Mullett v Nixon
[2016] VSC 512
•31 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 01520
| PAUL MULLETT | Plaintiff |
| v | |
| CHRISTINE NIXON | First Defendant |
| KEIRAN WALSHE | Second Defendant |
| WAYNE TAYLOR | Third Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 9, 10, 11, 12, 13, 16, 17, 18, 24, 25, 26, 27, 30, 31 May 2016 |
DATE OF JUDGMENT: | 31 August 2016 |
CASE MAY BE CITED AS: | Mullett v Nixon & ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 512 First Revision, 5 September 2016, [16](ii), [17](i), FN 379 |
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TORTS - Misfeasance in Public Office – Plaintiff former head of The Police Association – Suspended from Victoria Police – Whether or not suspension constituted misfeasance in public office – Elements of the tort – Targeted malice – Whether or not suspensions invalid or unauthorised – whether or not prosecution of plaintiff invalid or unauthorised – Standard of proof - Northern Territory v Mengel (1994) 185 CLR 307 – Sanders v Snell (No 2) (2003) 130 FRC 149 – Sanders v Snell (1998) 197 CLR 329 – Briginshaw v Briginshaw (1938) 60 CLR 336.
TORTS – Malicious Prosecution – Elements of the tort – Whether or not proceedings initiated, instigated or continued against the plaintiff by the first defendant – Whether or not proceedings actuated by an improper purpose – meaning of improper purpose – Whether or not the defendants acted without reasonable and probable cause in prosecuting the plaintiff – Standard of proof - A v New South Wales (2007) 230 CLR 500 – Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Richter QC Mr M. Tovey QC Mr A. Panna QC | Stephens Lawyers and Consultants |
| For the Defendant | Mr C. Caleo QC Mr D. McCredden | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Background to proceedings............................................................................................................. 1
A. The Torts......................................................................................................................................... 4
Misfeasance in Public Office....................................................................................................... 4
Malicious Prosecution.................................................................................................................. 9
Standard of proof........................................................................................................................ 12
B. The souring of relations............................................................................................................. 14
C. Narrative of events...................................................................................................................... 18
The First Suspension.................................................................................................................. 18
Charges and Prosecution, Second Suspension....................................................................... 24
D. Analysis......................................................................................................................................... 29
MOTIVE....................................................................................................................................... 29
THE FIRST SUSPENSION.......................................................................................................... 31
Christine Nixon: Misfeasance in Public Office............................................................ 31
Was the First Suspension invalid or unauthorised?....................................... 31
Was the first suspension actuated by malice?................................................. 47
CHARGES, PROSECUTION, AND THE SECOND SUSPENSION..................................... 50
Evidence of Christine Nixon............................................................................. 51
Evidence of Wayne Taylor................................................................................. 52
Evidence of Kieran Walshe................................................................................ 56
Evidence of A/C Cornelius................................................................................ 60
Christine Nixon: Misfeasance in Public Office............................................................ 61
Christine Nixon: Malicious Prosecution....................................................................... 62
Wayne Taylor: Malicious Prosecution.......................................................................... 63
Malice............................................................................................................................................ 63
Reasonable and probable cause...................................................................................... 66
Subjective limb..................................................................................................... 66
Objective limb....................................................................................................... 67
Kieran Walshe: Misfeasance in Public Office.............................................................. 87
The s 79(2) suspension...................................................................................................... 89
Authorisation of the prosecution.................................................................................... 90
Kieran Walshe: Malicious Prosecution......................................................................... 92
Malice............................................................................................................................................ 92
Reasonable and probable cause...................................................................................... 95
Objective limb....................................................................................................... 95
Subjective limb..................................................................................................... 95
E... Conclusion................................................................................................................................... 97
HIS HONOUR:
Background to proceedings
Between March 2001 and March 2009 the plaintiff, Paul Mullett, was Secretary of the Police Association (‘TPA’). He had been Acting Secretary since 1998. TPA is, effectively, the union for serving members of the Victoria Police Force. During his years at TPA Mr Mullett was seconded from Victoria Police and his salary was paid by TPA.
In April 2001, Ms Christine Nixon, the first defendant, was appointed as the 19th Chief Commissioner of Police for Victoria.
Both Ms Nixon and Mr Mullett were highly decorated and regarded police officers. Ms Nixon, an Australian Police Medal winner, was an Assistant Commissioner with the New South Wales Police Force prior to taking up her Victorian appointment. Mr Mullett was a Senior Sergeant of Police who had served in various squads since he joined the force in 1974. He is one of only two officers to be twice awarded the Victoria Police Valour Award.
Naturally, the Chief Commissioner of Police and the Secretary to the TPA had a working relationship. Over time, the relationship between Mr Mullett and Ms Nixon soured.
On 30 May 2007 the Director of the Office of Police Integrity (‘OPI’), of his own motion, determined to conduct an investigation under s 86NA of the Police Regulation Act 1958 (‘PR Act’). The investigation commenced by examining the alleged unauthorised dissemination by then Assistant Commissioner (‘A/C’) Noel Ashby of confidential information. It also examined alleged improper associations between Mr Ashby and others, including Mr Mullett. The OPI investigation was called Operation Diana.
On 24 September, the Director of the OPI purported to delegate investigatory powers to Mr Murray Wilcox QC under s 102F(1) of the PR Act. Private and public hearings followed. It was alleged that Mr Ashby, Mr Stephen Linnell (then Media Director for Victoria Police) and Mr Mullett were each involved in leaking sensitive operational information. Mr Mullett gave private evidence in October 2007 and public evidence on 14 and 15 November 2007. Ms Nixon convened a meeting with her advisors on the evening of 14 November 2007, and another the next morning. Mr Peter Hanks QC gave advice at the 15 November morning meeting regarding Victoria Police’s legal position in relation to the effect of certain evidence given at the public hearings, including Mr Mullett’s evidence.
At 3.55 pm on 15 November, Ms Nixon, purportedly acting pursuant to s 79(1) of the PR Act, suspended Mr Mullett from duty as a Victoria Police officer (with pay). A requirement of suspension pursuant to s 79(1) was that the Chief Commissioner had a reasonable belief that the officer being suspended had committed an offence punishable by imprisonment. A suspension notice, served that day, was thought to be defective and was altered in some respects. It was re-served on 16 November 2007. I shall refer to this November 2007 suspension throughout these reasons as ‘the First Suspension’.
Mr Mullett continued to work pursuant to his contract with TPA. The OPI investigation continued, and in February 2008 the OPI reported to Parliament. In about mid 2008 the OPI formed the view that it did not have the power to prosecute the various alleged offences that it had identified. As a result Victoria Police were asked to lay charges against Messrs Linnell, Ashby and Mullett. Ms Nixon, together with the head of the Ethical Standards Department (‘ESD’), A/C Luke Cornelius, agreed that Victoria Police would take on this role. Superintendent Wayne Taylor, the third defendant, agreed to act as the ‘nominal informant’ when approached by A/C Cornelius. Mr Taylor drew up charge sheets alleging five criminal charges against Mr Mullett. Deputy Commissioner (‘D/C’) Keiran Walshe, the second defendant, reviewed the brief and authorised the charges.
On 29 July 2008, Mr Taylor filed five charges at the Melbourne Magistrates’ Court and Mr Mullett was served with a copy. Section 79(2) of the PR Act was then engaged and Mr Mullett was suspended on 29 July 2008 without pay (‘the Second Suspension’). The Second Suspension was authorised by Mr Walshe. On 19 May 2009, Mr Mullett was committed for trial on two counts of perjury, but discharged on a count of attempting to pervert the course of justice. On 25 June 2009, a nolle prosequi was entered in respect of the perjury counts. In subsequent proceedings against Mr Ashby in 2010, Mr Wilcox’s delegation to conduct the relevant OPI hearings was found to be invalid.
I have set out this baldest of summaries to explain the confines of this case. Mr Mullett alleges against the first and second defendant the tort of Misfeasance in Public Office (‘MIPO’), and alleges Malicious Prosecution (‘MP’) by all three defendants. Insofar as the First Suspension is concerned, MIPO is alleged only against Ms Nixon. Insofar as the charging and prosecution of Mr Mullett are concerned, he alleges MIPO against Ms Nixon and Mr Walshe and MP against all three defendants.
The plaintiff seeks to establish the torts by circumstantial reasoning. He alleges Ms Nixon had a strong motive to wish him gone from his position at TPA. He submits that other circumstances combine to give rise to an inference that this was Ms Nixon’s true purpose in causing him to be suspended and charged, resulting in irreparable career damage. The defendants reject this hypothesis. Each of them gave direct evidence about their actions and objects. Thus, whilst this may have appeared to be a ‘hard swearing’ case, in fact there was very little direct conflict in the evidence. Each of the plaintiff and the three defendants were, in my view, reasonably impressive witnesses and, with a few exceptions that I shall refer to, no serious challenges were made to their reliability or credibility. The defendants gave direct evidence about their actions and intentions; the plaintiff sought to impugn that evidence circumstantially.
I propose to structure these reasons in the following way:
A.I shall examine the relevant legal principles of the torts of MIPO and MP, along with the standard of proof that ought be applied to the elements of those torts that allege misconduct on the part of the defendants.
B.I shall examine the alleged souring of relations between the plaintiff and the first defendant.
C.I shall provide a narrative of relevant events from the commencement of the OPI investigation to the June 2009 entry of the nolle prosequi.
D.I shall analyse whether the plaintiff has proved his various tortious allegations to the requisite standard. I shall consider the events surrounding the First Suspension separately to those surrounding the prosecution and Second Suspension.
E. Conclusion.
A. The Torts
Misfeasance in Public Office
Whilst the tort of MIPO has been described as ‘well established’[1] in Australian law, its precise limits are not yet settled.[2]
[1]Sanders v Snell (No 2) (2003) 130 FRC 149, 171 [87] (‘Snell (2)’); Northern Territory v Mengel (1998) 185 CLR 307, 370 (Deane J) citing Lord Diplock in Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76, 84.
[2]Sanders v Snell (1998) 196 CLR 329, 346 [42] (‘Snell(1)’), noted more recently in Chapel Road Pty Limited v Australian Securities and Investments Commission (No 10) [2014] NSWSC 346, [56] and Kevin Denlay v Commissioner of Taxation [2010] FCA 1434, [77].
The tort’s main features are:
· MIPO is a ‘deliberate tort’ for which the defendant is personally liable.[3]
· The rationale for the tort is that, in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior or improper purposes.[4]
· The tort ‘concerns maladministration rather than careless administration’,[5] and envisages an exercise of authority by a public officer other than in an honest attempt to perform the functions of his or her office.[6]
[3]Cannon v Tahche (2002) 5 VR 317, 328 [28].
[4]As described in Three Rivers District Council v Bank of England (No 3) [2000] 3 All ER 1, 7 (Lord Steyn).
[5]Pyrenees Shire Council v Day (1998) 192 CLR 330, 376 [124].
[6]Northern Territory v Mengel (1994) 185 CLR 307, 357 (Brennan J) (‘Mengel’).
The leading Australian authority on the scope of MIPO is Northern Territory v Mengel.[7] In Mengel, Deane J formulated MIPO as comprising the following five elements: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff (‘the Deane J elements’).[8] Although the majority in Mengel did not lay out the tort in these exact terms, the Deane J elements are, in essence, consistent with the majority’s description of the tort.[9] The Deane J elements, or equivalent elements, have been adopted as a formulation of MIPO in a number of trial and intermediate court of appeal cases.[10] Both the plaintiff and defendants used the Deane J elements to found their submissions, and I will use those elements when analysing the plaintiff’s case.
[7]Mengel.
[8]Mengel, 370 (Deane J).
[9]Noted in Snell(2) 174 [95], however see discussion below regarding a divergence between the plurality’s formulation of the ‘malice’ element and that of Deane J and Brennan J in separate judgments.
[10]See for example Lock v ASIC [2016] FCA 31, [129]; Tahche v Abboud [2002] VSC 42, [16].
I shall set out briefly legal principles relevant to establishing the tort of MIPO.
i) An invalid or otherwise unauthorised act;
·There can be no tortious liability for an act or omission that is done or made in valid exercise of power.[11]
[11]Mengel, 356 (Brennan J).
·Acts beyond power include acts that are invalid for want of procedural fairness.[12]
[12]Snell(1), 344 [38] (Gleeson CJ, Gaudron, Kirby and Hayne JJ) citing Mengel, 356–357 (Brennan J).
ii) done maliciously;
·Considered to be the ‘mental element’ of the tort.[13] An assessment of ‘malice’ contemplates both:
[13]See for example: Mengel, 357 (Brennan J).
a)The state of mind of the alleged tortfeasor as to the illegality or unauthorised nature of the act; and
b)The state of mind of the alleged tortfeasor as to the harm that may flow to the plaintiff as a result of the act.
·There is some discrepancy between the majority reasons and the separate reasons of Brennan J and Deane J in Mengel on the constitution of this element. Decisions in other courts seem from time to time to conflate the Deane J and majority standards,[14] and have cited favourably the House of Lords formulation in Three RiversDC v Governor & Co of the Bank of England (‘Three Rivers’),[15] which differs from the Mengel majority judgment on this point.
[14]See for example: Snell(2), 174 [95].
[15][2000] WLR 1220.
·Considering the requisite mental state, the majority in Mengel said:
The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage…For present purposes, we include in (the) concept acts which are calculated in the ordinary course to cause harm, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.[16]
[16]Mengel, 347 (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ).
And continued:
(L)iability for misfeasance in public office should rest on intentional harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes…that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.[17]
[17]Mengel, 347 (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ).
·Their Honours also commented:
(T)here is much to be said for the view that…misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power.[18]
[18]Mengel, 347 (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ).
·On the concept of ‘targeted malice’, being invalid acts intended to cause harm to the plaintiff, the majority clarified that ‘if the public officer is actuated by an intention to harm the plaintiff…that constitutes misfeasance in public office whether or not the officer knows that he or she lacked authority’.[19]
[19]Mengel, 348 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
·Putting targeted malice to one side, the majority required a mental state of knowledge of the invalidity of the act,[20] coupled with ‘a foreseeable risk of harm’ flowing from that act. Put another way, the majority required a finding as to an actual mental state on the first limb, and an objective finding of foreseeability of harm on the second limb.
[20]They also contemplated a standard of ‘reckless disregard’ of invalidity.
·In the 1998 High Court matter of Sanders v Snell, the majority affirmed this interpretation, summarising:
For the purposes of deciding Mengel, the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm but noted also that there seems much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power.[21]
[21]Snell(1), 345 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).
·Internationally, decisions of the New Zealand Court of Appeal and the House of Lords support the view that in those jurisdictions the tort has developed such that the required proof for the second limb of the mental element is proof of knowledge or ‘reckless indifference’ on the part of the wrongdoer to the possibility that the act in question will likely injure the plaintiff.[22]
[22]See for example: Garrett and Three Rivers.
·In the New Zealand Court of Appeal case of Garrett v Attorney General (‘Garrett’), Blanchard J, speaking for the Court, said:
[I]t is insufficient to show foreseeability of damage caused by a knowing breach of duty by a public officer … There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed.[23]
[23]Garrett, 349.
·And in Three Rivers Lord Steyn said:
[A] plaintiff must establish not only that the defendant acted in the knowledge that the act was beyond his powers, but also in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member.[24]
[24]Three Rivers, 196.
·While a number of intermediate court judgments note the statements on malice of Deane J and Brennan J in Mengel, along with above principles extracted from the New Zealand Court of Appeal in Garrett and the House of Lords in Three Rivers in their description of the tort,[25] I am bound by the authority set by the High Court majority in Mengel and confirmed in Sanders v Snell. As was said on consideration of this element in SA v Lampard-Trevorrow,[26] it is not for a lower court to anticipate the approach that will be adopted by the High Court, rather, the lower court is bound by the precedent as it stands.
[25]See for example: Lock v Australian Securities and Investments Commission (2016) FCA 31, [139] – [140]; Snell(2), 174 [95].
[26]106 SASR 331, 388 [264].
·As such, if the plaintiff is able to prove that the first or second defendant acted with reckless indifference as to the validity of the relevant act, and that harm to the plaintiff was a foreseeable consequence, then this element of the tort will be made out.
·The concept of ‘reckless indifference’ has both a subjective and objective aspect. That is, a plaintiff must prove that a defendant consciously adverted to the risk that his action would be illegal or beyond power (subjective element), and then proceeded with that action in a manner that was reckless in the circumstances (objective aspect).[27]
[27]Discussed in Three Rivers, 192–193 (Lord Steyn).
·Whilst there remains scope for further discussion on nature and interpretation of ‘malice’ in the context of MIPO, I note the present matter was put squarely on a basis of targeted malice. Senior counsel for the defendants characterised it as such in her closing address, and the plaintiff took no issue with this characterisation. The parameters of targeted malice are clear. Where it can be proved that harm to the plaintiff was actually intended, there is no requirement to prove knowledge or reckless indifference as to the unauthorised nature of the unauthorised act that resulted in harm.
iii) by a public officer;
· This element was conceded by the First and Second Defendants.
iv) in the purported discharge of his/her duties;
· This element was conceded by the First and Second Defendants.
v) which causes loss or harm to the plaintiff
·‘The “injury” intended must be something which the plaintiff would not or might not have suffered if the power available to the public officer had been validly exercised.’[28]
[28]Mengel, 356 (Brennan J).
Malicious Prosecution
The tort of MP consists of five elements, as set out below:
(i)Proceedings of the kind to which the tort applies were initiated,[29] instigated,[30] or continued[31] against the plaintiff by the defendant;
[29]A v New South Wales (2007) 230 CLR 500, 502 (‘A v NSW’).
[30]Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, 379–380 (‘Brain’).
[31]Fitzjohn v McKinder (1861) 142 ER 199, 207, 210.
·The tort is generally founded on the commencement of criminal proceedings,[32] as occurred with the institution and prosecution of criminal charges against Mr Mullett.
[32]As noted in Slaveski v Victoria [2010] VSC 441, [254].
·The class of ‘prosecutor’, for the purposes of the tort, extends to a person or entity who is in fact instrumental in setting the relevant proceedings in motion. In Commonwealth Life Assurance Society Ltd v Brain,[33] Dixon J described:
[33]Brain.
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.[34]
[34]Brain, 379.
(ii) the proceedings were terminated in the plaintiff’s favour;[35]
[35]This element was conceded by the First, Second and Third Defendant.
·Proceedings are considered terminated in the plaintiff’s favour upon the entry of a nolle prosequi.[36]
[36]See Becket v State of New South Wales (2007) 230 CLR 500.
(iii) the defendant, in initiating or maintaining the proceedings, acted maliciously;
·Malice, for the purpose of the tort of MP, is a broader concept than ill-will or spite, and means an improper purpose.[37]
[37]A v NSW, 503.
·An improper purpose is a purpose ‘other than the proper invocation of the criminal law – an “illegitimate or oblique motive”.’[38]
[38]A v NSW, 531 [91] citing Gibbs v Rea [1998] AC 786 at 804.
·In order to constitute malice, the improper purpose that is identified must be the sole or dominant purpose actuating the prosecutor.[39]
[39]A v NSW, 531 [91]; 532 [93].
(iv) the defendant acted without reasonable or probable cause;
·To establish this element, the plaintiff must prove a negative proposition, being either that the defendant prosecutor did not ‘honestly believe’ the case that was instituted and maintained (subjective aspect), or that the defendant prosecutor had no sufficient basis for such an honest belief (objective aspect), or both.[40]
[40]A v NSW, 527 [77].
A. Subjective aspect
·Determination of the subjective aspect varies depending on whether or not the nature of a matter is such that the prosecutor was supposed to have had first-hand knowledge of the facts of the case prosecuted. Where this is so, the requisite state of persuasion is a belief on the part of the prosecutor about the guilt of the accused.[41] A proven absence of persuasion of guilt would therefore satisfy this element of the tort.
[41]A v NSW, 525 [71].
·Where the prosecutor does not have ‘first hand’ knowledge of the facts (as in the present matter), the prosecutor can be found to have acted without reasonable or probable cause where it can be shown that he/she did not honestly conclude that the material available to him/her at the time of instigating the prosecution was such as to warrant setting the process of the criminal law into motion.[42] As articulated by Gyles AJA in Thomas v New South Wales (‘Thomas’), this is a ‘lesser subjective standard than a belief in guilt’.[43]
[42]A v NSW, 528 [80].
[43]Thomas v New South Wales (2008) 74 NSWLR 34, 59 [102].
·In either case the critical assessment concerns what the plaintiff can demonstrate about what the defendant prosecutor made of the material that was available to him when deciding whether to prosecute, or to maintain the prosecution.[44]
[44]A v NSW, 527 [77].
B. Objective aspect
·If the plaintiff is unable to establish an absence of subjective reasonable and probable cause, this element of the tort will nonetheless be satisfied if the plaintiff can prove that the prosecutor could not reasonably have assessed the material available to him/her as sufficient to pursue a prosecution.[45]
[45]A v NSW, 529 [83]; or alternatively, where the prosecutor is presumed to have had first-hand knowledge of the facts of the case, whether or not a reasonable person might draw the inference, from the facts available to the prosecutor, that the person was guilty (A v NSW, 529 [83]).
·This objective aspect is thus ultimately a question of fact.[46] In A v NSW, the majority note that the objective aspect of this element has been historically articulated by reference to standards of ‘reasonable’ and ‘ordinarily prudent and cautious’ persons in the position of the defendant prosecutor.[47]
[46]A v NSW, 529 [85].
[47]A v NSW, 529 [84].
·It is postulated in A v NSW that:
(T)he resolution of the (objective) question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon the evidence demonstrating that further inquiry should have been made.[48]
[48]A v NSW, 529 [85] (emphasis added).
Though it is also stressed that absence of reasonable and probable cause is not demonstrated merely by showing that there were further inquiries which could have been made by the prosecutor.[49]
·Considering this element in Thomas, Gyles AJA described:
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 … Investigations can be expected to continue where necessary, at least up to the preparation of the brief of evidence for committal.[50]
(v) the plaintiff suffered damage
·To establish that the plaintiff suffered damage, he will need to establish causation. The result of the conduct, that is the MP, will need to be causally linked to the damage suffered.
[49]A v NSW, 529 [86].
[50]Thomas, 59 [105].
Relationship between ‘malice’ and ‘reasonable and probable cause’
While an absence of reasonable and probable cause may support an inference of malice, these two elements each have a distinct role to play in the tort of MP, and they should not be conflated.[51] For a claim to succeed, two separate findings are required on these elements: one positive (malice), and the other negative (absence of reasonable or probable cause).[52]
[51]A v NSW, 514 [40], 519 [54]; Sheenan v Brett-Young (No. 4) [2016] VSC 53, [50].
[52]A v NSW, 519 [55].
Standard of proof
In civil proceedings, the requisite standard of proof is the balance of probabilities.[53] Section 140(2) of the Evidence Act 2008 effectively codifies, in part, the statements of Dixon J in Briginshaw v Briginshaw,[54] providing that, without limiting the matters a court may take into account in determining whether it is satisfied to the civil standard, the court is to take into account:
a) the nature of the cause of action or defence;
b) the nature of the subject-matter of the proceeding; and
c) the gravity of the matters alleged.[55]
[53]Evidence Act 2008 (Vic) s 140(1).
[54](1938) 60 CLR 336 (‘Briginshaw’); see Commonwealth of Australia v Fernando (2012) 200 FCR 1, 28 [128] (‘Fernando’).
[55]Evidence Act 2008 s 140(2).
In Communications, Electrical, Electronic, Energy, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission[56] (‘Allied Services Union’), the Full Court of the Federal Court described:
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weaknesses of evidence before it in coming to a conclusion.[57]
In that case, the Full Court determined:
Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred].[58]
[56](2007) 162 FCR 466.
[57]Allied Services Union [30], (Cited in Commonwealth of Australia v Fernando (2012) 200 FCR 1, at 28 [129]).
[58]Allied Services Union [38], (Cited in Commonwealth of Australia v Fernando (2012) 200 FCR 1, at 28 [129]).
Misfeasance in public office
In Commonwealth of Australia v Fernando, in the context of an action for MIPO, the Full Court of the Federal Court reasoned that:
A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power, knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister’s reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant’s case has been proved to the necessary standard.[59]
[59]Fernando (2012), 28–29 [130].
I am satisfied, by analogy, that the allegations of MIPO against the then Chief Commissioner of Police, and a Deputy Commissioner are ‘grave’, and that I therefore must be satisfied of proof of the malice element of this tort to the Briginshaw standard, codified as it is by s 140 of the Evidence Act, as explained by the Full Court of the Federal Court in Allied Services Union.
Malicious prosecution
Insofar as MP is concerned, in my view, allegations of the third and fourth elements of the tort (malice, and absence of reasonable and probable cause) against high ranking members of Victoria Police are sufficiently ‘grave’[60] to enliven the Briginshaw standard (as codified by s 140). I am satisfied that these elements must be proved to this standard.
[60]Fernando, 28 [130].
B. The souring of relations
Most of the evidence on this topic came from Mr Mullett himself, or was in documentary form introduced by his Counsel. The following summary comes largely from these sources. As I have observed, I considered Mr Mullett a generally reliable witness.
In April 2001, Ms Nixon was appointed as the 19th Chief Commissioner of Police in Victoria. One month earlier, Mr Mullett was appointed as Secretary of TPA, although, as I have said, he had been Acting Secretary for the three preceding years. TPA’s natural adversaries are the State Government of Victoria and Victoria Police command. Mr Mullett, as Secretary, was responsible for the implementation of policies determined by TPA executive.
It is clear that over time the relationship between Ms Nixon and Mr Mullett degenerated into acrimony. Conflict developed on a number of fronts, and was mostly played out publicly. The plaintiff and first defendant clashed over her reform agenda for the Force. The new president of TPA, Janet Mitchell (elected to the TPA executive in 2001), was alleged by the plaintiff to be factionally aligned with the Chief Commissioner.
TPA conducted a public campaign against the proposed reforms to the PR Act, and Ms Nixon responded just as publicly by asserting that the TPA had misrepresented her position. TPA then held meetings with its membership in July/August 2003, at which it was resolved to continue to oppose the amendments. A vote of ‘no confidence’ in the Chief Commissioner was carried virtually unanimously. This was a public rebuke of Ms Nixon by rank and file police members and was orchestrated by the plaintiff. In mid-2005 Ms Mitchell instructed Mr Mullett to take three months leave. He returned after a very short period to resume the battle over Ms Nixon’s proposed reforms.
Some members of the executive of TPA led by Ms Mitchell sought, in 2005, to replace Mr Mullett. At a TPA delegates conference, motions were passed to cease the search for a new Secretary and resume negotiations with Mr Mullett for a contract extension. Ms Mitchell used her casting vote at an Executive Meeting to reject the delegates’ motions. Due to a resignation from the Executive, the ‘replace Mullett’ faction lost its majority. A TPA Special General Meeting held in November 2005 called on Ms Mitchell to stand down as president for using her presidential vote undemocratically. Against this rancorous background, allegations of bullying in TPA workplace against Mr Mullett began to emerge.
The letter of complaint about bullying was leaked and published in the Herald Sun on 26 October 2005, and a ‘Health and Wellbeing Review’ was commenced shortly thereafter (‘the Brecht review’). At about this time, the Victoria Police email system was used to circulate criticism of Ms Mitchell made under the pseudonym ‘Kit Walker’. The ESD commenced an investigation into the emails and their authorship. In February 2006, TPA announced that Mr Mullett’s contract as Secretary had been extended until March 2009. Almost simultaneously, the Brecht review was released. Its findings were critical of Mr Mullett. On 23 February 2006, A/C Luke Cornelius, Commander of ESD, met with the Chief Commissioner to discuss whether the allegations in the bullying complaint could constitute ‘serious misconduct’ by a member of Victoria Police as defined by the PR Act,[61] and if so, whether the Act obliged the Chief Commissioner to investigate the complaint against Mr Mullett.
[61]Section 86A.
Legal advice was sought from Victorian Government Solicitor’s Office (‘VGSO’), and in May 2006 TPA were advised that the Chief Commissioner was obliged to investigate the complaint as it concerned allegations of ‘serious misconduct’, and to report its findings to the Office of Police Integrity (‘OPI’).
On 13 May 2006, TPA responded in a newsletter to all members. Mr Mullett contended that the attack against him was an attack against TPA, and was politically motivated by the Chief Commissioner, who wished to undermine the internal affairs of the association. A further newsletter published two days later called for the Chief Commissioner to stay out of TPA’s internal affairs. On 19 May 2006, Slater & Gordon solicitors, acting on behalf of Australian Services Union (‘ASU’) members employed at TPA, wrote to the Chief Commissioner and contended that she was not empowered to investigate bullying allegations said to have occurred outside a Victoria Police workplace and that ASU members would not participate in an unlawful investigation.
In TPA newsletters disseminated in late May 2006, articles appeared under the hand of Mr Mullett. They informed members that police union leaders Australia-wide condemned the Chief Commissioner’s decision to interfere with TPA and reiterated the claim of political motivation, which was said to be related to a new Enterprise Bargaining Agreement (‘EBA’) due to be negotiated in mid-2006. The bullying investigation was referred to WorkSafe Victoria in September 2006. TPA newsletters, authored by Mr Mullett, condemned the WorkSafe referral and the Chief Commissioner’s alleged preparedness to go slavishly to the media, “with no regard to the health and wellbeing of the staff of The Police Association.”
Ms Mitchell stood down from her position on 3 October 2006. Soon after, she took stress leave from the police force. Mr Brian Rix, said to be a factional ally of Mr Mullett, was approached to replace her. Ms Mitchell was presented with a bravery award by the Australasian Council of Women and Policing for confronting ‘the strongly masculinised culture’ in TPA.
At about this time, the OPI were conducting an investigation into the Armed Offenders Squad. In September 2006, the Chief Commissioner sought to disband this squad. Mr Mullett, a former squad member, claimed the OPI and Ms Nixon had embarked upon a smear campaign against the squad.
On 10 November 2006, WorkSafe wrote to A/C Cornelius, ‘… (in the) absence of further evidence of bullying activity and based on the material placed before the inspectors, no further action will be taken at this time.’ A complainant in the bullying allegations then made a further complaint about the same allegations to the Deputy Ombudsman. A/C Cornelius provided the bullying investigation files to the Ombudsman’s office. Shortly thereafter, on 6 December 2006, Mr Mullett wrote to the Chief Commissioner alleging that ESD had been conducting surveillance on TPA. He alleged this was part of a politically motivated campaign to destabilise the association. He circulated this letter to TPA delegates through the Victoria Police email system. Mr Walshe, the second defendant, directed delegates to delete this email and its attachment.
In November 2006, Premier Bracks agreed with TPA, represented by Mr Mullett, to increase police numbers, resources and weapons in the event that the Labor Party was re-elected in the forthcoming State elections. Ms Nixon was not a part of these negotiations.
On 12 February 2007, ABC Television ran a Four Corners episode focusing on bullying within Victoria Police and TPA. On ABC Radio that morning, Mr Mullett linked the allegations to ongoing EBA negotiations with the Chief Commissioner. He said a small number of former TPA representatives had colluded with the Chief Commissioner to destabilise and undermine TPA in properly representing its members. On 14 February, Ms Nixon responded both on 3AW Radio and ABC Radio. She refuted Mr Mullett’s allegation of her ‘disgraceful management approach to law and order’, and denied that she was concerned by the private agreement between TPA and the Bracks Government; ‘Who’s running the police force’, Neil Mitchell asked. One hour later, Jon Faine questioned her as to whether she had conspired to undermine Mr Mullett as head of TPA. Ms Nixon denied this allegation and others of a similar nature. Jon Faine also asked ‘… who’s running the police …’.
The bullying investigation meandered on, and the plaintiff continued to publicly criticize the Chief Commissioner. From October 2006, Ms Nixon refused to deal personally with Mr Mullett. Relations became so bad that both signed an agreement not to publicly criticise each other. This agreement appeared to have little effect on Mr Mullett.
C. Narrative of events
The objective facts that surround the First Suspension and the Second Suspension, together with the associated institution and prosecution of charges, are largely undisputed. I shall set them out in short form and will return to what may have actuated them later in these reasons.
The First Suspension
The Director of the OPI, of his own motion, on 30 May 2007 determined to conduct an investigation under s 86NA of the PR Act into alleged unauthorised communication of confidential information by then A/C Noel Ashby. The investigation also focussed on alleged improper associations between Mr Ashby and others. This OPI investigation was called ‘Operation Diana’.[62] From June 2007 until 14 September 2007 the existence of the investigation was not known to Victoria Police. The following is a chronology of events between 14 September 2007 and 16 November 2007.
[62]Court Book in the matter of Mullett v Nixon & Ors, 01520 of 2015, page (‘CB’) 3754.
(a)14 and 17 September 2007: The Director of OPI (George Brouwer) and the Director of Operations (Graham Ashton) told Ms Nixon and A/C Cornelius about Operation Diana.[63] They were told that Operation Diana was investigating leaks of operational information about a current OPI/Victoria Police investigation into suspected police involvement in a murder (Operation Briars). Telephone intercepts suggested that Mr Ashby, Stephen Linnell (Media Director for Victoria Police) and Mr Mullett were involved in the leaks. The OPI was planning to continue the investigation and sought the assistance of A/C Cornelius and D/C Overland to test whether leaks were being processed in the manner they suspected.
[63]T 580ff (Nixon).
(b)Ms Nixon directed A/C Cornelius to monitor the OPI investigation. Ms Nixon stated in evidence that she was shocked at both the nature of the allegations and the fact that they involved two senior members of Victoria Police. She authorised A/C Cornelius and D/C Overland to participate in the investigation.[64]
[64]T 582 (Nixon).
(c)A ‘sting’ operation was set in motion whereby misinformation was passed on by Victoria Police (through either A/C Cornelius or D/C Overland) to Mr Linnell. The information was then followed through a series of telephone intercepts.
(d)On 24 September 2007, the Director of the OPI purportedly delegated certain investigatory powers to Mr Murray Wilcox QC under s 102F(1) of the PR Act.[65] This delegation was later determined to be invalid.
[65]CB 3755.
(e)In September and October 2007, Mr Wilcox QC carried out confidential examinations of Messrs Linnell, Ashby[66] and Mullett.[67] In early October A/C Cornelius was interviewed by the OPI at their offices. He was interviewed with a view to him becoming a witness. He was subsequently provided with a draft affidavit, which he understood would be included in the brief of evidence ‘against the Diana principals’.[68]
[66]CB 4306.
[67]CB 4842.
[68]T 825.
(f)Commencing on 7 November 2007, the OPI conducted a series of public examinations. Mr Linnell gave evidence on 7 November 2007,[69] Mr Ashby[70] on 9 November 2007 and Mr Mullett on 14 and 15 November 2007.[71]
[69]CB 3066.
[70]CB 3099; CB 3487.
[71]CB 4018; CB 4181.
(g)A/C Cornelius attended the OPI on each day of the public hearings at Ms Nixon’s behest.[72] He viewed the evidence on a television monitor in the Director’s office. A/C Cornelius created a running log on his laptop computer in which he set out relevant evidence as it was given. Throughout each day of the public hearings he would email the running log to Ms Nixon.[73] Ms Nixon gave evidence that she read the running log and also the transcripts of the public hearings as they were published by the OPI daily.[74] She would also be briefed at the end of each hearing day by A/C Cornelius. She was not challenged on this evidence.
[72]T587; 825 (Nixon).
[73]T 827 (Cornelius).
[74]T 588 (Nixon).
(h)Messrs Linnell and Ashby resigned from their employment shortly after their public evidence concluded.
(i)A/C Cornelius said that after hearing Mr Mullett’s public evidence he formed the view that Mr Mullett had committed criminal offences including offences under the Telecommunication (Interception and Access) Act 1979 (‘TI Act’) and the PR Act.[75] He said that he formed the view that this provided sufficient grounds to suspend Mr Mullett from Victoria Police.[76]
[75]T 829 (Cornelius).
[76]T 830 (Cornelius).
(j)On 14 November 2007, at the conclusion of Mr Mullett’s first day of public hearing evidence, a meeting was held between Ms Nixon, A/C Cornelius, Ms Kirsty McIntyre of the VGSO, D/C Overland and perhaps Mr Stephen Lee of the VGSO. The focus of the discussion was on whether there was sufficient evidence to support the ‘reasonable belief necessary for the suspension of Mr Mullett’.[77] It was agreed that urgent advice should be sought from Mr Peter Hanks QC. Ms McIntyre prepared a Brief to Advise that was delivered to Mr Hanks on the evening of 14 November 2007. Mr Hanks was requested to examine the public OPI hearing transcripts, particularly that of Mr Mullett, and advise whether he has ‘given evidence that would empower the Chief Commissioner of Police to take action against him under the Police Regulation Act 1958 (Vic) …’ and to ‘advise the Chief Commissioner in conference, on the options available to the Chief Commission(er) under the Act and avenues for Senior Sergeant Mullett to appeal’.
[77]T 831 (Cornelius); T 408 (McIntyre); T 589 (Nixon); CB 1777 (McIntyre file note).
(k)On 15 November an early morning conference was held at Mr Hanks’ chambers. Amongst others, present were Mr Hanks, Ms Nixon, A/C Cornelius, D/C Overland, Inspector Richard Koo from the Discipline Advisory Unit (‘DAU”) of Victoria Police and Ms Kirsty McIntyre. Mr Mullett’s evidence was discussed.[78] The mood was sombre.[79] The plaintiff contends that I ought reject Ms Nixon’s account of what occurred at this meeting. For present purposes I shall set out the effect of that evidence. I shall return to the plaintiff’s alternative contention later in these reasons.
[78]T 589 (Nixon).
[79]T 413 (McIntyre).
(l)Mr Hanks advised that, in his view, the evidence given by Mr Mullett was sufficient to give rise to a reasonable belief that Mr Mullett had committed a criminal offence. Mr Hanks advised the suspension power contained in s 79(1) of the PR Act could be used.[80] Mr Hanks identified offences under both the TI Act and the PR Act.[81] According to the evidence of Ms Nixon, Ms McIntyre, Mr Koo and A/C Cornelius, no one in the room disagreed with Mr Hanks.[82]
[80]T 590 (Nixon).; T 833 (Cornelius).
[81]T 590 (Nixon).; T 833 (Cornelius).
[82]T 591 (Nixon).; T 412 (McIntyre); T 834 (Cornelius).
(m)A decision was made in this meeting to prepare suspension documentation for Mr Mullett under s 79(1) of the PR Act. Ms Nixon stated her decision to suspend Mr Mullett was ‘interim’ at this juncture as he was still in evidence and she wished to see how the evidence unfolded before reaching a concluded view.[83]
[83]T 594 (Nixon).
(n)A further issue was discussed in the meeting concerning who should exercise the suspension power and sign the suspension notice. Section 79(1) of the PR Act conferred the suspension power to Ms Nixon. Ms Nixon gave evidence that she would normally delegate that power to A/C Cornelius.[84] She said that the problem with such a delegation in this instance was that A/C Cornelius’ prior ‘involvement in this matter’ meant that it ‘would not be appropriate for him to sign the notice’.[85] For the same reason it was not appropriate, Ms Nixon said, for D/C Overland to sign the notice. Ms Nixon could not recall whether Mr Walshe was available or whether other senior members were considered but for various reasons eliminated. She said she believed it was ‘proper’ for her to take responsibility for the suspension.[86]
[84]T 593 (Nixon).
[85]T 593 (Nixon).
[86]T 593 (Nixon).
(o)There was discussion in the meeting about whether there would be a perception of bias if Ms Nixon personally suspended Mr Mullett.[87] Mr Koo expressed reservations about Ms Nixon personally exercising the s 79(1) power.
[87]T 594 (Nixon); T 350ff (Koo).
(p)There was also discussion in the meeting about the review processes available to Mr Mullett. No decision was reached as to who may conduct the review but there was discussion about appointing an independent external person to conduct any review.[88] Ms Nixon said in evidence that she recalled Mr Koo raising the possibility that, if Mr Mullett felt aggrieved by the decision, he would be able to challenge it in the Supreme Court.[89] Mr Mullett’s role at TPA and the impact of the suspension was also the subject of discussion. Part of this discussion concerned the effect of s 86(7) of the PR Act, which meant that once Mr Mullett was suspended he could not enter police premises unless directed or permitted to do so. Ms Nixon determined that the mechanism for obtaining a direction of this sort ought come from the Chief Commissioner’s office rather than the individual police premises that he was seeking to enter on any particular occasion.[90]
[88]T 594 (Nixon); T 836 (Cornelius).
[89]T 595 (Nixon).
[90]T 603 (Nixon).
(q)The suspension notice was drawn up by Mr Koo.[91] Ms Nixon signed the notice later on 15 November suspending Mr Mullett with pay under s 79(1) of the PR Act.[92] It was served on Mr Mullett at 3.55 pm on 15 November and was immediately effective. An error in the date nominated for the notice to take effect meant that a replacement notice was issued on 16 November. Neither notice gave particulars of the offences alleged. They recited merely: ‘… you are reasonably believed to have committed … an offence punishable by imprisonment’. A/C Cornelius stated that this was the general practice.[93] He further stated that a s 79(1) suspension was preliminary and the ultimate charges a member may face might be quite different to those originally believed to have been committed when the s 79(1) power is activated.[94] A/C Cornelius was not challenged on this characterisation of the general practice around s 79(1) suspensions.
[91]T 353 (Koo)
[92]CB 2752.
[93]T 840 (Cornelius).
[94]T 840 (Cornelius).
(r)Both suspension notices carried a review mechanism inviting Mr Mullett to show cause as to why his ‘status within the Force should be altered’, and to supply any material or evidence that he may rely upon to challenge the suspension, deliverable to A/C ESD (A/C Cornelius).[95]
[95]CB 2756.
Charges and Prosecution, Second Suspension
(a) On 29 November 2007 Mr O.P. Holdenson QC received a letter from Mr Wilcox.[96] The letter set out items that had been identified in the OPI investigation that were said to place his client, Mr Mullett, at risk of adverse findings. The items were listed as follows.
[96]CB 2940.
Item 1
At the closed hearing on 19 October 2007, Mr Mullett either gave false evidence or misled or attempted to mislead the Director in relation to seven identified matters.[97]
[97]The seven matters were:
1.That he could not recall talking to any Assistant Commissioner other than Assistant Commissioner Cornelius about whether his telephone was being tapped.
2.That he did not ask any Assistant Commissioner to find out information about the taskforce police officers Iddles, Wilson and Ryan were serving on.
3.That he could not recall from whom he obtained information that Mr Overland had been selected to a training academy in Fontainebleau.
4.That he could not recall who told him about the proposed appointment of Inspector Brett Curran as Chief of Staff to the Minister, but it may have been a journalist.
5.That he had not had a conversation with any Assistant Commissioner into leaks.
6.That he did not recall asking Mr Ashby if he could get hold of the Jennifer McDonald files so that he could be the hearing officer.
7.That he gave false evidence and misled or attempted to mislead the Director regarding the nature of his relationship with Mr Ashby.
Item 2
Mr Mullett disclosed to Mr Lalor (a police officer) the existence or possible existence of a telephone interception warrant covering Mr Lalor’s telephone and thereby inferentially disclosing the fact that Mr Lalor was suspected of having committed a serious crime. Particulars of the evidence relied upon were supplied.[98]
[98]CB 2942-2944.
Item 3
Mr Mullett failed to comply with the confidentiality requirements of an OPI investigation imposed upon him by the PR Act by (a) disclosing to Mr Ashby that Mr Lalor had attended at an OPI hearing, and (b) by aiding and abetting Mr Ashby’s disclosure of information about Mr Linnell’s attendance at an OPI hearing.
(b) On 25 January 2008 Mr Wilcox delivered his report (‘the Wilcox Report’) to the Director of the OPI.[99] Relevantly it recommended that the Victorian Office of Public Prosecutions (‘OPP’) consider instituting the following criminal proceedings against Mr Mullett:
[99]The Wilcox Report; CB 2874 at 2915ff.
(1)Wilfully making a false or misleading statement pursuant to s 86K of the PR Act or for perjury, in respect of three specified answers given at the private hearing on 19 October 2007;
(2)Attempting to pervert the course of justice by disclosing to Mr Lalor the existence or possible existence of a telephone interception warrant covering Mr Lalor’s telephone; and
(3)Counselling or procuring the commission by Mr Ashby of an offence under s 102G(1) of the PR Act.
(c) The OPI reported to Parliament on 7 February 2008. Part Two of the OPI report incorporated the Wilcox Report.
(d) The OPI sought advice from Mr Jeremy Rapke QC, the Director of Public Prosecutions. On 23 April 2008 Mr Rapke QC advised as follows:
(1)There was evidence to justify a prosecution for perjury or alternatively under s 86K(1)(c) of the PR Act in relation to Mr Mullett’s evidence at the private hearing that he could not recall asking Mr Ashby to get hold of the Jennifer McDonald hearing files so that Mr Ashby could be the hearing officer.
(2)Mr Rapke QC did not recommend prosecuting Mr Mullett for perjury or under s 86K of the PR Act in respect of the other six false evidence matters referred to in the OPI report.[100]
[100]See footnote 97, above.
(3)There was evidence to justify a charge of attempting to pervert the course of justice. This was said to relate to Mr Mullett telling Mr Lalor of the existence or possible existence of a telephone interception warrant covering Mr Lalor’s telephone. The Director added the cautionary rider that this charge relied on inferences, inferential reasoning and ‘could not be described as strong’.
(4)The evidence did not support a charge of counselling and/or procuring the commission of an offence by Mr Ashby.
At this stage (April 2008) it was still envisaged that the OPI would be the prosecuting authority.
(e) In evidence, A/C Cornelius stated that in about mid-2008 he was advised that the OPI had formed the view that it did not have the power to prosecute the offences that it had investigated.[101] He briefed Ms Nixon.[102] Ms Nixon spoke to Mr Rapke QC. Mr Rapke QC told Ms Nixon that he had been involved in the formulation of charges against various individuals investigated by Operation Diana, but that the OPI could not lay the charges.[103] Ms Nixon said that up until hearing of this issue, it was her understanding that the OPI would institute any charges.[104]
[101]T 841 (Cornelius).
[102]T 841 (Cornelius); T 608 (Nixon); T 783 (Nixon).
[103]T 784 (Nixon).
[104]T 738-739 (Nixon); 779-780.
(f) Superintendent Wayne Taylor was recommended by A/C Cornelius to be the Victoria Police informant. A/C Cornelius said that he recommended Mr Taylor because Mr Taylor was a Superintendent within the ESD who had no previous involvement in the matters the subject of the OPI inquiry.[105] Mr Taylor, in evidence, said that he understood that he was to be the ‘nominal informant’.[106] He said that part of this task was to independently assess the evidence collected by the OPI to determine to his satisfaction that there was a reasonable prospect of conviction on each of the charges that were proposed. The charges proposed were not just against Mr Mullett but also against Mr Ashby and Mr Linnell.[107] Of the circa 53 charges he was to review, 5 related to Mr Mullett.[108] Two of these five charges were alternative charges.
[105]T 841-842 (Cornelius); T 608-609 (Nixon).
[106]T 906 (Taylor).
[107]T 890(Taylor).
[108]T 916(Taylor).
(g) Mr Taylor said that his role was confined to satisfying himself that the charges were appropriate and, if so, laying them. The investigation was not his concern.[109]
[109]T 885 (Taylor).
(h) Mr Taylor attended the offices of the OPI. He met with OPI lawyers and investigators, including Ms Sharon Kerrison. He stated in evidence that he considered the evidence and elements of each proposed charge for Mr Mullett, Mr Ashby and Mr Linnell. The meeting took an hour and forty minutes.[110] He reviewed about 53 charges in total. He made diary notes.[111] He was shown transcripts and statements. He said that he could not remember who had formulated the charges, nor could he remember seeing the Rapke QC advice letter.[112] He stated that he sat at a table with the OPI staff and asked them to produce the evidence they relied upon to substantiate the charges he was considering. I shall scrutinize the various criticisms of Mr Taylor made by the Plaintiff in the analysis section of these reasons.
[110]T 886[ff].
[111]CB 5029ff.
[112]T 888.
(j) A/C Cornelius determined that, given his involvement in the investigation, it would be inappropriate for him to consider whether to ‘authorise the brief’.[113] Ordinarily, an ESD investigator’s recommendation that charges be laid would be reviewed by the A/C ESD. D/C Keiran Walshe was selected by Ms Nixon and A/C Cornelius to consider whether to authorise the prosecution.
[113]T 842 (Cornelius).
(k) Mr Taylor concluded that there was a reasonable prospect of conviction against Mr Mullett, and referred the brief to Mr Walshe for authorisation. Mr Taylor had reached similar conclusions against Messrs Linnell and Ashby and their briefs were referred as well. Mr Taylor said he signed the relevant charge sheets either during or following the OPI meeting of 15 July 2008.
(l) The briefs were delivered to Mr Walshe ‘around 15 July’.[114] He was unsure whether he saw the Rapke QC advice during this review process.[115] Mr Walshe said that over the next several days he spent considerable time reviewing the material in the briefs. He estimated in the range of 25 – 30 hours.[116] He formed the view that there was a reasonable prospect of securing a conviction in relation to each of the charges against Mr Ashby, Mr Linnell and Mr Mullett.[117] In cross-examination Mr Walshe accepted that for significant periods, at about this time, he was in regional Victoria; he accepted that during these periods he would not have worked at reviewing the briefs. I shall scrutinise this aspect more closely in the analysis section of these reasons.
[114]T 965 (Walshe).
[115]T 968 (Walshe).
[116]T 983 (Walshe).
[117]T 972 (Walshe).
(m) Mr Walshe signed the Mullett charge sheets on 25 July 2008. On 29 July 2008 the Mullett charges were filed by Mr Taylor at the Melbourne Magistrates’ Court. A copy of the charges was served on Mr Mullett.[118]
[118]CB 5040; T 898 (Taylor).
(n) The Director of Public Prosecutions took over the prosecution as soon as the charges were filed.[119]
[119]T 899 (Taylor).
(o)Mr Mullett was suspended without pay pursuant to s 79(2) of the PR Act on 29 July 2008; that is the day on which he was charged (‘the second suspension’).
(p)Mr Mullett remained contracted to TPA until 18 March 2009.
(q) On 11 May 2009 Mr Mullett’s committal hearing was commenced in respect to the three indictable charges:
a) perjury,
b) perjury, andc) attempting to pervert the course of justice.
Magistrate Couzens discharged Mr Mullett on the ‘attempt to pervert’ charge but committed him for trial on the two perjury charges.[120]
(r)On 25 June 2009 the Director of Public Prosecutions entered a nolle prosequi in this Court in relation to the two perjury charges. The summary alternatives (charges 3 and 5) were withdrawn in the Magistrates’ Court.[121]
[120]CB 5114; CB 23.
[121]CB 5116M; CB 5114; CB 5117.
D. Analysis
MOTIVE
Underpinning the plaintiff’s claims against all defendants is the proposition that they acted for an ulterior purpose — namely to rid Ms Nixon of an implacable political foe. I have set out the background to the Nixon/Mullett relationship in paragraphs [1] - [11] and [24] - [38]. It is clear that over the course of about five years Mr Mullett had publicly opposed Ms Nixon’s reforms to the PR Act, organised ‘no confidence’ votes in her, survived a factional war with Nixon supporters, and been accused of bullying in the context of heated opposition with an opposing factional leader, following which he became the subject of a long running investigation into the bullying complaint.
Throughout this time Mr Mullett continued to attack Ms Nixon in TPA newsletters, accusing her of undermining the internal affairs of the Association for political benefit, conducting a smear campaign against the Armed Offender Squad, and covertly (through ESD) carrying out surveillance on TPA.
I consider Ms Nixon was entitled to feel publicly humiliated by Premier Bracks’ pre-election deal with TPA in 2006, which lead Messrs Faine and Mitchell to enquire ‘… who’s running the police …? ’. At about the same time, Four Corners aired its ‘bullying’ program and Mr Mullett responded by publicly accusing Ms Nixon of colluding with others to destabilise TPA, and having a ‘disgraceful management approach to law and order’.
In evidence Ms Nixon adopted a sanguine approach to this decade long assault, asserting that her ongoing professional relationship with Mr Mullet, whilst at times robust,[122] was generally polite and constructive.[123] Senior counsel for Ms Nixon contended that those acting for Mr Mullett had cherry picked certain events from a greater whole, and that Ms Nixon’s evidence was uncontradicted by Mr Mullett. Whilst it is correct that, on occasion, squabbles were resolved amicably enough, I doubt that Ms Nixon could have remained as phlegmatic as she now asserts. The duration, frequency, and ferocity of Mr Mullett’s attacks upon her in my view would have tested the patience of the most stoic of Chief Commissioners. I have listened to (where possible) and/or read Ms Nixon’s relevant public statements and whilst a sense of exasperation occasionally emerges there is little to suggest that her patience was exhausted by Mr Mullett. Notwithstanding this, I am comfortably satisfied that by 2007 the relationship was toxic and that Ms Nixon had a healthy motive for wishing Mr Mullett’s removal from the role of Secretary of TPA.
[122]T 684; 692 (Nixon).
[123]T 692; 700; 705; 707–8 (Nixon).
This of course does not mean that Ms Nixon did act for that collateral purpose. The plaintiff contends that I should use this motive, along with other circumstantial evidence, to conclude that the real purpose behind the two suspensions and the prosecution of Mr Mullett was for Ms Nixon to rid herself of this uncompromising adversary. The three defendants say, in substance, that I ought accept their direct evidence that their actions were lawful, appropriate, and entirely uninfected by any hidden purpose.
THE FIRST SUSPENSION
CHRISTINE NIXON: MISFEASANCE IN PUBLIC OFFICE
MIPO is alleged only against Ms Nixon insofar as the first suspension is concerned. To establish this tort, Mr Mullett must establish the following elements:
(a) there was an invalid or unauthorised act;
(b) the act was carried out maliciously;
(c) by a public officer;
(d) in the purported discharge of his/her duties; and
(e) that act caused him damage.
As I have observed, subparagraphs (c) and (d) are not in dispute.
(a) Was the First Suspension invalid or unauthorised?
Relevantly s 79 of the PR Act read:
(1)If the Chief Commissioner reasonably believes a member of the force to have committed an offence punishable by imprisonment, the Chief Commissioner may cause an investigation into the matter under the criminal law to be commenced and may, at any time during that investigation —
…
(c)suspend the member from the force with pay.
This was the power that Ms Nixon stated she exercised to impose the First Suspension.[124] The plaintiff submits that the First Suspension was invalid or unauthorised because:
(i) the Chief Commissioner ‘did not and could not have any reasonable belief that Mr Mullett had committed any offence punishable by imprisonment’;[125] and
(ii) the Chief Commissioner had not commenced an investigation into the matter under the criminal law and thus did not comply with s 79(1) so as to enliven the suspension power.
[124]The suspension notice itself states ‘s 79(1)’ next to the box checked ‘without pay’ (CB 2764) ; see also at T 596 (Nixon), Ms Nixon stated, ‘I believed that Mr Mullett had committed criminal offences and that therefore, under the provisions of the Police Regulation Act, my responsibility was to suspend him with pay’.
[125]ASOC [32].
(i) Reasonable belief
The plaintiff contends that a number of factors taken in combination circumstantially demonstrate that Ms Nixon could not have had a reasonable belief that Mr Mullett had committed an offence punishable by imprisonment. These are set out in paragraph [31] of the ASOC. The plaintiff submits that Ms Nixon’s direct evidence on this aspect ought to be rejected.
Before determining this issue, I should set out the substance of Ms Nixon’s evidence on this aspect. To the extent that this involves some repetition of the narrative, I apologise.[126] I shall also set out very brief summary of the related evidence given by A/C Cornelius.
[126]I have taken the view that a little repetition is preferable to requiring a reader to continually refer back to a fuller narrative.
·She met with Mr Brouwer, the Director of the OPI, on 14 September 2007. She was told that Mr Ashby, Mr Linnell and Mr Mullett were suspected of leaking confidential OPI investigation information to individuals who were suspects in a murder investigation.
·On 17 September 2007 she met with Mr Brouwer for a longer meeting. Also present were A/C Cornelius and A/C Ashton. They were advised that the OPI had carried out telephone intercepts that had revealed Mr Linnell passing on information to Mr Ashby and then to Mr Mullett. The information was then passed on to others who were the subject of the Operations Briars murder investigation.
·Mr Brouwer proposed that A/C Cornelius and D/C Overland become involved in a ‘sting’ operation that involved passing on misinformation to one or other of the suspected ‘leakers’ and then tracking its progress through surveillance.
·This was a briefing. The OPI did not wish anything from Victoria Police (other than the Cornelius/Overland involvement).
·A/C Cornelius was asked by Ms Nixon to monitor the OPI investigation and to keep her abreast of things.
·Ms Nixon sought advice from the VGSO who briefed Mr Hanks QC to consider any offences that may have been committed, and advise on how the Victoria Police contract employees, Mr Linnell and Mr Ashby, might be dealt with.
·She learned that the OPI was proposing to conduct public hearings into Operation Diana.[127] She arranged for A/C Cornelius to view the proceedings from a live feed in Mr Brouwer’s office. A/C Cornelius emailed information to her on a rolling basis throughout the public hearings. At the end of each day, she would receive a verbal update from A/C Cornelius. Occasionally, D/C Overland and a VGSO solicitor would also attend the verbal briefing.[128]
[127]T 587 (Nixon).
[128]T 587-588 (Nixon).
·She read the transcripts of the public hearings as they came to her[129] and was also informed by various media reports.
[129]T 588 (Nixon).
·At the end of Mr Mullett’s first day of evidence (14 November 2007), she met a range of advisors. A brief was sent to Mr Hanks QC requesting advice in conference.
·On the morning of 15 November 2007, a meeting was held at the Police Headquarters conference room. A number of people were present, including Mr Hanks, Ms Nixon, Ms McIntyre (VGSO), D/C Overland, A/C Cornelius and Inspector Richard Koo. The only two people present at the meeting who were not legally qualified were Ms Nixon and her Chief of Staff, Ms Steedman.[130]
[130]T 589 (Nixon).
·The purpose of the meeting was to consider Mr Mullett’s evidence of 14 November and ‘to work through what steps’ ought be taken in relation to Mr Mullett. ‘It was an opportunity for all those people … to express their views and to help (her) think through the decision that (she) might make in regard to Mr Mullet’.[131]
[131]T 590 (Nixon).
·Mr Hanks stated that he believed Mr Mullett had committed criminal offences under the PR Act relating to the OPI rules and also under the TI Act by sharing intercepted information.[132] No one in the room disagreed with Mr Hanks’ advice.
[132]T 591 (Nixon).
·Once those at the meeting came to the view that ‘Mr Mullett had committed those offences’,[133] the ‘next steps’ had to be considered, including the possible suspension of Mr Mullett. The view was that Mr Mullett should be suspended from Victoria Police with pay. It was up to TPA to determine what steps they would take regarding his position in that organisation.[134] Whilst Ms Nixon had made the decision that there was sufficient evidence to suspend Mr Mullett, it was an interim decision and she wished to wait until his evidence was complete before a final decision was made.[135]
[133]T 591 (Nixon).
[134]T 592 (Nixon).
[135]T 592 (Nixon).
·There was discussion about who should sign the suspension notice. The normal model, being that that the A/C ESD (A/C Cornelius) would be the signatory, was deemed inappropriate due to A/C Cornelius’ involvement in the matter. The same reasoning applied to D/C Overland.[136] Ms Nixon thought Mr Walshe was unavailable and eventually the view was reached that she was the person who should sign the notice. Many senior police officers were members of TPA, which also was a consideration. Mr Koo raised concerns about her signing the notice and the perception of bias that might arise because the normal process had not been followed, however Ms Nixon determined that signing the notice was a responsibility she ‘needed to take because it was the proper thing to do’.[137]
[136]T 593 (Nixon).
[137]T 593/4 (Nixon).
·Mr Koo was asked to formulate the suspension notice, with A/C Cornelius signing it ‘in regard to the review provisions.’
·At this stage, it was discussed that if Mr Mullett wished to exercise his review option, Victoria Police would think about engaging ‘external people’ to hear the review matters.[138]
[138]T 595 (Nixon).
·Ms Nixon made the final decision to suspend Mr Mullett on the afternoon of 15 November 2007. She read A/C Cornelius’ rolling email log of Mr Mullett’s evidence and spoke to him on the phone. She took into account ‘all of the advice and material and the transcripts of the hearing’.[139]
[139]T 595-6 (Nixon).
·Ms Nixon said she suspended Mr Mullett because she believed ‘he had committed criminal offences, and that therefore, under the provisions of the (PR) Act, (her) responsibility was to suspend him with pay and that the suspension notice should be served that day.’[140]
[140]T 596 (Nixon).
·Ms Nixon said that no public or private criticism made of her by Mr Mullett, or by TPA, played any part in her decision to suspend Mr Mullett.[141]
·No position taken by Mr Mullett or TPA in relation to reforms to the PR Act, factional disputes, or industrial negotiations allegations played any part in her decision to suspend Mr Mullett.[142]
·No position taken by Mr Mullett in relation to the commencement of, or handling of, bullying allegations made against Mr Mullett played any part in her decision to suspend him.[143] Similarly, Mr Mullett’s response to an investigation into Victoria Police abuse of the email system (the ‘Kit Walker’ investigation) played no part in her decision to suspend Mr Mullett.[144]
·The suspension papers were served on Mr Mullett on the afternoon of 15 November 2007. Ms Nixon caused a short email to be sent to Victoria Police members advising them of the suspension.[145]
·She did not attempt to influence TPA on whether or not to take any action against their secretary.[146]
·On the afternoon of 15 November, Ms Nixon gave a ‘doorstop’ press conference in the foyer of Police Headquarters in Flinders Street. She said she did so to reassure the community that appropriate steps had been taken to deal with the very public damage sustained to the reputation of Victoria Police by six days of public hearings involving Messrs Ashby, Linnell and Mullett.[147]
·She said that she had not made any decision to prosecute Mr Mullett on 15 November 2007 and, in fact, never made any such decision.[148]
·On 16 November 2007, Ms Nixon signed a fresh suspension notice as there were defects in the original notice of 15 November, relating to a date. In the corrected notice, the process for Mr Mullett to seek permission to enter a police station was altered so that that permission was to be sought from the Chief Commissioner, rather than the officer-in-charge of every individual police station he wished to enter.[149] This was done because it was thought that any particular officer-in-charge may find it difficult to refuse Mr Mullett entry.
·Ms Nixon gave a further press conference on the morning of 16 November 2007.[150] In it, she stated that she thought it would be very difficult ‘for us to continue a positive relationship with (Mr Mullett)’.
[141]T 596-7 (Nixon).
[142]T 597 (Nixon).
[143]T 597 (Nixon).
[144]T 597 (Nixon).
[145]T 598 (Nixon).
[146]T 599 (Nixon).
[147]T 601 (Nixon).
[148]T 602 (Nixon).
[149]T 603 (Nixon).
[150]T 606 (Nixon); CB 5292ff.
A/C Cornelius gave the following evidence relevant to the circumstances surrounding the first suspension:
· A/C Cornelius has been an A/C since 2005, he was A/C ESD from December 2005 to May 2010;[151]
[151]T 804 (Cornelius).
· He explained his professional responsibilities as A/C ESD as follows:
“My role was to manage and conduct the business of the department, and it was also to provide advice to the Chief Commissioner and her executive on ethical and integrity matters, and also to take a lead role across Victoria Police in the improvement and enhancement of the ethics and integrity of members and employees of the Victoria Police Force.”[152]
[152]T 807 (Cornelius).
· Pursuant to this role, he would meet with the CCP at least quarterly, as well as when required to discuss specific matters.
· The role also required A/C Cornelius to have contact with the OPI, which is, in effect, the oversight body for the Victoria Police Force.
· In 2007, A/C Cornelius was a member of the Operation Briars Investigation Oversight Committee, as well as the Commissioner’s Advisory Committee in respect of Operation Briars. Mr Linnell was also a member of the advisory committee. The Advisory Committee provided the CCP with advice on managing the public response to the conduct of the investigation. Mr Linnell was responsible for developing the media strategy.
· On 14 September 2007 A/C Cornelius became aware of Operation Diana by way of a meeting with Graeme Ashton.[153] The meeting went for one and half to two hours.[154] A/C Cornelius took notes of the meeting, to which he was taken in his evidence.
I consider that the plaintiff has failed to establish the ‘reasonable and probable cause’ element of the tort of malicious prosecution against Mr Taylor.
It is unnecessary to consider whether Mr Mullett suffered damage arising from the prosecution.
Kieran Walshe: Misfeasance in public office
I have set out the elements of this tort at [16].
Mr Mullett must prove:
(a) Mr Walshe authorised
(i) the second suspension; or
(ii) the criminal prosecution of Mr Mullett.
(‘the relevant act’); and
(b) the relevant act was invalid or unauthorised; and
(c) the relevant act was done maliciously; and
(d) the relevant act caused damage to Mr Mullett.
The plaintiff’s ASOC appears to allege two causes for action in MIPO against Mr Walshe, specifically that:
The Second Defendant acted in misfeasance of his public office by:
(a)suspending the Plaintiff, on about 29 July 2008, from Victoria Police without pay without having caused any investigation by Victoria Police into the matters of the alleged misconduct, the subject of the criminal charges, and, in the circumstances such suspension was unlawful (‘the s 79(2) suspension’); and
(b)authorising and instituting and/or authorising the continued prosecution of the criminal prosecutions when there was no investigation by Victoria Police into the Plaintiff’s alleged misconduct, the subject of the criminal charges, prior to authorising and instating the criminal proceedings and, therefore, there were insufficient prospects of convictions being secured (‘authorisation of the prosecution’).
Leaving causation and damages to one side, the disputed elements of the tort on each of these allegations are that: (i) that the act was invalid or unauthorised, and (ii) that the act was done maliciously.
In his closing address, Mr Panna described the MIPO claims against the Second Defendant as ‘’tied in” with the Second Defendant’s alleged MP of the Plaintiff. He contended that “if there was insufficient reasonable and probable cause to charge, and the charges were not laid, then there could not have been a suspension under s 79(2) because that’s premised upon a charge being laid”. He later reiterated and submitted that “if malicious prosecution is established, that is, there was no proper basis for – no reasonable and probable cause to authorise the charges, then Mr Walshe’s exercise of the power under s 79(2) to suspend (the plaintiff) then must also fall in the same way, because if there was no basis to charge him, there was no basis to suspend him.”
On the element of malice, Mr Panna said that the same facts that would “establish malice on the basis of malicious prosecution…would establish malice in relation to the misfeasance in public office”.
These comments, as I understand it, constituted the plaintiff’s submissions on the first two contested elements of the tort for both MIPO allegations against the Second Defendant.[306] Following the paucity of submissions on this aspect of the plaintiff’s case, Ms Orr suggested that it seemed these actions had been abandoned (and that if they hadn’t been abandoned, that they ought to be).
[306]Lengthier submissions were made concerning causation and available damages.
While it is not entirely clear to me how the plaintiff puts his case concerning these two claims, I accept that they were ultimately pursued. I will thus assess the evidence against the elements of the tort.
The s 79(2) suspension
(i) unauthorised or invalid?
In the ASOC, the first element is particularised by a repetition of the particulars of MP, along with the assertion that the suspension, which had been pursuant to s 79(2) of the PR Act, was not authorised by that section because ‘no investigation was pending’.
The ‘no investigation’ statutory argument was not pursued at trial in relation to this allegation against Mr Walshe. The jurisdictional fact required for a s 79(2) suspension is that the person is charged under the criminal law with an offence punishable by imprisonment. This legislative precondition was met when the charges were laid on 29 June 2009. Unlike a suspension pursuant to s 79(1), there is no requisite investigation for a s 79(2) suspension.
The plaintiff’s invalidity argument on the s 79(2) suspension is thus reduced to his ‘flow on’ argument, being that, because the charges that triggered the suspension were authorised without reasonable or probable cause, the suspension itself must be invalid.
No submissions were made about this proposed construction of the s 79(2) power. As I have said, the section states in clear language that the requisite jurisdictional fact is that the person is charged under the criminal law for an offence punishable by imprisonment. Had the plaintiff wished to make submissions about whether or not a person authorising a s 79(2) suspension was required to make enquiries into, and assess the validity of, the underlying charges, I would have heard them. No such arguments were raised. It is not my role to seek out avenues of argument left unexplored by a plaintiff, particularly in the course of judgment, by which stage a defendant has no opportunity to respond. In the circumstances, I do not find that the Second Defendant’s suspension of Mr Mullett on 29 July 2008 was an invalid or unauthorised act.
(ii) done with malice?
It is nonetheless prudent to consider the malice alleged, as it relates to the s 79(2) suspension. Given the ‘flow on’ argument, the MIPO claim against the Second Defendant for the s 79(2) suspension is essentially reduced to the same factual allegations as the MIPO claim against him for his role in authorising the brief (including that the second defendant did not conduct any investigation or enquiry into the plaintiff’s alleged misconduct). I will assess the malice aspect of these claims together below.
Authorisation of the prosecution
(i) unauthorised or invalid?
Mr Walshe’s authorisation of the brief was ostensibly made within the scope of his powers as an Assistant Commissioner of Police. He denied that he acted at Ms Nixon’s behest and maintained consistently that his authorisation was thorough and independent. The plaintiff sought to demonstrate that it was logistically impossible for Mr Walshe to devote the 25 odd hours he claimed to the authorisation process. I shall examine this contention further when considering the allegation made against Mr Walshe of MP. It is sufficient to state that I accept the direct evidence of Mr Walshe as to the steps he took in the authorisation process and that the plaintiff has not made good the logistical impossibility argument. There is no evidence of procedural unfairness in this authorisation process, and even if the logistical impossibility argument led me to a conclusion of careless administration (which it does not), that is insufficient to demonstrate that the authorisation of the charges was an ‘invalid or unauthorised’ exercise of power.
(ii) done with malice?
I was impressed by the wealth of case law on which I was addressed by both parties at the trial of this matter. Bearing this in mind, the plaintiff’s submission, made orally and in writing, that, in effect, the same facts are relied upon to prove malice in the MIPO actions against the second defendant as in the MP action, is unsatisfactory. The authorities make it clear that the concept of ‘malice’ has a discrete and different meaning in the context of each of the two torts. The malice required for MP (which I will examine in due course) concerns an improper purpose for pursuing a prosecution other than the proper invocation of the criminal law. In MIPO, where targeted malice is alleged, a ‘mental’ aspect must be made out in respect of the intention to injure, and where non-targeted malice is alleged, there is a requisite standard of at least reckless indifference to the invalidity of the act, and at least recklessness towards possible injury to the plaintiff. Contending that ‘the same facts would establish malice’ is of little assistance.
As I have observed, while aspects of the tort of MIPO remain unsettled, where ‘targeted malice’ is alleged, the element is made out where the plaintiff demonstrates that a defendant committed an invalid or unauthorised act with the intention to cause injury or harm. I agree with the defendants’ characterisation that the plaintiff’s MIPO claims were put squarely on a ‘targeted malice’ basis.
There is no evidence, in my view, that Mr Walshe acted with intention to harm or injure Mr Mullett. The plaintiff alleges that malice can be inferred on the part of Mr Walshe because he suspended Mr Mullett without conducting an investigation into the plaintiff’s misconduct. In my view, there is no basis to this hypothesis. There is no legislative requirement to conduct such an investigation before the engagement of the suspension power in s 79(2). Had there genuinely been no investigation by any investigating body, then an inference of malice may have been available. Here, however, as I have observed, there had been an exhaustive investigation by the OPI, which, in its later stages, had been joined by Victoria Police. I consider it idle to suggest that Mr Walshe should have conducted or caused to be conducted his own investigation before suspending the plaintiff, and no inference can flow from his failure to do so. To the extent that the plaintiff argued malice by suggesting that Mr Walshe exercised no independent judgment and was simply implementing the malicious wishes of Ms Nixon,[307] there is no evidence of this either directly or inferentially, and direct evidence to the contrary.[308]
[307]Written opening Mullett, [82].
[308]T 974 (Walshe); 1002; 1003; 1004.
Kieran Walshe: Malicious Prosecution
To establish this tort the plaintiff must prove to my comfortable satisfaction:
(a) Mr Walshe initiated the prosecution;
(b) he did so maliciously;
(c) he did so without reasonable and probable cause;[309] and
(d) he suffered damage.
[309]The elements (a) that the proceedings were terminated.
It is common ground that the proceedings were terminated in the plaintiff’s favour by the entry of a nolle prosequi on 25 June 2009.
Initiation of prosecution
I am satisfied that Mr Walshe, in authorising the prosecution and thus clearing the way for Mr Taylor to lay charges, initiated the prosecution. I consider that Mr Taylor and Mr Walshe jointly initiated the prosecution. The defendants did not argue to the contrary.
Malice
Mr Mullett repeats the allegations of the malice against Mr Walshe that were made against Mr Taylor. The plaintiff alleges that malice can be inferred from the following factors:[310]
[310]ASOC, [63] and [64].
· Authorising and instituting the continued prosecution of the criminal proceedings when there was no reasonable or probable cause and therefore there were insufficient prospects for conviction.
· Mr Walshe did not interview or question the plaintiff about the alleged misconduct forming the substance of the criminal charges.
· He did not conduct any inquiry into the alleged misconduct.
· He was aware of the OPI reference to the DPP and that the DPP had not responded.
· He did not seek advice from the DPP notwithstanding that he knew the DPP had received a brief of evidence and that the OPI had requested advice from the DPP.
· Mr Walshe actively supported the first defendant in her desire to cause the removal of the plaintiff as secretary of TPA ‘and thereby remove (the plaintiff’s) rigorous opposition’ to (Ms Nixon’s) industrial relations reforms.[311]
· The pre-existing acrimonious relationship, which, to Mr Walshe’s knowledge, existed between Ms Nixon and Mr Mullett.[312]
[311][65(g)] of the ASOC the plaintiff repeats the claims made against Ms Nixon in [60] of ASOC.
[312][65(g)] of the ASOC the plaintiff repeats the claims made against Ms Nixon in [60] of ASOC.
It will be apparent that many of the factors said to give rise to an inference of malice on the part of Mr Walshe are identical to those that I have considered when analysing Mr Taylor’s liability for this tort, and I refer to my reasons set out at [85] to [127] above. I considered Mr Walshe to be a careful and conscientious witness. In my view, he was unshaken in cross-examination.
To establish malice in the context of this tort, the plaintiff must establish that Mr Walshe acted out of an improper purpose, that is, a purpose other than the proper invocation of the criminal law, and that that illegitimate or oblique purpose was the sole or dominant purpose actuating Mr Walshe in initiating the prosecution.
For the following reasons, the plaintiff has failed to establish this element:
(a) There was no requirement (either statutory or practical) for Mr Walshe to interview or question the plaintiff. He had the benefit of an exhaustive investigation by the OPI.
(b) There was no requirement (either statutory or practical) for Mr Walshe to conduct his own further inquiry into the alleged misconduct. It would have been absurd to do so. By this I do not mean that he was not required to analyse critically the material before him before authorising the brief; that is an entirely different requirement to a suggested further, or parallel, investigation.
(c) There was no requirement (either statutory or practical) that he delay authorising the brief until advice had been received from the DPP, or that he seek advice himself from the DPP.
(d) Assertions that Mr Walshe actively supported Ms Nixon in removing Mr Mullett for an illegitimate or oblique purpose are, for reasons that I have already expressed, entirely unproven. There is direct evidence to the contrary. It is unproven that Ms Nixon acted for that purpose and it is unproven that Mr Walshe supported her in so acting.
(e) The plaintiff contends that the fact that there was no reasonable or probable cause to institute the prosecution is evidence of malice. I have concluded that there was reasonable and probable cause to instigate a prosecution. I shall refer to this under the next heading in these reasons.
The plaintiff has failed to prove the malice element of the tort of malicious prosecution.
Reasonable and probable cause
Objective limb
Mr Walshe had before him the same material as Mr Taylor. For present purposes, I have assumed to be the material within the contents of the Hand-up-Brief that was available as at June 2009. I repeat my conclusions about this material set out at [122] of these reasons. In my view, Mr Walshe’s decision to prosecute was supported by sufficient material in relation to all charges against Mr Mullett. My observations about the failure of Mr Taylor to discern the well-hidden flaw in the Wilcox delegation process apply equally to Mr Walshe and I repeat them. Mr Mullett has not established this objective limb of this element.
Subjective limb
Mr Mullett must establish that Mr Walshe did not honestly conclude that the material before him ‘was such as to warrant setting the process of the criminal law in motion’.[313] I have set out Mr Walshe’s evidence-in-chief on this aspect at paragraph [76] of these reasons. He asserted that he considered the three briefs over the course of a couple of weeks. By Mr Walshe’s evidence, the brief was delivered to him on or around 15 July 2008.[314] He took the briefs home on the night they were delivered.[315] In answers to interrogatories, he stated, ‘I reviewed the documents that comprised the brief of evidence between the 18th and 29th July’.[316] Mr Taylor’s diary records that at about 1.30 pm on Friday 25 July 2008, Mr Taylor collected the brief from Mr Walshe’s office. Assuming these dates to be correct, the plaintiff submitted that the evidence established that Mr Walshe did not commence examining the brief until 18 July and it was collected in the afternoon of 25 July. The plaintiff then, by reference to Mr Walshe’s diary and answers he gave in cross-examination, established:
[313]See A v NSW, [80].
[314]T 965 (Walshe), though this date was questioned by the plaintiff in the cross-examination of Mr Taylor, see T 946ff (Taylor).
[315]T 970 (Walshe).
[316]CB 176.
(a) That he was in Hamilton on Saturday 19 and Sunday 20 July 2008. He left home at midday Saturday and arrived back in Melbourne at 4.00 pm Sunday.
(b) On 21 July, he was initially on duty in Melbourne and then travelled to Swan Hill, arriving there at 7.10 pm and staying overnight.
(c) On 22 July, he travelled from Swan Hill to Mildura, arriving there at 3.30 pm and staying overnight.
(d) On 23 July, he travelled back to Melbourne, arriving at 4.30 pm.
(e) On 24 July, he flew to Canberra and back, returning at 5.00 pm.
(f) He formed the decision to authorise at least the Mullett charges by 25 July 2008.
Mr Walshe’s evidence on this aspect is also set out at paragraph [76] of these reasons. He understood his role was to conduct a careful and objective assessment of the evidence to satisfy himself that the evidence supported the proposed charges. He stated he took the briefs home and read them and worked on them at night, although some of the work was done at the office.
I have stated that Mr Walshe was an impressive witness. I accept that his schedule may have been tight, but I am entirely satisfied that he did a careful and objective assessment of the evidence against Mr Mullett. I have set out the major features of the case against Mr Mullett as likely disclosed in the Hand-up-Brief at paragraph [107]. The allegations against Mr Mullett were not wide ranging. In my view, it would have taken perhaps an hour or two to conduct the Mullett assessment. Whilst there is some superficial attraction to the logistical analysis undertaken by Mr Tovey QC and Mr Panna QC on behalf of the plaintiff, I am not prepared to reject Mr Walshe’s direct evidence on the basis of that logistical analysis, or for any other reason or combination of reasons advanced by the plaintiff.
The plaintiff has not demonstrated the element of reasonable and probable cause as part of the tort of MP alleged against Mr Walshe.
It is unnecessary to consider whether the impugned act caused damage to Mr Mullett.
I should mention that, while the plaintiff put his MIPO actions against the first and second defendant squarely on a ‘targeted malice’ basis and did not dispute the defendants’ characterisation at trial that these MIPO actions were put on that basis, the plaintiff’s ASOC uses the language of ‘recklessness’ in its particularisation of the torts alleged.[317] It will be recalled that, to establish malice for the purpose of establishing MIPO, a plaintiff must prove that a defendant was at least ‘recklessly indifferent’ to the invalidity or unauthorised nature of the impugned act, and that there was a foreseeable risk of harm to the plaintiff. I have found that neither the first nor second defendant committed an invalid or unauthorised act in relation to the first suspension and prosecution of Mr Mullett (in the case of the first defendant) or in relation to the prosecution and second suspension of Mr Mullett (in the case of the second defendant). Where no invalid or unauthorised act has been committed, it is an arid exercise to contemplate the defendants’ state of mind in these circumstances. Even if these cases had been argued on the basis of ‘reckless indifference’ the torts could not have been established on the evidence.
E. Conclusion
[317]See for example ASCO the heading ‘Particulars of Malice or Recklessness’ at [62] and [66].
Mr Mullett has failed to prove a valid cause of action against any of the defendants. He has failed to establish that his prosecution was groundless and unjustified, and he has failed to establish any misuse or abuse of power by a holder of public office. I have found that Ms Nixon had a sound motive for wanting Mr Mullett removed from his position at TPA – he was a fierce adversary. The existence of this motive, however, simply does not prove that it actuated Mr Mullett’s subsequent suspensions and prosecution. I am positively satisfied that it did not.