Noye v Robbins
[2010] WASCA 83
•4 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NOYE -v- ROBBINS [2010] WASCA 83
CORAM: OWEN JA
PULLIN JA
BUSS JA
HEARD: 16 & 17 MARCH 2009
DELIVERED : 4 MAY 2010
FILE NO/S: CACV 85 of 2007
BETWEEN: JEFFREY HOWARD NOYE
Appellant
AND
STEPHEN JOHN ROBBINS
Respondent
FILE NO/S :CACV 121 of 2008
BETWEEN :JEFFREY HOWARD NOYE
Appellant
AND
STEPHEN JOHN ROBBINS
First RespondentTHE STATE OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :NOYE -v- ROBBINS; NOYE -v- CRIMMINS [2007] WASC 98
File No :CIV 2231 of 1999, CIV 2490 of 2000
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :NOYE -v- ROBBINS [No 6] [2008] WASC 266
File No :CIV 2231 of 1999
Catchwords:
Malicious prosecution - Misfeasance in public office - Criminal charges laid against police officer for corrupt conduct - Charges terminated by nolle prosequi - Whether defendant had reasonable and probable cause of laying charges - Significance of finding that defendant had an honest belief there were good grounds for prosecution - Whether defendant was actuated by malice
Costs - Defendant a police officer - All defendant's costs met by the State under a funding agreement - Indemnity principle - Operation of indemnity principle when liability already discharged
Legislation:
Nil
Result:
CACV 85 of 2007 - Appeal dismissed
CACV 121 of 2008 - Appeal dismissed
Category: B
Representation:
CACV 85 of 2007
Counsel:
Appellant: Mr B W Walker SC, Mr B L Nugawela & Mr N P Lindsay
Respondent: Mr M T McKenna
Solicitors:
Appellant: Williams Handcock Lawyers
Respondent: Hunt & Humphry
CACV 121 of 2008
Counsel:
Appellant: Mr B W Walker SC & Mr N P Lindsay
First Respondent : Mr M T McKenna
Second Respondent : Mr B P King
Solicitors:
Appellant: Williams Handcock Lawyers
First Respondent : Hunt & Humphry
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Angor Pty Ltd v Ilich Motor Co (1992) 37 FCR 65
Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2008] NSWSC 114
Backhouse v Judd [1925] SASR 395
Coshott v Woollahra Municipal Council [2008] NSWCA 176
Davis v Gell (1924) 35 CLR 275
Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Gregory v Portsmouth City Council [2000] 1 AC 419
Gundry v Sainsbury [1910] 1 KB 645
Harold v Smith (1860) 5 H & N 381; 157 ER 1229
Hyams v DPP [1975] AC 55
Inglis v Moore (No 2) (1979) 25 ALR 453; 46 FLR 470
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 2) [2003] VSC 212
Johnson v Santa Teresa Housing Association (1992) 83 NTR 14
Lenthall v Hillson [1933] SASR 31
Lewis v Averay (No 2) [1973] 1 WLR 510
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
Noye v Robbins ]No 6] [2008] WASC 266
Nye v The State of New South Wales [2003] NSWSC 1212
Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147
Tarry v Pryce (No 2) (1987) 88 FLR 270
TNT Bulkships Ltd v Hopkins (1989) 65 NTR 1
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
Wilson v Richmond River Shire Council [2000] NSWSC 71
Table of Contents
Owen JA's reasons
Background
The genesis of the saga
The first phase - the Thoy report
The second phase - the Noye report
Noye visits Barry Crimmins
The first confession of wrongdoing
The third phase - Lavender and Gwilliam
Noye is suspended and charged
Committal, indictment and nolle prosequi
Noye sues Robbins and Lynette Crimmins
The pleadings
The trial judge's reasons ([2007] WASC 98)
Malicious prosecution
The institution of relevant proceedings
Proceedings terminated in plaintiff's favour
Conduct without reasonable and probable causeMalice
Misfeasance in public office
Abuse of process
Injurious falsehood
Damages
Grounds of appeal and notice of contention
Ground 1 – malice
Ground 2 – the D'Anna report
Ground 3 – insurance fraud
Ground 4 – misfeasance in public office
Ground 5 – aggravated and exemplary damages
Ground 6 – damages manifestly inadequate
Notice of contention
The appeal - an overview
The oblique and improper purpose
Information on which Robbins acted
Robbins' relationship with the DPP
The Australian Federal Police investigations
The trial judge's findings about Robbins' assessment of witnesses
Malice - some miscellaneous matters
The third signpost - the final analysis
A specific challenge - no separate consideration
Ground 4 - misfeasance in public office
The notice of contention
The questions posed in the overview
Damages
The trial judge's provisional assessment
The relevant grounds of appeal
Promotion
Aggravated and exemplary damages
Inferred error
The costs appeal (CACV 121 of 2008) - introduction
The trial judge's reasons ([2008] WASC 266)
Grounds of appeal
Indemnity principle
Operation of the indemnity principle when liability already discharged
No differentiation between existing and discharged liability
Previous cases
Flexibility of the indemnity principle
The delay
Conclusion
Pullin JA's reasons............................................................................................................... 106
The merits appeal (CACV 85 of 2007)
The costs appeal (CACV 121 of 2008)
Appeal CACV 85 of 2007
Notice of contention - ground 1
Appellant's grounds of appeal
Ground 1 - malice
Ground 1 - malice - pressure
Ground 1 - malice - pressure - merits
Ground 1 - malice - honest belief in the existence of a case against the appellant
Ground 1 - malice - reckless indifference
Ground 2
Ground 3
Ground 4
Ground 5 - aggravated and exemplary damages
Ground 6 - the finding that the appellant would not have been promoted
Contention - ground 2
Result - CACV 85 of 2007
CACV 121 of 2008 - the costs appeal
Buss JA's reasons................................................................................................................. 115
The Schedule
Relevant Chronology
OWEN JA: The appellant and the respondent in CACV 85 of 2007 were serving police officers. The respondent instigated a prosecution against the appellant for corruption in relation to an investigation in which he (the appellant) was involved. The prosecution was discontinued by the filing of a nolle prosequi. The appellant then sued the respondent for damages for malicious prosecution, abuse of process, injurious falsehood and misfeasance in public office.
This is an appeal against the decision of the trial judge dismissing the appellant's claim against the respondent. There are, in fact, two appeals: a challenge to the trial judge's findings on the merits and a complaint about certain costs orders that he made. The appeals were heard together and these reasons cover both. In the costs appeal there is a second respondent; namely, the State.
It is also an application by the respondent to strike out various paragraphs of the appellant's grounds of appeal. In these paragraphs the appellant contends that the trial judge erred in not finding that, in laying the charges, the respondent was actuated by malice because, among other things, the sole or dominant purpose of the prosecution was to relieve pressures brought to bear on the respondent and the police generally. The strike out application is brought on the basis that the allegation of 'pressure' was not pleaded in the statement of claim and only arose from the trial judge's questions to the witness. If pressure had been pleaded, the respondent would have led evidence to meet the allegation. It will be convenient to deal with the impugned paragraphs as part of the general analysis and to return to the strike out application if it becomes necessary.
It will be convenient if, in the balance of these reasons, I refer to the appellant as 'Noye' and to the respondent as 'Robbins'.
Background
The facts of this case are complex and involve a large cast of characters. I propose to commence with a short summary of the facts which gave rise to these proceedings. It will, however, be necessary to refer to some factual issues in more detail later in these reasons.
The appellant Jeffrey Noye was a Senior Sergeant in the Western Australian Police Service (WAPS). He was a detective who had been assigned to conduct the second of three phases of investigations into thefts of diamonds from Argyle Diamond Mines Pty Ltd in Western Australia (Argyle). The respondent Stephen Robbins was an Inspector in the Internal Affairs Unit (IAU) of the WAPS who had been assigned to investigate allegations of corruption by police officers, including Noye, arising from their involvement in the investigation of the thefts from Argyle.
I have included as a Schedule to these reasons a chronology of the main events. The chronology has been taken from [162] of the reasons for decision, supplemented by the parties' chronologies in the appeal book and from my own research of the materials in the court record.
In the summary of the facts that is to follow I will mention a number of people. There are some who may not be mentioned in the summary but whose names appear in the Schedule. They are Deputy Commissioner Zanetti, Commander Hancock (CIB), Detective Sergeant Lampard (Hancock's staff officer), Superintendent Alan Watson (IAU), Superintendant Storm (deputy to Assistant Commissioner Ayton), Superintendant William Round (staff officer to Assistant Commissioner Ayton), Superintendant Dalton (senior officer of the CIB Executive) and Superintendant Max Kiernan.
The genesis of the saga
In 1989 Argyle became concerned about the appearance of pink diamonds for sale in Europe and suspected that they were being illicitly sourced from its mine. As a consequence the police commenced an investigation into whether theft was occurring from Argyle. They came to suspect that one Lindsay Roddan had come into possession of some pink diamonds in suspicious circumstances and was operating with somebody within Argyle to steal diamonds from the mine.
Over the years there were, relevantly, three phases of the investigations by police officers into the alleged thefts of diamonds from Argyle. This was a long running and contentious investigation which gave rise to intense differences of opinion, rivalries, and mutual suspicions by officers of the WAPS who had been involved. This led to allegations of corruption by some officers against, not only Noye, but also against many other officers, including officers senior to him.
There were some unusual aspects to the WAPS investigations and they were regarded as inadequate and unsatisfactory by the senior security personnel of Argyle who, throughout the proceedings, attempted to conduct their own parallel investigations. This process led to resentment arising between the police officers conducting the investigations and their superiors on the one hand, and the senior personnel of Argyle on the other.
The first phase - the Thoy report
In January 1990 Robin Thoy, a Detective Senior Sergeant in the WAPS, commenced an inquiry into whether Roddan was involved in stealing diamonds from Argyle. He was assisted by Detective Sergeant Edward Gwilliam.
In February 1990 the police seized a number of diamonds held by a jeweller, Noel Newton, on consignment for Roddan. They believed that these diamonds had been illicitly sourced from Argyle, but did not know how this had occurred. Roddan demanded the return of the diamonds, which he claimed were not from Argyle and may have been sourced from another mine.
Meanwhile, Thoy and Gwilliam had been liaising with an Argyle security officer, Barry Crimmins, to try to determine how diamonds might have been obtained illegally from Argyle. Barry Crimmins said that he did not suspect that anyone at the site was stealing diamonds (aside from one person later found to be innocent). He did not divulge any knowledge of, or an association with, Roddan. In the balance of these reasons I propose to refer to Barry Crimmins as 'BC'.
As the investigation progressed Thoy and Gwilliam grew frustrated by what they regarded as their superiors' reluctance to grant them the resources and authority needed to run the inquiry effectively. The relationship between the WAPS and Argyle began to break down as officers within Argyle had misgivings with the way the inquiry was proceeding.
In the middle of 1990 the WAPS received an unexpected breakthrough when they learned, through an informant, that BC and Roddan were good friends. Some of Thoy's angst arose because he believed that information concerning his activities was being leaked to Roddan by sources within the WAPS. It was later to be revealed that it was BC (not police officers) who was passing information to Roddan. Around the same time an audit revealed that a number of diamonds were missing from WADT, a marketing vehicle for Argyle's diamonds.
In August 1990 interpleader proceedings were commenced in the District Court to determine whether Roddan or Argyle was entitled to the diamonds the WAPS had seized. Thoy and Gwilliam supported Argyle in these proceedings. The main thrust of Argyle's argument was that the pink diamonds held on consignment for Roddan could only have been sourced from Argyle.
Thoy was instructed (despite his objections) to cease his inquiries and in December 1990 he submitted his final report on the matter. The report revealed that there was a strong likelihood that diamonds had been illicitly sourced from Argyle and that Roddan was somehow involved. It also revealed that there were good reasons to continue the investigation. By this stage Thoy and Gwilliam harboured feelings of distrust and suspicion towards some of their superiors, whom they felt were preventing them from conducting an investigation that needed to be done.
The second phase - the Noye report
In February 1992 Deputy Commissioner Zanetti appointed Noye to prepare a preliminary report on whether the Argyle investigation should be reopened. On 20 February 1992 he presented a preliminary report in which he identified the probable existence of systematic stealing of diamonds from the Argyle mine by Argyle staff. The preliminary report recommended the continuation of the investigation on several fronts, identifying Roddan and BC as the major suspects, but also suggesting other courses of inquiry.
In early March 1992 Noye was instructed to proceed with the investigation. Gwilliam was assigned to assist him. As part of the inquiry, Noye interviewed a number of persons of interest, including Lynette Crimmins, BC's wife from whom he was separated. I will refer to Lynette Crimmins as 'LC'.
Noye came to doubt whether a case could be made against Roddan and BC, and whether any diamonds had actually been stolen from Argyle at all. Noye formed the view that it was possible that the seized diamonds had come from sources other than Argyle, or had been obtained legitimately from Argyle. Gwilliam, who was assisting Noye, became critical of Noye and believed that Noye was not pursuing the case aggressively enough. He refused to play any further part in the investigation and was vocal in his criticism of Noye.
There were several aspects of the investigation which were unusual. Some of them are referred to in the Schedule. Noye met Roddan alone on several occasions and did not record the conversations or take notes. These meetings would later arouse suspicions of corruption. Noye's explanation was that the purpose of those meetings was to try to move along the interpleader proceedings in the District Court.
In early September 1992 LC's home in Highgate was burgled. She phoned Noye, who was on other duties, and he told her to report it to the local police and promised that he would attend. He did come to the scene and helped her to fill in an insurance claim for her stolen property. The insurer later paid LC $16,000 to settle the claim.
In the course of his investigations into the Argyle diamond inquiry, Noye had liaised with representatives of the Australian Federal Police (AFP) to obtain access to classified police intelligence relating to Roddan and any of his associates. As a result, Noye was provided, on a confidential basis, with an AFP information report relating to information recorded concerning Roddan. It appears that Roddan had come under police notice for suspected involvement in drug dealing. This attention arose from the reports of a federal prisoner named D'Anna. The AFP investigation revealed contact between Roddan and D'Anna, although there was no evidence that directly implicated Roddan in any drug offence and there was little revealed about criminal propensity by Roddan. The AFP investigation ceased and the information (the D'Anna report) was relayed to the State police.
In September 1992 Noye submitted a draft report to his superiors and in late October 1992 he delivered his final report. In it, he concluded that there was insufficient evidence to sustain charges against Roddan, insufficient evidence to connect any person with the theft of diamonds from Argyle and insufficient evidence to substantiate the allegation that diamonds were being stolen from Argyle. But Noye went further and added this conclusion:
I can categorically state that I am confident that at no future time will any evidence be disclosed that will probably show that:
1. the diamonds claimed by [Roddan] were illicitly removed from the control of the complainant, [Argyle] by any person; and
2. there is any valid evidence of the existence of an organised consortium of mine staff and, or others, engaged in the theft of diamonds from the Argyle mine site or alluvial areas between 1988 and 1990.
Noye's report was submitted to Assistant Commissioner (Crime) Leslie Ayton, who had recently been promoted from the rank of Inspector and who was later to become Deputy Commissioner. Ayton conducted a preliminary evaluation of the report in conjunction with Superintendant Storm. Neither Ayton nor Storm nor anyone else in authority appeared to question Noye's investigation or recommendation.
Noye visits Barry Crimmins
The marriage between BC and LC broke down and the latter formed a relationship with Roddan. BC had moved to the Eastern States and was living in Shepparton. In October 1992 Noye went on leave and visited relatives in Victoria. While he was there he decided to visit BC in Shepparton. Until then Noye had only ever communicated with BC by telephone. He did not inform his superiors about his intentions, nor did he seek their permission to meet BC.
BC was later to tell Robbins that before Noye arrived he received a telephone call from LC in Perth advising him of Noye's imminent arrival and intimating that Noye was on Roddan's payroll. He (BC) said he found Noye's behaviour very unusual. Noye, having no other accommodation, ended up staying the night at BC's home. Noye behaved in a manner that BC took as confirming his suspicion that Noye was on Roddan's payroll.
The first confession of wrongdoing
The relationship between LC and Roddan, which commenced in mid‑1990 after the former had separated from BC, was not a match made in heaven. Roddan had exploited her and had borrowed money which was never repaid. According to LC, Roddan had been abusive towards her and had forced her into prostitution. In January 1993 LC was arrested after being involved in a series of acrimonious and violent altercations with Roddan. When she was taken into custody she made allegations that BC and Roddan were involved in stealing diamonds from Argyle. She also said that Roddan had boasted to her that the police investigation would go nowhere because he had Noye 'in his pocket' and that Noye was to be paid $200,000 from the proceeds of the thefts.
Following the allegations of corruption, the police reopened the investigation. They also decided to investigate the allegations of police corruption in relation to Noye's Argyle investigation.
I should mention here an incident that occurred in January 1993 and which was later to become a subject of the internal police disciplinary charge against Noye. Roddan telephoned Noye and explained that he had come into the possession of certain firearms and asked what should be done with them. Noye consulted the police computer records and ascertained that the firearms had been stolen in a break-in in November 1992. Rather than take any action himself to confiscate the firearms, Noye provided Roddan with information about the identity of the reputed owner of the firearms and suggested that Roddan communicate with the local police officer directly. Roddan, instead, contacted the owner and later returned the firearms and, in the process, collected a reward from the owner.
The third phase - Lavender and Gwilliam
The third phase of the Argyle investigation was carried out by Inspector Peter Lavender and Gwilliam. Although Lavender was nominally in charge, Gwilliam was the driving force of the investigation. Gwilliam was convinced in his own mind that Noye was corruptly involved with Roddan and BC. The animosity by Gwilliam towards Noye is known to have been deep rooted. In fact, Gwilliam was later to be charged with giving false evidence on oath in the Court of Petty Sessions involving Noye, which led to an indictment for perjury. The charges against Gwilliam were eventually withdrawn. It seems that Gwilliam repeatedly disobeyed Lavender's instructions during the course of this phase of the investigation.
At the same time, a separate internal review task force was set up to investigate the allegations of corruption levelled by LC. It was headed by Robbins.
In April 1993 Robbins, in company with a Victorian police officer, visited BC in Shepparton. BC made no admissions but seems to have been shaken by what he was told. Certain observations which BC made during the course of that interview caused Robbins to entertain more serious suspicions of Noye. In particular, BC told Robbins about Noye's November 1992 visit to Shepparton. The meeting concluded on the footing that BC would think about his position. His reaction led Robbins to conclude that he may be close to a breakthrough.
In August 1993, BC contacted Gwilliam and made arrangements to meet him in Kununurra. It seems that BC made this approach because of concerns about his position following Robbins' visit to Shepparton in April 1993. Gwilliam informed Robbins and they both flew there and interviewed BC. He confessed to stealing diamonds with Roddan and he also implicated LC. He also said that he had been told by LC that Roddan had boasted that he was paying off Noye, but had no direct evidence of corruption against Noye. The closest thing he had to evidence of corruption was Noye's strange visit to Shepparton. It seems clear that various inducements were offered to BC in exchange for his cooperation, although details were not disclosed during the trial.
The effect of BC's confession was to confirm in the minds of the police officers concerned that there had been thefts of diamonds from Argyle and that Roddan was involved. It also showed Noye to have been either dishonest or badly mistaken in his conclusions.
On 10 August 1993 Roddan was arrested and a detailed search of his house was conducted. Police allege that a copy of the D'Anna report was one of the documents found in Roddan's possession. Exactly how and where the report came to be discovered is not clear but Noye alleged it was 'planted' by Gwilliam (either at the house or later at police headquarters) in an attempt to discredit him.
Noye is suspended and charged
Robbins took advice from the Office of the Director of Public Prosecutions (DPP). On 12 November 1993 Robbins made complaints against Noye alleging indictable offences involving corrupt complicity relating to the Argyle investigation; namely:
(a)that Noye had, in his investigation, deceitfully misrepresented the true evidence available in relation to the offences committed by Roddan and BC, contrary to s 143 of the Criminal Code;
(b)that Noye had given Roddan a copy of a soil analysis report which was his duty to keep secret, contrary to s 81 of the Criminal Code; and
(c)that Noye had given Roddan a copy of the D'Anna report which was his duty to keep secret, contrary to s 81 of the Criminal Code.
He was immediately suspended from duty. A few days later he was also charged with four internal police disciplinary offences. Those charges were instituted by an Inspector Dawson but it is not in dispute that the information on which they were based was collected by Robbins in the course of his investigation. Those charges were:
(a)submitting a report on the Argyle diamond inquiry knowing it to contain false and misleading information;
(b)without lawful excuse, disclosing the D'Anna report to Roddan;
(c)without lawful excuse, disclosing confidential information, namely an Argyle soil analysis report to Roddan; and
(d)failing to take appropriate action after becoming aware that Roddan had stolen firearms in his possession.
In February 1994 the three charges of criminal offences were reformulated and a further three charges were added. These three extra charges were based on allegations made by LC that Noye had committed insurance fraud contrary to s 409(1)(b) of the Criminal Code when he had helped her fill out insurance claims after her house was burgled.
Noye denied both the criminal charges and the internal disciplinary charges.
BC was charged with offences relating to the theft of diamonds from Argyle. LC was also charged with related offences. They were indicted and on 8 February 1994 each pleaded guilty to those charges on arraignment before the District Court. On 16 February 1994 BC was sentenced to imprisonment and has since served that sentence. LC was released on a conditional bond. Each agreed to provide evidence against Roddan, implicating him in an unlawful conspiracy to steal diamonds from the Argyle diamond mine and to distribute them unlawfully in Western Australia and elsewhere. They also agreed to give evidence against Noye. In the transcript of the sentencing proceedings in the District Court, the sentencing judge noted that they had cooperated with police and had agreed to testify in respect of future prosecutions. It can be assumed that these considerations led to a lesser sentence than would otherwise have been imposed, although the quantum of the discount was not disclosed. I note, in this respect, that sentence was passed before the coming into operation of the Sentencing Act 1995 (WA) and thus before s 8(5) had been enacted.
Committal, indictment and nolle prosequi
In April 1994 a preliminary hearing was held to determine whether the charges against Noye ought to go to trial. At the end of this hearing Noye was committed to stand trial before the District Court on all six charges.
Between December 1994 and June 1998 three indictments were laid by the DPP against Noye. These indictments contained the allegations in relation to misrepresenting the evidence against the Argyle theft suspects, the handing over of the secret reports and the insurance fraud. Noye was also charged with disclosure of official secrets (namely, the D'Anna report) but this charge was never the subject of an indictment.
The first indictment was dated 5 December 1994. It was laid against Roddan and Noye jointly and contained nine counts; namely:
(a)three counts of conspiring with Roddan, BC and LC, or with Roddan and LC, to steal diamonds the property of Argyle over distinct, but overlapping periods between 15 March 1988 and 19 August 1993;
(b)three counts of insurance fraud relating to LC's insurance claim;
(c)one count of conspiring with Roddan to pervert the course of justice by deflecting or frustrating the possible institution of criminal proceedings against Roddan and others; and
(d)two counts of publishing a document (Argyle soil analysis report) which it was his duty to keep secret.
The second indictment (dated 1 October 1997) was also laid against Roddan and Noye jointly. It contained three counts, namely:
(a)one count of conspiring with Roddan to pervert the course of justice by deflecting or frustrating the possible institution of criminal proceedings against Roddan and others;
(b)one count of publishing documents (further Argyle soil analysis reports and a spectrum report) which it was his duty to keep secret; and
(c)one count of insurance fraud relating to LC's insurance claim.
The third indictment, again presented against Noye and Roddan jointly, was dated 2 June 1998. This contained a single count of conspiring with Roddan to pervert the course of justice by deflecting or frustrating the possible institution of criminal proceedings against Roddan and others.
In October 1998 the prosecuting counsel announced in open court that the Crown would not proceed with any of the three indictments then pending against Noye and Roddan, nor would it prosecute the charge relating to disclosure of the D'Anna report. A nolle prosequi was then presented to the court in relation to each of the three indictments and a separate nolle prosequi was handed up in relation to the charge of disclosing official secrets. In explaining the decision the prosecutor said there had been a number of recent events affecting the prosecution brief but that it was 'not presently in the interests of justice to detail them all, notwithstanding legitimate public interest in those matters'. One matter related to the health and general attitude of the key Crown witness who had 'indicated a firm resolve to give no assistance whatever to the Crown'. The prosecutor then said:
In the light of that and various other matters which have arisen, the Crown has reassessed its case. Whilst no one factor of itself would justify the termination of the prosecution, the combination of factors has led to the conclusion that the continuation of proceedings is no longer in the public interest. Accordingly, the Director of Public Prosecutions has signed a nolle prosequi to terminate the prosecution, which I now tender.
The trial judge was later to characterise these comments as amounting to a suggestion that, despite the Crown choosing not to prosecute, Noye was nonetheless guilty.
On 7 December 1993 Noye appeared before the Commissioner on the four internal disciplinary charges and pleaded not guilty. By that time the criminal proceedings had been commenced. The disciplinary proceedings were held over pending the resolution of the other charges against Noye and were eventually dropped. Noye never admitted, and was never convicted of, any of those charges.
Noye sues Robbins and Lynette Crimmins
Noye and Roddan commenced this action against Robbins for malicious prosecution, injurious falsehood and misfeasance in public office. They also brought an action against LC for malicious prosecution and injurious falsehood. Although Noye and Roddan were co-plaintiffs, they were separately represented. Roddan's solicitors were removed from the record and Roddan was unable to afford alternative representation. The trial judge made an order severing the interests of Noye from those of Roddan in both actions. Roddan's claims have not been pursued and they can be put to one side.
Noye's actions against Robbins and against LC were heard together. The trial judge dismissed the claim brought against Robbins and that is the subject of this appeal. His Honour also rejected the claim against LC based on malicious prosecution but upheld it in so far as it relied on a cause of action in injurious falsehood. He awarded damages of $272,676 against LC. An appeal was instituted by LC and that appeal has been compromised, although the terms of the compromise have not been revealed. His Honour also made a provisional assessment of the damages he would have awarded had Noye been able to establish a cause of action against Robbins. He assessed the level of damages that would have been awarded for malicious prosecution at $287,676. It may be that, through the compromise of the appeal instituted by LC, the damages award might have to take into account the extent to which it has already been satisfied or compromised.
Noye now appeals against the decision of the trial judge dismissing his claims against Robbins. He also appeals against the provisional assessment of damages. In the second appeal he challenges the trial judge's orders concerning the costs of the action against Robbins.
The pleadings
It is, I think, necessary to describe the pleaded case in a little more detail. The statement of claim contains the following essential points.
1.Robbins swore or made the initial complaints and continued, or was actively instrumental in continuing, all counts against Noye.
2.All complaints and counts were terminated in Noye's favour.
3.Robbins initiated and continued the complaint concerning the D'Anna report knowing that Gwilliam was a key witness and that he was biased against Noye and that Robbins had failed to investigate Gwilliam's complaints about Noye properly or at all.
4.Robbins initiated and continued all complaints and counts against Noye without reasonable and probable cause in that:
(a)he knew that LC was a key witness and that she was unreliable (being mentally unstable, inclined to use alcohol and drugs to excess, was biased against Roddan, had made inconsistent statements, had admitted criminal conduct and had a propensity to lie);
(b)he knew that Thoy and Gwilliam were biased against Noye, lacked objectivity in relation to the Argyle diamond inquiry and were trying to influence LC;
(c)he knew that BC, another key witness, was unreliable (having admitted to criminal conduct and having made different statements);
(d)he failed to interview Roddan about the allegations made by BC and LC or to obtain corroboration of their stories; and
(e)he did not believe (or was reckless as to the truth of) the evidence of BC and LC.
5.In initiating and continuing the complaints and counts Robbins was actuated by malice in that:
(a)he had no honest belief that Noye was guilty or that the evidence of the key witnesses was true; and
(b)he knew that a successful prosecution of Noye would secure for him a career promotion.
6.Robbins instigated and continued the internal police disciplinary charges against Noye without reasonable or probable cause and with malice.
7.The prosecution constituted unauthorised acts and a conscious wrongful exercise of power by Robbins, causing loss and damage to Noye.
8.Robbins' actions constituted a contumelious disregard for Noye's rights for which Noye was entitled to damages, including aggravated and exemplary damages.
In his defence Robbins said that when the complaints were made he considered that there was a reasonable prospect of conviction. He had received advice from the DPP to the effect that:
(a)there was a reasonable prospect of conviction;
(b)the matters ought to be put to a jury for determination; and
(c)the complaints to be made ought to be made.
In relation to the specific matters concerning reasonable and probable cause (for example the unreliability of Gwilliam and of BC and LC) he effectively joined issue, although he did say, specifically, that he did not doubt Gwilliam's honesty and that he conducted all investigations that he considered were warranted and necessary. In relation to the claim of malice, Robbins said that his application for a promotion to the substantive rank of Inspector was made and determined before the committal proceedings and that a prosecution of Noye (successful or otherwise) was not relevant to other promotions and was not considered in the course of his promotion.
The defence contains two specific areas of denial that I should mention. First, Robbins denied that the proceedings were terminated in favour of Noye, pleading that the entry of a nolle prosequi is not, of itself, a termination of the proceedings in favour of Noye. Secondly, Robbins denied that he continued or was actively involved in the continuation of the complaints and counts. He said that after November 1993:
(a)the DPP had the conduct of the prosecutions independently of the WAPS;
(b)he ceased to have the conduct of the complaints and the counts and only took action in relation to them under the direction of the DPP; and
(c)from July 1994 he ceased active duty with the Internal Affairs Unit and thereafter his only role was to provide a deposition at the request of the DPP.
The trial judge's reasons ([2007] WASC 98)
The reasons for decision are long and complex. What follows is no more than a brief summary. I have tried to distil the essential components of the reasons that relate (relatively) directly to the issues raised in the appeal. It may be necessary to look more closely at some aspects of the reasoning process in the analysis of those issues.
Having related the essential facts, the trial judge turned to the elements of the several causes of action and the way the facts applied to each cause.
In the balance of these reasons, unless otherwise indicated, a figure in square brackets is a reference to the paragraph number in the trial judge's reasons for decision.
Malicious prosecution
The trial judge commenced by setting out the elements of the tort of malicious prosecution; namely:
(a)the defendant instituted the proceedings, or was instrumental in their institution and (or) continuation;
(b)the proceedings were terminated in the plaintiff's favour so far as such an outcome was possible;
(c)the defendant's conduct was without reasonable and probable cause;
(d)the defendant was actuated by malice; and
(e)that as a result, the plaintiff suffered damage of at least one of the three specific heads identified by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147.
I do not understand his Honour's identification of the elements of the tort to be in issue.
The institution of relevant proceedings
With regard to the criminal proceedings, the trial judge held that Robbins was the prosecutor of the charges because, ultimately, it was his decision to lay them and he remained the named complainant until Noye's committal: [665]. He did not cease to be the prosecutor for the purpose of determining tortious liability merely because of the intervention of law officers of the Crown in the prosecution and trial on indictment: [666].
With regard to the internal disciplinary charges, the trial judge held, largely on the authority of Gregory v Portsmouth City Council [2000] 1 AC 419, that no claim for malicious prosecution could lie against Robbins: [220] - [229]. This was because the tort does not apply to internal disciplinary proceedings. In any event, even if the tort did apply to internal disciplinary proceedings it would not have been made out because the charges were not actuated by malice (see discussion below).
Proceedings terminated in plaintiff's favour
The trial judge, applying Davis v Gell (1924) 35 CLR 275, found that the mere filing of a nolle prosequi could not of itself be taken as terminating the proceedings in the plaintiff's favour. He went on to examine other evidence which, when taken together with the filing of the nolle prosequi, proved on the balance of probabilities that Noye was innocent of the charges: [246].
In this case there was little difficulty in finding that, on the balance of probabilities, Noye had not committed the offences and the proceedings were terminated in his favour. Noye had always maintained, and had given sworn evidence at the trial, that he never corruptly agreed or decided to write-off the investigation into the theft of diamonds from the Argyle mine. Neither of the defendants at trial had set out to prove that Noye was indeed guilty of all or any of the charges laid, although LC did give evidence to the effect that Noye had repeatedly accepted cash money from her. The trial judge rejected that evidence. His Honour concluded [250]:
I am satisfied that on all the evidence it should be concluded that the criminal proceedings were terminated in Noye's favour and that the attempts, such as they were, to show that he was guilty of any of the offences have failed. He has denied guilt, and has the benefit of the presumption of innocence. This means that he is able to maintain his actions for malicious prosecution.
Conduct without reasonable and probable cause
According to his Honour, the reasonable and probable cause which must exist requires:
(a)the defendant to have a subjective belief in the propriety of instituting proceedings; and
(b)the existence as a matter of objective fact of reasonable grounds for the institution of the proceedings.
In this case, the trial judge was satisfied that Robbins honestly believed that the charges should have been laid [681] - [682]:
Notwithstanding the complexity of the situation which had arisen, and the conflicting views which existed at the time, I am satisfied that Inspector Robbins did believe that the evidence disclosed a case against Noye, which meant that he should be charged and put on trial. In other words, I am satisfied that Robbins honestly formed the view that there was a proper case for prosecution.
This was not a case where the crucial facts were, or ever could have been, within the personal knowledge of the prosecutor. Inspector Robbins had to rely on the information which he had obtained or which was put before him. He could not rely on it by simply taking it at face value without having regard to factors which affected its cogency – obviously the credibility of LC; but what he was required to do was to decide whether, in his own view, and on an objective basis, the evidence warranted putting Noye on trial for the charges proposed and, in doing so, to act honestly for the purposes of bringing a wrongdoer to justice. That is what I am satisfied animated Inspector Robbins at the time he laid the charges and throughout the period when they were pending. I am quite satisfied that personally, he reached this decision after careful and anxious thought and with guidance of superiors and advisors. It was his honest opinion that charges should be laid, as they were. [emphasis added]
There were many factors which led Robbins to hold this honest belief. His Honour cited, as an example, the error that Noye made in concluding that there was no evidence upon which to base charges arising from the alleged theft of diamonds from Argyle. This error, his Honour said, 'was so egregious that it could only be explained by the grossest of inadequacies or misjudgments in the conduct of the inquiry, or by deliberately corrupt conduct'. The trial judge also referred to the evidence that Noye had met Roddan informally on very many occasions which, while not itself unlawful, was an unusual and compromising course for a police investigator. Noye's readiness to associate with Roddan was 'a very suspicious feature of his conduct and one, which even by the time of trial, Noye did not seem to recognise as being dubious': [669] - [670].
His Honour then turned to the question of whether there was, on an objective basis, reasonable grounds for laying the charges: [683] - [690]. The trial judge noted that, regardless of how the situation was viewed, the credit of LC was 'central and indispensible' to any hope of a successful prosecution. LC, however, was not a reliable witness. She had been part of a conspiracy to steal from Argyle, had previously made serious and baseless allegations of sexual misconduct against police officers, and had been promised leniency by Argyle if she gave evidence against Roddan. According to his Honour [690]:
[LC's] credibility was so severely compromised that I do not see how an objective independent observer, uninfluenced by the prejudiced flow of accusations coming from the Gwilliam task force, could ever have regarded her as a witness whose evidence would support charges against a long-serving police officer, who was not suggested to have received any money (despite her statements), who had always denied the allegations of corruption against him and who actively co-operated and participated in making statements about them to the investigating officers as soon as he learned that he had been accused of improper conduct. Accordingly, I find that, on an objective basis, there was not a reasonable or probable basis upon which to lay the charges, notwithstanding that Inspector Robbins and some others believed that there was. [emphasis added]
Malice
The trial judge then turned to consider whether Robbins was actuated by malice. He noted that malice can be established even if the prosecutor was not motivated by ill-will; it is sufficient to establish that the prosecution was motivated by some improper or collateral purpose.
In this case two bases of malice were alleged. First, Robbins had instituted the prosecution because of his desire to advance his career by demonstrating diligence in a high profile case. Secondly, he had instituted the prosecution in order to find a scapegoat and put to an end the embarrassment and humiliation of the WAPS.
The trial judge 'completely reject[ed]' the allegation that Robbins had prosecuted Noye so as to further his career. His Honour found there was no basis in the evidence to support this claim and it was inconsistent with Robbins' career history: [693] and [694].
The trial judge rejected the allegation that Robbins prosecuted Noye in order to provide a scapegoat to placate his superiors and ease the pressure applied by the public to the police over corruption: [695]. His Honour found that, while there was consternation about corruption in the police force and a desire to root it out, Robbins was aware of the seriousness of the situation and the consequences for any police officer wrongly accused of corruption: [699]. He said [700]:
I have concluded that the decision was, inevitably in the circumstances, influenced by the strength of the opinions of Gwilliam, Thoy and the Argyle security officers which were coming from the Lavender/Gwilliam task force. But that does not mean that the decision was improper or anything other than the product of an honest opinion by Robbins that the particular charges should be laid. Much later, when the shortcomings in the evidence came to be better appreciated, the DPP dropped the charges and no attempt has been made to revive them. However, I am satisfied that when they were made, Inspector Robbins was honestly of the opinion that they should be laid as part of his responsibility to put a suspected offender on trial for good cause. For this reason I also reject the plaintiff's submissions that the prosecutions were malicious in the sense of being instituted for an improper motive or to find a scapegoat for the more general failings of the Police Force.
His Honour mentioned briefly that in some circumstances a prosecution in the absence of probable cause is itself evidence of malice. In this case, however, the absence of probable cause was not itself evidence of a malicious intent. His Honour found that the contention that the dominant purpose of the prosecutor in initiating the charge was for a purpose other than the proper invocation of the criminal law because it was an illegitimate or oblique motive was dispelled by the evidence led in this case that Robbins honestly believed that there was a sufficient basis to charge Noye. His Honour continued [702]:
The fact that, in different circumstances, and with the benefit of advice less influenced by the strong opinions of the Gwilliam team, a reasonable person should have reached a different opinion, does not detract from the integrity of the personal motives and animation of Inspector Robbins.
The claim for malicious prosecution therefore failed.
Misfeasance in public office
The trial judge then turned to misfeasance in public office. In order to succeed in such a cause of action, a plaintiff must show that the defendant held public office, acted maliciously or knew the act was beyond his power and acted with intent to harm the plaintiff. He noted that the tort of misfeasance in public office involves the necessity to prove bad faith on the part of the office holder defendant: [263]. This can be accomplished by demonstrating that he or she acted in pursuit of an improper or collateral purpose and with the intention to harm the plaintiff. The same element may be satisfied by proof that the office holder was acting in the knowledge that the conduct was beyond power and that it was likely to harm the plaintiff; but there must be actual knowledge of want of power.
The trial judge held that the claim for misfeasance in public office must fail for essentially the same reason as the malicious prosecution case failed: Robbins honestly believed that there were good grounds to prosecute and was not actuated by any collateral purpose. His Honour said [733]:
[B]ecause I am satisfied that Inspector Robbins acted in the honest belief that the evidence available to him disclosed a case to establish the offences alleged against Noye which warranted him being charged and put on trial, there can be no basis for any conclusion that Inspector Robbins acted in bad faith or for an improper or collateral purpose and with intention to harm Noye. Nor is there any basis for a conclusion that in charging Noye, Robbins knowingly acted beyond power. Similarly, my finding that Inspector Robbins did not act maliciously in charging Noye also leads to the finding that he was not acting maliciously with the intention to harm the plaintiff or by doing so acted in excess of the proper exercise of his powers.
For those reasons, the misfeasance in public office claim failed.
Abuse of process
Although not distinctly alleged in the pleadings, the trial judge considered whether there could be a claim for abuse of process as the issue had been agitated during the hearing: [268]. His Honour noted that, unlike the claim for malicious prosecution, there is no need for the plaintiff to prove the proceedings were terminated in his favour or that there was no reasonable and probable cause to institute proceedings. What the plaintiff must prove is that the proceedings were instituted for an improper purpose so as to secure a collateral advantage beyond that for which the law was designed: [270].
The trial judge dismissed this claim for much the same reason as the malicious prosecution and misfeasance in public office claims: the prosecution was not instituted for any improper, malicious or collateral purpose: [729]. His Honour not only found that Noye had failed to prove that the prosecution had been initiated for an improper or collateral purpose, but also made a positive finding that the prosecution had been commenced for a proper purpose: [729].
Injurious falsehood
The trial judge turned finally to the claim for injurious falsehood. In order to establish this tort, a plaintiff must prove:
(a)the defendant published words about the plaintiff which were false;
(b)the words were published maliciously; and
(c)special damages flowed as a natural and direct result.
In this case the claim failed for two reasons. First, Robbins did not publish false statements about Noye. Secondly, and in any event, Robbins' actions were not motivated by malice: [735]. In explaining the non-publication finding, his Honour noted the distinction, which he regarded as significant and which had to be respected, between laying a charge which amounts to an allegation and publication of a statement alleging a fact: [276]. His Honour returned later to that point, saying [735]:
Inspector Robbins instituted criminal charges against Noye, and was responsible for the instigation of the internal police disciplinary proceedings against him. These were not publications of false statements made maliciously but, rather, were allegations of criminal offences and disciplinary offences, respectively. These were instituted before the appropriate court or statutory tribunal which had the jurisdiction to hear them and to determine whether or not any of the charges or complaints had been made out. Accordingly, these are not statements of the kind to which this tort applies and I am satisfied, in this case, that none of the charges or complaints was laid or instituted by Inspector Robbins maliciously. For this reason, the claims for damages against Inspector Robbins for injurious falsehood fail. [emphasis added]
The claim for injurious falsehood against LC, the second defendant in the matter, was successful.
Damages
The finding that Noye had not made good any of the causes of action alleged against Robbins meant that the trial judge was not obliged to assess damages. However, he went on to comment that, on a provisional assessment of the damages, he would have awarded damages had one or more of his claims been made out. His Honour identified three heads of damage for the tort of malicious prosecution: damage to the plaintiff's fame or reputation; damage to the plaintiff's person; and damage to the plaintiff's property.
His Honour then calculated the damages that would have been awarded under these three heads had the claim been successful: [755] - [780]. A significant item in the provisional assessment was loss of salary. Noye had argued that he might have been promoted to Inspector and perhaps beyond. The trial judge, however, ruled that any loss of salary should be calculated on the basis that he would probably not have been promoted beyond his current rank of Senior Sergeant because [614] - [618]:
(a)he had breached police regulations in the past, which would have counted against him;
(b)the criterion for promotion changed in the early 1990s from seniority to merit;
(c)other police officers gave evidence that Noye lacked the competencies to be promoted in a merit-based system;
(d)his conclusions about the Argyle investigation (that there was no theft by Roddan or anyone else) had caused acute embarrassment to the police; and
(e)his fraternisation with Roddan and general conduct during the Argyle investigation was indiscrete.
The trial judge noted that the question of damages was 'at large' but should be approached with a 'degree of moderation'. He assessed the level of damages that would have been awarded for malicious prosecution at $287,676 made up as follows [780]:
(a)$50,000 for injury to reputation;
(b)$50,000 for injury to person, health and restriction of liberty; and
(c)$187,676 for pecuniary and consequential loss.
The trial judge refused to award aggravated and (or) exemplary damages, saying [781]:
In such a case, aggravated damages and exemplary damages are both available and, through his counsel, the plaintiff made submissions that such additional damages ought to be awarded. However, this was only pressed faintly and I do not see any basis in this case for an award of exemplary damages. The consequences of the prosecutions for Noye have indeed been very profound and the effect of them upon his health and self-confidence are conspicuous. This would provide a basis for aggravated damages, but the allowance which I have made in the heads of damages for injury to person takes this into account and no additional allowance under this heading would therefore have been necessary.
For sake of completeness I should add that the trial judge assessed damages for the tort of injurious falsehood committed by LC at $272,676. The difference from the provisional assessment against Robbins lay in the award for injury to reputation ($35,000 rather than $50,000).
Grounds of appeal and notice of contention
The grounds of appeal are lengthy and closely particularised. At the risk of oversimplifying things, I will summarise the grounds in an attempt to distil them to their essence.
Ground 1 – malice
The trial judge erred in fact in dismissing the claim for malicious prosecution on the basis that Robbins was not actuated by malice. The trial judge's rejection of the claim of malice was based on findings that Robbins had an honest belief that the evidence disclosed a case against Noye and that Robbins did not institute the prosecution for an improper purpose. However, the trial judge should have found that Robbins' prosecution of Noye was actuated by malice because:
(a)Robbins did not have an honest belief that the evidence disclosed a case against Noye;
(b)the sole or dominant purpose of Robbins was to relieve himself of various pressures being brought to bear on him and the WAPS; or
(c)Robbins demonstrated a reckless indifference to the truth or falsity of each of the charges laid.
The particulars in support of this ground refer to the fact that the case was heavily reliant on the evidence of LC and the absence of corroboration relating to material allegations; the appreciated lack of veracity of LC and BC as witnesses; and the known hostility of Thoy and Gwilliam towards Noye. It is also alleged that Robbins took an 'holistic' approach to the prosecution (that is, let witnesses say whatever they wanted to say and let the court decide) and paid inadequate attention to the views of another police officer that Noye's October 1992 report was 'comprehensive and accurate'. There are numerous particulars relating to the alleged embarrassment to the WAPS concerning the Argyle investigation, including the confession by BC of involvement in the theft of diamonds from Argyle, a climate of public concern about the integrity of police operations and mounting public expectation of an imminent prosecution of a supposedly corrupt police officer.
Ground 2 – the D'Anna report
In the alternative to ground 1, the trial judge erred in law in that he did not make a separate finding in relation to the charge of publishing the secret AFP report. Had he addressed the charge separately, he should have concluded that the prosecution of that charge was actuated by malice for the same reasons as are noted in items (a), (b) and (c) in relation to ground 1.
The particulars to this ground concentrate, in the main, on the fact that the main prosecution witness was Gwilliam, a person known to be hostile to Noye and lacking in objectivity.
Ground 3 – insurance fraud
Again in the alternative to ground 1, the trial judge erred in law in that he did not make a separate finding in relation to the charges of insurance fraud. Had he addressed these charges separately, he should have concluded that the prosecution of those charges was actuated by malice. In this instance the ground does not refer to the alleged improper purpose.
The particulars relate to the centrality of the evidence of LC and her lack of veracity. They also refer to the failure of Robbins to interview Noye about the matters the subject of those charges.
Ground 4 – misfeasance in public office
The trial judge erred in fact and law in dismissing Noye's claim of misfeasance in public office. The gravamen of the complaint of error of law is the trial judge's findings that the conclusions expressed in Noye's October 1992 report were not unreasonable, untenable or inconsistent with the evidence and information available to him at the time: [113]. Further, at the time, there was no evidence available to justify the laying of charges against Roddan for the theft of diamonds, at least not the institution of a prosecution which could be regarded as having any reasonable prospect of success: [141].
This ground also calls in aid the more general contention that there was no reasonable and probable cause for Robbins to charge Noye in the first place and that the trial judge ought to have concluded that the laying (and continuation) of the charges against the appellant amounted to a misuse, or wrongful or unreasonable use, or excess of the prosecutorial power vested within Robbins.
Ground 5 – aggravated and exemplary damages
The trial judge erred in law in not awarding aggravated and exemplary damages. Had he made findings of malice, he should have awarded Noye aggravated and exemplary damages.
Ground 6 – damages manifestly inadequate
The trial judge's provisional award of damages for injury to reputation, person, health and restriction of liberty, and pecuniary loss was manifestly inadequate such as to amount to an error of law, and was also based on an erroneous view (or inadequate analysis) of the evidence. The particulars in support of this ground include:
(a)the evidence that Noye would not have been promoted was against the weight of the evidence and in particular having regard to the evidence of Ayton;
(b)Noye's investigation was under-resourced and hampered by Gwilliam;
(c)the trial judge failed to take into account his finding that Noye's views expressed in the October 1992 report were not unreasonable, untenable or inconsistent with the evidence and information available to him at the time; and
(d)the quantum awarded was so low that error should be inferred.
Notice of contention
In his notice of contention, Robbins argues that the decision ought to be affirmed on grounds other than those relied on by the trial judge.
There are two limbs to the notice of contention. First, the trial judge found that, objectively speaking, Robbins had no reasonable and probable cause to prosecute Noye (even though he genuinely believed that such cause existed). This, Robbins argues, was an error because it is based on a view that a jury was unlikely to accept the evidence of LC. However, the prosecutions were based on direct and circumstantial evidence [321] and, on the whole of the evidence, there should have been a finding that Noye had failed to prove an absence (objectively) of reasonable and probable cause.
Secondly, the trial judge erred in holding that Robbins was the 'prosecutor' when he should have found that Robbins ceased to be the relevant prosecutor from the time (12 November 1993) that the DPP served notice that their office would conduct the prosecutions.
The appeal - an overview
The evidence (oral and documentary) at trial was multitudinous. It covered a vast range of matters dealing with the Argyle diamond theft, the various police investigations (both State and Federal), the prosecutions of LC, BC and Roddan and infighting within the WAPS. It is instructive, however, to stand back from the minutiae and make some general observations and to identify the critical issues on which the fate of this appeal will turn.
The story, as related by the trial judge (much of which is either common ground or unchallenged), reflects badly on the WAPS and to some extent on the DPP. The decision to curtail the initial Thoy investigation was questionable. Noye's investigations were hampered by inadequate resourcing and the disruptive influence of Gwilliam. His conclusion (expressed categorically) that there would never be evidence capable of establishing that the diamonds were stolen from Argyle by Roddan or anyone else was later proved to be wrong. On one view of it, investigators stumbled on the 'truth' only because LC got into a drunken brawl with Roddan, was arrested and 'spilled the beans' and then BC (following reflection after an initial contact by Robbins) confessed. The reaction of the WAPS was to establish the Lavender investigation. Given all that had transpired the decision to appoint Gwilliam to that inquiry was, putting it mildly, surprising. Noye was charged in November 1993. On four occasions over the ensuing years the charges were either amended or supplemented. In October 1998 (almost five years later) the charges were dropped, but with a backhanded slap suggesting (at least according to the trial judge) that Noye may nonetheless have been guilty.
Be all that as it may, it is necessary to focus on the issues that arose at trial and those that are under attack in the appeal. That requires an identification of the issues that remain alive and those that have passed into history. There are several background matters that are important in the resolution of the question whether Noye has suffered a compensable wrong.
First, Noye has always maintained (when the charges against him were pending and during the trial of this action) that he was completely innocent of all the charges laid against him. He denied that he had corruptly recommended that no charges could or should be laid against Roddan or BC or that he had unlawfully disclosed confidential materials or that he had been a party to any insurance or other fraud arising from LC's insurance claims. At trial neither Robbins nor LC adduced evidence in an attempt to prove that Noye was in fact guilty of any of the charges ever laid against him. The trial judge found that 'there is no reason to conclude that Noye committed any of the offences of which he had been charged'. I do not understand that finding to be challenged on appeal.
An observer would be forgiven for thinking that Noye had been dealt with harshly and perhaps even unfairly. He was wrongly prosecuted, using the word 'wrongly' in a broad colloquial sense. The trial judge was satisfied that Noye has suffered, both physically and financially, as a result of what happened. But consideration cannot be limited to whether Noye was dealt with harshly or unfairly and whether he has suffered because of it. That is part of the story but it is not a complete statement of what this case is about. The central question in the action (and this appeal) was and is whether Robbins' conduct of the investigations into Noye's activities and the laying of charges by Robbins against Noye was so flawed as to be actionable.
The second matter relates to the trial judge's finding that, to a great extent, the charges depended on the credibility of LC. His Honour made strong findings to the effect that LC's credibility was suspect. He said he was left with the clear impression that LC was a very unreliable witness and that her unreliability ranged from mistaken recollection, to reconstruction and invention, and to actual falsehoods. She harboured deep prejudice against Noye, as well as harbouring a long-standing dislike and suspicion of police officers generally. His Honour concluded that LC was a person of very low credit and said [659]:
I have no doubt that by any experienced police officer, investigator, prosecutor or other lawyer, she would quickly be recognised as a person in whom a court or a jury would not be disposed to place any significant degree of trust.
In the first ground of the notice of contention Robbins challenges the trial judge's findings about LC's credibility, although not (as I apprehend it) to the extent that he contends the trial judge should have found LC to be a witness of veracity. Rather, the alleged error lies in the failure of the trial judge to look at all of the evidence arrayed against Noye; not simply at LC's evidence in isolation. Further, he should have addressed the question whether a jury would or might reasonably have found LC to be a credible witness rather that what he (the trial judge) thought about her.
Thirdly, the trial judge made strong credibility findings in favour of Robbins. He pronounced himself to have been impressed by Robbins as a witness, even though he came to the view that Robbins' decision to prosecute was erroneous. He described what Robbins had done as 'conscientious errors of judgment'.
Noye (unsuccessfully) advanced claims for malicious prosecution, misfeasance in public office and injurious falsehood. The trial judge also examined (and rejected) a claim for abuse of process. I do not understand the grounds of appeal to challenge the findings and conclusions in relation to injurious falsehood and abuse of process. The grounds, and the written submissions in support, concentrate on the torts of malicious prosecution and misfeasance in public office. I need say no more about either injurious falsehood or abuse of process. To a large extent, the factual basis for the separate causes of action overlap.
The first element of the tort of malicious prosecution is that the defendant instituted the proceedings, or was instrumental in their institution and (or) continuation. The trial judge found that Robbins was, relevantly, a prosecutor in relation to both the criminal charges and the police internal disciplinary charges. However, he also found that the disciplinary charges could not, as a matter of law, found an action in malicious prosecution. I do not understand Noye to challenge that conclusion. It follows that the focus of attention is on the criminal charges contained in the complaints and the indictments. In ground 2 of his notice of contention Robbins challenges the finding that he was the relevant prosecutor, at least after 12 November 1993 when the DPP assumed responsibility for the prosecutions.
Depending on the answer to other questions, it may be necessary to determine in this appeal whether Robbins relevantly instituted the prosecution of the criminal charges, or was instrumental in their institution and (or) continuation.
The second element is that the proceedings were terminated in the plaintiff's favour so far as such an outcome was possible. The trial judge found that the entry of the nolle prosequi taken with other evidence satisfied this element and thus found in Noye's favour on this question. I do not understand Robbins to challenge this conclusion and it can be put to one side.
The third element is that the defendant's conduct was without reasonable and probable cause. This involves the existence, as a matter of objective fact, of reasonable grounds for the institution of the proceedings. However, it also has a subjective element: an honest belief in the propriety of instituting proceedings. The trial judge was satisfied that Robbins honestly formed the view that there was a proper case for prosecution. However, he also found that, on an objective basis, there was no reasonable or probable basis upon which to lay the charges, notwithstanding that Robbins (and others) believed that there was.
This is at the very heart of Noye's challenge to the trial judge's ultimate conclusion rejecting his causes of action. He argues that, given the strong findings in his favour that, objectively speaking, there was no reasonable and probable cause, the finding that Robbins honestly believed there was a case for the charges to be laid is illogical and unsustainable. The question to be asked is: given the absence of reasonable and probable cause, what is the explanation for Robbins' decision to prosecute? Noye says the trial judge should have answered that question by finding that the explanation lay not in an honest belief but, rather, in the harbouring and putting into effect of an illegitimate and improper motive; namely, a desire to find a scapegoat so as to relieve pressure on himself and the WAPS.
A significant factor in the trial judge's conclusion that, objectively speaking, there was no reasonable and probable cause was the centrality of LC's evidence and the unlikelihood that a jury would accept her veracity.
Noye disputes the finding that Robbins held an honest belief that the institution of proceedings was justified. In the first ground of contention Robbins says the trial judge got it wrong when he concluded there was no objective justification for launching the prosecutions.
The finding in Robbins' favour in relation to the subjective component was material to the trial judge's conclusion that Robbins acted without malice (the fourth element). Another aspect of the malice finding was the rejection of Noye's contentions that Robbins had acted for improper purposes; namely, that he had acted in his own interests (to secure promotion) and to find a scapegoat so as to relieve the pressure on, and put an end to the embarrassment and humiliation of, the WAPS. There are various aspects underlying the allegations that were dealt with in these findings. I have mentioned some of them in [67] ‑ [70].
I think it is fair to say that the finding against Noye on the question of malice is at the heart of his appeal. As counsel for Noye said at the hearing of the appeal, it is not just the wicked Iago figures that are to be held malicious for the purpose of the tort; it is also those who prosecute for purposes which are oblique or improper. I do not understand Noye to have argued (at least on appeal) that malice arose from some hatred, ill will or malevolence on the part of Robbins. Rather the basis of the submission was that to prosecute in order to relieve pressure, as ground of appeals 2.2 and 4.2 allege, is improper. So, too, is acting with reckless indifference to the truth or falsity of the charges that were laid.
I do not understand Noye to challenge the trial judge's conclusion that Robbins was not motivated by prospects of career advancement, and that can be put to one side. However, the question of oblique or improper motive (the relief of pressure on himself and the WAPS) is a live issue. It is a significant issue because, on Noye's case, it explains why Robbins acted as he did and counters the finding that he (Robbins) held an honest belief that the prosecutions were warranted. As counsel for Noye explained this aspect of the appeal, the finding that Robbins did what he did because he honestly believed it is not an answer, but simply rephrases the question. The explanation lies in the fact that Robbins lowered his standards in the highly charged circumstances created by the pressure.
The subjective and objective elements of 'reasonable and probable cause' and the issue of malice are intimately connected and it is not easy to place the relevant factual matrix into three neat compartments. The determination of the questions whether Robbins held an honest belief that the prosecutions had a reasonable basis, whether there was, objectively speaking, reasonable and probable cause for laying the charges and whether Robbins' prosecution of Noye was actuated by malice will emerge from a consideration of a whole range of matters, most of which are connected.
Neither party alleged that the trial judge had misapprehended the relevant legal principles relating to the several torts in any material way. While there are areas in which individual findings of fact are challenged, as a general statement the gravamen of the appeal lies against the evaluation process, that is in the conclusions that arise from findings of fact that were (or on the case of one or other party, should have been) made. I can give an example. On Noye's case, his Honour found that there was pressure on Robbins and Noye contends that on those findings there was a compelling case of improper purpose. However, the error lies in his Honour's evaluation of the evidence relating to Robbins' purpose and the conclusion ought to be corrected.
The broad issues that will have to be addressed in order to decide this appeal include the following matters.
1.Did Robbins hold an honest belief that there were good grounds to institute the prosecution? Central to this issue will be:
(a)the material that Robbins regarded as the most incriminating features of Noye's conduct;
(b)his assessment of LC's evidence and the other evidence relevant to the prosecutions; and
(c)the relationship between Robbins and the DPP.
2.Was there, objectively speaking, reasonable and probable cause to launch the prosecutions?
3.Was Robbins actuated by malice in prosecuting Noye? In particular:
(a)did he hold the belief referred to in 1 above;
(b)did he succumb to pressure to find a scapegoat and thus act for an oblique or improper purpose; or
(c)did the conduct of his inquiry and the decision to institute and continue with the charges demonstrate reckless indifference to the truth or falsity of the allegations on which the charges were based?
4.Was Robbins, relevantly, a prosecutor in the sense that he instituted the prosecution of the criminal charges, or that he was instrumental in their institution and (or) continuation?
I have not included in this list the arguments concerning the provisional award of damages because, at this stage, I am concerned with the issue of liability. I will, however, return to the question of damages later in these reasons. Because the issues that I have identified are intertwined and there is an overlap in the factual matrix it will be difficult to approach the analysis strictly by reference to the issues. Counsel for Noye approached the appeal in three parts and it will be convenient for me to follow a similar path. Counsel painted these signposts on the path:
1.The trial judge made many findings about the existence of pressure within the WAPS. His Honour should have found that Robbins instituted the prosecution to relieve pressure and thus for an improper purpose.
2.An inescapable conclusion from the findings the trial judge made about the evidence available to Robbins and on which he based the decision to prosecute is that there could not have been, in the mind of a reasonable and probable would‑be prosecutor, reasonable and probable cause.
3.The existence of pressure and the egregious absence of reasonable and probable cause together should have led to a finding of improper purpose and therefore of malice.
The oblique and improper purpose
It is apparent from the way the appeal was argued that the 'pressure' question and the existence of an oblique and improper purpose or motive is a significant (although not the only) aspect of Noye's challenge to the conclusions arrived at by the trial judge.
I should interpolate here that during the course of the trial and on appeal the terminology slipped from time to time between 'purpose' and 'motive'. While purpose and motive are not the same thing (see Hyams v DPP [1975] AC 55, 73), I do not think there is any significant difference in the context in which they arise in this case.
In mounting this challenge counsel made it clear that they did not complain about the depth of the examination entered into by the trial judge or about the material available to Robbins. Rather, the error lay in the adequacy of the evaluation of that material. Counsel pointed to many findings made by the trial judge to the effect that there was pressure on Robbins but then made the ultimate finding that Robbins did not succumb to the pressure. It is this ultimate finding about which Noye now complains. Further, according to counsel, in various parts of the reasons the trial judge expressed puzzlement that once Noye had been charged nothing much happened to investigate corruption by other police officers, including some in the upper echelons of the WAPS. His Honour should have put two and two together and concluded that the absence of further investigations was consistent with Robbins succumbing to pressure by instituting a prosecution of (one) officer for allegedly corrupt conduct.
It is important to tie these allegations back to the grounds of appeal. When pressed on this issue counsel for Noye referred to par 2.2 of the grounds of appeal, which contends that the trial judge should have found that Robbins was actuated by malice because his sole or dominant purpose was to relieve himself of various pressures brought to bear on him and the WAPS. The particulars to which counsel drew attention to support this ground are:
2.2.7.The embarrassment to the [WAPS] when, in August 1993, [BC] confessed to stealing diamonds from Argyle and then selling those diamonds to [Roddan].
2.2.13.Senior officers of [Argyle] … were running a campaign aimed at encouraging [Robbins] to promptly charge [Noye].
2.2.14.There was a public climate of concern about the integrity of police operations, particularly in relation to the Argyle Diamond matter.
2.2.15.There was a mounting public expectation of an imminent prosecution of a supposedly corrupt police officer over the Argyle Diamond matter.
2.2.17.Evidence from [Ayton] about a desire for a result which brought about a successful conclusion, as much as possible on the evidence, which minimised the damage to the [WAPS].
Ground 2 is tied to ground 1, which attacks the findings and conclusion 'in relation to all charges laid against [Noye] by [Robbins]'. Ground 4.2 is in the same terms as ground 2.2 but ground 4 is directed specifically at the charges arising from the publication of the D'Anna report. There are aspects of ground 4 over and above the allegation of improper purpose but I have not been able to identify any significant matters relevant to ground 4.2 over and above the considerations raised by ground 2.2.
The trial judge had examined the authorities before commenting that charging an accused with an offence due to succumbing to pressure from bureaucratic superiors to lay a charge, may, in some cases, support a finding of malice: [254]. The trial judge also commented that in the circumstances of this case Noye would succeed if he could establish that, by charging him with criminal offences, Robbins was motivated by a desire to demonstrate that the WAPS was taking steps to deal with public concern arising from criticism of its conduct over the investigation of the Argyle diamond thefts, so as to counter suggestions that the Force was soft on police corruption. The cause would also be established if Noye could prove that Robbins initiated a prosecution in which he had no belief so as to make a scapegoat out of Noye, and, thereby, to avoid or to reduce criticism or embarrassment of the WAPS arising out of the attention which had been given to the Argyle diamond affair and the associated allegations of police corruption: [272].
The fact that Premsure had already discharged part of the solicitors' fees did not prevent the Council from receiving costs in relation to those fees.
Lewis v Averay (No 2) [1973] 1 WLR 510 concerned an application for costs to be paid out of the legal aid fund. Nonetheless, it seems to me that its treatment of the indemnity principle is applicable to costs orders generally. Averay had succeeded on appeal in overturning a first instance decision awarding Lewis damages for the detention of a car. The legal fees of Averay's appeal had been paid by the Automobile Association, of which he was a member. As Lewis had no money to pay costs, Averay made an application to the legal aid fund to pay his costs. One of the issues was whether Averay's legal fees were 'costs incurred by him'. Lord Denning MR found that the legal fees were incurred by Averay, saying (513):
[Mr Hames] suggests that in this case the costs were not incurred by Mr Averay, but were incurred by the Automobile Association; because the Automobile Association undertook the appeal and instructed their solicitors and paid them. I cannot accept this suggestion. It is clear that Mr Averay was in law the party to the appeal. He was the person responsible for the costs. If the appeal had failed, he would be the person ordered to pay the costs. If the costs had not been paid, execution would be levied against him and not against the Automobile Association. The truth is that the costs were incurred by Mr Averay, but the Automobile Association indemnify him against the costs.
It is clear that the test adopted by his Lordship was the same as the test used when applying the indemnity principle: who has the legal obligation to pay the solicitors' fees? There is no indication that his Lordship was troubled by the fact that the Automobile Association had already paid the fees, and that Averay no longer faced any liability to his solicitors. His Lordship said (514):
In the circumstances of this case it seems to me entirely just and equitable that Mr Averay should have an order for his costs to be paid out of the legal aid fund, even though they were borne in the first instance by the Automobile Association. He can then reimburse the Automobile Association.
These cases demonstrate that the courts have not declined to award costs under the indemnity principle simply on the basis that the successful party's solicitors' fees have already been paid by a third party.
Flexibility of the indemnity principle
The third reason that Robbins should be allowed to recover his costs despite his fees already being paid is that the indemnity principle is flexible, and is designed to allow for a just and fair result.
The flexibility of the indemnity principle is discussed in a number of cases. In Lenthall v Hillson [1933] SASR 31 Angas Parsons and Napier JJ said (36):
We think that the principle that costs are given as an indemnity can be carried too far. It comes from the unwritten law, and depends upon considerations of public policy and convenience, and it follows that it must be reasonably understood and applied.
This passage was cited with approval by McColl JA in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 [80]. The flexibility of the indemnity principle was also recognised in Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474, in which Santow JA said [45] ‑ [50]:
The indemnity principle is long-established at general law. It is however not to be applied rigidly, or uninfluenced by statute or by practice recognised by statute, such as in relation to conditional fee agreements … [T]he indemnity principle is not immutable, and should be applied flexibly rather than made into a rigid rule, as the examples given by Basten JA demonstrate. This was said as long ago as 1902 by Walker J in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR (NSW) 50; 19 WN (NSW) 9. It has been frequently affirmed since, most recently by the Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203.
In this case, only an unduly narrow and artificial application of the indemnity principle would deny Robbins his costs. Noye sued Robbins for damages. Robbins incurred legal fees in defending the action. Those fees were paid by the State. The State paid Robbins' fees as part of its policy of providing legal assistance to (among others) police officers being sued in their capacity as officers of the State for actions carried out in good faith in the fulfilment of their duties. Noye lost his case. He now seeks to rely on the indemnity principle to negate an obligation that would otherwise arise in relation to those costs.
This is not a case in which the successful party will receive a bonus. Robbins has given an undertaking to pay any costs awarded to the State. If costs are awarded, Robbins will be essentially unaffected and the State will merely receive a partial indemnity in respect of the costs of Robbins' defence.
An examination of the consequences of different courses of action the State might have taken lends weight to the argument that Robbins' costs should be recoverable. If the State had provided Robbins with representation through the State Solicitor, Robbins would have been entitled to recover costs: Inglis v Moore (No 2) (1979) 25 ALR 453; 46 FLR 470. If the State had taken the same approach as it did in this case but had not yet paid the legal fees, Robbins would have been entitled to recover costs.
In my view it would be unfair and unjust to prevent Robbins from recovering costs for the State's benefit. It would be an inflexible application of the indemnity principle to bring about such a result.
The delay
This appeal was heard on 15 to 17 March 2009. There has been a long and unacceptable delay in handing down this judgment and the inconvenience to the parties is sincerely regretted. The fault for the delay lies entirely with me and no blame should be attributed to the other members of the coram or the Court generally. The delay was contributed to by my absences from the Court from time to time following an accident
in May 2009 and by the need to come to grips with the significant amount of detail relevant to the broad range of issues raised.
Conclusion
The merits appeal (CACV 85 of 2007)
In my view there is no merit in any of the grounds of appeal and I would dismiss the appeal. I would also reject the notice of contention.
These conclusions make it unnecessary to deal with Robbins' application to strike out certain of the grounds of appeal, or more accurately, those grounds and particulars that raise the 'pressure' question.
The costs appeal (CACV 121 of 2008)
In my view Robbins was entitled to recover costs from the appellant on the basis of the principle in Adams. Such a finding is sufficient to dispose of the appeal in favour of the respondents. It is therefore unnecessary for me to deal with grounds 1, 2 and 3 of the appeal. The appeal should be dismissed.
PULLIN JA: The appellant alleged that the prosecutions against him instituted on 11 November 1993 (the Petty Sessions charges) and 14 February 1994 (the other charges) were instituted without reasonable and probable cause, and that the respondent was motivated by malice. In the course of his Honour's reasons, the trial judge found that, considered from an objective point of view, there was no reasonable or probable cause for commencing the prosecutions on the two relevant dates. However, the trial judge found that the prosecutions were not motivated by malice. As a result, the trial judge ordered the dismissal of the appellant's claim. The appellant appeals against that judgment in CACV 85 of 2007.
The finding that there was no reasonable and probable cause is challenged by ground 1 of the notice of contention in order to provide additional support for the judgment. The details of the evidence and the findings of the trial judge are set out in Owen JA's reasons.
The trial judge ordered that the appellant pay the respondent's costs. That order is the subject of a separate appeal by the appellant in which the State of Western Australia is a respondent. That appeal is CACV 121 of 2008.
Appeal CACV 85 of 2007
It is appropriate to begin by addressing ground 1 in the notice of contention.
Notice of contention - ground 1
The respondent challenges the conclusion that there was no reasonable and probable cause because the learned trial judge held at [679] that there was no evidence concerning exactly what evidence existed at the time the charges were laid. The respondent submits that if there was no such evidence then the challenged conclusion cannot be supported.
The respondent gave evidence that he could not remember all of the material that he had available when the charges were laid. This is not surprising given that the events occurred in 1993; that the proceedings were then not instituted until nearly six years later in 1999; and that the trial was in 2005. The onus is on the plaintiff alleging malicious prosecution to prove what the evidence was and then to show that, based on that evidence, there was no reasonable and probable cause: see Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, 470. If it is not possible to prove what the evidence was, then that is a problem for the plaintiff and not for the defendant. It is not for the defendant to justify the charge. It is for the plaintiff to prove the negative.
Paragraph [36] of the reasons reveals that no formal brief or proofs of evidence were prepared or available when advice was taken by the respondent from the DPP. The advice was by word of mouth and based on oral briefings. Precisely what advice was given was not proven. All that his Honour could say [36] was that he had no hesitation in concluding that the briefings were extremely adverse towards the appellant. The advice the DPP gave was taken by the respondent before the charges were laid against the appellant.
The appellant attempted to answer the respondent's submission by submitting that an inference could be drawn from other evidence before the court that there was no reasonable and probable cause. The appellant pointed to the prosecution brief prepared by the DPP in support of the charges in the indictments. This was prepared after the charges were laid. The appellant submitted that this reveals no reasonable and probable cause for a prosecution. However, that submission ignores the trial judge's finding [679] that '[t]here is no evidence in this case of the precise information, let alone the content of any brief, which was put to the officers of the DPP when advising Inspector Robbins about whether or not the circumstances justified the laying of charges against Noye'. It is implicit in the submission that the court should conclude that the respondent was not speaking the truth when he said that he could not remember what information was available. The appellant's submission requires an assumption to be made that what was in the later prosecution brief is necessarily what was available as evidence to the respondent when the charges were laid. But to make that submission is to challenge the trial judge's finding that there was no evidence of the precise information available when charges were laid. In effect it also challenges the judge's conclusion that he believed the respondent's evidence. There are no grounds of appeal to that effect. The trial judge's conclusion that there was no such evidence should have led the trial judge to conclude that the appellant could not succeed in proving that there was no reasonable or probable cause.
In any event, no attempt was made by the appellant to take the court to the written prosecution brief to point out what might support its submission. In fact, the prosecution brief was not provided to the Court of Appeal. In view of the trial judge's finding [679], the conclusion that there was no reasonable or probable cause was an error. Ground 1 of the notice of contention must therefore be upheld.
Appellant's grounds of appeal
Ground 1 - malice
The first ground alleges that the trial judge erred in concluding that the respondent was not motivated by malice. The respondent applied to strike out part of this ground (par 2.2). This particular asserted that the respondent was under pressure to lay charges and that the respondent charged the appellant to alleviate the pressure.
To understand the issues in relation to this ground, and in particular to understand the strike‑out application which was made by the respondent, it is necessary to consider the pleadings. The statement of claim alleged in pars 18 and 19 that the respondent was actuated by malice in relation to the Petty Sessions charges in that:
(a) the respondent had 'no honest belief in the plaintiff's guilt and malice is to be inferred from that fact';
(b)the respondent had 'no honest belief in the truth of the evidence of the Crimmins', alternatively the [respondent] was reckless in, not caring whether Lynette Crimmins and Barry Crimmins' evidence was true or false and malice is to be inferred from those facts'; and alternatively
(c)the respondent prosecuted the appellant to secure career promotion. (This latter allegation was dismissed and is no longer made on this appeal).
Ground 1 - malice - pressure
A new particular of this ground of appeal (the 'pressure' allegation) was raised in the following way. During the course of the trial and at the end of Inspector Robbins' evidence, the learned trial judge asked some questions. The questioning began at ts 1790 after counsel for the respondent had indicated that he had completed his re‑examination. The questions from the trial judge continued for several pages and at ts 1801 his Honour said:
Well, superintendent, don't take me the wrong way but the situation appears, on one view, that at that point the police badly needed a scalp and who better to scalp than Mr Noye?
The respondent said that this was definitely not his approach and that in his view at the end of 1992, the police were not looking for a scalp, they were looking for a 'closure on the matter'. He said that:
[W]hen it broke in 93? I don't know that I was - I can tell you for sure that I was never ever put under any pressure to come up with an arrest or a result on this other than what my inquiries diligently discovered. We take these matters seriously and objectively and right at the outset I was grateful of the services of Mr Tannin arriving when he did because one thing that we always did in serious internal affairs matters was give full visibility of what we were doing to the DPP. We were very mindful of the fact that, yes, there was an allegation that any arrest - in fact, in any major crime, not simply in this Argyle one but in major crime, Claremont serial killer anything - can be very convenient. There's always two ways of completing an inquiry. One is an arrest and the other one is what is actually harder to do, and that is describe to people why you're not making an arrest. So I'm very mindful of that. I was prepared at all stages to proceed with this objectively. I made sure I did.
Counsel for the appellant did not seek to cross‑examine the respondent in relation to the judge's questions. There were no other questions of other witnesses that the respondent was put under any pressure by any of his superiors.
The question asked by the trial judge was taken up by counsel for the appellant in closing submissions and objected to by counsel for the respondent. The question by the trial judge was then elevated into an issue by the trial judge in his reasons. His Honour said [692]:
The second basis for malice, in the sense of acting for an improper purpose, as it developed at trial, was that he was acting to find a scapegoat, in the person of Noye, and thus avoid more extensive embarrassment and humiliation of the Police Force, in what had turned out to be a disastrously misguided and inadequate investigation of the diamond thefts from the Argyle mine.
His Honour said [694] that the first basis for alleging malice, that is, self‑advancement or promotion, had to be rejected 'absolutely' and that [695]:
On the question whether or not there was malice in the sense of pursuit of an improper motive of making Noye a scapegoat for the general deficiencies of the Police Force, I am satisfied that Inspector Robbins was not actuated by any such motive.
The appellant seizes upon this finding and challenges it. In ground 1, par 2.2 the appellant alleges that the trial judge should have found that the prosecution of the appellant was actuated by malice in that 'the sole, alternatively, dominant purpose of the respondent was to relieve himself from various pressures being brought to bear on him and the Police Service'.
The issue was then argued in the appellant's submissions in a way which extends far beyond the trial judge's identification of it at trial. The appellant's submissions at par 56 say that the respondent succumbed to 'various improper pressures and influences'. It was said that the respondent:
(a)was influenced by a 'public climate of concern about the integrity of police operations';
(b)was directly influenced by Deputy Commissioner Ayton who evinced a desire for a result by way of prosecution of a police officer which brought about a successful conclusion which minimised the damage to the police department, then being created in the media;
(c)was influenced and pressured by the leaks to the press by officers Gwilliam and Thoy;
(d)was accused by Lynette Crimmins of being corrupt and was thereby influenced and pressured by her allegations to proceed with criminal charges against the appellant;
(e)was influenced by senior officers of Argyle Diamonds, namely Caulfield and Burton who were running a campaign encouraging the respondent to promptly charge the appellant.
It is clear from this recital that this allegation of pressure extends well beyond the one formulated by the trial judge.
The question is whether the question should have been considered by the trial judge at all given the lack of pleading on the point. It is well settled that fraud should not be lightly raised as an allegation and if raised, it must be distinctly pleaded. To allege that a person is acting out of malice in bringing a criminal prosecution is to make a very serious allegation against a person in an official position. An allegation as serious as that is one which should be raised and carefully defined before the person has to answer such a charge. In my opinion the respondent was denied procedural fairness in the way the subject was raised. The subject was not an issue between the parties and it is not open to the appellant to allege error in relation to the trial judge's reasoning on a subject which was not in issue between the parties. I would therefore uphold the application to strike out par 2.2, ground 1 and the repetition of that allegation in the other grounds.
Ground 1 - malice - pressure - merits
However, if that conclusion be wrong, and if the issue did properly arise because of the way the trial was conducted, then in my opinion the trial judge did not err in his conclusion that the respondent was not motivated by pressure to lay the charges. The respondent gave evidence that he did not bring the prosecution because of any pressure upon him and that no‑one within the police department brought any pressure upon him. It was never suggested to any other witness that any pressure was brought upon him other than to produce a report with the right result. The mere fact that there was pressure does not lead to the conclusion that a decision was taken by the respondent to prosecute to relieve that pressure. His Honour's conclusion that the respondent was not motivated by any improper motive was a decision made by accepting the respondent's evidence based on a favourable impression of the respondent in the witness box. The favourable impression is referred to by the trial judge [469] ‑ [470]:
From my assessment of Superintendent Robbins during a lengthy period when giving evidence and being cross‑examined, I formed the impression that he was a very honest, reliable and dedicated officer, who clearly possessed a broad perspective of the difficulties of the situation and a realisation of the shortcomings of the procedures which the police had followed [470].
At [471], the trial judge referred to the impressive nature of the respondent's evidence, exemplified by the way in which the witness 'unflinchingly acknowledged the serious problems in the service, which he had been trying to address'. There was a reference to his frankness, to his honesty and his recognition of the distrust 'festering' between Thoy and Gwilliam on the one hand and the upper echelons of the police force on the other. His Honour commented [472] that the respondent recognised that Gwilliam and Thoy were not being objective and that they were 'running their own agenda'. His Honour said [475]:
I can well understand how an investigating police officer, such as Inspector Robbins … might think that in this mass of detail, coming from many sources, there was a network of interconnecting strands and a reinforcement of inferences of improper conduct, which supported the specific allegations made by Lynette Crimmins and by Gwilliam.
In the light of those unqualified and favourable observations about Inspector Robbins, his Honour's conclusion that there was no improper succumbing to pressure to find a scapegoat should be accepted. His Honour's decision to accept the respondent's evidence on that point should also be accepted.
Thus, if ground 2.2 and its associated paragraphs do remain as a ground of appeal, they should be dismissed. No error has been revealed in his Honour's acceptance of the respondent's denial that he succumbed to pressure.
Ground 1 - malice - honest belief in the existence of a case against the appellant
Finally, there was the allegation of malice based on the allegation that the respondent did not have an honest belief that the evidence disclosed a case against the appellant for which he should be charged and tried. The respondent gave evidence that he did believe that the evidence disclosed a case against the appellant. The appellant contends that Lynette Crimmins' evidence was crucial to the respondent's decision to lay the charges and that the respondent had serious reservations about her veracity. It is true that Lynette Crimmins' evidence was crucial. It is also true that the trial judge did not expressly find that the respondent believed Lynette Crimmins' evidence of corruption by the appellant was sufficient to found a charge. Finally, it is also true that the respondent recognised many shortcomings with Lynette Crimmins' evidence and the fact that she would come under attack as a witness. However, it is clear that his Honour was satisfied that the respondent did believe Lynette Crimmins' allegations even though he did not expressly say so because he said [675]:
I am satisfied that all this led Robbins to a genuine and sincere personal belief that Noye had acted corruptly and had combined with Roddan to ensure that the inquiry should be written‑off.
The expression 'all this' could only be a reference to the material he had been reviewing in the preceding paragraphs. What was included in that review was a reference to the evidence of Lynette Crimmins, particularly [673] and [674]. At [673] his Honour noted that the Robbins' inquiry had revealed that Lynette Crimmins was correct in her basic allegations about a long‑standing pattern of diamond stealing from Argyle by Barry Crimmins, that there had been a distribution of diamonds by Barry Crimmins first to Roddan and then by her to Roddan and others. That means that his Honour, although he did not expressly say so, but by clear and necessary implication, did find that the respondent believed Lynette Crimmins. He believed this even though, as the trial judge noted [682], he could not take at face value all that was said by Lynette Crimmins. The trial judge said what 'animated Inspector Robbins at the time he laid the charges and throughout the period when they were pending' was his "own view" that the 'evidence warranted putting Noye on trial for the charges proposed' and that in doing so he acted 'honestly for the purposes of bringing a wrongdoer to justice' [682] and that '[i]t was his honest opinion that charges should be laid, as they were' [682].
Even when his Honour concluded [690] that in his opinion there was, on an objective basis no reasonable or probable basis on which to lay charges, he found that 'notwithstanding that Inspector Robbins … believed that there was'.
In the face of the findings by his Honour that in fact the respondent believed Lynette Crimmins, and believed that there was a foundation for a charge against Noye, there could be no finding of malice. The trial judge so found and found correctly. The trial judge did not err in reaching this conclusion.
Ground 1 - malice - reckless indifference
The alternative, that the respondent demonstrated 'a reckless indifference to the truth or falsity of each of the charges laid' was found in par 2.3 of the ground of appeal but only faintly relied on by counsel for the appellant on the appeal. There was no justification at all for any such conclusion in the face of his Honour's acceptance of the respondent's evidence. Ground 1 should therefore be dismissed.
Ground 2
Ground 2 should be dismissed for the same reasons. It concerned the charge relating to the AFP report. It was alleged that the respondent could not have believed the evidence of Gwilliam because he was hostile to the appellant and lacked objectivity. That ground cannot succeed in the face of his Honour's conclusion that at the time the prosecutions were laid 'Gwilliam's credibility was not seriously impaired or discredited' [714].
Ground 3
Ground 3 which concerns the three charges of fraud on the SGIO raise again the question about the veracity of Lynette Crimmins. That point has been dealt with in relation to ground 1.
Ground 4
Ground 4 is a rehearsal of some of the same points covered in ground 1 and for those reasons it should also be dismissed.
Ground 5 - aggravated and exemplary damages
Ground 5 complains about the failure to award aggravated and exemplary damages. Insofar as this ground is based upon the allegation of pressure, this ground should be dismissed. I do not provisionally decide this ground or provisionally assess these damages because the question of an entitlement to aggravated and exemplary damages could only be assessed in the light of relevant findings or provisional findings of relevant fact. No such findings were made by the trial judge. In my opinion it is therefore not possible to anticipate what findings might have been made and then to provisionally assess aggravated and exemplary damages on that basis.
Ground 6 - the finding that the appellant would not have been promoted
Ground 6 complains about the trial judge's finding that the appellant would not have been promoted beyond his then rank of Detective Senior
Sergeant. The appellant alleges that this was against the weight of the evidence. The ground alleges that the trial judge did not 'adequately scrutinise' the evidence of Ayton and placed 'undue weight' upon the evidence of Ayton to support his Honour's conclusion. The other particulars amount to no more than a rehearsal of the matters put to the trial judge. His Honour's finding was open on the evidence and it has not been shown that there was any error disclosed in reaching that conclusion. The fact that the appellant disagrees with the conclusion is not sufficient to overturn his Honour's finding.
Contention - ground 2
As a result, it is not necessary to deal with ground 2 of the notice of contention.
The appeal should be dismissed.
Result - CACV 85 of 2007
As a result, I would:
(a)dismiss the appeal; and
(b)uphold ground 1 of the notice of contention.
I do not think it necessary to make orders striking out par 2.2 and its repeat appearances because the appropriate order is to dismiss the appeal.
CACV 121 of 2008 - the costs appeal
I agree with Owen JA's reasons.
BUSS JA: I agree with Owen JA.
The Schedule
Relevant Chronology
•January 1990 - Thoy commences his inquiry.
•14 December 1990 - Thoy was instructed to cease his inquiries and he submitted his final report.
•4 February 1992 - Noye commissioned to reopen the Argyle diamond inquiry with Gwilliam as assistant.
•12 February 1992 - Noye and Gwilliam meet with Argyle security officers at Argyle's office in West Perth.
•14 February 1992 - Noye has an interview with the National Crimes Commission.
•18 February 1992 - Noye interviews Australian Federal Police officers in Perth.
•20 February 1992 - Noye provides an initial report to Deputy Commissioner Zanetti.
•3 March 1992 - Noye telephones BC in Victoria.
•4 March 1992 - Noye interviews associates of Roddan, including one Gardner.
•6 March 1992 - Superintendent Ayton seeks a briefing from Noye and Gwilliam on the inquiry.
•10 March 1992 - Roddan telephones Noye to enquire about diamonds seized from Newton's premises.
•11 March 1992 - Noye meets with Roddan at a café in Northbridge, alone - Noye takes notes.
•16 March 1992 - Noye speaks with Roddan to arrange meeting with Superintendent Ayton.
•18 March 1992 - Meeting between Ayton, Noye and Roddan at a café in Northbridge. Ayton takes a secret tape recording device to record the conversation. The tape is subsequently lost or destroyed.
•19 March 1992 - Meeting at a café in Northbridge between Roddan, Gwilliam and Noye.
•23 March 1992 - Noye and Gwilliam execute search warrant at Argyle's office in West Perth, and seize five diamonds and a statement from an associate of Roddan to Burton of Argyle.
•25 March 1992 - Noye and Gwilliam meet Roddan at a Northbridge café and provide Roddan with documents requested for the interpleader including soil report analysis annexures. This was later the subject of one of the Court of Petty Session charges and police disciplinary charges against Noye.
•10 April 1992 - Noye speaks to Roddan's solicitor at a café in Northbridge. Roddan is present.
•13 April 1992 - Noye and Gwilliam meet with Argyle staff at Argyle's solicitors.
•24 April 1992 - Noye and Roddan speak at a café regarding the interpleader action. Roddan complains that Gardner had stolen five diamonds from the mine and this precipitates an investigation by Noye concerning Roddan/Gardner which was inconclusive.
•5 May 1992 - Noye and Gwilliam summoned by senior police officers to report on progress and to discuss Roddan.
•6 May 1992 - Roddan attends CIB offices in Beaufort Street and signs statement of complaint against Gardner in the presence of Noye and Gwilliam.
•7 July 1992 - Roddan telephones Noye with complaints of offences against Roddan (for possession of firearms). Noye referred Roddan to the CIB and did not investigate the allegations.
•22 July 1992 - Noye interviews Roddan at a Northbridge café regarding the interpleader action.
•23 July 1992 - Noye meets with Roddan at a café in Northbridge at Roddan's request. Roddan's solicitor had asked for a copy of Noye's documents for discovery in the interpleader.
•10 August 1992 - Superintendent Storm and Noye interviewed at office of the WA Inc Royal Commission by assistant counsel Mr Rowe, about the status of the inquiry, suspects, flawed soil analysis.
•20 August 1992 - Noye meets with Roddan alone at a café in Northbridge, and interviews him regarding the interpleader action.
•27 August 1992 - Superintendent Dalton and Noye summoned to interview with Ayton. Noye gives Ayton draft copies of his final report - returned later with minor (insignificant) amendments.
•1 September 1992 - Noye speaks to Roddan about bank accounts (local and overseas) and overseas purchases of dogs. Roddan denies the existence of any such bank accounts.
•2 September 1992 - Noye interviewed LC and obtained a signed statement from her regarding BC and Roddan.
•3 September 1992 - Noye seeks information from a solicitor at the Crown Law Department regarding documents for the interpleader action.
•3 September 1992 - At 2 pm - Noye receives a telephone call that LC's unit has been broken into. He calls forensic police officers and attends at the scene.
•10 September 1992 - Noye speaks to BC by phone in Victoria. Advises him that the inquiry is concluding but asks for any further relevant information - none received.
•16 September 1992 - Noye delivered a draft of his report to Ayton and Storm.
•8 October 1992 - Round completes notes for Ayton on his assessment of Noye's draft report
•23 October 1992 - Noye telephoned by Round who wants the report for binding.
•26 October 1992 - Noye attends the office of Ayton with Round to discuss the final report.
•27 October 1992 - Noye delivers the final report to Ayton with a copy to the CIB Executive.
•29 October 1992 - The three volumes of the Noye report are delivered to Detective Sergeant Lampard, staff officer to Commander Hancock.
•29 October 1992 - Noye goes on leave and travels to Victoria.
•19 November 1992 - Noye meets BC at Shepparton in Victoria without disclosing visit to police in Perth. Noye stays overnight with BC in Shepparton.
•10 January 1993 - Noye recommences duty in Perth.
•19 January 1993 - Noye recalled to duty.
•19 January 1993 - LC arrested after an altercation with Roddan. She alleges that Roddan and Noye are corruptly involved in police activity to terminate the Argyle inquiry in return for the payment of a bribe of $200,000.
•19 February 1993 - Noye is interviewed by Robbins and Watson and denies any wrongdoing.
•March 1993 - The third Argyle inquiry established, ostensibly under Inspector Lavender, but largely conducted by Gwilliam.
•17 March 1993 - Ayton contacts Noye to arrange a meeting.
•18 March 1993 - Meeting between Ayton and Noye in the presence of Watson of IAU. Discuss allegations made by LC.
•19 March 1993 - Noye attends IAU and is interviewed by Watson and Robbins.
•19 March 1993 - Robbins tells Noye that IAU suspects that Noye was sharing a bribe of $200,000 given by Roddan. Noye complains about this to Zanetti. Superintendent Max Kiernan, who is said to have been implicated in the bribe, also makes complaint. It emerges that Gwilliam is feeding information to LC.
•22 March 1993 - Meeting between Zanetti, Kiernan, Noye and Ayton about complaints made against Gwilliam. Noye demands a full investigation.
•23 March 1993 - Noye submits a report to Ayton denying any involvement in alleged corruption. Noye later approaches Gwilliam, who denies saying there had been a bribe.
•April 1993 - Robbins and a Victorian police officer visit BC in Shepparton. BC makes no admissions but agrees to consider his position.
•8 April 1993 - Noye visits Ayton regarding IAU enquiry. Noye demands that the matter be fully investigated.
•27 April 1993 - Watson contacts Noye and asks for copies of documents sought by Roddan for the interpleader.
•29 April 1993 - Noye provides document to Superintendent Watson.
•10 August 1993 - Roddan arrested by Gwilliam and others. Note: this was a precipitous action by Gwilliam that took Robbins and the DPP by surprise.
•16 and 21 September 1993 - Noye interviewed by Robbins and others. Noye denies any wrongdoing.
•29 August 1993 - After initiatives by Gwilliam and Argyle security officers, BC agrees to be interviewed in Kununurra by Robbins and Gwilliam. BC makes admissions concerning the theft of diamonds and implicated Roddan.
•11 November 1993 - Noye suspended from duty and charged on summons with three offences.
•21 November 1993 - Noye provides Robbins with a written statement protesting at the laying of charges and denying any wrongdoing.
•22 November 1993 - Noye appears in Perth Court of Petty Sessions on three charges which are adjourned.
•29 November 1993 - Noye served with four internal disciplinary charges by Inspector Dawson.
•7 December 1993 - Noye appears before the Commissioner on the internal disciplinary charges. The matters are deferred pending resolution of the criminal charges.
•8 February 1994 - LC and BC appear in the District Court and plead guilty to charges.
•14 February 1994 - Noye charged with three counts of fraud with respect to LC's insurance claims.
•16 February 1994 - LC and BC are sentenced.
•17 February 1994 - Noye appears in the Court of Petty sessions on the charges.
•July 1994 - Robbins ceases active duty with the IAU.
•30 September 1994 - The preliminary hearing concludes and Noye is committed to the District Court for trial.
•5 December 1994 - DPP presents the first indictment for the prosecution of Noye.
•17 October 1995 - DPP serves particulars of the alleged overt acts.
•2 April 1996 - Roddan's trial in the District Court commences.
•17 May 1996 - Roddan is convicted on three counts of conspiracy to steal as a servant.
•17 May 1996 - Lavender inquiry is completed.
•10 July 1996 - Noye is advised that the charges relating to the D'Anna report will not proceed.
•28 July 1997 - Noye appears in Perth Court of Petty Sessions on three fraud charges.
•1 October 1997 - DPP presents the second indictment against Noye.
•2 June 1998 - DPP presents the third indictment against Noye.
•June 1998 - DPP serves the brief for the prosecution (later supplemented by further depositions).
•8 October 1998 - Nolle prosequi entered in relation to all charges.
•31 May 1999 - Perjury charges against Gwilliam withdrawn.
•14 October 1999 - Noye retires from the police service on medical grounds and all police internal disciplinary charges were withdrawn.
•8 November 1999 - Noye and Roddan issue the writ of summons against Robbins.
•21 November 2000 - Noye and Roddan issue the writ of summons against LC.
•1 June 2005 - Severance of claims by Roddan, on the one hand and Noye on the other, with Roddan's claim adjourned sine die.
•30 May 2006 - The trial of Noye's actions against Robbins and LC commences.
•18 August 2006 - The hearing of Noye's actions against Robbins and LC concludes.
•30 April 2007 - Judgment on the merits is delivered (the subject of CACV 85 of 2007).
•21 November 2008 - Judgment concerning costs is delivered (the subject of CACV 121 of 2008).
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