28(3) the court may make any such order as to costs to be paid by either party as it thinks just. At this stage the court simply indicates that the order, which could be made, should reflect that the appellant should not be out of pocket for her professional costs in defending this particular count. …”

27 In so far as costs are concerned Ellis DCJ was exercising statutory power contained in s 28 and s 70 of the Crimes (Appeal and Review) Act.

28 Section 28 of the Crimes (Appeal and Review) Act relevantly reads:

“28 Miscellaneous powers

(1) Without limiting its other powers, the District Court may do any one or more of the following:

…

(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.”

29 Section 70 relevantly reads:

“70 Limit on costs awarded against public prosecutor

(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied:


(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or

(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter:

(i) that the prosecutor was or ought reasonably to have been aware of, and
(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.”

30 In relation to costs, Ellis DCJ decided that costs should be awarded as the prosecutor unreasonably failed to investigate, or to investigate properly, any relevant matter; that the prosecutor was or ought reasonably to have been aware of, and that suggested that the appellant might not be guilty or that the proceedings should not have been brought; and that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to awards costs in favour of the appellant.

Issue estoppel

31 A leading text in this field, K R Handley and George Spencer Bower, Spencer Bower and Handley: Res Judicata, 4^th ed (2009) Lexis Nexis states (at [8.38]) that:

“Issue estoppels are not recognised in criminal cases, and an acquittal will not bar civil proceedings based on the same facts. The parties will generally be different and the onus of proof is different.”

32 The learned authors also state (at 16 [2.07]) that the reasons for making an order for costs do not amount to a res judicata because such reasons do not determine issues between the parties and cited Clancy v Santoro [1999] 3 VR 783 as being authority for that proposition. So, it is correct to say that because Ellis DCJ made a costs order and because the charges arising out of accessing and making false entries in the COPS data system were criminal and these current proceedings for malicious prosecution are civil, no issue estoppel can arise?

33 The starting point, I think, is the well known case of Blair v Curran [1939] 62 CLR 464 where Dixon J stated (at 531-533):

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R v Inhabitants of the Township of Hartington Middle Quarter , the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established ( Hoystead v Commissioner of Taxation ). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.

The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. …”

34 Counsel for the State referred to Res Judicata, General Principles and Recent Developments (1999) 18 Aust Bar Rev 214, where Handley J stated:

“Another form of res judicata is issue estoppel. A judicial decision on one cause of action may require the court to decide issues of fact or law which may become issues in later litigation between the same parties involving a different cause of action. If the first court determines, by evidence or admission, that some ingredient of a cause of action does or does not exist, and that determination was fundamental to the decision, it will issue estop the parties in later litigation. The leading Australian decision is Blair v Curran particularly the judgment of Dixon J. Issue estoppel, as its name implies, only applies to issues. There is no estoppel as to evidentiary facts or legal questions which are no more than steps in reasoning to the determination of an issue. In Rogers v R the High Court held that there are no issue estoppels in the criminal law, although the abuse of process doctrine may be available to the defence where an issue estoppel would have arisen in civil litigation.
…
A decision on an issue against the party who succeeded does not give rise to an issue estoppel because it was not fundamental to the decision in his favour. Where several grounds for succeeding on a cause of action are upheld, there is no estoppel on the separate findings because none are fundamental. Examples include a number of particulars of negligence, or different breaches of the same contract occurring at the same time. There will be cause of action estoppels but no issue estoppel as to any particular of negligence or particular breach.” (Citations omitted)

35 In Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417, McHugh J set out the relevant principles regarding the doctrine of issue estoppel. His Honour in Rogers v The Queen stated (at [441]):

“An issue estoppel can only arise, however, in respect of an ultimate issue in the litigation. No estoppel can arise in respect of evidentiary issues even when they are the building blocks in the proof of an ultimate issue. …”

McHugh J also referred to Thoday v Thoday [1964] P 181 (CA) at [198] per Diplock LJ and R v Storey (1978) 140 CLR 364 at [424]; 22 ALR 47 at [89] per Aickin J.

36 McHugh J, in Rogers v The Queens, concluded (at [442]):

“The findings of Judge Phelan were simply findings concerning the conditions of admissibility of evidence. I have already pointed out that issue estoppel does not arise in respect of evidentiary facts.”

37 Counsel for the State submitted that it is essential that there be an identity of subject matter and where the issue in the second proceedings is not the same issue decided in, or covered by the first, there can be no such estoppel. It is only determinations which are necessary for the decision, and fundamental to it that will do so.

38 As A v State of New South Wales makes clear there are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution “made” or “should have made” of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. The findings of Ellis DCJ are that the case against Ms Moussa was a circumstantial one and the Crown had to establish the case beyond reasonable doubt, and that means it had to prove that there was no reasonable hypothesis put forward that was consistent with innocence. Ms Moussa provided an explanation that it was a training exercise and even if this explanation was not accepted, a reasonable doubt is still raised. But Ellis DCJ went further when he stated that the material in the record of interview read truthfully but even if it did not the court would not be able to reject what she said.

39 It is not known what evidence, besides her statement that Ellis DCJ had before him. Nor is it known what material was available to the prosecutor when he or she decided to prosecute and maintain the existing prosecution and prosecute the appeal. Ellis DCJ did not examine the latter in any detail. There has been no examination of the prosecutor’s state of mind or state of persuasion. I accept that there is no specific finding that the prosecutor acted without reasonable and probable cause. However, in my view, it is unlikely. Although Ellis DCJ’s findings comment on area of without reasonable and probable cause on setting aside the convictions it is unlikely that they establish an issue estoppel. I cannot say that the argument is hopeless, nor that it is clear.

40 The findings made in relation to costs pursuant to s 70 were that the prosecutor unreasonably failed to investigate, or to investigate properly, any relevant matter; that the prosecutor was or ought reasonably to have been aware of, and that suggested that the appellant might not be guilty or because an explanation had been provided and the proceedings should not have been brought are unlikely to establish an issue estoppel but they do cover the subject area of without reasonable and probable cause.

41 Generally speaking, the reasons for making a costs order do not give rise to an issue estoppel because such issues do not determine the issues between the parties. Ellis DCJ was applying s 70 of the Act. In Clancy v Santoro, Ashley J held that the doctrine of issue estoppel in civil cases is intimately connected with issues identified with the cause or causes of action which are in dispute between the parties. The determination of costs questions, costs being creatures of statute, their resolution involving matter of discretion and there being limited rights of appeal, involves a regime fundamentally different to the determination of issues necessary to establish a cause of action.

42 Even though Ellis DCJ’s findings on costs are even more unlikely to give rise to an issue estoppel Ms Moussa may, however, argue that these findings follow on from his Honour’s earlier decision quashing the convictions and do not solely relate to the matters addressed in s 70.

Standard of proof

43 It is trite to say that the standard of proof in criminal proceedings is different from the standard of proof in civil proceedings. In the criminal proceedings the burden is on an informant to prove the elements of the offences charged. In civil proceedings the burden is on the plaintiff to prove the elements of each cause of action relied upon. Counsel for the State submitted that there cannot be an identity of issues for the purpose of an estoppel where there is a difference in the onus of proof, even if the factual questions are identical: see Riley v Riley [2000] NSWCA 64; Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; Ramsay v Pigran [1968] 118 CLR 271 at [276]; Kosanovic v Sarapuu [1962] VR 321; and Earnshaw v Loy (No 1) [1959] VR 248.

44 In Health Care Commission v Litchfield the court stated (at 634 – 635):

“… Summary proceedings for a criminal offence are between subject and subject: see Munday v Gill (1930) 44 CLR 38 at 86, per Dixon J and John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508. The parties to the appeal were therefore the same parties as those in the summary proceedings. The requirement for res judicata estoppels, that there be identity of parties (no question of privies arose) was therefore established.

It is strongly arguable that there is no identity of parties in this case. The criminal proceedings were conducted by the Director of Public Prosecutions on behalf of the Crown: see Director of Public Prosecutions Act 1986, s 7. These proceedings have been conducted by the Commission, which is a statutory body representing the Crown: Health Care Complaints Act 1993, s 75(2). The Director and the Commission are both servants or agents of the Crown ( Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376), but it does not follow that there is identity of parties. The CrownProceedings Act 1988, s 5(1), which prevents proceedings being brought against the Crown for a claim against a statutory corporation representing the Crown, may make them separate parties for present purposes: compare Hainesv Tempesta (1995) 37 NSWLR 24, George Spencer Bower, The Doctrine of Res Judicata , 3rd ed (1996) at 116-117 and Re a Medical Practitioner [1959] NZLR 784.

Even if, in this case, the parties in both proceedings are the same there is still no res judicata estoppel. These are civil proceedings in which the civil onus applies as explained in Briginshaw v Briginshaw (1938) 60 CLR 336: see Bannister v Walton . Even if the factual questions were identical, the difference in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against the accused arising out of the same facts: see generally, Helton v Allen (1940) 63 CLR 691; Rejfek vMcElroy (1965) 112 CLR 517.”

45 In Davis v Gell (1924) 35 CLR 275 Stark J stated at [296]:

“There are cases in the books, of higher authority, which show that a judgment of conviction or acquittal in criminal cases does not, in subsequent civil proceedings, ordinarily preclude the convicted person from setting up his innocence or any other person from endeavouring to show he was guilty.”

46 As was stated in Health Care Complaints Commission v Litchfield, even if the factual matters were identical, the difference in onus of proof prevents the issues being the same. Ellis DCJ decided that the charges against Ms Moussa were not proved beyond reasonable doubt. In other words, the prosecutor did not discharge its onus of proof. While it is a finding relating a different standard of proof, the finding itself is not made on the standard of beyond reasonable doubt. In my view, it is not clear that Ellis DCJ’s findings on the onus of proof are made on a different standard of proof.

Parties, privies and prosecutor

47 Res judicata estoppels operate between the same parties or their privies. Counsel for the State submitted that when determining the identity of parties and their privies one needs to look at the form and substance of the matter. The party estopped by privity must have some interest, legal or beneficial, in the previous litigation or its subject matter. Ms Moussa argued that the parties are the same.

48 The prosecutions were brought by Detective Sergeant Hopper as the informant. Charges 1, 2, 4, 5, 6, 7, 8, 11, 12 and 13 are either indictable charges dealt with summarily or were strictly summary charges. The informant was represented in the Local Court proceedings by a Police prosecutor. Both the informant and Police prosecutor were sworn Police officers.

49 Counsel for Ms Moussa argued that the informant was acting as a common informant on behalf of the public to enforce a penal provision in the interest of the community and where a common informer prosecutes on behalf of the public the public are parties and are bound.

50 Ms Moussa argued that as the Director of Public Prosecutions (“the DPP”) took over the prosecution in the District Court, he is a statutory office holder representing the Crown in the right of New South Wales. The principal functions of the Director are set out in s 7 of the Director of Public Prosecutions Act 1986. Section 7 relevantly reads:

“7 Principal functions

(1) The principal functions and responsibilities of the Director are:


(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court,

(b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and

(c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution.
…”

51 Pursuant to s 9 of the Director of Public Prosecutions Act, the DPP has the power to take over prosecutions or proceedings. Section 9 relevantly reads:

(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and:
(a) carry on the prosecution or proceeding,
(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,
(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and
(d) conduct, as respondent, an appeal in any court in respect of the offence.
(2) The Director may not take over a matter under this section involving a summary offence, unless:
(a) the offence is a prescribed summary offence, or
(b) a person otherwise responsible for the matter has consented in writing.
(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.
(4) If the Director takes over a matter under this section:
(a) the Director shall, as from the time when the Director complies with section 10(1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceedings concerned, and
(b) The Director may decline to proceed further in the prosecution or to carry the proceeding further.
…”

52 Ms Moussa submitted that after the DPP has taken over a matter under s 9, the original prosecutor is subsumed in the DPP and the DPP may not thereafter commence proceedings in the name of the original prosecutor but must do so as the DPP.

53 However, the situation so far as the Police prosecutor and the informant is different. Ms Moussa says that the purposes of the prosecution, both before the Local Court and District Court, the prosecutor was “the Crown” and was the same party as the State in these proceedings because as a general rule the Crown is one and indivisible within New South Wales. As such the State is bound by the costs application.

54 To incur liability for malicious prosecution the defendant must play an active role in the conduct of the proceedings by instigating or setting them in motion. The defendant must have been actively instrumental in setting the law in motion. Merely supplying information, however incriminating to the police on which they eventually decide to prosecute, is not the equivalent of launching a prosecution, the critical decision not being his. This passage is from John G Fleming, Law of Torts, 8^th ed (1992) Law Book Co at 612.

55 The persons who could be said to have been actively instrumental in setting the law in motion are Detective Sergeant Hopper, the Police prosecutor and the DPP. In Nye v State of New South Wales [2003] NSWSC 1212 the DPP was joined as a separate party which is not the case here. Nevertheless, it is arguable that they could be regarded as the defendants.

56 The State admits vicarious liability for the acts and omissions of Detective Sergeant Hopper pursuant to the Crown Proceedings Act 1988. Section 3 of the Crown Proceedings Act defines “the Crown” as:

“Crown means the Crown in right of New South Wales, and includes:
(a) the Government of New South Wales, and
(b) a Minister of the Crown in right of New South Wales,
(c) a statutory corporation, or other body, representing the Crown in right of New South Wales.”

57 For the purposes of this application I am prepared to accept as arguable that the arresting officer and the Police prosecutor and the DPP played an active role in the prosecution. The Crown may be vicariously liable for the acts of the arresting and prosecuting officers. The Crown is sued in the name of the State of New South Wales. The State has admitted liability in respect of Detective Sergeant Hopper. It is my view that it is at least arguable that the Crown can be considered the same party as the defendants other than the DPP. Consideration may need to be given as to whether the DPP should be joined as a separate party.

58 In my view, whether an issue estoppel arises is unlikely but I cannot say it is hopeless. It should be permitted to go to trial. Leave to file the proposed amended reply is granted.

59 Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff’s costs as agreed or assessed.

The Court orders:

(1) Leave to file the further reply is granted.

(2) The reply is to be filed and served by 4.00 pm on 15 June 2010.

(3) The defendant is to pay the plaintiff’s costs as agreed or assessed.

(4) The matter is listed for a status conference 22 June 2010 at 9.00 am before the Registrar.
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