O'MALLEY v Singh - [2019] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
O'MALLEY & ANOR v SINGH
[2019] SASC 68
Judgment of The Honourable Justice Stanley
8 May 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
This is an appeal against an order of a magistrate.
The respondent was arrested and charged with one count of trafficking in a controlled drug. The first appellant was a member of SA Police and the investigating officer in respect of that charge. The prosecution was dismissed upon a finding that there was no case to answer.
The respondent sued the appellants for malicious prosecution. The action has not yet come to trial. A magistrate dismissed the appellants’ application for the respondent’s claim against the first appellant to be struck out on the ground that it was commenced contrary to s 65(3) of the Police Act 1998 (SA) (the Act). The appellants have appealed the magistrate’s decision.
Held:
1. The magistrate erred in the construction of s 65. That was sufficient for reconsidering the question of whether the respondent’s claim against the first appellant should be permitted to proceed.
2. The appeal is allowed. The order of the magistrate dismissing the appellants’ application is set aside. The order that the appellants pay the respondent’s costs of the application is set aside. The matter is remitted to another magistrate.
Police Act 1998 (SA) s 65; Statutes Amendment (Police) Act 2013 (SA) s 15, referred to.
A v New South Wales (2007) 230 CLR 500, discussed.
Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Hoare v The Queen (1989) 167 CLR 348; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, considered.

O'MALLEY & ANOR v SINGH
[2019] SASC 68
STANLEY J:
Introduction

In this matter the respondent sued the appellants for malicious prosecution. The action has not yet come to trial. The appellants applied for the respondent’s claim against the first appellant to be struck out on the ground that it was commenced contrary to s 65(3) of the Police Act 1998 (SA) (the Act). A magistrate dismissed the application. The appellants have appealed the magistrate’s decision.
Section 65 provides:
65—Protection from liability for members of SA Police
(1) A member of SA Police does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.
(2) A liability that would, but for subsection (1), lie against a member of SA Police lies instead against the Crown.
(3) A person (the “injured person”) who suffers injury, loss or damage as a result of the act or omission of a member of SA Police may not sue the member personally unless—
(a)     it is clear from the circumstances of the case that the immunity conferred by subsection (1) does not extend to the case; or
(b)     the injured person brings an action in the first instance against the Crown but the Crown then disputes, in a defence filed to the action, that it is liable for the act or omission of the member.
(4) Where a question arises as to whether the immunity conferred by subsection (1) extends to the case and the member of SA Police claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member.
(5) If a member of SA Police is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law—
(a)     unless the Crown is alleging that the member is personally liable for the act or omission—the Crown must represent the member; or
(b)     if the Crown does not represent the member and the member is found by the court not to have acted dishonestly—the Crown must indemnify the member for legal costs properly incurred by the member (but not exceeding 80% of the Supreme Court scale of costs applying at the time the case is determined).
Factual background
On 16 December 2015 the respondent was arrested and charged with one count of trafficking in a controlled drug. The first appellant was a member of SA Police and the investigating officer in respect of that charge. On 19 April 2016 prosecution of the alleged offence was dismissed upon a finding that there was no case to answer. On 27 April 2018 the respondent commenced a civil action against both appellants alleging malicious prosecution.
The pleadings
The respondent pleads that to the extent that the first appellant is immune from liability for his pleaded acts and omissions pursuant to s 65 of the Act, such liability attaches to the second appellant. The claim pleads that there was never any, or any sufficient, evidence upon which a viable prosecution could be maintained against the respondent;[1] the first appellant acted for a purpose other than bringing the respondent to justice;[2] and the first appellant acted without reasonable and probable cause, in particular, because he did not honestly believe the case that was instituted and maintained against the respondent, and there was no sufficient basis for such a belief.[3]
[1]    Paragraph 12 of the statement of claim.
[2]    Paragraph 13 of the statement of claim.
[3]    Paragraph 14 of the statement of claim.
By their defence, the appellants plead that the action against the first appellant is incompetent. The defence pleads that the first appellant’s actions were not actuated by malice on the basis that he believed he had reasonable and probable cause to suspect the respondent of having committed the alleged offence. The second appellant further pleads that officers in the performance management branch based in Adelaide came to the same conclusion independently of the first appellant. The appellants admit the immunity conferred by s 65(1) of the Act covers the acts and omissions of the first appellant but deny they are liable; in the alternative, pleads that pursuant to s 65(2) any liability that would, but for s 65(1), lie against the first appellant, instead lies against the second appellant; and pleads that pursuant to s 65(3) no action may be brought against the first appellant.
Reasons of the magistrate
The magistrate adverted to the purpose of s 65(3) in the following terms:
The immunity and the prohibition in s 65(3) serve the important purpose of providing assurance to the members of SA Police that they can execute their duties without fear of unfounded civil or criminal proceedings being brought against them. The use of the word ‘clear’ in the exception to the prohibition in s 65(3)(a) imposes a high threshold for a party to overcome. Although the defendants have pleaded a factual scenario that may, if established on the evidence, negate the first defendant’s alleged dishonesty, that does not defeat the clarity with which [sic] plaintiff has raised this as an issue on her pleadings. It is an issue to be determined at trial.
The magistrate commenced her analysis of s 65(3)(a) on the basis that the “circumstances of the case” before the Court were contained in the pleadings. However, from the reasons that follow, it is clear that the magistrate focussed on the pleadings in the statement of claim. The magistrate considered that the terms of paragraphs 12, 13 and 14 of the statement of claim clearly placed in issue the alleged honesty of the belief of the first appellant.
The magistrate reasoned that the alleged dishonesty of a person could only be determined after the receipt and testing of evidence at trial. On that basis she held that the respondent did not have to discharge the burden of proof at the interlocutory stage of the proceedings.
On this basis the magistrate dismissed the appellant’s application for an order striking out the respondent’s claim against the first appellant.
The magistrate also gave reasons for excluding a document the respondent sought to tender at trial as a business record of SA Police. The document was prepared by another police officer and purports to record a conversation with the first appellant in the following terms:
I have spoken to the Investigating Officer as to why he decided to arrest the [plaintiff] and he concedes that there was never any “real” substance to the charge.
The magistrate gave the following reasons for her ruling:
MCR 19(1) permits the court to receive evidence in accordance with the Evidence Act 1929. Under s 53 of that Act, a business record is admissible in evidence without further proof and is evidence of a fact in that record. However, the court retains a discretion to exclude such evidence if of the opinion the person who prepared the document can and should be called to give evidence. Given the document was prepared by a member of SA Police, I consider this to be such a case. However, that officer’s evidence would result in a mini-trial on the very issue that ought to properly be determined at trial.
In addition, I consider the evidentiary weight of the document is slight in respect of this application, as there is no evidence before the court about the safeguards undertaken to ensure its accuracy. For example, it is not clear when the author spoke to the first defendant, whether these were the precise words used by the first defendant or whether the author may have paraphrased the content of the conversation using his own language, and importantly, when the first defendant formed his view about the prosecution that is attributed to him. I therefore decline to admit the affidavit and annexures as evidence on this application.
Grounds of appeal
Fundamentally, the appeal concerns the proper construction of s 65 of the Act. In addition, however, the appellants put two further contentions. First, they contend that the respondent’s case does not allege any dishonest act or omission by the first appellant. Second, they contend that the plea in paragraph 3 of the defence, that the second appellant admits the immunity conferred by s 65(1) covers the acts and omissions of the first appellant, means that pursuant to s 65(3), no action may be brought against the first appellant.
Section 65
It can be seen that the work to be performed by s 65 is three-fold. First, it protects a member of SA Police from incurring any civil or criminal liability in the circumstances specified in s 65(1). Second, it limits the right of a person, who suffers injury, loss or damage as a result of an act or omission of a member of SA Police, to sue the officer personally unless the injured person establishes one of the two conditions prescribed in s 65(3). Third, it provides that if a member of SA Police is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under the Act or any other Act or law, the Crown must represent the officer or indemnify the officer for legal costs incurred as specified in s 65(5).
The right of the respondent to sue the first appellant in this case turns on s 65(3)(a). Section 65(3)(b) does not apply to this case. First, the respondent, being the injured person for the purposes of the provision, has brought an action in the first instance against both the police officer and the Crown. Second, the Crown does not plead in its defence that it disputes that it is liable for the act or omission of the officer. On the contrary, it admits that if there is any liability on the part of the first appellant, that liability lies against the Crown.
At issue on the appeal is the basis upon which the limitation on the injured person’s right to sue a police officer is effected pursuant to s 65(3)(a).
In my view, both the text and the context of s 65(3)(a) indicate that the injured person may only sue a member of SA Police if he or she establishes clearly from the circumstances of the case that the immunity conferred by s 65(1) does not extend to his or her case. So much is plain from the terms of the provision. This construction is reinforced by consideration of the terms of s 65(4) which expressly provides that where a question arises as to whether the immunity conferred by s 65(1) extends to the case and the member of SA Police claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the injured party. Contrary to the view taken by the magistrate, that burden lay on the respondent at this stage of the proceedings.
Nonetheless, this begs the critical question of the meaning of “the circumstances of the case” in s 65(3)(a). Unless the respondent establishes that it is clear from the circumstances of the case that the immunity conferred by s 65(1) does not extend to this case, the appellants are entitled to the order they sought before the magistrate striking out the respondent’s claim against the first appellant. At issue is how that test is to be applied.
The respondent’s suit alleges malicious prosecution. The claim was brought against the first appellant and, in the alternative, against the second appellant. In paragraph 13 of the statement of claim the respondent pleads that the first appellant, in initiating and maintaining the prosecution against her, acted for a purpose other than the purpose of bringing the respondent to justice, namely:
1.to apply pressure on the respondent’s son, Gurminder Singh, to enter pleas of guilty to charges laid against him, or to otherwise co-operate with the police investigation; and
2.in the alternative, it can be inferred that the first appellant acted for such a purpose from the manifestly insufficient evidence upon which the prosecution against the respondent was initiated and maintained.
In paragraph 14 of the statement of claim the respondent pleads that the first appellant acted without reasonable and probable cause. In particular, he did not honestly believe the case that was instituted and maintained; and/or there was no sufficient basis for such a belief.
The appellants submit that “the circumstances of the case” in s 65(3)(a) must be construed to mean all relevant material before the court, including the pleadings by both parties and any other evidentiary material available at the time the court is required to undertake the assessment of whether it is clear that the immunity conferred by s 65(1) does not extend to the injured person’s case.
The respondent submits there are two constructions available to the determination of the issue in s 65(3)(a). The first is that the “circumstances of the case” are to be assessed solely on the pleading in the injured party’s statement of claim. The second is that “the circumstances of the case” are to be assessed from a combination of all the pleadings and whatever evidence might be relied on in support of or in opposition to the application to strike out or dismiss the claim against the member of SA Police. The respondent submits that the former construction is to be preferred over the latter. The appellants contend to the contrary.
In my view the correct construction is that for which the appellants contend.
There are three reasons why there is some force in the submission that the circumstances of the case should be confined to the pleading in the statement of claim. First, on the basis that s 65(3) is temporally referable to the commencement of proceedings against a member of SA Police i.e. at a time when the extent of the circumstances of the case is confined to the contents of the statement of claim. Second, that interpretation finds support from the terms of s 65(3)(b) which provides the other basis upon which an injured person is entitled to institute proceedings against a member of SA Police, namely, where the Crown has been sued and disputes, in its defence, filed in the action, that it is liable for the act or omission of the police officer. The right to sue under the second limb being referable to the pleading in the defence lends support to a construction of the other limb by which an injured person is entitled to sue the officer personally as being referable to the plea in the statement of claim. Third, the alternative construction requires the Court to hear and determine an interlocutory trial, where it is open to the parties to adduce evidence for and against the applicability of the immunity conferred by s 65(1) to the circumstances of the particular case. That is not an attractive construction. However, I am persuaded that it is the correct construction. I favour that construction because it is consistent with the purpose of the provision.
In identifying the purpose of s 65 it is necessary to refer to the legislative history of the provision.
When first enacted, s 65 provided:
(1) A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law.
(2) A liability that would, but for subsection (1), lie against a member of S.A. Police lies against the Crown.
A new s 65 was substituted by the Statutes Amendment (Police) Act 2013 (SA).[4] That amendment extended the protection afforded a member of SA Police to include any criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under the Act or any other Act or law and added sub-sections (3) to (5).
[4] Section 15.
The amendment was moved in the Legislative Council by the Hon. Robert Brokenshire. The amendment was supported by the Government and the Opposition. In the course of the committee stage of the debate, Mr Brokenshire said that the amendment would provide the protection that he believed police officers needed to be able to act fearlessly in the performance of their duties without concern about potential litigation or prosecution for what they believe is the lawful exercise of their duties. The Hon. Gail Gago, the Minister with the conduct of the matter in the Legislative Council, in supporting the amendment, observed that SAPOL did not see the need to have what became s 65(3)(a) at all as it would give “rise to an interlocutory-type dispute from the outset, with both sides saying that it is clear that the persons named acted / did not act honestly in the exercise of their duty”. Nonetheless, the Government supported the amendment on the basis that SAPOL advised that the amendment “should not adversely impact on operational policing”.[5]
[5] Hansard, Legislative Council 16 October 2013.
In South Australia extrinsic materials may be resorted to for the purposes of determining the mischief that a legislative provision was intended to address and, in the light thereof, the meaning of the provision under consideration.[6]   However, the common law does not permit resort to “a Ministerial statement, about the effect of a law in force at the time of the statement, as an aid to the interpretation of that law”.[7] On this appeal it is permissible to refer to the history of the amendment of the provision to ascertain its purpose.
[6]    K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [51], (2009) 237 CLR 501 at 521; Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 at [33], (2012) 248 CLR 1 at 16; Hoare v The Queen [1989] HCA 33, (1989) 167 CLR 348 at 360-361.
[7]    Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 at [33], (2012) 248 CLR 1 at 16.

In my view, putting to one side the question of criminal liability, which is not at issue in this matter, the purpose of s 65, and, in particular s 65(3), is to protect police officers in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty legally conferred or imposed upon them, from being sued or found civilly liable for their acts or omissions. The purpose of conferring this protection is to prevent police officers from being inhibited or distracted in the course of the performance of their duties by a concern that in performing those duties they might be exposed to civil or, for that matter, criminal liability, where they have undertaken those duties honestly. The risk is that a police officer might hesitate or be inhibited in the performance of his or her duties by such concern. That would give rise to a conflict which is contrary to the public interest.
That purposive construction is supported by the phrase “it is clear” in s 65(3)(a). That serves to emphasise that the injured person is permitted to sue a police officer only in the clearest cases where it can be established that the immunity conferred by s 65(1) does not extend to the particular case. The magistrate was correct in construing s 65(3)(a) as imposing a high threshold for an injured person to overcome.
The effectiveness of the protection conferred by the provision would be significantly, if not wholly, compromised if all that the injured person had to do was to file a pleading in the action alleging, or at least putting in issue whether, a police officer acted dishonestly. It follows that the “circumstances of the case” in s 65(3)(a) must require more than just a plea of dishonesty, or a plea which places the officer’s honesty in issue, in the statement of claim. The protection afforded by the provision should not be so easily defeated. It follows that I consider the “circumstances of the case” to include not just the pleadings but such evidence as is before the court when it must determine the question of whether the injured person is entitled to sue the police officer.
As I have indicated earlier, the construction I favour results in the possibility of the court being required to conduct an interlocutory trial on the question of whether the police officer has acted or failed to act honestly in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty legally conferred or imposed upon the police officer. While that prospect is unattractive, I consider that it is the unavoidable consequence of the correct construction of the section and the basis upon which the protection against a suit is conferred upon police officers.
Therefore, the magistrate erred in the construction she gave to s 65(3).
Is it the respondent’s case that the first appellant has acted dishonestly?
I reject the appellants’ submission that the respondent has not sought to allege any dishonest act or omission by the first appellant. The appellants submit that the only reference to “honesty” or “dishonesty” in the statement of claim appears at paragraph 14.1, being a plea in respect of reasonable and probable cause. The appellants submit that a belief is neither an act nor an omission. They contend that a decision to prosecute without reasonable or probable cause may nonetheless be honest. Further, they submit that a prosecution pursued for a purpose other than the purpose of bringing the respondent to justice may nonetheless be honest. They contend that the respondent’s approach conflates honesty with various other legal concepts, such as malice, acting for an ulterior purpose, acting without reasonable or probable cause and honest belief.
The magistrate felt it unnecessary to decide this point.
The respondent’s case is a claim for damages for malicious prosecution. The elements of the offence are:[8]
1.That proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
2.That the proceedings terminated in favour of the plaintiff;
3.That the defendant, in initiating or maintaining the proceedings, acted maliciously; and
4.That the defendant acted without reasonable and probable cause.
[8] A v New South Wales [2007] HCA 10 at [1], (2007) 230 CLR 500 at 503.
In an action for malicious prosecution, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law i.e. an illegitimate or oblique motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor. Because there are no limits to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose.[9]
[9] A v New South Wales [2007] HCA 10 at [91]-[92], (2007) 230 CLR 500 at 531.
The element of acting without reasonable or probable cause may be established in either or both of two ways: the defendant prosecutor did not honestly believe the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief.[10]
[10] A v New South Wales [2007] HCA 10 at [77], (2007) 230 CLR 500 at 527.
It can be accepted that the mere fact a prosecution case is misconceived does not make the prosecution malicious, nor the conduct of the arresting and investigating officer dishonest. However, in this case the respondent alleges that the first appellant did not honestly believe the case he instituted. The appellants’ submission that an absence of honest belief is neither an act nor an omission overlooks the plea that the first appellant acted without reasonable and probable cause. In particular, the respondent alleges that the first appellant did not honestly believe the case that was instituted and maintained.
In my view, if this is proved, that would clearly establish that the immunity conferred by s 65(1) on a member of SA Police does not extend to the first appellant’s case.
Does the second appellant’s “admission” preclude the respondent from suing the first appellant?
I also reject the appellants’ submission that the respondent is not entitled to sue the first appellant because the second appellant has pleaded in the action that the immunity conferred by s 65(1) attaches to the acts and omissions of the first appellant alleged in the statement of claim and, that while denying any liability on the part of the appellants, admits that if there is any liability for the acts or omissions of the first appellant, that liability lies against the second appellant by virtue of the operation of s 65(2).
The right of an injured person to sue a police officer is limited by the provisions of s 65(3). The residual right of the injured person to sue the police officer is to be determined by whether the injured person is able to satisfy the Court that it is clear from the circumstances of the case that the immunity conferred by s 65(1) does not extend to the case, or the Crown disputes, in a defence filed to the injured person’s action against the Crown, that it is liable for the act or omission of the member of SA Police upon whom the alleged liability of the Crown is founded. Putting to one side s 65(3)(b) which is irrelevant to consideration of this submission, an injured person cannot be stopped from suing a member of SA Police, by the Crown accepting liability for the acts or omissions of the member, if the injured person can satisfy the Court that it is clear from the circumstances of the case that the immunity conferred by s 65(1) does not extend to his or her case. In any event, the Crown has only accepted liability on a contingent basis.
In addition, I reject the appellant’s submission that the respondent cannot satisfy the Court that it is clear from the circumstances of the case that the immunity conferred by s 65(1) does not extend to the case because the respondent has sued the State of South Australia. The respondent’s claim against the State is in the alternative to her claim against the first appellant. It does not derogate from the respondent’s principal claim against the first appellant.
Conclusion
The magistrate erred in the construction of s 65. That is sufficient for reconsidering the question of whether the respondent’s claim against the first appellant should be permitted to proceed. That requires consideration of whether the circumstances of the case clearly establish that the immunity conferred by s 65(1) does not extend to the respondent’s claim against the first appellant.
In the circumstances I would allow the appeal. I would set aside the order of the magistrate dismissing the appellants’ application. I would set aside the order that the appellants pay the respondent’s costs of the application. I would remit the matter to another magistrate.
Contrary to the submission of the respondent I propose to remit the matter rather than determining the matter afresh. The magistrate not only determined the matter on an incorrect basis but the erroneous construction she afforded s 65 informed her decision to exclude evidence of a business record of SA Police, namely, the advice following dismissal prepared by another police officer which purports to record a conversation with the first appellant in relation to his reasons for arresting and charging the respondent. In light of the true construction of the section, the question of the admissibility of that document should be reconsidered and the parties may wish to adduce further evidence from the author of the document or from the first appellant. That is obviously a matter for the parties and the Court on remittal.