Poynder v Kent; Sodomacco v O'Bryan
[2008] VSCA 245
•4 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| SCOTT JAMES POYNDER | No 3724 of 2007 |
| Appellant | |
| v | |
| GRAHAM KENT & ORS | Respondents |
| No 3723 of 2007 | |
| ROBERT JOHN SODOMACCO | Appellant |
| v | |
| DENNIS O’BRYAN & ANOR | Respondents |
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JUDGES: | BUCHANAN and DODDS-STREETON JJA and OSBORN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 June 2008 | |
DATE OF JUDGMENT: | 4 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 245 | 1st Revision 4 December 2008, counsel front page |
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TORT - Appellants police officers – Appeal against dismissal of claims in Tort brought in consequence of failed prosecution of the appellants – Misfeasance in public office – Unlawful detention of witness in the course of eliciting evidence – Knowingly unlawful conduct – No foreseeable risk of harm in circumstances where manner in which evidence obtained was intended to be and in fact disclosed to proposed accused – No damage resulting from evidence obtained – Unlawful conduct not otherwise characterizable as knowingly unlawful threats, blackmail, kidnapping, attempt to pervert to course of justice, oppression, or incitement to contravene South Australian drugs legislation – Claim for intimidation not pleaded and not able to be raised on appeal, in circumstances where it might have been met by additional evidence below – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr S Gillespie-Jones | BM Legal |
For the Respondent (Kent) | Mr D J Bracken | Mahonys |
| For the Respondent (O’Bryan) | Mr P F Tehan QC with | Russell Kennedy |
| For the Respondent (State of Victoria) | Mr H J Langmead SC with Mr G J Maguire | Victorian Government Solicitor |
BUCHANAN JA:
In my opinion the appeals should be dismissed for the reasons stated by Osborn AJA.
DODDS-STREETON JA:
I have had the benefit of reading in draft the reasons of Osborn AJA. I agree with his Honour’s proposed disposition for the reasons he gives.
OSBORN AJA:
Introduction
The appellants in these proceedings are police officers who instituted claims in tort arising out of unsuccessful criminal charges brought against them by members of the Ethical Standards Department of the Victoria Police (‘ESD’). The charges in issue were brought after the appellants, acting as members of the Organised Crime Squad, had on 13 March 1998 searched two properties under warrant with other police officers and seized a quantity of cannabis.
The charges alleged that the appellants, together with a further officer named Grant, engaged in the theft and trafficking of cannabis seized during the search and that they had conspired to traffic cannabis together with a further officer Redford.
The charges against the appellant Sodomacco were laid by the respondent O’Bryan and the charges against the appellant Poynder were laid by the respondent Kent.
Both Sodomacco and Poynder were discharged at the completion of a committal hearing on 19 February 1999. Grant was subsequently acquitted at trial by direction. Redford died before being brought to trial.
Each of the appellants subsequently issued proceedings in the County Court seeking damages for malicious prosecution, misfeasance in public office and false imprisonment.
Sodomacco sued O’Bryan. Poynder sued both Kent and O’Bryan. Both also sued the State of Victoria on the basis of alleged vicarious liability.
After a hearing of some 20 days in late 2006, a County Court judge delivered judgment for the defendants on 23 May 2007, making detailed findings of fact and giving full reasons for his decision.
The appellants now seek, first, to appeal the decision with respect to misfeasance in public office and, secondly, to agitate a claim for the tort of intimidation not made at trial.
The malicious prosecution claim, which is not the subject of appeal, failed because the judge found that the defendant police officers acted without malice towards the plaintiffs, in that the charges were laid in circumstances where they honestly believed on reasonable grounds that the appellants were guilty.
The appeal with respect to the dismissal of the misfeasance in public office claims turns principally on the proposition that despite the findings made by him with respect to lack of malice in the context of the claim for malicious prosecution, the judge should have found that O’Bryan and Kent knowingly acted unlawfully and with intent to harm the appellants, in the manner in which they obtained evidence for the purposes of the prosecution of the charges laid by them.
In particular, it is contended that his Honour erred in finding that O’Bryan and Kent did not act beyond power in the relevant sense and that the evidence further demonstrated they acted with intent to cause the appellants harm in the sense that the evidence procured was intended to be the basis of a case against the appellants which would not otherwise have proceeded.
Background facts
On 13 March 1998 members of the Organised Crime Squad carried out raids at two residential premises in Airport West. Sodomacco and Poynder, who were then Detective Sergeants, both participated and the raid was directed by Sodomacco although he was not the senior officer. Other police present included Detective Senior Constable Grant.
As a result of the Airport West searches, cannabis plants and hydroponic equipment were located at each of the two premises and a man named Murphy, who was present at one of the premises, was charged with cultivation of cannabis.
The plants and other material collected as exhibits were entered into an exhibit register by Sodomacco. They were then taken in a truck driven by Poynder to Moonee Ponds Police Station, where they were inspected by a magistrate. Poynder and Grant also interviewed Murphy at Moonee Ponds. Poynder accompanied by Sodomacco then drove the truck containing the exhibits to the property store at Collingwood where it was unloaded and the contents stored.
At the end of 1997 ESD had commenced an operation investigating the conduct of Redford who was then a police officer stationed at Sunshine.
Following the seizure of the cannabis at Airport West, telephone calls were intercepted between Grant and Redford. It appeared from these that Grant and Redford were friends. In the course of a call made at 5.34 pm on the day of the search, Grant said to Redford ‘I just wanted to make sure everything run smoothly’ and later ‘I just wanted to make sure everything went through that’s all’. Later Grant said ‘Mate, those orange things that, are – they were in – just make sure you get rid of those, mate, too … the bags’. Grant referred to ‘Sods’ in each conversation, an apparent reference to Sodomacco.
Several days later O’Bryan read a transcript of the conversations. At that time he held the rank of Detective Inspector and had been a police officer since July 1973. He considered the conversation between Grant and Redford, and in particular the concern expressed about orange bags, to be suspicious. There can be no real debate that he was entitled to do so.
O’Bryan then arranged to inspect the cannabis in the property store at Collingwood. He did this on 2 April 1998 and saw that it was in fact contained in orange bags, and that it had been cut into pieces and the roots removed and discarded. He considered the discarding of the roots also to be suspicious, as it made it difficult to count the plants.
On 6 April the cannabis was taken to the Victorian Forensic Science Centre. On 6 May, O’Bryan was advised by a forensic scientist, Fiddian, that in her opinion the quantity of cannabis lodged at Collingwood was significantly less than that she would have expected on the basis of photographs taken at the time of seizure of the cannabis at Airport West.
This opinion strengthened O’Bryan’s suspicions. The ESD investigation was widened to include the Airport West raid and was named Operation Gwoza. Grant, Sodomacco and Poynder were of particular interest. The latter two because they had control of the cannabis after its seizure, and until it was lodged in storage.
Statements were obtained from witnesses who had attended the Airport West premises as electricians prior to the raid, supporting the view that the cannabis lodged in storage was less than they had seen at the premises.
Two forensic officers, who attended at Airport West to take fingerprints, were also interviewed. One of these expressed the opinion that the cannabis shown in photographs taken at the Collingwood store, was substantially less than she had observed on site. The other was unable to express an opinion.
Poynder was then interviewed at the ESD offices by Detective Chief Inspector Daly and another ESD officer Flemming. When Daly told Poynder there was an allegation the amount of cannabis at the store was not the same as that seized, Poynder said ‘I don’t think that’s possible’ and that he would prefer to seek advice before going further. He spoke to a solicitor by telephone and said he had been advised to say nothing, save to state the number of plants taken from the premises. He said there were four mature plants, 14 little plants, and seven or eight or nine tiny seedling cuttings at one place and he was not sure how many plants at the other.
On 28 April 1998 Daly and O’Bryan interviewed and obtained a statement from Senior Sergeant Larchin, who was the senior officer present at the time of the Airport West raids. He gave an account of the number of plants seized which was approximate. After viewing a photograph and the log prepared by Sodomacco, he believed there may have been only five plants in the main growing room at one of the houses. He gave an account of the other plants also collected. He said he collected the roots of the plants which had been discarded and put them in the truck in order to audit the number of plants that had been seized. He expressed the opinion that the cannabis shown in photographs from Collingwood did not appear to be the full quantity seized at the search. Larchin attended the Collingwood store where the bags containing the plants were emptied for him to view. He stated the quantity of marijuana in the bag marked as coming from one address was not a true indication of the plants seized from it. It was only a fraction, no more than a quarter of what he had seen on the day of the raid. He expressed a similar view with respect to the contents of the bags marked as coming from the other premises. In a further statement made on 10 June 1998 Larchin stated he had tied the cannabis material from one of the Airport West premises in bundles and he believed it had been placed in the truck in bundles. He put the roots in the back of the truck in a black tub and discussed with Sodomacco and another officer the need to retain them to demonstrate the number of plants.
Statements were taken from other members of the squad who were involved in the Airport West searches. Two of these were unable to say whether the plants viewed by them at the property store on 29 April 1998 were less than those seized. One was of the view that although it was difficult to tell, the quantity at the store was less than that seized.
Statements were also taken from other witnesses, including a trainee clerk present when the magistrate inspected the plants at Moonee Ponds, and Murphy, the man arrested at one of the premises searched.
On the basis of the whole of the evidence O’Bryan formed the view that there was a prima facie case of theft of cannabis against Grant, Redford, Sodomacco and Poynder. The case turned on the telephone intercepts, coupled with evidence supporting the conclusion cannabis was removed while in the control of Poynder and Sodomacco. O’Bryan believed that cannabis was stolen by Grant with the assistance of Sodomacco and Poynder. He believed it was then delivered to Redford who in turn sold it to Kostadinovic, a drug trafficker.
In turn, Daly considered the evidence and recommended that Sodomacco, Poynder and Grant be arrested and that their homes be searched. Superintendent Purton, the officer in charge of the corruption investigation division, supported this recommendation, but Assistant Commissioner Nancarrow directed that the opinion of the Office of Public Prosecutions (‘OPP’) be sought before any arrests were made.
On 27 May 1998 the senior crown prosecutor, Mr Morgan-Payler, advised that in his view there was a sufficient basis for charges to be laid against each of the suspects.
Despite this advice, after further considering the matter, Nancarrow formed the view that the evidence was not sufficient to obtain convictions and directed:
Unless there is further evidence forthcoming from the “traffick” connection which may assist the theft charge, this application is not approved and the discipline process is to commence.
As a result of this direction Daly in turn directed that the four men being investigated be interviewed. Grant advised he would not attend to be interviewed unless arrested. Sodomacco and O’Bryan were interviewed but gave ‘no comment’ answers to any substantive questions.
The investigating police then formed a plan described in evidence by Purton ‘to obtain evidence of Kostadinovic’s drug trafficking from his customers, so that he might be prosecuted in relation to such trafficking and this would thereby place him in a position where it would be to his advantage to co-operate and give evidence against Redford and any other corrupt police of whom he may be aware’.[1]
[1]O’Bryan said ‘… we developed a plan to investigate him, gather the evidence with the sole purpose of putting pressure on him, to have him provide a statement and give evidence against Redford to create that link in the chain between Redford and the Organised Crime Squad members in the theft of the dope on the day’.
Purton was of the view that this was a legitimate and not unusual approach in police corruption investigations. O’Bryan’s evidence was that the strategy was approved by his superiors.
Members of the investigating team then interviewed individuals with whom it was believed Kostadinovic had engaged in drug dealing. On 11 June 1998 O’Bryan and Kent visited one Pitkethly at her home in Swan Hill and covertly taped a conversation with her. The investigators said they were there to talk to her about activities related to criminal activity by police. Kent told Pitkethly that an allegation had been made that cannabis seized in a drug raid, was stolen by police, passed to another policeman and then to Kostadinovic. In turn, it was believed Kostadinovic had supplied it to Pitkethly on or about 14 March 1998. An extensive discussion followed about Pitkethly’s dealings with Kostadinovic.
A formal interview was then conducted with Pitkethly on 11 June 1998 following which she made a statement. In the statement Pitkethly said she had bought cannabis from Kostadinovic on a regular basis. There was an occasion when she visited Kostadinovic at a caravan park at Lake Boga and gave him a lift after he dumped a stolen car into the river.
In a further statement made on 12 June 1998 Pitkethly said the last two occasions she had bought cannabis from Kostadinovic were in March 1998, at his caravan at Lake Boga. The cannabis was moist and had not dried enough. Kostadinovic told her it had only been hanging for three days.
On 16 June 1998 O’Bryan executed a search warrant at the home of Kostadinovic’s parents. A small quantity of cannabis and an address book were seized. At that time Kostadinovic was in gaol and his father was charged with possession of cannabis.
On 22 July 1998 Kostadinovic attended at the ESD offices where he was interviewed by O’Bryan and another officer about his activity, including his relationship with Redford and Pitkethly. He gave ‘no comment’ answers.
At the conclusion of the interview Kostadinovic was told he would be charged with various dishonesty offences and with trafficking in drugs of dependence.
On 22 July 1998 a further conversation between O’Bryan, another officer and Kostadinovic was covertly recorded. In that conversation Kostadinovic acknowledged a relationship with Pitkethly and said that Redford had brought a black rubbish bag of cannabis to his home after contacting him.
On 22 July 1998 Kostadinovic was charged with conspiracy to defraud an insurance company, obtaining property by deception and trafficking in a drug of dependence. He was taken to the Melbourne Magistrates’ Court and bailed. The charges did not involve allegations of dealing with Redford.
The interrogation of Kostadinovic
The trial judge made findings as to what next occurred in the following terms:
42Subsequently, Pitkethly telephoned Kent and told him that she had received a phone call from Kostadinovic and was concerned that he intended to visit her. O’Bryan consulted Daly about this call. They considered Kostadinovic’s call to Pitkethly to be a breach of a bail condition that he not contact witnesses and decided to use the opportunity to arrest Kostadinovic to put pressure on him in accordance with the agreed plan. On 5 August 1998 O’Bryan and Goss drove to Sunshine, arrested Kostadinovic for breach of bail conditions, and conveyed him to the ESD offices, where he was interviewed by O’Bryan and Goss. The conversation was covertly recorded.
43When O’Bryan and Goss questioned Kostadinovic on 5 August 1998 the requirements of sections 464A and 464C of the Crimes Act 1958 were not observed. Kostadinovic made a number of admissions about his dealings with Redford. As the conversation developed O’Bryan and Goss put pressure on Kostadinovic to make a statement. They told him that the statement could not be used against him. O’Bryan spoke of a “deal” that would enable him to ‘get to go home today’. He was told that if his matter went to court there would be an application for a pecuniary penalty order for a sum of $48,000. Kostadinovic asked to speak to his solicitor Bernie (Balmer) and he was permitted to do so. He told the police that he was advised to “do a no comment statement”. O’Bryan said to him, “Well you go to jail for 2 to 3 years if you don’t, and that’s getting worse. Because well your mum is in the shit now, she is, I’m not bullshitting you. You know we’ve got evidence against your mum and your dad from the past anyway, when they’ve assisted you when you’ve been trafficking. That’s not the way we want to go obviously. We want to see you interstate, new identity, whatever your fucken need. You give evidence once against these, well really it’s only one bloke, well there’s a few of them and you walk free and it sounds like a pretty good fucken good deal.” O’Bryan told him further, “The idea is that you go to Adelaide where you can grow as much dope as you want in your bedroom and not get knocked off at all. Wherever you want to go. That you’re out of the picture, then you’re not a problem for us and you’re not a problem for yourself.” O’Bryan told him “we can protect you from going to jail on this occasion for these offences, in the future, you really gotta keep your nose clean”. Kostadinovic asked to speak to his parents, but was not permitted to do so. By these means, which included both inducements and threats, Kostadinovic was persuaded to make a statement.
44The statement was endorsed as being taken and witnessed by O’Bryan at 6.25 pm on 5 August 1998. Kostadinovic stated that he had known Redford since the death of his mother on 25 November 1979. Redford was a friend of his father and visited their home. He had assisted Kostadinovic when he had been in trouble. Kostadinovic had been selling cannabis in the Sunshine area since he was 15 and in the previous two years Redford had brought cannabis to him to be sold on a number of occasions. The last occasion on which this had occurred was “about five months ago” when Redford brought a black rubbish bag full of cannabis to his house. The cannabis was wet and had been cut into pieces. Redford told him that the proceeds would have to be split five ways including Kostadinovic. The following day he went with his father to Swan Hill. His father was pulled up by police at Serpentine for speeding. Kostadinovic stated that he paid Redford $6000 for the cannabis.
…
46Kostadinovic made two further statements, one on 10 August 1998 and the other on 25 August 1998. The first concerned his dealings with Redford and a man known as Moses. The second concerned Redford coming to his home on 25 August 1998. (Footnotes deleted)
On 20 August 1998 another meeting was held at the OPP. The additional material that had been obtained including Kostadinovic’s statements of 5 and 10 August were presented to the senior crown prosecutor. The evidence of Superintendent Purton was that Mr Morgan-Payler asked how it was that Kostadinovic had ‘rolled’. He was informed that Kostadinovic had been told that his parents were liable to be charged, that he would be offered the opportunity to enter the witness protection program and be relocated to South Australia where he could grow cannabis for his own use, that there was the possibility of an asset confiscation application, that he was to be charged with the offences he had admitted, and that an application for indemnity would be made on his behalf. O’Bryan’s evidence was that he told Morgan-Payler that threats and inducements were made to Kostadinovic and Kostadinovic decided to accept the inducement rather than face the consequence of the threats. Both Purton and O’Bryan gave evidence that Morgan-Payler advised there was a sufficient basis to charge the four suspects.
The senior crown prosecutor’s oral advice was subsequently confirmed in writing. That advice was in part as follows:
Firstly, I am now of the view that there is an adequate body of evidence to indicate that the quantity of cannabis delivered to the police store in Collingwood on the afternoon of 13 March was substantially less than that seized from the two premises that morning.
Secondly, Kostadinovic can depose that he received from Redford a bag containing five or six pounds of cannabis of a similar description to that seized from the two premises. There is material to confirm that this occurred on 13 March and there is further evidence from those to whom he sold the cannabis and who made payments to him to confirm or corroborate his account. In the circumstances I think it can fairly be said that the case against Redford and Grant is, on the materials, a strong one and accordingly there is a reasonable prospect of conviction.
Also present with other police on the two raids were a Detective Sergeant Sodomacco and Detective Senior Constable Poynder. Each of these members was present when the cannabis was seized from the two locations, and when it was viewed by a Magistrate at the Moonee Ponds Police Station and then, later that day, it was these two members who delivered the balance of the cannabis that had not been stolen to the police property store in Collingwood.
On this material alone, it could be said that the case against these two members of participation in the theft is not strong, however, Kostadinovic was told by Redford that the proceeds of the sale of the cannabis was to be divided into five shares and that he, Kostadinovic, would receive only one. In my view, at least that fact that Kostadinovic was to receive one fifth of the proceeds would be admissible and it is at least arguable that Redford’s utterance would be admissible against Grant, Poynder and Sodomacco. In these circumstances, I am also of the view that there is a reasonable prospect of conviction in respect of Sodomacco and Poynder.
I understand that investigators regard it as being possible that Poynder may decide to provide some material to assist the prosecution. I could only say that if this were to occur it would be of considerable benefit to the case generally.
I have also been asked to advise as to the position of several of the lay witnesses. It appears that Kostadinovic will be seeking an indemnity for the trafficking that he discloses. In my view, it would be desirable if he were to be indemnified and I would believe that should formal application be made that such indemnity would be most likely to be forthcoming from the Director. I understand that those persons to whom Kostadinovic sold the cannabis have been charged with offences appropriate to their roles in the transaction and, in my view, it would be desirable from the point of view of the conduct of the prosecution case if those persons were to proceed to court in respect of their charges. If this were to happen, I would of course expect that the court was made aware of the assistance they have provided in this matter.
After receipt of this advice, a meeting was held of senior police, on 24 August 1998 with Acting Chief Commissioner Sinclair, Deputy Commissioner McLaughlan, Nancarrow, McGrath, Purton, Daly, O’Bryan, Kent and other members of the investigation team in attendance. It was agreed that Redford, Sodomacco, Poynder and Grant be interviewed and, unless evidence was provided of their innocence, charged.
Subsequently, each was interviewed and made ‘no comment’ responses. In turn, each was charged.
Following a committal hearing the magistrate found that a jury could not be satisfied that there was a discrepancy between the number of bags seized at the premises and that lodged for storage at Collingwood. In his view, however, a jury might well accept that material was taken from the bags and passed via Grant and Redford to Kostadinovic.
The magistrate found with respect to Sodomacco and Poynder as follows:
I see no evidence against either Poynder or Sodomacco in respect of the substantive offences which could lead to their conviction. There is much that might be pondered upon, but in my view none of the matters relied upon by the prosecution give rise to anything more than speculation. Their conduct at the seizure sites may well be the subject of conjecture, as well as considering what might have happened on the way to Moonee Ponds Court, and to the Collingwood store. It may well be that there was some activity engaged in by them of a criminal nature. I am, however, unable to pinpoint any such matter by way of admissible evidence. It remains a conjecture. And no inferences are open to be drawn.
Although they had given ‘no comment’ interviews and stood mute at the committal, Sodomacco and Poynder each gave sworn evidence in the present proceeding, denying that they had committed any offences arising out of the raid on 13 March 1998.
Kostadinovic’s Evidence
It can be seen that, although Kostadinovic’s evidence materially amplified the case against Redford, it did not directly implicate Poynder or Sodomacco at all. At best Kostadinovic’s statement concerning a one-fifth share was a circumstance consistent with an arrangement with four other persons. But in truth it was equally consistent with a whole series of other reasonable hypotheses not implicating Poynder and Sodomacco.
The case against Poynder and Sodomacco depended fundamentally upon satisfactory proof that cannabis went missing while in their custody and control. The magistrate stated as to this question as follows:
The other major criticism relates to the prosecution assertion that there was a deficit in the quantity of drugs seized from Murphy’s premises and that lodged at the police property store at Collingwood. Consideration of this aspect of the evidence deals directly with all charges. The prosecution says, and it is reasonably clear, that the seized plant material was removed from the premises in orange plastic bags found at one of the growing sites. It is also clear that the plants were not taken away whole, but cut up before being put into the bags, and that the root systems and stems from the base of the plants were not taken. The evidence suggests that the roots were embedded in the growing medium, and I think it is not speculation to conclude that it was easier to cut the plants off the roots rather than try to disentangle them from the growing medium.
The real argument has been over the number of plants found and the number of orange plastic bags used. The prosecution case was that all the bags full of plant material taken from the premises were not accounted for, and that there were in fact a larger number of filled bags taken than were lodged at the property store. In support of this proposition, evidence has been called from various sources, ranging from police at the raid to employees of the electricity supply company to the owner of one of the houses. Estimates of a disparate nature were given as to the amount of cannabis at each house, and careful consideration has to be given to the resolution of the contradictions thus found. In my view, the evidence of Thomsett and Fenwick is to be preferred on the issue of the quantity of material at the house. Larchin’s evidence is clearly wrong in some not unimportant aspects, and his estimate of the material at the house seems to vary consistently upwards after being spoken to by members of the Ethical Standards Division. Taking all of the matters into account, including the evidence in respect to the return of the warrants at the Moonee Ponds Magistrates’ Court, I am of the view that no jury could be satisfied that there was any discrepancy in the number of bags taken from the two premises, the number produced at the Moonee Ponds Court, and the number lodged at Collingwood.
The magistrate further stated with respect to the alleged conspiracy:
It is now appropriate to deal with the aspect of conspiracy. I see absolutely no reasonable evidence upon which a judge could conclude that conspiracy was a fit matter for the consideration of a jury. I can find no evidence from any overt acts of any of the defendants indicating any agreement between the persons charged to traffick in cannabis. In terms of the Fifth Schedule, I am not of the view that a jury, properly instructed, would convict. An opportunistic action by one person the benefit of which is subsequently availed by another does not make a conspiracy. As I have said, the basic ingredient is one of an agreement to commit an unlawful act, and (there is) absolutely no evidence of such an agreement.
The case did not fail because of doubts about the reliability or truthfulness of Kostadinovic’s evidence. As to this, the magistrate found:
Several criticisms are made of the evidence. The first relates to Brooks [Kostadinovic] himself, as an untrustworthy person with a considerable criminal background. Further, it is argued, that the inducements held out to Brooks were such as to make almost certain that he would not tell the truth, but would say anything required of him by the investigating officers so as to escape from his then present predicament. It is clear that he was threatened with prosecution and a gaol term, and that further threats were made in respect of pecuniary penalty orders as well as against his parents. The police officer responsible for this method of proceeding attempted to justify his behaviour by saying that Brooks was being interviewed as a witness and not a suspect, and that the methods used were justified by the ends to be achieved. I only point out that at the time the threats were made it is clear that Brooks was not a witness. What occurred was an attempt to make him one. I otherwise refrain from comment upon these criticisms, being aware that the weight of that evidence is a matter for consideration by a jury. It is not as if Brooks sought to retract his evidence. What is available for consideration by another tribunal is whether any and what weight should be attributed to his evidence. Taking the approach, as I must, that I should consider the evidence supporting the prosecution case at its highest, I would consider that in its major aspects in respect of the receipt of marijuana by Brooks from Redford a jury would accept that, and that such receipt occurred within a relatively short time after the raid on Murphy’s premises.
Kostadinovic’s written statements were not of course admissible as such against Poynder and Sodomacco upon their prosecution. Kostadinovic’s statements were in effect proofs of evidence.
The provenance of these proofs was not withheld from those potentially affected by them. As a result of a decision by O’Bryan the relevant interviews with Kostadinovic in which his statements were elicited were monitored, taped and filed. The manner in which Kostadinovic’s evidence was elicited was made plain to the senior police officers who ultimately jointly authorised O’Bryan to proceed. The senior crown prosecutor was advised as to what essentially had persuaded Kostadinovic to give evidence. The recordings of the manner in which the evidence was elicited were not withheld from the defence.
In turn, the magistrate found that it was clear Kostadinovic was threatened with prosecution and a jail term and that further threats were made in respect of pecuniary penalty orders as well as against his parents. It was not these matters however, which led to the failure of the prosecution. The prosecution failed because of the fundamental lack of evidence fixing Poynder and Sodomacco with any responsibility for a provable deficiency in cannabis arising during the time the cannabis was in their custody.
There is a separate ground of appeal (6) directed to one aspect of the trial judge’s findings which is conveniently disposed of at this point. This is that the learned trial judge erred in finding that there was no evidence that the statement obtained from Kostadinovic was false when Kostadinovic swore that he had lied in that statement.
The trial judge made the following finding:
There is no evidence to support the allegation that O’Bryan knew that the statement made by Kostadinovic on 5 August 1998 was false or that he had reason to know that the statement was false. Indeed, there is no evidence that enables me to find that the statement made by Kostadinovic on that day was false, save that O’Bryan did not believe the allegations in the last paragraph of the statement of impropriety by two other police officers in 1996 and involving a person referred to as Moses. I accept the evidence of O’Bryan that he believed what Kostadinovic said in his 5 August statement to be the truth, save for the Moses matter. I accept the evidence of O’Bryan that he continued to believe in the truth of what Kostadinovic had told him concerning the delivery to him of a black plastic bag of cannabis by Redford on the day before his father was stopped by police for speeding and possession of a radar detector. The evidence of O’Bryan was that Kostadinovic adhered to his statement about these matters at the committal hearing.
The specific ground of appeal which has been advanced appears to be premised upon evidence of Kostadinovic at the committal that allegations made by him with respect to Moses were untrue. The statement about the Moses matters was made on 10 August 1998. There was no finding by the trial judge that this statement was true. Further, Kostadinovic was not called by the plaintiffs in the County Court. His statements to the magistrate in other proceedings were not evidence of the fact of the matter. The suggested ground of appeal is misconceived. Lastly, insofar as O’Bryan took a statement about the Moses matters which he did not believe to be true, his Honour found that there was no evidence that O’Bryan improperly deployed such statement of Kostadinovic.
Pitkethly’s Evidence
Pitkethly’s statement relating to dealings with Kostadinovic did not implicate Sodomacco or Poynder either directly or indirectly. It described the receipt of undried cannabis from Kostadinovic shortly after the investigators believed Redford had supplied the cannabis to him.
Malicious Prosecution
The plaintiffs’ cases for malicious prosecution failed. Poynder failed first in proving O’Bryan instituted proceedings against him.
Both Poynder and Sodomacco failed to prove that the informants in their respective proceedings acted with malice or without reasonable cause.
In the course of so finding, the trial judge made the specific findings with respect to Kostadinovic’s evidence which I have set out immediately above (forming the basis of ground 6 of the appeal). In particular he found there was no evidence O’Bryan knew or had reason to know Kostadinovic’s statement of 5 August 1998 was false.
In respect of the plaintiffs’ allegations that O’Bryan and Kent pushed Pitkethly to agree to 13/14 March as the date upon which she received cannabis from Kostadinovic, his Honour found as follows:
In cross-examination O’Bryan agreed that at the time he interviewed Pitkethly it was his belief that Kostadinovic received cannabis on 13 March and the next day 14 March he came up to Swan Hill and passed some “dope” on to Pitkethly. He also agreed that he and Kent attempted to steer Pitkethly in that direction. There are obvious dangers in such a course as it risked producing a statement of evidence influenced by the opinions and wishes of the interviewer and therefore unreliable and liable to be exposed as such. I am satisfied that O’Bryan and Kent attempted to push or steer Pitkethly in the direction of a statement that supported the thesis held by them that Kostadinovic had brought some of the cannabis supplied by Redford to her. However, I am not satisfied that they attempted to obtain an untruthful statement from her, or a statement in their words rather than hers, or that they improperly disclosed statements or evidence of other witnesses to her. (Emphasis added)
Neither Kostadinovic nor Pitkethly were called as witnesses in the current proceeding. His Honour further stated:
Pitkethly was interviewed and signed statements which she acknowledged to be true and correct. She also acknowledged that she made the statements in the belief that a person making a false statement was liable to the penalties of perjury. She was not called as a witness in this case. There is no evidence before me that causes me to go behind her statements and the acknowledgments that she made about them. I am not satisfied the statements did not truthfully express what she wished to say or that O’Bryan or Kent persuaded her to make statements in his words rather than her own. I am not satisfied that they improperly showed her statements of other witnesses or disclosed to her evidence of other witnesses which they knew to be wrong. (Emphasis added)
The relevant dates of contact with Kostadinovic referred to in the statements were subsequently amended in February 1999 after Kent rang Pitkethly during the course of the committal hearing, and Daly and Paxton met with her at the Waurn Ponds Hotel. She then advised O’Bryan she had a better recollection, and a conference was held between prosecutor Gibson and Pitkethly which was attended by O’Bryan. The trial judge concluded:
O’Bryan did not consider the procedure followed to be inappropriate. He believed that Pitkethly was mistaken about dates and considered it to be legitimate to question her about it in order to ascertain the correct facts. Kent was of a similar view. He had contacted Pitkethly on 1 February 1999 to ask her about dates. His evidence was that she would probably need a conference with the prosecutor to clarify the issue. I am not satisfied that either O’Bryan or Kent improperly induced Pitkethly on 2 February 1999 or thereabouts to change the evidence that she was about to give at the committal proceeding. (Emphasis added)
Each of the above conclusions concerning Pitkethly was open to the trial judge and in my view accorded with the weight of the evidence. They were not the subject of specific attack on the appeal.
Ultimately with respect to malice his Honour concluded:
In my opinion, there is no basis in the evidence for inferring that O’Bryan and Kent prosecuted the plaintiffs for any other reason than to have the offences which they believed they had committed heard and determined according to law. If it had been their belief that only Redford had committed criminal offences, or that only Redford and Grant had done so, and Sodomacco and Poynder had not, there was no reason for them to institute proceedings against Sodomacco and Poynder. I am satisfied that the reason for O’Bryan laying charges against Sodomacco, and for Kent laying them against Poynder, was the belief of each of them that the men charged had committed the offences with which they were charged, and their purpose in laying the charges was to bring them to justice by having the charges heard and determined by the courts. I reject the proposition that they prosecuted Sodomacco and Poynder for some ulterior or improper purpose.
As to absence of reasonable and probable cause for the prosecution his Honour also concluded:
I accept the evidence of O’Bryan and of Kent as to the belief of each of them of the probable guilt of Sodomacco and Poynder, and of Grant and Redford, of the offences with which they were charged. The fact that each of them genuinely held that belief was not challenged. In my opinion it was a reasonable belief, based upon the information that came into their possession and which pointed to the guilt of the four men. It was not a belief founded on imagination or surmise. Each of them believed that the information that pointed to the guilt of Sodomacco and of Poynder was true. It was a belief examined and confirmed by other qualified and competent persons, including the senior crown prosecutor.
It is not surprising in the circumstances that his Honour’s decision with respect to the claim for malicious prosecution is not the subject of appeal.
The appeal is directed to the second way in which the plaintiffs put their claims, namely as one for misfeasance in public office. His Honour approached this claim within the framework of the findings which he had made with respect to malicious prosecution.
Misfeasance in Public Office
His Honour stated the necessary elements of the tort of misfeasance in public office as follows:
(1)The defendant must be a public officer acting in the exercise of a power which is an incident of the office.
(2)The conduct of the defendant must be actuated by malice. Malice is an essential constituent of the tort. Malice may be present in either of two different forms.
(i)First, the use of the power, not for the public benefit, but for an ulterior purpose with the intent to cause harm to the plaintiff (or in reckless disregard of such a likely consequence). In Three Rivers[2] this is referred to as targeted malice, ie conduct specifically intended to injure a person or persons.
(ii)Secondly, a purported exercise of the power with knowledge that it did not exist (or in reckless disregard of its existence). Malice in this sense is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff.
(3)The duty to exercise the relevant power properly was owed to the plaintiff as a member of the public.
(4) The wrongful act caused the plaintiff’s injury. (Citations omitted)
[2]A reference to Three Rivers District Council & Ors v Bank of England (No 3) 2 WLR 2000.
The notice of appeal does not take direct issue with this formulation.
Rather it takes issue with the basis on which his Honour dealt with the question of malice.
His Honour found first that in interviewing and obtaining statements from Kostadinovic and Pitkethly, O’Bryan and Kent acted as public officers in the exercise of powers incidental to their office.
He further found that they did not act with targeted malice that is for an ulterior motive.
He next found that they did not act beyond power in the relevant sense in doing the acts complained of with respect to obtaining evidence from Kostadinovic and Pitkethly. It is this finding which is the principal subject of attack.
The manner in which evidence was obtained from Kostadinovic and Pitkethly
The notices of appeal assert by ground 1 that the trial judge erred in failing to find O’Bryan and Kent acted unlawfully for a series of reasons, with respect to obtaining evidence from Kostadinovic and Pitkethly. By ground 2 it is asserted that the trial judge erred in finding the police had power to and were entitled to act as they did in a number of respects relating to the obtaining of evidence from Kostadinovic and Pitkethly. By grounds 3 and 4 it is alleged:
3.The learned trial judge erred in failing to find that the first respondent was not entitled to –
(a) threaten Kostadinovic;
(b) obtain a statement from Kostadinovic by the use of threats;
(c) falsely arrest Kostadinovic;
(d) falsely imprison Kostadinovic;
(e) induce Pitkethly to depart from her sworn statement;
(f) obtain a statement from Pitkethly by inducement;
(g) breach the Bail Act;
(h) breach s 464 of the Crimes Act1958;
(i)incite Kostadinovic to contravene ss 31 and 32 of the Controlled Substances Act 1984 (SA)
and by so acting acted beyond power.
4.The learned trial judge erred in failing to find that the police respondents
(a)had no power to act in a manner described in ground 3 herein;
(b)acted as public officials;
(c)acted pursuant to a joint plan to threaten Kostadinovic and obtain a statement that would base a prosecution against the appellants;
(d)obtained a statement in that manner;
(e)acted with the knowledge that they had no power so to do what they had done and intending that harm should flow to the applicants or being reckless as to the matter; or being reckless as to the existence of that power and in reckless disregard as to whether harm would flow to the appellants,
constituting the tort of misfeasance in public office.
Grounds 3 and 4 subsume the allegations made under grounds 1, 2 and 5 (the last of which relates to alleged incitement to breach the Controlled Substances Act 1984 (SA)). They do so in a form which goes to a relevant element of the plaintiffs’ case, rejected by the trial judge, namely the proposition that O’Bryan and Kent acted knowingly beyond power. Knowledge in the relevant sense should be regarded as extending to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power.[3]
[3]Northern Territory of Australia v Mengel (1995) 185 CLR 307, 347.
In my opinion it followed from his Honour’s findings of fact, that in one significant respect O’Bryan did act knowingly beyond power when obtaining evidence from Kostadinovic. O’Bryan’s evidence was that he arrested Kostadinovic in the belief that Kostadinovic had breached his bail conditions by contacting Pitkethly. After the arrest was made, it was ascertained that there was no bail condition preventing Kostadinovic from contacting Pitkethly. It followed that Kostadinovic had not breached his bail and had committed no offence in contacting Pitkethly.
His Honour found[4] in consequence as follows:
Having been taken into custody for an offence, he should have been released unconditionally in accordance with s 464A(1).[5] He was not released or informed that he was no longer in custody and free to go.
[4][85] of the judgment.
[5]Crimes Act 1958.
This finding responded to the allegation particularised in the appellants’ pleadings that:
On 5 August 1998, Brooks [Kostadinovic] was arrested by the first defendant for breaching bail. The first defendant failed to bring him before the Court or release him within a reasonable time in contravention of section 24(2)(a) of the Bail Act 1977 and section 464 of the Crimes Act 1958; alternatively the first defendant unlawfully arrested and detained him when he had not breached his bail conditions. [Emphasis added]
In my view the last alternative pleaded was in substance one of false imprisonment. His Honour’s conclusion on the facts was that Kostadinovic was held in custody when he should have been released or informed he was no longer in custody and free to go.
False imprisonment is an offence at common law. The history and elements of the offence are discussed in the judgment of Ormiston J in R v Vollmer.[6] In that judgment his Honour cited the following statement of the English Court of Appeal, in R v Rahman[7], which is sufficient for present purposes:
False imprisonment consists in the unlawful and intentional or reckless restraint of a victim’s freedom of movement from particular places. In other words it is unlawful detention which stops the victim moving away as he would wish to move.
[6][1996] 1 VR 95, 175ff.
[7](1985) 81 Cr App R 349, 353.
I accept the submission made on behalf of the appellants that false imprisonment must be regarded as more than a procedural irregularity. As Deane J stated in Donaldson v Broomby:[8]
Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary components of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence of protection of personal liberty under the law that the circumstances in which a police officer may come with that judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and clearly ascertainable.
[8](1982) 40 ALR 525.
The wrongful detention of Kostadinovic formed the context in which Kostadinovic first evinced an intention to give evidence about his dealings with Redford and the first statement made by him in this regard was elicited.
On the other hand I do not accept that the initial arrest of Kostadinovic was shown to be knowingly unlawful. The decision of the majority in Northern Territory of Australia v Mengel makes clear that it is not enough to show negligence, ie that the public officer ought to have known of his or her lack of power.[9]
[9]Northern Territory of Australia v Mengel (1995) 185 CLR 307, 347.
In the present case his Honour found that O’Bryan did not have reasonable grounds for believing that Kostadinovic had broken his conditions of bail[10] and that O’Bryan gave no reasons for not making proper enquiries as to the bail conditions before making the arrest. This finding falls short however, of one of knowing or reckless excess of power, in the sense contemplated by the majority judgment in Mengel. It follows that although Kostadinovic came to be the subject of knowingly unlawful detention, his initial arrest was not knowingly unlawful.
[10][92]. O’Bryan’s evidence was that he was mistaken as to Kostadinovic’s conditions of bail, which required him not to contact a specified list of witnesses which did not, as it transpired, include Pitkethly.
I also do not accept that O’Bryan acted knowingly beyond power in the other respects complained of. It was submitted the manner in which evidence was elicited from Kostadinovic amounted in the further alternatives to the use of unlawful threats, blackmail, kidnapping, attempt to pervert the course of justice, oppression, and incitement to contravene the South Australian drugs legislation. I will deal with each of these alternatives in turn.
Threats
It is submitted O’Bryan acted knowingly beyond power in threatening Kostadinovic and obtaining a statement by use of threat.
There are two answers to these propositions. First it is not apparent that any of the matters threatened were unlawful. Secondly, O’Bryan was not seeking to obtain a confessional statement admissible against Kostadinovic. The fact that it was elicited in a manner which would render it subject to objection if sought to be used for those purposes is not to the point. O’Bryan made clear that he did not attempt to obtain a confessional statement. As the trial judge found, what occurred was an attempt to make Kostadinovic a witness.
Blackmail
I do not accept that the threats made constituted blackmail, breaching the terms of s 87 of the Crimes Act 1958.
87 Blackmail
(1)A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a) that he has reasonable grounds for making the demand; and
(b)that the use of the menaces is proper means of reinforcing the demand.
(2)The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
(3)A person guilty of blackmail is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).
There is no basis on the evidence for concluding that there were no reasonable grounds for the demands made or that O’Bryan did not believe that the threats made were other than a proper means of reinforcing the demands[11], or that the demands were made with a view to providing gain to O’Bryan or in any relevant sense with intent to cause loss to another.[12]
[11]As to the meaning of ‘menaces’ see the authorities discussed in R v Rae (1998) 45 NSWLR 546, 553-555.
[12]On the intent to cause loss see [122]–[125] below.
Kidnapping
I do not accept that O’Bryan’s acts should be regarded as founding a case based on kidnapping as prohibited by s 63A of the Crimes Act1958.
63A Kidnapping
Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).
This allegation was not raised at the trial and should not be permitted to be raised on appeal having regard to its serious nature and the possibility that it might have been met by further evidence. It would not be just to allow the allegation to be raised when it has not been the subject of pleading and when the allegation was one capable of being met by further evidence, including evidence from Kostadinovic himself.[13] The appellants failed to make out the primary basis on which they put their case below and now seek in effect to reformulate it. They should not be permitted to do so. Further, it is doubtful that the evidence shows that Kostadinovic was detained with the relevant intent.
[13]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Lafranchi v TAC (2006) 14 VR 359.
Attempt to Pervert the Course of Justice
I do not accept that the threats made to Kostadinovic constituted a knowing attempt to pervert the course of justice.
I accept the submissions made on behalf of the appellants that attempting to pervert the course of justice is itself an objective offence in the sense stated by Dawson J in R v Meissner:[14]
The intention required to constitute the offence of attempting to pervert the course of justice is an intention to pervert the course of justice, that is to say, the intention to do something which, if achieved, would pervert the course of justice. The act required is an act which has the tendency to pervert the course of justice. The motive with which such an act is done is irrelevant except to the extent that it may throw light upon the requisite intent.[15]
[14](1995) 184 CLR 132.
[15]Above at 159.
I further accept that use of improper means to persuade a witness believed to be false to speak the truth constitutes an attempt to pervert the course of justice. Again as Dawson J stated in Meissner:[16]
Whatever the means used, any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper. However, in R v Kellett the Court of Appeal held that it would not necessarily be an attempt to pervert the course of justice for a person to endeavour to persuade a false witness, or even a witness that person believed to be false, to speak the truth or to refrain from giving false evidence. But the use of improper means for those purposes will always amount to that offence for however proper the end, the means must not be improper. As the Court in R v Kellett, in speaking of improper means, put it:
Threats and bribery are the [improper] means used by offenders in the cases, and any pressure by those means - or by force, as for example by actually assaulting or detaining a witness - would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it “through affection, fear, gain, reward, or the hope or promise thereof” (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.[17]
[16](1995) 184 CLR 132, 158.
[17]R v Kellett [1976] QB 372, 388.
Dawson J then quoted the statement of Cooke P expressing the ratio of R v Kellett in the New Zealand case of R v Taffs:[18]
There may be an intention to pervert or defeat the course of justice if, once legal proceedings are in motion, they are not allowed to flow unobstructed and undiverted: perjury should be exposed and truth ascertained only by examination and cross-examination of witnesses in open Court, and justice should be administered in the way which is ordinarily pursued: it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or other improper pressure take the interference across the line and into criminality.
[18][1991] 1 NZLR 69.
In the present case no relevant legal proceedings were in motion and Kostadinovic was not a witness at the time he was interviewed and statements were taken, although it was hoped that he would become one.
Furthermore liability in tort for misfeasance in public office does require the appellants to show O’Bryan acted knowingly or recklessly in the relevant sense.
In the present case the manner in which the statements of Kostadinovic were elicited was tape recorded and disclosed to O’Bryan’s superiors, and in due course the defence and the committal court. There was no intention to pervert the course of justice or recklessness as to whether the manner of investigation might affect a fair trial. The findings of the trial judge on the claim for malicious prosecution are inconsistent with such a conclusion.
In Meissner[19] the majority approved the statement of Brennan and Toohey JJ in R v Rogerson:[20]
The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.
In my view it is clear there was no knowing or reckless impairment by O’Bryan of the capacity of the Court to do justice if proceedings were instituted against Poynder and Sodomacco.
[19]At 142.
[20](1992) 174 CLR 268, 280
Insofar as it was submitted the dealings of O’Bryan and Kent with Pitkethly constituted a knowing attempt to pervert the course of justice, this submission must also fail.
The interview with Pitkethly on 11 June 1998 was not on the evidence covertly taped with the intention to procure confessional statements admissible against her, but to obtain evidence against Kostadinovic. It cannot be said to have involved a knowing breach of s 464 of the Crimes Act1958.
The trial judge’s conclusions quoted at my paragraphs [66], [67] and [68] above, are fatal to the proposition that O’Bryan or Kent otherwise knowingly attempted to pervert the course of justice with respect to Pitkethly’s evidence. The appellants failed on the facts to establish any improper conduct by O’Bryan and Kent in this respect.
Oppression
It was further submitted on behalf of the appellants that the manner in which evidence was elicited from Kostadinovic constituted the commission of the misdemeanour of oppression by a police officer.[21] These allegations were not pleaded. Nor are they raised in the notice of appeal. They were advanced as an alternative basis on which to characterise as unlawful the conduct of O’Bryan with respect to Kostadinovic. No basis was suggested on which such characterisation added to the case based on alleged false imprisonment. In my view it should not be permitted to be raised. It would not be just to do so in the absence of proper pleading and at this point in the proceeding. Once again the allegation if made might have been met by further evidence[22]. Furthermore, it adds nothing to the case as against O’Bryan if it be accepted that the detention of Kostadinovic was knowingly unlawful.
[21]Farrington v Thomson and Bridgland [1959] VR 286, 292-3; R v Jones [1946] VLR 300.
[22]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Lafranchi v TAC (2006) 14 VR 359.
Incitement to contravene the South Australian Drugs Legislation
I do not accept that O’Bryan knowingly incited Kostadinovic to contravene ss 31 and 32 of the Controlled Substances Act 1984 (SA) (‘the SA Act’). On 5 August 1998 O’Bryan said to Kostadinovic:
The idea is that you go to Adelaide where you grow as much dope as you want in your bedroom and not get knocked off at all. Wherever you want to go. And that you are out of the picture, then you are not a problem for us and you are not a problem for yourself.
The plaintiffs submitted to the trial judge that it was an offence to cultivate cannabis plants in South Australia for personal consumption, and O’Bryan incited the commission of this offence. Section 41 of the South Australian Act provided in turn that it was an offence to solicit or incite an offence against the Act. His Honour found:
I seriously doubt that O’Bryan committed the offence of inciting Kostadinovic to commit an offence. O’Bryan maintained that it was his understanding that it was not an offence to grow cannabis for personal use in South Australia. I am not satisfied that he did believe it was a crime in that state. When he spoke to Kostadinovic neither of them were in South Australia. There was no certainty that Kostadinovic would ever be there. The clear intention of the words spoken by O’Bryan were not to encourage Kostadinovic to grow cannabis, but to reassure him that he could be relocated and safe from any retribution from Redford. The impugned sentence was more in the nature of a throw away line than encouragement to commit a crime.
It was plainly open to his Honour to fail to be persuaded O’Bryan had knowingly committed the offence alleged. In particular, the finding that he was not satisfied O’Bryan believed it was a crime in South Australia to grow cannabis for personal use has not been demonstrated to be wrong and is a complete answer to this aspect of the claim.
It follows from the above conclusions that I accept that the trial judge erred in failing to find that the unlawful detention of Kostadinovic by O’Bryan constituted knowingly unlawful conduct for the purposes of the case of misfeasance in public office. I do not accept, however, that the successive attempts at characterisation of such conduct as knowingly unlawful, by reference to allegations of contravention of s 464 of the Crimes Act 1958; attempts to pervert the course of justice; kidnapping; blackmailing; oppression by a public officer; or incitement to contravene the Controlled Substances Act 1984 (SA), should be accepted.
Kent
There is no evidence that Kent was party to the arrest and subsequent detention of Kostadinovic, nor that any unlawful conduct in the course of those actions was undertaken with Kent’s authority.
Insofar as the dealings with Pitkethly are concerned, the trial judge’s findings are fatal to any case of knowingly unlawful conduct on the part of Kent. As I have set out above, his Honour concluded there was no relevant impropriety in the questioning of Pitkethly and no sensible basis has been submitted for rejecting those findings.
Accordingly the case of misfeasance in public office against Kent fails.
The Consequences of the Knowingly Unlawful Detention of Kostadinovic by O’Bryan
The critical question raised by the case against O’Bryan of misfeasance in public office is whether the knowingly unlawful detention of Kostadinovic founds such a claim.
In Northern Territory of Australia v Mengel the majority stated:[23]
The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.
It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.
[23]Northern Territory of Australia v Mengel (1985) 185 CLR 307, (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ), 347.
As this passage makes clear, it is not sufficient for the appellants to show that O’Bryan acted knowingly beyond power and such act resulted in damage. The notices of appeal allege that the police respondents acted with the knowledge that they had no power and intending that harm should flow to the appellants or being reckless as to whether harm would flow to the appellants.
These alternatives reflect those postulated in the latter part of the first paragraph quoted above.
For reasons I shall elaborate I do not accept that either an intention to obtain truthful evidence from a potential witness, or the eliciting of evidence believed to be true, in a manner which is intended to be fully and fairly disclosed at any trial, can be said to constitute an intention to cause harm or recklessness as to the possibility of harm to a potential accused. In short an intention to obtain evidence, honestly believed on reasonable grounds to be relevant and probative of the truth of matters under investigation, is not an intention to cause harm. As I have said the trial judge specifically found that there was no evidence to support the allegation that O’Bryan knew that the statement made by Kostadinovic on 5 August 1998 was relevantly false or that he had reason to know that the statement was relevantly false. He further specifically found that O’Bryan honestly and reasonably believed that what Kostadinovic relevantly said on 5 August in his statement was true. No basis for overturning these findings has been established on appeal.
It was further submitted in argument on behalf of the appellants that O’Bryan acted knowingly beyond power in circumstances which involved a foreseeable risk of harm. This formulation reflects the last portion of the second paragraph quoted above from the majority judgment in Mengel, and falls short of a requirement that the act be calculated in the ordinary course to cause harm. It falls short of the formulation of the mental element of the tort by Brennan and Deane JJ in Mengel[24] and that preferred in the Three Rivers case,[25] which requires the tortfeasor to engage in conduct calculated to cause harm or conduct which is done with a reckless indifference to harm which is likely to ensue. The test invoked does not require the appellants to prove the respondents acted in the knowledge such act would probably injure the appellants or a class of which they were a member.[26]
[24]Northern Territory v Mengel (1995) 185 CLR 307, Brennan J, 357-58; Deane J, 370-71.
[25]Three Rivers District Council & Ors v Bank of England (No 3) 2 WLR 2000, Lord Steyn, 1232-1235; Lord Hutton 1258-1267; Lord Hobhouse 1269-1270; Lord Millett 1275 (Lord Hope agreeing with Lord Steyn and Lord Hutton on this aspect).
[26]The passage from the majority judgment in Mengel quoted above also expressly contemplates that as a matter of principle it might be thought that the tort should be understood to be founded on the intentional infliction of damage, although the case was decided on the basis that it was sufficient to establish an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.
Nevertheless, even if the notice of appeal be treated as embracing this alternative formulation, the appellants cannot show a foreseeable risk of harm in the relevant sense.
It was submitted on behalf of the appellants that harm was inevitable if criminal proceedings were instituted against the police officers, simply by reason of the fact that they were police officers. I do not accept this submission. If hypothetically a police officer entered a third party’s premises unlawfully without a warrant, and found there a murder weapon forensically critical to the case of murder against another police officer, the latter could not sue in tort if he was thereafter found guilty following a fair trial in which evidence of the discovered weapon was admitted in accordance with due process.
The relevant harm must be not merely the foreseeable risk of a fair trial according to law, but the risk that the investigative procedure adopted will result in an unfair trial. The distinction is analogous to that between the preparation of evidence on the one hand and its fabrication on the other.[27]
[27]Darker v Chief Constable of The West Midlands Police [2001] 1 AC 435, 469 (Lord Hutton).
In the present case O’Bryan sought to persuade Kostadinovic to give evidence with respect to his dealings with Redford. As the trial judge found, there was no evidence supporting the conclusion O’Bryan sought to elicit untrue evidence. Indeed, as was put in final submission at trial, the covert tape recordings demonstrate it was repeatedly emphasised to Kostadinovic that the investigating officer wanted a statement as to the truth.
Further, the manner in which the investigating officers elicited the evidence was monitored, recorded and filed. There was no intention to suppress knowledge of the procedure engaged in. There was in these circumstances in my view no foreseeable risk of an unfair trial resulting from the manner in which the evidence was elicited. Indeed the procedure engaged in was disclosed first to O’Bryan’s superiors, then the senior crown prosecutor, then the defence and then to the magistrate at committal. It was plain to all that the manner in which the evidence was elicited would bear on the assessment of its probative weight and that the procedure adopted would be the subject of investigation and evaluation at a fair trial.
Accordingly, the case of misfeasance in public office against O’Bryan fails.
Damage
While it may be unnecessary to consider the question, it is also difficult to conclude that the manner in which O’Bryan elicited statements from Kostadinovic caused the appellants damage:
(a)The cause postulated turns on the administrative decision made by Nancarrow at one point not to authorise prosecution unless further evidence was obtained from Kostadinovic. But that administrative decision was overtaken by subsequent events. More particularly, it was overtaken by the reassessment of the evidence which occurred before proceedings were instituted.
(b)That reassessment was made by O’Bryan, his superiors, and the senior crown prosecutor in the knowledge of the provenance of Kostadinovic’s evidence.
(c)The statements obtained from Kostadinovic were not admissible as such in evidence against the appellants.
(d)It was Kostadinovic’s oral evidence concerning Redford which was ultimately given by him and relevantly maintained at the committal hearing which was admissible.
(e)Such deficiency as may have attached to the credibility of Kostadinovic’s evidence by reason of the manner in which it was elicited by O’Bryan, was manifest to the presiding magistrate at the committal.
(f)Nevertheless the prosecution against the appellants did not fail because of any defect in Kostadinovic’s evidence.
(g)There is no basis for concluding that the appellants were improperly prosecuted or received an unfair trial as a consequence of Kostadinovic’s evidence.
As I have said above, I do not accept the proposition advanced by the appellants’ counsel, that prosecution of the appellants must be regarded itself as necessarily causing them harm.
As the trial judge properly found, the prosecution was not malicious, and the utilisation of Kostadinovic’s evidence in a fair manner in the course of such prosecution was not, in my view, actionable. It did not constitute the causing of damage in a relevant sense.
Duty to the Appellants as Members of the Public
The respondents also contend that the appellants lack standing to sue for misfeasance in public office. It is submitted that the excess of power complained of, must be in breach of a duty owed to the appellants as members of the public. In turn it is submitted that although false imprisonment of Kostadinovic could breach a duty owed to him, it would not breach a duty owed to the appellants as members of the public .[28] Having regard to the conclusions I have already reached which are determinative of the claims for misfeasance in public office, it is unnecessary to resolve these issues.
[28]Cannon & Anor v Tahche & Ors (2002) 5 VR 317
The proposed new alternative claim of Intimidation
Having failed comprehensively to make out the primary basis upon which the case was put (malicious prosecution), the appellants now wish to substitute a further alternative claim framed as one for the tort of intimidation. That claim was not the subject of the pleadings.
Counsel for the appellants submitted that the factual material and findings relevant to this ground are identical to those relevant to the claim for misfeasance in public office save that ‘the only difference is the state of mind necessary to constitute intimidation’.
In my view this concession is sufficient in itself to mean that the claim should not be entertained. It means that the Court could not be satisfied the course of the trial would not have been affected if this course of action had been raised.[29] Moreover, it was open to call evidence from those allegedly intimidated if the claim had been raised below. It would not be just to allow the new claim to be agitated at this stage of the proceeding.
[29]Whisprun, 461; Lafranchi, 363-65.
Conclusion
Accordingly, the appeals must fail. No knowingly unlawful act was established on the part of Kent. O’Bryan’s detention of Kostadinovic in custody became knowingly unlawful once O’Bryan understood there was no breach of bail justifying such detention. It did not, however, result in a foreseeable risk of harm to the appellants in all the circumstances of the case. Nor did it in fact result in damage to the appellants in the relevant sense.
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