Tahche v Cannon & Ors

[2003] HCATrans 524

[2003] HCATrans 524

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M109 of 2002

B e t w e e n -

ROBERT TAHCHE

Applicant

and

ANGELA CANNON

First Respondent

MARK ROCHFORD

Second Respondent

PAUL COGHLAN

Third Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 10.43 AM

Copyright in the High Court of Australia

__________________

MR D.F. HORE‑LACY, QC:   May it please the Court, I appear with MR J.P. GORTON for the applicant.  (instructed by Slater & Gordon)

MR G.P. FARIS, QC:   If the Court pleases, I appear with my learned friend, MR M.F. WHEELAHAN, for the first and second respondents.  (instructed by Phillips Fox)

MS S.M. CRENNAN, QC:   If the Court pleases, I appear with MS K.E. JUDD for the third respondent.  (instructed by Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Hore‑Lacy.

MR HORE‑LACY:   Yes, thank you, your Honour.  The applicant in this case, Robert Tahche, drew a great deal of publicity at the time.  He is known publicly as the “return rapist” or the “revenge rapist”.  He pleaded guilty to a rape of a young woman and after being released from gaol was charged with raping her again.  He pleaded not guilty at trial.  He was convicted.  He spent five years in custody and then, as a result of subsequent events, there was an application for leave to appeal, which was granted and a nolle prosequi was entered.  A number of people were sued, connected with the prosecution, including the barrister appearing for the DPP and the DPP solicitor at the time, and it is the issue surrounding their actions that this application concerns.

Could we just say in relation to the threshold argument, the third respondent, I notice, opposes the grant of special leave because the application does not give rise to a question of general principle.  On our reading, it would seem that the first and second respondents do not make the same submission, but just say in the Court of Appeal’s judgment, the court observed that they:

considered that the principal legal issue raised by the proposed appeal is clearly one of general public importance.

Indeed, that was the reason why leave to intervene was given to the Director of Public Prosecutions on the basis that it affected, or had the potential to affect, the prosecutions, we would say, not only in Victoria, but all prosecutions all over Australia, and not only the personnel who were involved in the prosecution of alleged offenders, but also the accused people who come before the criminal justice system.  We would submit, therefore, that the issues raised in the case are matters of general public importance and, for that reason and other reasons, the application should be granted.

Just if we could say in relation to the state of the law, observations have been made by this Court and indeed other courts concerning the tort of misfeasance.  In the Northern Territory v Mengel (1994‑1995) 185 CLR 307 Justice Brennan wrote:

The tort of misfeasance in public office is well established.  Less clearly established are the principles which define the liability imposed on a public officer who, by use of his position or power, causes loss to another.

In Sanders v Snell, again a judgment of this Court, the majority observed similarly:

Again it must be accepted that the precise limits of this tort are still undefined.

A similar observation is made in the Full Court decision of Tampion v Anderson [1973] VR 215.

In these submissions, we will attempt to compartmentalise the issues raised.  As a starting point, we say that the Court of Appeal upheld the appeal of the respondents on two bases.  one, the first and second respondents did not hold a public office and, two, even if the first and second respondents did hold a public office, there was an additional requirement that they owe a duty to the plaintiff, which requirement was not satisfied because the disclosure obligations are merely ethical duties owed to the court.

GLEESON CJ:   What do you say about the proposition stated by Justice Deane in Whitehorn v The Queen 152 CLR 657 at 665?

MR HORE-LACY:   Whitehorn, as his Honour decided, is dealing with a duty of care in the concept of negligence of his duties.

GLEESON CJ:   What he said was:

The requirements of those standards –

that is to say the standards of fairness of detachment imposed on the prosecution –

are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages.

MR HORE-LACY:   Well, we would say, as Justice Smith decided in first instance, that that was in the context of a negligence application, not an intentional injurious tort.  Indeed, the wealth of authorities, both in this country and in England and in Canada, would suggest that for an intentional tort, that is a tort where it is intended to cause harm, the tort is open.  We would adopt what Justice Smith said in relation to that.

GLEESON CJ:   Where do we find what Justice Smith said about Justice Deane’s statement in the application book?

MR HORE-LACY:   Could we just return to that in a moment, if we may.  Going to the first question, that is whether the first and second respondents were public officers, Justice Smith at first instance decided they were, and it is our primary submission that the Court of Appeal erred in deciding that the test of whether a person was a public officer depended on whether…..  This is contrary to all reported cases which speak in terms of public duties.  That includes some statements by this Court.  In Henly v The Mayor of Lyme Chief Justice Best wrote:

Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer.  The instances of this are so numerous, that it would be a waste of time to refer to them.

And importantly:

Then, what constitutes a public officer?  In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.

And again:

It seems to me that all these cases establish the principle, that if a man takes a reward,– whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual,– for the discharge of a public duty, that instant he becomes a public officer –

The passage was cited with approval by Justice Brennan in Mengel’s Case.  It was also cited with approval by Lord Hobhouse in Three Rivers DC v Bank of England, and quoting it:

It is not necessary to discuss further who comes within the description “holder of a public office”.  It is a broad concept –

and cases were mentioned on which that quotation relied.

HAYNE J:   Now, in your pleading at application book 34 you plead duties in paragraph 30A, do you not?  I would read that as your side pleading that the duty is an essential element in the claim made for misfeasance in public office, is that right?

MR HORE-LACY:   That is correct, but that is not an actionable duty.  That is in the nature of an obligation.  It is not a duty which is actionable and that is where we would submit that the Court of Appeal erred when, we would say, it confused the notion of that duty, and that is an obligation, and we would say the cases make it plain with a duty such as to attract the law of negligence.  To answer your Honour the Chief Justice’s question concerning Justice Smith’s finding, at 135 he said:

While they may be authority for the proposition that the prosecution owes no actionable duty per se –

he is talking of Whitehorn, Love v Robbins and Richardson –

to an accused person to act fairly and no actionable duty per se to call witnesses, they do not determine the issue in the present case.  The issue is whether, in failing to disclose relevant information in an allegedly deliberate or reckless exercise of a duty to do so, the fifth and sixth defendants may be sued for misfeasance in a public office.

HAYNE J:   Well, go on.  The next sentence.  What does he mean? 

MR HORE-LACY:   I am sorry? 

HAYNE J:   It is the next sentence.  What does that mean? 

That duty is a distinct and separate one from those considered in the above cases and is not relied upon as being actionable per se for mere non‑compliance. 

What is his Honour saying there? 

MR HORE-LACY:   He is saying there is no actionable duty per se.  His Honour is not saying there is no duty at all owed to the plaintiff. 

McHUGH J:   But it hardly faces up to Justice Deane’s general statement that the requirements of the standards imposed on prosecutors are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages.  That is a pretty strong statement, is it not? 

MR HORE-LACY:   We would say that that is confined to an action for negligence, with respect, your Honour, and Justice Smith dealt with all these arguments.  We would say it is contrary to a plethora of authority which in fact distinguish the concept of negligence and the concept of misfeasance in a public office. 

Just continuing, in Sanders v Snell, your Honour the Chief Justice, Justices Gaudron, Kirby and your Honour Justice Hayne wrote:

Because misfeasance in public office is concerned with performance of public duties, and because the tort of unlawful interference is concerned primarily with private, not public interests, misfeasance in public office should not be subsumed in some wider economic tort. 

In R v Whitaker, Justice Lawrence wrote:

Then it was argued that the appellant was not “a public and ministerial officer.”  A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.  If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer. 

So we would say that the authorities are that the question of whether a person is a public officer has nothing to do with whether particular duties are owed to the plaintiff or not.  In Whitehorn at 669 Justice Deane pointed out:

In the above circumstances, the failure of the Crown to call the child as a witness or to provide some acceptable explanation for not calling her was unfair to the accused.  No doubt, prosecuting counsel acted for what appeared to him to be worthy motives:  there is no suggestion at all of professional misconduct on his part. 

That is a different situation to the situation in this case.  We are not talking about a mere question of non‑disclosure and the case does not involve just an exercise of discretion.  What is alleged is an intentional injurious tort, and we would say that that takes it outside the concept of the discretion that is spoken about in the cases to call or not to call witnesses.  Again, Justice Brennan, in Mengel’s Case, said:

In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty –

and a footnote to this observation reads: 

cf Tampion v Anderson [1973] VR 715 at 720.

In relation to the question, is the duty to be fair a common law duty or an ethical duty owed to the court, we would say that the Court of Appeal was wrong to describe the duty disclosed as an ethical duty owed to the court.  It is a common law duty that has been acknowledged in a number of cases. 

HAYNE J:   Owed to whom?  A duty to whom? 

MR HORE-LACY:   It is owed by the common law to a number of people – indeed, it has been described, I think, in Arthur J S Hall & Co v Simons, where it was stated: 

The criminal law and the criminal justice system exists in the interests of society as a whole.  It has a directly social function.  It is concerned to see that the guilty are convicted and punished and those not proved to be guilty are acquitted.  Anyone not proved to be guilty is to be presumed to be not guilty.  It is of fundamental importance that the process by which the defendant is proved guilty shall have been fair and it is the public duty of all those concerned in the criminal justice system to see that this is the case.  This is the public interest in the system.

Again, in Whitehorn, the case that has been mentioned, Justice Deane wrote that: 

The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed –

not the courts – that is my addition –

and of helping to ensure that the accused’s trial is a fair one. 

In Garofalo, Justice Ormiston, in dealing with that case, wrote at 632: 

What is critical to the three decisions –

that is, Wilson, Kelly and Brown –

is not so much the practice recognised or laid down in those jurisdictions but a recognition of the common law obligation of the prosecution to make proper disclosure of relevant witnesses’ prior convictions in terms which cannot be described as perfunctory or restricted. 

In R v Brown [1998] AC 367, the headnote reads:

the rules of the common law regarding disclosure of material by the prosecution were based on fairness and the principle of open justice and it would be contrary to that principle for the prosecution to withhold material –

So we would say the duty is owed.  There is a common law duty or a common law obligation – I will not use the word “duty” – a common law obligation to disclose these matters and it is a question as to whether or not a person may sue if it is deliberately, with intent to harm, withheld.  All that we would say – all the reported cases point to a different direction.  Those cases include Grimwade, in the State of Victoria, where Justice Harper wrote:

I see no reason in principle, subject to the reservations expressed by Brett MR in Munster v Lamb (1883) 11 QBD 588 at 604, why prosecutors should not be liable for wrongs inflicted maliciously in the course of the exercise or purported exercise of their authority.

In Bennett v The Commissioner of Police for the Metropolis and Crown Prosecution Service, Sir Richard Scott said a similar matter:

To argue that because for public policy reasons a blanket immunity from action is given in respect of evidence in court proceedings and because for public policy reasons the police and the CPS are relieved of a general duty of care to those who may be affected by the manner in which they discharge their duties it should therefore follow that the police and the CPS –

that is, the Crown Prosecution Service –

are entitled to a blanket immunity from suit arising out of the manner in which they discharged their duties is not, to my mind, respectable jurisprudence.  On the contrary, it is clear law that neither the police nor the CPS are entitled to a blanket immunity against tort actions arising out of the manner in which they discharge their duties.  Actions for malicious arrest or malicious prosecution can be brought.  Actions against the police for assault, in using excessive force in effecting an arrest or in interrogating a suspect, can be brought.  Why should an action for misfeasance in public office not be brought?  I can see no reason why not.  The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law.  There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers. 

This passage was approved in Darker v Chief Constable of West Midlands Police, by Lord Hutton, at 469 to 471.  In Elguzouli‑Daf v Commissioner of Police, Lord Justice Steyn wrote:

Turning to private law remedies, there is first of all the tort of malicious prosecution.  In order to succeed in such an action the plaintiff must prove that the prosecution failed, there was no reasonable or probable cause . . . The essence of the tort is the abuse of public office.  Potentially such liability might attach to a decision of a CPS prosecutor. 

In that case, to answer one of the questions, Lord Steyn distinguished the case of mere action in negligence.  At 349, he wrote: 

I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS.  In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime ‑ ‑ ‑

HAYNE J:   Well, if that is right, what you are contending for would flip it, and it would flip it in this way.  A decision taken in the course of trial will almost always be a deliberate decision.  If it is taken in the context of an adversarial proceeding, demonstrating that it was done with intent to harm will usually be very easy, because it will be done in the context of an adversarial proceeding in which the objective is to win. 

MR HORE-LACY:   If there is an intent to harm.  That is where Lord Steyn said that you could bring an action for misfeasance, but not in

negligence.  In fact, one of the reasons for which the court denied a duty of care in that case was the availability of the tort of misfeasance in public office and malicious prosecution.  Lord Morritt wrote at 352: 

Secondly, not only would it be surprising to find a common law duty in the circumstance that the CPS is a recent creature of statute but under no statutory duty to individuals, but it would suggest that in this field at least the independent torts of malicious prosecution and misfeasance in a public office are unnecessary.  In the case of the former a plaintiff has to establish the absence of reasonable and probable cause and malice.  In the case of the latter knowledge of the want of power is an essential element.  If the plaintiffs are right want of reasonable care will suffice ‑ ‑ ‑

GLEESON CJ:   Thank you. 

MR HORE-LACY:   Could I just say in conclusion that Emanuele v Hedley, your Honours, stated the same thing and also the Canadian case that has been mentioned, Milgaard. 

GLEESON CJ:   Thank you.  Yes, Mr Faris. 

MR FARIS:   If the Court pleases.  This application is made in the context of an action against a member of the private Bar, briefed on an ordinary brief, retained on an ordinary brief, to prosecute a criminal trial.  Obviously, this happens many times a day every day of the legal year.  As is the custom, he was instructed by a paid employee of the Director of Public Prosecutions Office, and these are the two people who are the defendants in the action. 

Any criminal trial involves a prosecutor making decisions in the context of an adversarial system all day long:  “Should I ask this question?  Should I not ask the question?  Should I disclose this?  Should I disclose that?  Should this witness be called?  Should this submission be made?  Should there be an application to discharge the jury?  How do I deal with an application made by the other side?”  Like any court case, it is a decision‑making process, constantly, for the barrister.  Now, that is true of all court cases, but in criminal trials there is added upon the usual ethical conventions of being honest and frank and open with the court a superstructure of ethical obligations. 

If one looks at the various ethical handbooks in relation to criminal trials, there are lists and lists and lists of things that are required to be done.  There is a number of authorities – Apostilides has got to do with the calling of witnesses, Whitehorn, and there is a whole host of cases on disclosure.  These are all matters which the prosecutor has to deal with in prosecuting the case. 

What is sought to be done in this case is to turn the prosecutorial obligation to assist the court and behave fairly and to help the court, as one of the authorities said, in having a fair trial – to turn that into a right the breach of which would enable the person in the dock to sue.  So we have a slide here from the obligation is to the court, the duty is to the court, the ethical obligations – it is sought to raise those into an actionable right for the accused person to sue. 

We say, and we contend strongly, that the judgment of the Court of Appeal is impeccable, that its analysis is correct.  We say that the principal issue in this application is whether or not our two clients were public officers and we say we get to the resolution of that question, as did the Court of Appeal, by analysing whether they exercise any public powers.  To put it in a rhetorical way, what is the public power that a member of the private Bar briefed to prosecute a criminal trial exercises?  What public power does he exercise?  Sitting there, what public power does his instructing solicitor exercise? 

Now, we are not talking about the Director of Public Prosecutions, who holds a statutory office, a Crown Prosecutor, who holds a statutory office, and attached to those public offices are duties and functions.  By accepting a brief, we submit that a barrister does not become a public officer, certainly not in the context of this tort, and there is no public power exercised in the course of a trial.  Consequently, a decision to call a witness or not call a witness, a decision to make disclosure, a decision to support an application or oppose an application are not exercises of public power.  If they are and if they are actionable, then, of course – I do not want to sort of run the floodgates argument, but the system will change dramatically, as we understand it. 

That is the reason why the already discussed passage in Whitehorn has been regarded as settled law and, if not, just plain common sense.  Our learned friend says in terms that I do not understand that his Honour was speaking of the law of negligence.  Whitehorn was not a case about negligence, of course.  It was arising out of a criminal trial, where the prosecutor elected not to call the child victim as a witness and the accused was still convicted.  So it had to do with the prosecutor’s decision not to call a witness.  It had nothing to do with negligence.  So it cannot be confined in any way and, accordingly, the response of our learned friend does not deal with the issue that was raised by the court. 

Moving on to the reasons why special leave should not be granted, we say that ‑ ‑ ‑

HAYNE J:   Can I just interrupt you and just make sure that I understand this limb of it.  As I understand it, it comes to this.  You would say the court, in a criminal prosecution, is exercising public power.  Those who appear in the criminal proceeding, whether for prosecutor or defence, do not exercise public power in conducting the trial.  Those who initiate the process, as, for example, the Director, do.  Is that what it comes to? 

MR FARIS:   Yes.  The Director – or probably a better example is a Crown Prosecutor who holds office under the Act.  Now, in signing a presentment, he is exercising a public power ‑ ‑ ‑

HAYNE J:   I can understand initiating being an exercise of public power. 

MR FARIS:   ‑ ‑ ‑ which is relevant to his office, but if he appears in the trial as a prosecuting barrister, he is not exercising any public powers which derive from his office.  He is simply appearing as an advocate in adversarial proceedings and there is this superstructure of ethical obligations.  But it is no more than ethical obligations, with a duty to the court.  It is not a public duty and it is not an actionable duty by the accused.  It is a duty to the court.  So, in a long‑winded way, the answer to your Honour’s question is, yes, I agree. 

On this issue of whether special leave should be granted, again, we say that the formulation of the basis for that is nothing more than trying to elevate ethical obligations into actionable duties, and we rely upon Whitehorn to rebut that. The whole point was thoroughly considered in the reasons of the Court of Appeal in the application book 240 to 242 and at 248. It is a unanimous decision of the Court of Appeal and, accordingly, this case is not appropriate for the grant of special leave. We say the decision does not give rise to any uncertainty. When properly analysed, there are no inconsistent appellate decisions and, in fact, it is entirely consistent with Whitehorn. 

We say it is an inappropriate vehicle, for two reasons.  Firstly, we say, plainly, the barrister and instructing solicitor are not public officers, but, secondly, there are complexities involved with the appellate proceedings in the Supreme Court.  The Court of Appeal did not decide all the issues that were appealed.  It only decided the public officer issue and then said if we are wrong, there is no duty.  There are still live issues yet – they have been argued – to be determined by the Court of Appeal on the question of immunity from suit of prosecutors and a point which would reflect, to some extent, on Giannarelli. 

To consider, in this Court, on this application, the liability of prosecutors would be to do so in an artificial circumstance, because the

whole issue of immunity has not yet been decided, nor appealed from.  So we say that this is an inappropriate vehicle, given the way that it has got to this Court.  We further say there is a paradox in the applicant’s case, which has already actually been raised by his Honour Justice Hayne, that the central point, as we understand the plaintiff’s pleadings, is that they plead a breach of duty, yet they are now saying that the Court of Appeal is wrong and that there is no duty. 

We further say that in the interests of justice this proceeding should be left to rest.  It is now 11 years since the events giving rise to this proceeding took place.  A yet to be decided issue on the appeal before the Court of Appeal is whether the action against our clients was statute‑barred, and we strongly contend that it was.  Again, that means that it is really an inappropriate vehicle.  We say that the primary judge, on this issue of statute barring, delivered two judgments on 1 March, which cannot be reconciled.  He held that the barrister was a public officer for the limited period of his retainer, but then in the judgment on the statute of limitations held that there was a continuing duty.  We say that those matters were irreconcilable. 

The point about the Court of Appeal is that there are a number of issues upon which we do not have a decision, they are live issues and this case is just not an appropriate vehicle.  If the Court pleases, I cannot make it any plainer than that by repetition.  We rely upon our written submissions and unless there is anything the Court wishes me to deal with, they are our submissions. 

GLEESON CJ:   Thank you.  Yes, Ms Crennan. 

MS CRENNAN:   If the Court pleases.  We rely on our written submissions.  We also adopt and rely on the written and oral submissions made on behalf of the first and second respondents.  Next, we submit, accepting as we do that the issues raised raise questions of general public importance, we nevertheless oppose the grant of special leave for three reasons. 

First, we say that the resolution of the issues in the Court of Appeal – and there were two of them and I will identify them shortly – was done by reference to established principle; secondly, we say that the decision of the Court of Appeal is manifestly correct; and, thirdly, we say, by reason of the existence of a coherent and longstanding body of law in relation to prosecutors’ duties, there would be little prospects of success of an appeal. 

Next, we say briefly that the two issues or questions before the Court of Appeal were these.  The first question was whether the ability of the first and second respondents to decide whether and when to disclose information relevant to the defence or to ensure a fair trial constituted a public power for the purposes of the tort.  It was unexceptional for the Court of Appeal to regard a public power as a necessary ingredient ‑ ‑ ‑

McHUGH J:   Well, it is very difficult.  Power in the context of a public officer must mean an authority to take a course of action that would, but for the investing of that authority, be otherwise unlawful. 

MS CRENNAN:   A public power, conventionally, of course, would be one that is exercised on behalf of the public or for public purposes.  That issue was essentially resolved by reference to Richardson’s Case and Apostilides, that is, it was resolved by recognising that the duties of a prosecutor during the course of a trial are discretionary responsibilities and, accordingly, can be distinguished from a public power.  We say that was a correct approach to the resolution of that question. 

McHUGH J:   Barristers are given privileges.  On admission to the Bar, the court gives them the privilege to conduct cases.  That does not seem to me to be a power.  It is a privilege. 

MS CRENNAN:   That is right and, of course, the point is made even firmer if one goes to examples.  A decision in relation to information would involve assessing the information, considering the source of the information, matters of that kind, which just underline the discretionary nature of the responsibility.  The second and alternative issue in the Court of Appeal was, assuming for the purposes of argument that the first and second respondents did hold public office and exercised a public power wrongly, did they owe a duty to the applicant not to commit a wrongful exercise of the public power?  We will call that the Tampion v Anderson question. 

That was resolved by reference to Whitehorn v The Queen and what Justice Deane had to say about the justiciability of any breach of such a duty.  Once again, we say that was manifestly correct to resolve that issue in that way.  In terms of what Justice Deane said in Whitehorn v The Queen, we would make two points.  Firstly, in terms, the passage which was relied on goes beyond negligence.  The second point we would make is that Justice Deane there in that passage was crystallising the correct approach as a matter of law to any breach of a duty by a prosecutor, informed by many cases which have looked at the duties of a prosecutor, informed by the history of a prosecutor’s duties and informed by matters of public policy. 

We would submit that to re‑characterise a prosecutor’s duties now, contrary to the way they have been characterised in Richardson’s Case and Apostilides as discretionary responsibilities, would be a major step and to re‑characterise a breach of the duty as justiciable, contrary to Whitehorn v

The Queen, again, we would say, would do violence to a very longstanding, very coherent body of law in relation to prosecutorial duties, with an obvious impact for the administration of the criminal justice system.  It is for those reasons that we would oppose the grant of special leave.  If the Court pleases. 

GLEESON CJ:   Thank you.  Yes, Mr Hore‑Lacy. 

MR HORE-LACY:   In relation to the submissions of Mr Faris, we do not take issue with his comments concerning the discretionary nature of the prosecution.  The law is clear and it has been that, of course, that should not be touched.  What is alleged in this case is more than the exercise of discretion; what is alleged is an intentional harm caused to the plaintiff.  It is not just a mere matter of non‑disclosure.  The pleadings are that the first and second respondents actively dissuaded or were party to actively dissuading the first defendant from disclosing the information to the plaintiff or to his legal representatives and actively dissuaded or were party to actively dissuading the first defendant – that is, the young woman – from formally reporting the allegations against Charlie to the police. 

We would say an inference that can be drawn from that was for the purpose of it not being disclosed.  So it is not a mere question of not disclosing; it is a question of actively dissuading or otherwise intentionally causing injury.  We would say it would not be making new ground.  It is not a mere question of exercising discretion.  This case, as we put before, is almost on all fours with the Canadian case which was referred to, and just might I say, in relation to actively persuading somebody not to disclose information, we are not talking about any breach of any ethical standard.  It is, at its highest, an attempt to pervert the course of justice. 

In Meissner v The Queen (1995) 184 CLR 132, Justices Brennan, Toohey and your Honour Justice McHugh wrote, in relation to Rogerson, matters there which constitute an attempt to pervert the course of justice.  If that is proved, that can constitute an attempt to pervert the course of justice, and that is not an ethical duty owed to the court.  The deliberate injuring of somebody is not an ethical duty owed to the court.  It is a breach – as the cases all say, we would say, apart from this one – of a common law duty which is imposed in a requirement to be fair. 

In relation to the submission that the immunity has not been decided, the question of immunity, I do not have to remind this Court that Giannarelli is going to be considered again, apparently, in the case of McIvor where special leave was – well, it was not granted, but it was allowed to be argued in the case of a barrister who is sued for negligence by his client.  So it may be appropriate, if that is going to be a matter to be determined, for both to be determined.  What we say, simply, we are not

just talking about ethical obligations.  We are talking about an intent to injure and a deliberate breach, which is almost identical, factually, as the Canadian case of which reference has been ‑ ‑ ‑

HAYNE J:   It is a Saskatchewan case, is it? 

MR HORE-LACY:   Yes, that is correct, Milgaard v Mackie.  That concerned a person who, I think, spent 20 years in gaol for murder, almost identical to this case in principle.  It was held there, in that particular case – I will just read part of it.  Following another case, the case of German v Major:

Mr Milgaard has alleged that the prosecutors conspired to and did intentionally and with malice breach their duty to disclose information which tended to exculpate him, for the purpose of harming him.  Were he to succeed in proving these allegations, they would constitute exactly the kind of fraud on the law, the kind of abuse of the law, the kind of improper purpose or motive, and the kind of excess of authority, that the Supreme Court has said should not be protected by immunity.  While the court was dealing only with malicious prosecution, it is certainly open to argument that the same reasoning should apply to the torts of abuse of statutory power and conspiracy to abuse statutory power and even negligence if it was actuated by or contributed to by malice or other improper motives. 

So we say the Canadian courts, the English courts, have recognised the ability to sue the prosecutors, the CPS – the Crown Prosecution Service – in the case of England, in Elguzouli’s Case and, I think, in Bennett’s Case as well – and there is no case in Australia which is to the contrary of that.  We would say, in those circumstances – it is conceded that it is a matter of general public importance – we would say that this case is an appropriate vehicle and at the very least ‑ ‑ ‑

GLEESON CJ:   Thank you.

MR HORE-LACY:   Thank you.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 11.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

GLEESON CJ:   In this matter the Court of Appeal was right to conclude that the duties which the applicant alleged the respondents owed were not duties directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages:  see Whitehorn v The Queen (1983) 152 CLR 657 at 665 per Justice Deane. They are duties owed to the court.

The relevant sanction for their breach is the making of orders at the trial of the accused or on appeal to prevent or remedy any miscarriage of justice resulting from breach of duty.  That being so, an appeal against the orders of the Court of Appeal would necessarily fail and other questions that the applicant seeks to agitate would not fall for consideration.

The application for special leave to appeal is refused with costs.  We will adjourn for a short time to reconstitute.

AT 11.30 AM THE MATTER WAS CONCLUDED