ON APPEAL FROM THE SUPREME COURT OF Malicious Prosecution-Reasonable and probable cause for prosecution-Functions of H. C. OF
In a proceeding by B. against S. for use and occupation from 6th February to 20th May 1928 of upstairs rooms in B.'s shop, B. in April 1931 swore that S. was in occupation of the rooms during that period, that he had seen him and his boy going up and down stairs to and from the upstairs rooms, and that sometimes they would have goods in a basket. B. fixed the date 20th May 1928 by reference to a letter written by S. but he was mistaken, and actually the facts to which he deposed had ceased by 1st March 1928, although after that date S. had gone at least once upstairs and had used the basement. and McTiernan, S. laid an information against B. for perjury, charging him with swearing that S. was in occupation of the rooms and that he saw S. and his assistant taking goods from the rooms three or four times a day up to 20th May 1928, missing possibly a day or two occasionally during that time. B. was committed for trial but the Attorney-General refused to file a presentment. B. sued S. for malicious prosecution. The following questions were left to the jury :-(1) Has the plaintiff (B.) proved that he was innocent of the charge made against him ? Answer: Yes. (2) Did the defendant (S.) or his assistant carry goods down- stairs from the upstairs rooms during the months of March, April, or May, 1928 Answer No. (3) At the time the defendant laid the information against the plaintiff, did he honestly believe that the plaintiff had committed perjury in the County Court action ? Answer: Yes. (4) Was the defendant's
belief that the plaintiff had committed perjury based on reasonable grounds Answer: No. (5) When the defendant laid the information, was he actuated by malice ? Answer Yes. On the fourth finding the trial Judge held that the prosecution was instituted without reasonable and probable cause and entered judgment for the plaintiff (B.) for £500 damages. The Full Court of the Supreme Court of Victoria affirmed this decision. On appeal to the High Court by the defendant (S.),
Held, by Rich, Dixon and McTiernan JJ. (Gavan Duffy C.J. and Starke J. dissenting), that the trial Judge rightly decided that in the circumstances of this case there was a want of reasonable and probable cause and that the appeal should be dismissed.
Per Gavan Duffy C.J. and Starke J.: It was doubtful on the findings of the jury whether the precise facts of the case had been ascertained; but in any event the direction to the jury on the fourth question was insufficient.
Per Dixon J. -The ultimate inference, whether or not the facts of the case amount to a want of reasonable and probable cause, is for the Court, but it is for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sharp v Biggs [1932] HCA 54
Case
[1932] HCA 54
Decision Date
CaseChat Overview and Summary
In this case, the High Court of Australia considered an appeal from the Supreme Court of Victoria concerning a claim for malicious prosecution. The appellant, Sharp, had prosecuted the respondent, Biggs, for perjury. Biggs was committed for trial but the Attorney-General declined to file a presentment. Biggs then sued Sharp for malicious prosecution, alleging he had been prosecuted without reasonable and probable cause and with malice.
The legal issues before the court were whether the prosecution of Biggs for perjury was initiated without reasonable and probable cause and whether Sharp was actuated by malice. The jury in the Supreme Court trial found that Biggs was innocent of the perjury charge, that Sharp honestly believed Biggs had committed perjury, but that this belief was not based on reasonable grounds, and that Sharp was actuated by malice. The trial judge entered judgment for Biggs based on the jury's finding that there was a want of reasonable and probable cause.
The High Court, by a majority, affirmed the decision of the Supreme Court. The majority held that the trial judge had correctly determined that there was a want of reasonable and probable cause. They reasoned that while the jury found Sharp honestly believed Biggs had committed perjury, this belief was not supported by reasonable grounds, particularly given the lapse of time since the original events and the potential for honest mistake. The court emphasised that the ultimate determination of whether facts constitute reasonable and probable cause rests with the court, while the jury's role is to establish the facts. The dissenting judges argued that the jury's findings were insufficient to establish a lack of reasonable and probable cause and that the direction to the jury on the fourth question was inadequate.