Noye v Crimmins
[2002] WASC 106
NOYE & ANOR -v- CRIMMINS [2002] WASC 106
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 106 | |
| Case No: | CIV:2490/2000 | 15 FEBRUARY & 8 MARCH 2000 | |
| Coram: | MASTER BREDMEYER | 10/05/02 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | JEFFREY HOWARD NOYE LINDSAY GORDON RODDAN LYNETTE BERYL CRIMMINS |
Catchwords: | Application to strike out Malicious prosecution Was the defendant who gave evidence to the police instrumental in the police inspector laying the charges Conspiracy |
Legislation: | Nil |
Case References: | Cabassi v Vila (1940) 64 CLR 130 Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 Galland v Mineral Underwriters Ltd [1977] WAR 116 Mahon & Anor v Rahn & Ors (No 2) [2000] 1 WLR 2150 Martin v Watson [1995] 3 WLR 318 McKellar & Anor v Container Terminal Management Services Ltd & Ors [1999] FCA 1101 Munnings v Australian Government Solicitor (1994) 118 ALR 385 Noye v Prior [1971] AC 470 Wan v Sweetman (1998) 19 WAR 94 Williams v Hursey (1959) 103 CLR 30 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Commonwealth Life Assurance v Smith (1938) 59 CLR 527 Cumberland v Clark & Ors (1996) 39 NSWLR 514 Dalgety Australia Ltd v de Vahl Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984 Danby v Beardsley (1880) 43 LT 603 Emanuele v Hedley (1997) 137 FLR 339 Gibbons v Duffell (1932) 47 CLR 520 Haddrick v Heslop & Raine (No 1) (1848) 12 QB 267 Herniman v Smith [1938] AC 305 Hicks v Faulkner (1878) 8 QBD 167 Love v Robbins (1990) 2 WAR 510 Mann v Jacombe (1960) 78 WN (NSW) 635; [1961] NSWR 273 Mann v O'Neill [1996] 191 CLR 204 Marrinan v Vibart [1962] 3 All ER 380 Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 Mohammed Amin v Bannerjee [1947] AC 322 Noye & Anor v Thoy [2001] WASC 62 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 Roy v Prior [1971] AC 470 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 Watkins v Lee (1839) 5 M & W 270; 151 ER 115 Watson v M'Ewan [1905] AC 480 Wicks v Fentham & Anor (1791) 4 TR 247; 100 ER 1000 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
LINDSAY GORDON RODDAN
Second Plaintiff
AND
LYNETTE BERYL CRIMMINS
Defendant
Catchwords:
Application to strike out - Malicious prosecution - Was the defendant who gave evidence to the police instrumental in the police inspector laying the charges - Conspiracy
Legislation:
Nil
Result:
Application allowed in part
(Page 2)
Category: B
Representation:
Counsel:
First Plaintiff : In person
Second Plaintiff : In person
Defendant : Mr T M Hobday
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
Defendant : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Cabassi v Vila (1940) 64 CLR 130
Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187
Galland v Mineral Underwriters Ltd [1977] WAR 116
Mahon & Anor v Rahn & Ors (No 2) [2000] 1 WLR 2150
Martin v Watson [1995] 3 WLR 318
McKellar & Anor v Container Terminal Management Services Ltd & Ors [1999] FCA 1101
Munnings v Australian Government Solicitor (1994) 118 ALR 385
Noye v Prior [1971] AC 470
Wan v Sweetman (1998) 19 WAR 94
Williams v Hursey (1959) 103 CLR 30
Case(s) also cited:
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
Commonwealth Life Assurance v Smith (1938) 59 CLR 527
Cumberland v Clark & Ors (1996) 39 NSWLR 514
Dalgety Australia Ltd v de Vahl Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Danby v Beardsley (1880) 43 LT 603
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Emanuele v Hedley (1997) 137 FLR 339
Gibbons v Duffell (1932) 47 CLR 520
Haddrick v Heslop & Raine (No 1) (1848) 12 QB 267
Herniman v Smith [1938] AC 305
Hicks v Faulkner (1878) 8 QBD 167
Love v Robbins (1990) 2 WAR 510
Mann v Jacombe (1960) 78 WN (NSW) 635; [1961] NSWR 273
Mann v O'Neill [1996] 191 CLR 204
Marrinan v Vibart [1962] 3 All ER 380
Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466
Mohammed Amin v Bannerjee [1947] AC 322
Noye & Anor v Thoy [2001] WASC 62
Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674
Roy v Prior [1971] AC 470
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35
Watkins v Lee (1839) 5 M & W 270; 151 ER 115
Watson v M'Ewan [1905] AC 480
Wicks v Fentham & Anor (1791) 4 TR 247; 100 ER 1000
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1 MASTER BREDMEYER: This is an application by the defendant to strike out the plaintiffs' statement of claim which is dated 21 June 2001. The application is on two bases: (1) as not disclosing any reasonable cause of action or to strike out pars 24, 25, 26 and 28 as scandalous, frivolous, vexatious, or as likely to prejudice, embarrass or delay the fair trial of the action, (2) as an abuse of the process of the court. I will consider first the application to strike out for not disclosing any reasonable cause of action.
2 The first cause of action pleaded is that of malicious prosecution.
3 According to the House of Lords in Martin v Watson [1995] 3 WLR 318 at 320, the elements of this tort, as taken from Clerk and Lindsell on Torts are:
"In actions of malicious prosecution, the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff."
4 Parker J in Wan v Sweetman (1998) 19 WAR 94 at 101 sets out five elements of the tort of malicious prosecution. The first four are similar to those identified by the House of Lords. The fifth is that the plaintiff suffered damage to his person, property or reputation as a result of the malicious prosecution. Parker J states the first element in this way:
"The proceedings complained of were instituted or continued by the defendant."
5 In the present case, the plea that the defendant was the prosecutor of the charges, or that she instituted or continued the charges - which were later terminated in favour of Messrs Noye and Roddan - is found in the opening words of par 7 of the statement of claim:
"7. Sometime between 20 January 1993 and 11 November 1993 the Defendant, by means of wilfully false representations to one Inspector Stephen John Robbins ('Inspector Robbins') regarding the First Plaintiff's investigation, and the Second Plaintiff's alleged corruption of the First Plaintiff in the course of the Noye Investigation, induced Inspector Robbins to swear
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- Complaints ('the first Complaints') against both Plaintiffs."
- In the same paragraph then follow 10 particulars of the wilfully false representations made by the defendant to Inspector Robbins.
6 Later paragraphs refer to other complaints sworn against the plaintiffs. For example, par 9 refers to a complaint sworn by Inspector Robbins against the first plaintiff on 11 November 1993. Paragraph 10 refers to complaints sworn by Inspector Robbins against the second plaintiff, also on 11 November 1993. Paragraph 12 refers to a complaint sworn by Inspector Robbins against the first plaintiff on 14 February 1994 (the substituted complaint against the first plaintiff dated 14 February 1994). Paragraph 13 tells of a substituted complaint sworn by Inspector Robbins against the second plaintiff on the same date (the substituted complaint against the second plaintiff dated 14 February 1994). Paragraphs 14 refers to a further three complaints sworn by Inspector Robbins on 14 February 1994 against both plaintiffs (the three new complaints against both plaintiffs) which relate to insurance fraud.
7 It is not pleaded that the defendant swore the complaints which set in train the criminal proceedings against the plaintiffs. It is said that she, by wilfully making false representations, induced Inspector Robbins to swear the complaints.
8 Martin v Watson (supra) concerned next door neighbours. Mr Martin and his spouse had had acrimonious relations with Mrs Watson and her spouse for many years. Mrs Watson accused Mr Martin of standing on a ladder and exposing himself to her over the garden fence. She reported him to the police. A detective constable wrote down her complaint and laid charges against Martin for indecent exposure. The constable arrested Mr Martin, who was bailed to attend court the next day. He did so, but the Crown Prosecution Service offered no evidence and he was discharged. He then sued Mrs Watson for malicious prosecution.
9 Mr Martin succeeded in his action and was awarded damages against the defendant by a Judge in the County Court. The constable took Mrs Watson's statement and was responsible for obtaining the warrant for the arrest of Mr Martin, and for drawing up the charge. The constable was unable through illness to give evidence at the trial so there was no direct evidence of the effect of Mrs Watson's accusation on his mind. The trial Judge said, which is quoted in the House of Lords decision at 327:
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- "The absence of evidence in this case from Detective Constable Haynes as to the history of the matter leading up to him obtaining the warrant is unfortunate and has made my task more difficult than it otherwise would have been. However, in the light of the defendant's further untruthful accusations about the plaintiff made to Police Constable McKiernan on 7 August and to another officer about an alleged incident on 9 August, when nothing seemed to be happening about executing the warrant, as well as her other wholly unfounded accusations to the police about earlier alleged incidents and her evidence generally, I consider that she was clearly determined that action should be taken and I am prepared to infer that that must have made such an impression on Detective Constable Haynes as to result in him applying for the warrant, notwithstanding the fact that the case depended on her word alone; and of course, as I have said, she was quite willing to give evidence and to accompany Detective Constable Haynes to the magistrates' court on 27 July to assist him in obtaining the warrant.
In the circumstances of this particular case, therefore, I find that the defendant was indeed actively instrumental in setting the law in motion against the plaintiff. To hold otherwise would, I consider, be an affront to a proper sense of justice. She wanted the plaintiff to be arrested and dealt with from the start, and that is what she achieved in causing Detective Constable Haynes to obtain the warrant from the magistrate. She was, as I say, the only person who could testify about the alleged indecent exposure. I therefore find that the defendant is to be regarded as a prosecutor in setting the law in motion against the plaintiff."
- Immediately after that quotation, Lord Keith said that the trial Judge had reached the right conclusion for the right reasons.
10 The headnote conveniently collects and summarises a number of passages from Lord Keith's judgment as follows:
"Held, allowing the appeal, that where a complainant had falsely and maliciously given a police officer information indicating that a person was guilty of an offence and the facts relating to the alleged offence were solely within the complainant's knowledge, so that the officer could not have exercised any independent discretion and the false information was the determining factor in a decision to prosecute, the complainant, although not technically the prosecutor, could
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- properly be said to have been the person responsible for the prosecution having been brought, by having been actively instrumental in setting the law in motion, and as such could be sued for malicious prosecution by the individual wrongfully charged; and that, accordingly, since the plaintiff had proved that the defendant had been in substance the person responsible for the prosecution having been brought and that she had done so maliciously and without reasonable and probable cause, the defendant was liable in damages for malicious prosecution."
11 Martin v Watson (supra) was a simple case on its facts because the complainant, Mrs Watson, was the only witness to the alleged offence. Her influence on the policeman who laid the charge was thereby greater than it would have been if there had been a number of witnesses.
12 Mahon & Anor v Rahn & Ors (No 2) [2000] 1 WLR 2150 was a more complicated case. In that case, an action was brought by Mahon and another, two London stockbrokers, against Rahn and others, who were members of a private Swiss bank, for malicious prosecution. The Swiss bankers had made allegations against the brokers to the Serious Fraud Office (SFO) of the police and to The Securities Association (TSA), a financial services regulatory body investigating the stockbrokers' fitness to conduct investment business. The brokers were later charged by the police, and, at the end of the prosecution case, the Judge ruled that there was no case to answer. The brokers then sued the Swiss bankers for malicious prosecution and for defamation. The Swiss bankers brought a strike-out application which failed before Eady J, but which succeeded on appeal before the Court of Appeal. I quote from the headnote of that case at 2151:
"(2) That, for the purposes of the tort of malicious prosecution, in a simple case a lay informant could be regarded as a prosecutor where he desired and intended the prosecution, the facts were so peculiarly within his knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment and he procured the institution of proceedings by the professional prosecutor either by furnishing information which he knew to be false or by withholding information which he knew to be true or both; that even in a more complex case, where a prosecuting authority received evidence from a variety of sources and had to decide in its discretion whether it possessed sufficient evidence to justify setting the law in motion against the defendants, those tests
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- were appropriate, although their application would be more difficult and caution was required; that, since the S.F.O. had carried out an extensive investigation and acquired a substantial volume of evidence independently of the defendants, who had not approached the S.F.O. spontaneously with their own account of the relevant transaction, and since the S.F.O. as a skilled organisation set up to handle prosecutions involving serious fraud had exercised its own independent discretion, there was no real prospect of the plaintiffs proving at a trial that the defendants were properly to be regarded as prosecutors; and that, accordingly, the malicious prosecution claim would be dismissed."
13 In that case, Eady J, on the strike-out application, had the benefit of the evidence for the prosecution at the trial to assist him to determine whether the Swiss bankers should be considered as the prosecutors of the criminal action. He also had before him (1) the schedule of charges against Mr Mahon; (2) the schedule of witnesses at the Central Criminal Court; (3) a list of revised statements; (4) a witness statement from Mr Lee; (5) a witness statement from Mrs Garlick; (6) a 41-page transcript of Mrs Garlick's evidence on 28 July 1993; and (7) and 11-page transcript of Mr Lee's evidence at the trial. (Mr Lee and Mrs Garlick were officers of the SFO.) In addition, Eady J had before him two documents prepared by a lawyer for the Swiss bankers and submitted to the SFO which complained about the brokers' conduct.
14 Particulars of how it is said that the defendant induced Inspector Robbins to swear the complaints are given in pars 7 and 24 of the statement of claim. Paragraph 24 also provides particulars of how the defendant continued the proceedings. But I am concentrating, for the moment, on the instigation of the charges laid by Inspector Robbins. The plaintiffs argued that the facts relating to the alleged offences were solely within Mrs Crimmins' knowledge, so that Inspector Robbins could not have exercised any independent discretion and her false representations of the true facts were the determining factors in his decision to lay charges. Thus, it was argued that Mrs Crimmins, although not technically the prosecutor, was the person responsible for the prosecutions having been brought. The 10 particulars of false representations given in par 7 all relate to statements and allegations made by Mrs Crimmins to the police. Whether the police acted solely on those representations, or whether they made their own inquiries, I do not know. I would need evidence from the police as to what inquiries, if any, they made apart from receiving statements from Mrs Crimmins, and what procured Inspector Robbins to
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- lay the charges. If there were investigations and inquiries made of persons other than Mrs Crimmins, prior to the charges being made, I would not expect those matters to be pleaded in the statement of claim. They would not be relevant to the plaintiffs' case. They would be relevant to the defendant's case. The defendant could plead by way of defence that Inspector Robbins made inquiries of A, B and C, in addition to receiving statements from Mrs Crimmins so that she was not, in fact, the one responsible for the prosecutions being brought.
15 In Mahon v Rahn (supra), the Court of Appeal, in determining the question of whether the Swiss bankers were, in truth, the prosecutors, had before them all the prosecution evidence run at the criminal trial. The defendant brokers were acquitted at that trial after the prosecution had led its evidence, when the Judge ruled that the defendants had no case to answer. In the present case, I have a paucity of information as to whether the police made other inquiries, apart from receiving the complaints of Mrs Crimmins, and whether the police decision to prosecute was procured by the evidence of Mrs Crimmins alone, or whether the decision was based on her evidence and evidence from other persons.
16 Mr Hobday referred me to par 26 of the statement of claim which states that on or between 20 January 1993 and 8 October 1998 the defendant (Mrs Crimmins) and police officers Thoy and Gwilliam, and others:
"Wrongfully, corruptly and maliciously combined and conspired against themselves and with others to injure both plaintiffs (the conspiracy) by unlawful means including presenting false depositions, giving false sworn evidence and presenting false information to police."
- Mr Hobday says this plea shows that it was not solely the defendant's false information to the police which produced the charges.
17 I am unable, on the incompleteness of the information before me, to say that the plaintiffs' claim that Mrs Crimmins procured the prosecution of the charges is so obviously untenable that it cannot possibly succeed. I have much less evidence before me as to the totality of the matters before Inspector Robbins which prompted him to lay the charges, than the Court of Appeal had in Mahon v Rahn. The three insurance fraud charges against Mr Roddan resulted in a finding of no case to answer. But he was indicted on them nevertheless. I note that the successive charges laid against these plaintiffs initially in November 1993 and later in February 1994 resulted in three indictments against the plaintiffs dated 5 December
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- 1994, 1 October 1997 and 2 June 1998. A nolle prosequi was presented against all three indictments and all three complaints on 8 October 1998. The indictments would list the names of the prosecution witnesses. If persons other than Mrs Crimmins are named there, the court would need to know whether some or any of them gave statements to the police prior to the initial charges being laid and, if so, what part (if any) did those statements play in Inspector Robbins' decision to lay charges against Messrs Noye and Roddan?
18 I am not willing to dismiss the plaintiffs' action on this application on the basis that the defendant could not, or did not, procure the prosecutions. She may, or may not, have done so. The full picture is not known at this time.
19 I now turn to that part of the strike-out application which attacks the plea of conspiracy found in pars 26 to 28 of the statement of claim. The elements of conspiracy are that the plaintiffs have to show that there was an agreement between two or more persons to carry out a lawful or unlawful act which causes pecuniary loss: Munnings v Australian Government Solicitor (1994) 118 ALR 385. A conspiracy by unlawful means, which is what is pleaded here, is when the conspirator has agreed to do an unlawful act or to use unlawful means to obtain their objective. Unlawful acts include the commission of a crime, or a tort, or breach of statutory provisions: Williams v Hursey (1959) 103 CLR 30.
20 The defendant's counsel says that the pleadings in relation to conspiracy are, in fact, surplusage, with the action in substance being one for malicious prosecution, the only further act alleged in this second plea is that the act of malicious prosecution was performed by multiple parties in concert. Defence counsel argues that it is not open for a party to plead, as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that substantive wrong. The pleadings in relation to conspiracy should therefore be struck out. Authorities cited for that were Galland v Mineral Underwriters Ltd [1977] WAR 116, and McKellar & Anor v Container Terminal Management Services Ltd & Ors [1999] FCA 1101. In Galland, the statement of claim pleaded both conspiracy to commit conversion and conversion itself. The plea was that the defendants, and each of them, had wrongfully and with intent to injure the plaintiff conspired and agreed to obtain the sum of $2,924,624 from the plaintiff and pay the same to Terra Mining. It was further pleaded that, in pursuance of that conspiracy, the defendants did various things and wrongfully converted the money of the plaintiff. On a strike-out application, considered on appeal by the Full Court, the majority of the
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- Court said that the plea was embarrassing and should be struck out. They said where there is a conspiracy to commit a tort (in this case, conversion), and the tort is committed, there are not two torts, but only one; it being in this case the tort of conversion. While the conspiracy to commit that tort will implicate the parties to the conspiracy as tortfeasors, the conspiracy is not a separate tort and is not an element of the cause of action for the tort of conversion. The pleadings therefore raised unnecessary issues of fact. Burt CJ, who was in the majority said that a conspiracy is not actionable unless damage to the plaintiff is caused by the performance of it. Damage is an essential element of the tort. It followed from this that the damage caused by the conspiracy and the conversion was the same, the loss of the same sum of money. He said, at 120, that given that the conspiracy was an agreement entered into to convert the respondent's money and given that the respondent's money was converted, and that is pleaded in the tort of conversion, he considered that the two torts could not both be actionable. Although he could find no authority on the point, he considered that on the assumption that the defendants had committed one tort, and that was the tort of conversion, it followed that the tort of conspiracy could not stand. That tort was therefore struck out.
21 I do not consider those principles apply here. Although there is considerable overlap between the plea of malicious prosecution and the plea of conspiracy, and the latter plea relies on many of the factual matters pleaded in the former tort, I consider the two are logically distinct. The tort of malicious prosecution may fail if the plaintiffs cannot establish that Mrs Crimmins, in truth, was the one who caused the prosecutions to be laid or maintained. If that plea failed for that reason, and for that reason only, then the plea of conspiracy could succeed if the plaintiffs can show that she conspired with Thoy and Gwilliam to have these charges laid against the plaintiffs which were subsequently nolle'd.
22 The next challenge to the plea of both malicious prosecution and conspiracy is based on Cabassi v Vila (1940) 64 CLR 130 that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. Further, no civil action lies with the suit of any person for any statement made by a witness in the course of giving evidence in judicial proceedings however false and malicious it may be. The rule, which is founded on public policy, applies to any form of action.
23 In that case, Miss Cabassi sued a Mr Ferrando for damages for assault for a broken jaw. She claimed that he had punched her and fractured her jaw. At the civil trial before a Magistrate, Ferrando and four
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- or five others, including Vila, gave evidence for the defendant that Ferrando had not broken her jaw, but rather that she had been locked in an upstairs room after an argument and had jumped out the window and injured herself when she fell onto the ground. The Magistrate gave judgment for the defendant. Miss Cabassi then brought a separate action against Vila, Ferrando and another for having given false evidence in that first trial. The causes of action were (a) a claim to set aside the Magistrate's judgment on the ground that it had been obtained by fraud, (b) damages for assault, or alternatively for a new trial in the Magistrates' Court and (c) damages for alleged conspiracy to give false evidence before the Magistrate. In relation to the third cause of action, conspiracy, the High Court held that the statement of claim was demurrable and thus bad in law. It is clear that a witness cannot be sued in a civil action in respect of anything said in the course of his evidence in the witness box. If he has committed perjury, then the correct remedy is to take that up with the criminal authorities and have him prosecuted for perjury. No civil action lies in relation to that. Williams J at 149 said:
"It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box. In Semnan v. Netherclift Cockburn CJ said : 'If there is anything as to which the authority is overwhelming, it is that a witness is privileged to the extent of what he says in the course of his examination.' In the same case Amphlett JA said : 'This rule "was established not for the benefit of witnesses, but for that of the public and the advancement of the administration of justice, to prevent witnesses from being deterred by the fear of having actions brought against them from coming forward and testifying to the truth:.'
In Munster v Lamb Brett MR quoted with approval a passage from the Judgment of Crompton J in Henderson v. Broomhead: 'No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action'."
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- charges being laid. I consider the pleading is therefore distinguishable from that held to be bad in Cabassi v Vila, with the one exception of the reference to her evidence at the committal which is found at par 24(j), which should be struck out.
25 This plea is but one of 12 pleaded instances of the defendant's institution and continuation of the malicious prosecution. The plea will not collapse with its striking-out. Contrast these facts with those in Noye v Prior [1971] AC 470 where the plaintiff sued the defendant for malicious arrest. In that case, the defendant, a solicitor, had sworn evidence against the plaintiff in the second action to have him arrested on warrant. The House of Lords declined, on appeal on a strike-out application, to strike out the plaintiff's attack on the defendant's evidence in the other court. It was held that the existence of the well-settled rule that no action would lie against a witness for words spoken in given evidence in court, even if the evidence was false or malicious, did not mean that an action brought in respect of an alleged abuse of process involved or necessitated the giving of evidence. Moreover, the evidence given in the first court to get the arrest warrant, was given ex parte. The target of that application was not present and had no opportunity to contest the evidence.
26 The conspiracy alleged in this case is a conspiracy to lay false charges against the plaintiff. It does not involve examination of the evidence given in the committal hearing, or the result of that hearing. Contrast that with Cabassi v Vila, where the conspiracy alleged is that the defendants gave false evidence in the Magistrates' Court, thereby resulting in the plaintiff losing her civil case. Cabassi v Vila was a direct challenge to the truthfulness of the evidence given in the earlier court case. This present pleading does not challenge any evidence given in court, subject to the minor exception which I have mentioned and which I have struck out.
27 The defendant's next argument is that every particular pleaded in pars 7 and 24 of the statement of claim describes the defendant providing evidence to the police or the Director of Public Prosecutions in relation to serious criminal matters. The argument is that public policy requires that a person should not be subject to civil action for providing evidence to the police or the Director of Public Prosecutions, specially when the complaints were terminated by way of a technicality [this is a reference to the nolle prosequi] and specially since there are no facts pleaded in the statement of claim which suggest that any doubt has been thrown upon the evidence of the defendant. The argument is that the police and Director of
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- Public Prosecutions have the professionalism to weigh critically and test the reliability of complaints and information which might be affected by self-interest or ill-will. To proceed on the premises that, whenever it emerges that false information had been given to the police, the intelligent exercise of the discretion to prosecute was impossible, did not reflect desirable public policy: Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187, and Mahon v Rahn (supra).
28 The argument that there are no facts pleaded in the statement of claim which suggest that any doubt has been thrown upon the evidence of the defendant, needs analysis. It is true that there are no facts pleaded in the statement of claim showing that statements made by the defendant to the police are false. There are allegations that her representations to the police are false, but, in the tort of malicious prosecution, it is not necessary for the plaintiffs to prove that the allegations made by the defendant to the police, which caused the prosecution to be begun or continued, are false. They are big issues of fact which the Court need not examine. It is only necessary for the plaintiff to prove that the court proceedings were determined in the plaintiffs' favour, either by a withdrawal of the charges (such as a nolle prosequi), or by an acquittal. Secondly, I know from general knowledge and newspaper reading, etcetera, that Mr Roddan was convicted of the theft of diamonds at Mount Argyle and I think I am right that Mrs Crimmins was a witness against him in those proceedings. I agree with the argument that public policy requires that a person like Mrs Crimmins should not be subject to civil action for providing evidence to the police, and giving evidence in court, in relation to that successful prosecution. This statement of claim is not about her complaints to the police and her evidence in court in relation to the theft of diamonds. This statement of claim is concerned with an alleged cover-up between the two plaintiffs, the investigating policeman and the offender, in relation to the diamond theft and in relation to an act of insurance fraud involving both of them. I do not consider that these two causes of action offend the important principle of public policy mentioned in Lamont's case, which I readily endorse.
29 Lamont's case is a very leading case on malicious prosecution. There are, in fact, very few cases on malicious prosecution in the Commonwealth and Lamont's is one of them, being a decision of the New Zealand Court of Appeal, comprising Richardson, McMullin and Barker JJ. It is quoted at length and with approval by the House of Lords in Martin v Watson (supra) and by the English Court of Appeal in Mahon v Rahn (supra). It is a case of malicious prosecution and its statements of law are particularly relevant in ascertaining whether the
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- defendant, in that case the insurance company, was by virtue of its leading role and representations to the police, in effect, the prosecutor. In that case, a fire occurred on Mr Lamont's property in which an A-frame building was destroyed. Lamont claimed that certain contents in the building were destroyed and he made a claim on the insurance company for the loss of those contents. The insurance company sent out an adjustor, and carried out its own inquiries as to the cause of the fire, as did the police. The insurance company staff considered that the fire had been deliberately lit by Lamont and complained of that to the police. Eventually, Mr Lamont was charged with attempting to obtain money from the insurance company through false pretences. At the end of the Crown case in the High Court, in which the insurance officials gave evidence against him, he was acquitted. The Judge ruled that he had no case to answer. He then sued the insurance company for malicious prosecution and succeeded in getting a judgment in his favour, including $20,000 as punitive damages in a jury trial. The insurance company took that decision on appeal to the Court of Appeal and the appeal was allowed and a new trial ordered. A new trial was ordered because of the inadequacy of the trial Judge's direction to the jury on the question of whether the insurance company prosecuted the plaintiff. That is a matter which, in this case, I have already ruled on in my discussion of the plea of malicious prosecution. As previously stated, I am not willing to rule in this strike-out application that it is plain and obvious that it was not Mrs Crimmins' representations to the police which caused the plaintiffs to be prosecuted on the two charges mentioned.
30 Richardson J in Lamont at 199 is speaking of New Zealand, but I am sure his decision will be followed in Australia, as it has been in England. I am also sure that the social conditions in the three countries are similar so as to make his remarks apt to Australia also. I quote the following passage at 199:
"In the modern New Zealand context particular weight should in my view be given to two considerations. One is that the police have the training and experience to investigate a possible offence impartially and with skill and in that process to assess whether the evidence justifies the invoking of the criminal process. Then if it does to commence and conduct that process. And the police have the professionalism to critically weigh and test the reliability of complaints and information which may be affected by self-interest or ill-will. To proceed on the premise that wherever it emerges that false information was given to the police the intelligent exercise of the discretion to prosecute was
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- impossible, does not reflect the ordinary performance by the New Zealand police of their important responsibilities.
The other is that members of the community should be encouraged to carry out their civic responsibility to support the police in the performance of the central function of investigating and prosecuting apparent breaches of the criminal law. Members of the community should be secure in the knowledge that in providing the police with information they are not exposing themselves to an allegation of malicious prosecution. So the circumstances in which they are to be regarded as having instigated a prosecution should be rare and exceptional. In this regard it needs to be remembered that there are other sanctions against misconduct on the part of those ostensibly assisting the police. Making a false statement to the police is an offence under s 24 of the Summary Offences Act 1981 and perjury is of course a crime; and civil liability may arise in defamation or for false imprisonment.
It does not follow that there is any call for modifying the test which has been developed in the decisions of this Court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution."
31 Subject to the striking-out of par 24(j), the defendant's application to strike out the statement of claim based on no reasonable cause of action, and abuse of process, should be dismissed.
32 The defendant's chamber summons to strike out the statement of claim also attacked pars 24, 25, 26 and 28 as scandalous, frivolous or vexatious and on the basis that they might prejudice, embarrass or delay
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- the fair trial of the action. I did not hear much argument on the paragraphs, but it might be helpful if I consider them briefly.
33 The attack, as I understand it, was on the particulars given in these paragraphs. I consider the particulars given in par 24 are in order. The particulars in pars (a), (b) and (c) are sparse, but I think in order, as they are introductory to the more detailed particulars which follow in (d) onwards.
34 I consider the plea in par 26 is probably satisfactory. It covers a lengthy period of five years, but particulars of the overt acts of the conspiracy involving the defendant and the two others are given in par 28.
35 Paragraph 28(a) adopts all the matters pleaded in pars 7, 8, 24, 25 and 26. I need not concern myself with pars 24, 25 and 26, as I have just discussed them, but I have glanced through the particulars in pars 7 and 8. I consider par 7(e) needs better particulars. It states:
"The First Plaintiff had conducted himself in such a manner during the Noye investigation, as to convince her that he had been corrupted in the course of his official duties by the Second Plaintiff."
- Some particulars of that need to be given. It may be that the particulars are contained in other paragraphs, but, if so, reference should be made to them. As it stands at the moment, 7(e) is devoid of particulars of the first plaintiff's conduct referred to. I also consider some brief particulars need to be given of par 7(i) as to the fraud committed upon the SGIO. Was it a fraud to do with theft of jewels or what? I realise it may be the same fraud the subject of charges against both plaintiffs referred to in 14(1), (2) and (3) and elsewhere, but this needs to be clarified.
36 I also mention par 28(d) which reads:
"Wilfully, falsely and maliciously alleging to Deputy Commissioner Leslie Donald Ayton ('Ayton') one of Inspector Robbins' superiors, in 1994, that she had been sexually assaulted in July 1993 by a police officer whilst in witness protection, in order to promote herself as a witness to truth in that matter and the Argyle Diamonds matter."
37 I consider some particulars of that assault need to be given. Probably the name of the officer and the place is sufficient. The date of July 1993 is probably sufficient.
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38 I will hear the parties on the orders to be made and costs.
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