Noye v Thoy
[2001] WASC 62
NOYE & ANOR -v- THOY [2001] WASC 62
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 62 | |
| Case No: | CIV:1471/2000 | 19 FEBRUARY 2001 | |
| Coram: | MASTER BREDMEYER | 7/03/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | JEFFREY HOWARD NOYE LINDSAY GORDON RODDAN ROBIN MARTIN THOY |
Catchwords: | Pleading Application to strike out Malicious prosecution Negligence No reasonable causes of action |
Legislation: | Nil |
Case References: | Cabassi v Vila (1940) 64 CLR 130 Hill v The Chief Constable of West Yorkshire [1989] AC 53 Zalewski & Anor v Turcarolo (1994) ATR 81-280 Coe v Commonwealth (1979) 24 ALR 118 Commonwealth Life Assurance Society v Brain (1935) 53 CLR 3443 Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984 Day v William Hill (Park Lane) Pty Ltd [1949] 1 KB 632 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 Gibbons v Duffell (1932) 47 CLR 520 Kimberley Downs Pty Limited v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1996 Mann v O'Neill [1996] 191 CLR 204 Niven v Grant (1903) 29 VLR 102 Packard v Transport Trading Agency Co Ltd (1912) 14 WLR 191 Roy v Prior [1971] AC 470 Watson v M'Ewan [1905] AC 480 Zalewski v Tarcarolo [1994] ATR 81-280 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
LINDSAY GORDON RODDAN
Second Plaintiff
AND
ROBIN MARTIN THOY
Defendant
Catchwords:
Pleading - Application to strike out - Malicious prosecution - Negligence - No reasonable causes of action
Legislation:
Nil
Result:
Application allowed
(Page 2)
Representation:
Counsel:
First Plaintiff : In Person
Second Plaintiff : In Person
Defendant : Mr G O'Hara
Solicitors:
First Plaintiff : In Person
Second Plaintiff : In Person
Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Cabassi v Vila (1940) 64 CLR 130
Hill v The Chief Constable of West Yorkshire [1989] AC 53
Zalewski & Anor v Turcarolo (1994) ATR 81-280
Case(s) also cited:
Coe v Commonwealth (1979) 24 ALR 118
Commonwealth Life Assurance Society v Brain (1935) 53 CLR 3443
Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Pty Ltd [1949] 1 KB 632
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Gibbons v Duffell (1932) 47 CLR 520
Kimberley Downs Pty Limited v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1996
Mann v O'Neill [1996] 191 CLR 204
Niven v Grant (1903) 29 VLR 102
Packard v Transport Trading Agency Co Ltd (1912) 14 WLR 191
Roy v Prior [1971] AC 470
Watson v M'Ewan [1905] AC 480
Zalewski v Tarcarolo [1994] ATR 81-280
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendant to strike out the plaintiffs' amended statement of claim of 31 October 2000 as not disclosing any reasonable cause of action and/or as embarrassing etc.
2 The pleading states that the first plaintiff was at all material times a police officer with the rank of Detective Senior Sergeant. The defendant was also at all material times a police officer. In broad outline the pleading is that between February and 1997, the defendant investigated matters concerning the affairs of the second plaintiff and the theft of diamonds from Argyle Diamond Mine between February and September 1992. The first plaintiff investigated the affairs of the second plaintiff (Mr Roddan) as to the theft of the diamonds. The first plaintiff prepared a three volume report on his investigation. Between January and November 1993 the defendant made representations to Inspector Robbins to lay complaints against the first and second plaintiffs. Inspector Robbins acted on that and he laid identical complaints against each plaintiff that between 1 February 1992 and 20 February 1993 at Perth, the first plaintiff attempted to pervert the course of justice in that being a police officer required to investigate possible criminal offences committed by Mr Roddan and others, he deceitfully misrepresented the true evidence and reported that there was no evidence to support a charge against Mr Roddan and another. As I have said, the complaint against Mr Roddan was in identical form, namely that he between the same dates procured Mr Noye to pervert the course of justice by deceitfully misrepresenting that there was no evidence to support a charge against him.
3 In February 1994 those two complaints were withdrawn, but were substituted by further complaints (called the second complaints) in identical form except that they joined the two plaintiffs in the one complaint, ie, a joint complaint.
4 The first and second plaintiff elected to have a preliminary hearing in the Perth Court of Petty Sessions on various days in April, May, June, July, August and September 1994. As a result of that hearing, on 19 September 1994 the presiding Magistrate committed them both for trial or sentencing in the December sittings of the District Court on the second complaints.
5 In December 1994 the Director of Public Prosecutions presented an indictment against the plaintiffs for conspiring to pervert the course of justice in relation to the theft of diamonds. On 1 October 1997 he presented a second indictment in much the same form, and on 2 June 1998
(Page 4)
- the Director of Public Prosecutions presented a third indictment against the two men, again in the same form. On 8 October 1998 the Director terminated the charges by presenting a nolle prosequi against both plaintiffs.
6 The plaintiffs say that the complaints were instigated and continued by the defendant without any reasonable or probable cause. Particulars of that are given. It is further alleged that the defendant acted maliciously in bringing those complaints and continuing those complaints against the plaintiffs. Finally it is alleged that the defendant owed a duty of care to the first and second plaintiffs to conduct his investigations against them with all due care and not to continue criminal charges against them unless he had reasonable and probable cause to do so. It is said that he breached that duty of care. Details of that are given.
7 Further, it is pleaded that as a result of the defendant's actions, the plaintiffs have suffered loss and damage, particulars of which are given.
8 It is clear from this brief summary that two causes of action are alleged, (1) malicious prosecution and (2) negligence. The elements of malicious prosecution as set out in Bullen and Leake and Jacob'sPrecedence of Pleadings, 13th ed at 642 are:
"The plaintiff must plead and establish:
(a) that he was prosecuted by the defendant, ie that the law was set in motion against him, or proceedings were continued, by the defendant on a criminal charge;
(b) that the proceedings were resolved in the plaintiff's favour;
(c) that the proceedings were instituted without reasonable and probable cause;
(d) that the defendant instituted the proceedings maliciously; and
(e) that the plaintiff suffered loss and damage as a result."
(Page 5)
- Further there is no plea as to the basis on which it is alleged that the representations were wilfully false.
10 I do not consider it is necessary to distinguish between the instigation of the complaints against the first or the second plaintiffs. I consider the plea is not embarrassing in that regard. I consider the plea is reasonably clear as to what is false. For example, in particular (a) the falsity is that the first plaintiff had not "confessed to him…". In particular (b) it is that the Noye Report did not contain false statements designed to protect the second plaintiff from prosecution. In particular (c) it is that the Noye Report "did not contain sufficiernt evidence…". Particulars of wilfulness can be given, eg, as proposed "The defendant knew that all the matters particularised in par 7 were false."
11 Paragraph 19 pleads that the defendant instigated and continued, or was instrumental in the continuation, of the complaints against the first and second plaintiffs. Some particulars of that are given. Particulars (a) and (b) are said to be embarrassing as not amounting to continuation. I consider (a) should be amended to read, "conducted an investigation of the affairs of the second plaintiff between 1993 and 1996". I have done that because the investigations carried out by the defendant prior to 1993 were part of the instigation of the complaints. I consider par (b) is in order.
12 The defendant objects to particular (c) as being so vague and lacking in material facts as to be embarrassing. I consider the plea is in order.
13 Paragraph (d) is also said to be embarrassing as not capable of amounting to a continuation of the complaint. I do not agree with that objection.
14 Paragraph 19(e) pleads that the defendant gave sworn oral testimony in the course of the preliminary hearing in 1994 in relation to the Thoy inquiry and his investigations into the affairs of the first and second plaintiffs and all of the criminal matters disclosed herein. The defendant says that plea is bad because a witness in a case enjoys immunity from suit in another case: Cabassi v Vila (1940) 64 CLR 130. I think the plea can stand. The defendant is not being sued for having given false testimony at the committal. The particular here is simply that the defendant continued the complaint. I think that is arguable.
15 Paragraph 20 comes to the heart of the plea that the defendant instigated and continued in the laying of the charges against the plaintiffs
(Page 6)
- without reasonable and probable cause. Particulars of that are given which I quote.
"PARTICULARS OF ABSENCE OF REASONABLE AND PROBABLE CAUSE
The Defendant knew or ought to have known that the evidence of key prosecution witnesses was unreliable namely that of:
Lynette Crimmins who was biased against the First and Second Plaintiffs, was mentally unstable, was addicted to drugs and alcohol and had a motive to lie about the First and Second Plaintiffs to protect herself from prosecution for criminal offences. Moreover, the Defendant had formed a friendly relationship with Lynette Crimmins and in so doing had endeavoured to secure for her a number of police investigations into matters that she had raised as complaints of police mis-conduct against herself.
Barry Crimmins who was investigated by the Defendant and other police in 1990, and who had a motive to lie about the First and Second Plaintiffs in order to avoid or minimise prosecution for criminal offences he had committed.
Richard William Corfield ('Corfield') who was biased against the First Plaintiff, and extremely biased against the Second Plaintiff, and who publicly stated that he considered the Defendant to be one of his friends.
John Sebastian Burton ('Burton') who was biased against the First Plaintiff and extremely biased against the Second Plaintiff.
Robert Charles Gardiner ('Gardiner') who was biased against the Second Plaintiff.
Rae-lene Mary Shore ('Shore') who was biased against the Second Plaintiff."
(Page 7)
- biased against the first and second plaintiffs, was mentally unstable, and was addicted to drugs and alcohol and had a motive to lie about the plaintiffs to protect herself from criminal charges etc. All this does not mean that the prosecution should not proceed with the charge. It may be that despite these problems with her credibility, she was an important witness. She may have seen and heard incriminating actions and words by the defendants in the criminal case. Likewise with Barry Crimmins. It is said that he had a motive to lie about the first and second plaintiffs in order to avoid or minimise prosecution for criminal offences he had committed. It occasionally happens that the prosecution has a witness who is an accomplice, or who himself has criminal convictions, or is a suspect. All this presents problems for the prosecution. If he is an accomplice he normally needs to be dealt with, either by being convicted or being given an indemnity from prosecution. But again, despite these problems from a prosecution point of view, he may be a witness with first-hand evidence to give. Take also the statement about Mr Corfield. He was said to be biased against the first plaintiff, extremely biased against the second plaintiff and publicly stated that he considered the defendant to be one of his friends. This also frequently happens in a criminal case. The witness may be biased, in the sense of intensely dislike, the defendant and he may be friendly with the victim. He may be related to the victim, he may be married to her, or whatever. These are matters which may diminish the credibility which should be given to a witness, but nevertheless, he may be a witness of substance. He may have seen and heard things done and said by the defendant which will help prove the offence. I do not see why the prosecution should back off from running a prosecution because a number of witnesses are biased against the defendant and have suspect credibility for other reasons. The prosecution has a duty if it considers that the offence has been committed and that is has evidence about it, to run the prosecution. If, as a result of cross-examination as to credibility, the prosecution case is not proved beyond reasonable doubt, then the defendant will be acquitted. I consider that none of these particulars, even taken together, amounts to an absence of reasonable and probable cause.
17 Secondly, and this also relates to the first point, the plaintiffs in this case, (the defendants in the Court of Petty Sessions), were committed for trial upon the charges. That is, an independent judicial officer, the Magistrate, considered that the prosecution case had been made out in a prima facie way or in a sufficient way to commit these men for trial or sentence on an indictable offence to the District Court. That is independent judicial confirmation that these men were prosecuted with
(Page 8)
- reasonable and probable cause. I am not saying that the Magistrate used those words or should have used those words. I am trying to express the legal effect of his decision to commit them for trial or sentence upon the charges. This is not a case where the charges were withdrawn, or nollied, which is very similar, before any court case was heard; or where, after a trial, the defendants were acquitted. The proceedings were resolved in the plaintiffs' favour because of the nolle prosequi, but only after the Magistrate had found at the committal that there was a case to answer. With that adverse finding against them, I consider that, as a matter of law, the plaintiffs are unable to establish that this prosecution was brought without reasonable and probable cause and that this claim fails at the outset to disclose a reasonable cause of action.
18 Paragraph 21 states that the defendant was extremely biased against the second plaintiff. This is said to be so vague and meaningless as to be embarrassing. I agree with that. If it means that the defendant extremely disliked the second plaintiff, then the plea should say so. If it refers not to the defendant's feelings and thoughts, but to the defendant's actions, then particulars of the bias should be given. In either event it should be struck out and repleaded.
19 Paragraph 22 pleads malice. I quote the three particulars of malice given.
"PARTICULARS OF MALICE
(a) The Defendant conducted himself wilfully maliciously and with extreme bias, knowing the First and Second Plaintiffs were innocent of the charges or reckless not caring whether the First and Second Plaintiffs were innocent of the said charges or not, in order not to effect justice in relation to the First and Second Plaintiffs but to pursue the aims of his own investigation into the affairs of the First and Second Plaintiffs in relation to the Argyle Diamonds' matter and/or West Australian Diamond Trust matter;
(b) The Defendant presented knowingly false written and sworn testimony, such testimony in some instances conflicting with itself, thereby being actively instrumental in the prosecution of the First and Second Plaintiffs whilst he cared not for, or was reckless or indifferent to,
(Page 9)
- the causes of justice but merely sought to pursue his own agenda in respect of the First and Second Plaintiffs;
- (c) The Defendant, by being actively instrumental in such prosecution of the First and Second Plaintiffs while he cared not for, or was reckless or indifferent to, the causes of justice, merely sought to pursue his own agenda towards the First and Second Plaintiffs and the aims of his own investigation into the Argyle Diamonds' matter and/or West Australian Diamond Trust matter."
20 I consider this plea should be struck out as not disclosing a reasonable part of the cause of action. How can it be said that the defendant knew that the first and second plaintiffs were innocent of the charges when the Magistrate committed them for trial on the charges? Likewise, how can it be said in (b) that he presented false written and sworn evidence, in some cases conflicting with itself, when the Magistrate, after reviewing all the evidence including no doubt the parts which conflicted, decided to commit the plaintiffs for trial? Likewise in (c), how can it be said that the defendant was recklessly indifferent to the cause of justice and sought to pursue his own agenda towards the second and first plaintiffs, when his investigation was good enough to gain a committal for trial from the Magistrate? I will strike out par 22.
21 Paragraph 23 is a plea to the effect that the prosecutions were unauthorised and were done by the defendant maliciously in the purported discharge of his public office and constituted a consciously wrongful exercise of power by the defendant by virtue of his position as a police officer, and did thereby cause harm to the first and second plaintiffs. I do not know to what this plea relates. It is not a necessary part of the cause of action of malicious prosecution and I cannot identify it with any other cause of action. I consider it irrelevant to any known cause of action and to the causes of action being run in this pleading and I propose to strike it out as an idle plea which will not lead to any result for the plaintiffs.
22 The second cause of action pleaded is that of negligence. I have outlined briefly the plea in my introductory summary. It is said that the defendant owed a duty of care to the first and second plaintiffs to conduct his investigations with all care and skill, and not to instigate or continue criminal charges against them unless he had reasonable and probable cause to do so and that he breached that duty of care in instigating the charges when he did not have reasonable and probable cause to do so.
(Page 10)
23 Police can be held liable for negligence: see Zalewski & Anor v Turcarolo (1994) ATR 81-280, a decision of the Supreme Court of Victoria, Appeal Division, which contains a review of Australian, English and Canadian cases. In that case a policeman was found liable for the negligent shooting of a suspect. Police have also been found liable for negligent driving of a vehicle, the negligent custody and care of prisoners, failure to direct traffic properly in an emergency, etc.
24 In Hill v The Chief Constable of West Yorkshire [1989] AC 53 the plaintiff was the mother of a 20-year-old daughter who died as a result of injuries received when she was attacked in a city street by a person who was alleged to have committed a series of attacks in similar circumstances. The plaintiff sued the police for the negligent conduct of investigations into the earlier crimes. The claim was struck out as disclosing no cause of action. That decision was upheld by the House of Lords. Lord Templeman decided the appeal on the policy basis that the efficiency of a police force cannot be investigated by an action for damages, but only by an inquiry instituted by a national or local authority responsible to the electorate for that efficiency. The other Lords gave separate reasons, but public policy aspects were mentioned in some of them.
25 I am aware that the law proceeds incremently, especially with the tort of negligence, gradually extending it to new factual situations. I am also aware that a strike out application should not succeed unless the cause is one which is "obviously untenable", or "manifestly groundless" or discloses a case which cannot possibly succeed. I am aware too that a court should not strike out a cause summarily when there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie. Nevertheless, bearing those warnings in mind, I am satisfied that this cause of action cannot possibly succeed. That is especially so where the investigation said to be done negligently resulted in a committal after a long preliminary hearing in the Court of Petty Sessions. Both plaintiffs were committed for trial. I propose to strike out this cause of action.
26 Given my reasons on the three causes of action, it is appropriate that I strike out the whole statement of claim and dismiss the action.
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