Tazroo v State of South Australia - [2008] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TAZROO v STATE OF SOUTH AUSTRALIA
[2008] SADC 66
Judgment of His Honour Judge Clayton
22 May 2008
TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT
POLICE - ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS
Prisoner in custody of police officers charged with counts of assaulting a police officer and resisting arrest - one count dismissed on appeal to Supreme Court and other count not proceeded with by police - action by prisoner for wrongful prosecution – action by prisoner alleging assault and battery by police officer.
Held: Both action for assault and battery and action for malicious prosecution dismissed.
Crown Proceedings Act 1992 s 5; The Police Regulations 1999 regulation 16, referred to.
Clerk and Lindsell On Torts 17th ed; A v New South Wales & Anor (2007) 233 ALR 584; Hicks v Faulkner (1878) 8 QBD 167; Rapley v Rapley (1930) 30 SR (NSW) 94, considered.

TAZROO v STATE OF SOUTH AUSTRALIA
[2008] SADC 66

The plaintiff claims damages for assault, battery and malicious prosecution as a consequence of events which occurred at the City Watchhouse on the morning of 23 May 2003.
The State of South Australia is sued pursuant to s 5 of the Crown Proceedings Act 1992 for the tortious conduct of its servants or agents. The Statement of Claim refers specifically to Constable Walsh, Constable Bailey and Sergeant (incorrectly described as Constable) Athans.
The plaintiff had been arrested on Grenfell Street Adelaide by Constables Walsh and Bailey on larceny charges and was taken to the City Watchhouse. He was taken into an interview room where he told the police officers that he did not intend to answer questions. The interview, which was recorded on a videotape, shows the plaintiff talking loudly in an agitated state. It can be inferred that one reason for that was the fact that the police officers persisted with the interview against his wishes.
At the conclusion of the interview the plaintiff was being escorted by Constable Bailey from the interview room to the cells. That involved passing through the charge gallery in the Watchhouse. The plaintiff’s case is that as they were moving from the interview room Constable Walsh placed his right hand on the plaintiff's back and, using his left hand to hold the plaintiff's left arm, pushed the plaintiff from the interview room. He alleges that Constable Walsh then placed him in a headlock from behind and tackled him to the ground, causing his head to hit the ground. The plaintiff alleges that Constable Walsh dropped his knee onto the plaintiff's head causing his head to hit the ground again and that Constable Walsh used his knee to push his head into the ground for approximately five minutes. The plaintiff alleges that after being tackled to the ground he was restrained by Constable Walsh and other police officers who took him into a holding cell where he lapsed into unconsciousness. The events in the charge gallery were also recorded on videotape from two separate angles.
The plaintiff alleges that as a result of the actions of Constable Walsh he sustained personal injury, namely trauma to the head, and as a consequence suffers memory loss, panic attacks, anxiety attacks, sleep deprivation and migraine headaches. He claims to have sustained a loss of income and a loss of earning capacity as a consequence of the injuries.
The plaintiff was charged with two counts of larceny, a third count of unlawful possession of a bracelet, a fourth count of assaulting Constable Walsh in the execution of his duty and a fifth count of resisting Constable Walsh in the execution of his duty. In due course he pleaded guilty to the two counts of larceny and the count of unlawful possession was withdrawn. After a trial a magistrate found the plaintiff guilty of the fourth and fifth counts and the plaintiff appealed from that decision of the magistrate to the Supreme Court.
In reasons dated 7 July 2004 the Honourable Justice White allowed the appeal and set aside the magistrate's findings of guilt on counts four and five. His Honour found that the evidence in relation to count five, the count of resisting arrest, was insufficient to support a finding of guilt and held that it was inappropriate to order a retrial. As to count four, the allegation that the plaintiff had assaulted Constable Walsh, White J. ordered a retrial. Count four was eventually withdrawn. I discuss the circumstances in which that charge was withdrawn below.
The plaintiff's claim for assault and battery
The plaintiff’s claim for assault and battery arises out of the same factual circumstances that gave rise to the fourth and fifth counts in the prosecution of the plaintiff before the magistrate.
The evidence of the plaintiff in support of his claim for assault and battery was brief. He said that he was placed in a holding cell, that he declined to give a statement, that Constable Walsh said "regardless you are coming with me" grabbed him by the arm, dragged him out of the cell and took him into an interview room. In the interview room the plaintiff again told the police officers that he did not wish to give a statement but his request was ignored. The police officers in the interview room were Constables Walsh and Bailey. After about ten minutes they stopped the videotape recorder. The plaintiff said that Constable Walsh and he were standing at the door waiting to leave the interview room and that he looked over his shoulder and said to Constable Walsh "I told you I had nothing to say to you and not to waste our time." The plaintiff continued:
As I was standing there, within a couple of minutes after we had this exchange of words, I was pushed out of the room. As I was pushed he said "Don't touch me on the penis", and came from behind, grabbed me in a headlock, tackled me to the ground, jumped on top of my head with his knee, with one knee, can't remember which one, jumped on top of my head.
The plaintiff said that Constable Walsh pinned him to the ground for five to ten minutes. The videotape recordings show Constable Walsh placing the plaintiff in a headlock and forcing him to the ground and then Constable Walsh and other police officers pinning him to the ground for just over one minute.
On the evidence of the plaintiff the actions of Constable Walsh were unprovoked. The plaintiff denied that he made contact with the genitals of Constable Walsh, but he does agree that Constable Walsh said "Don't touch me on the penis" before he placed the plaintiff in a headlock.
Unless the actions of Constable Walsh can be justified in some way his actions would amount to an assault. A police officer escorting a prisoner is not, without reason, entitled to apply a headlock and force the prisoner to the ground in the way that the video shows Constable Walsh forcing the plaintiff to the ground. Clerk and Lindsell On Torts 17th ed states at 12-61:
No greater restraint may be placed on a person in lawful custody than is necessary to secure his detention.
Regulation 16 of The Police Regulations 1999 provides:
Proper exercise of authority
16.An employee must-
(a) use only such force as is reasonably necessary in the execution of his or her duties and;
(b) exercise his or her powers of arrest and search, and any other power or authority conferred on the employee by virtue of his or her employment, reasonably and for a proper purpose.
I digress to refer to the reasons of White J. on the appeal from the decision of the magistrate. As to count four, the count alleging that the plaintiff had assaulted Constable Walsh, His Honour allowed the appeal because he formed the view that the magistrate had unconsciously reversed the onus of proof. He therefore found it unnecessary and inappropriate to address concerns which he had about the evidence of Constable Walsh. Those concerns were based upon Constable Walsh's evidence to the magistrate as to his reaction when he claimed that the accused had grabbed, squeezed and twisted his genitals for five to six seconds. White J. commented that one might have expected more than the apparently laconic report of "slight discomfort" and that one might have expected an instinctive and abrupt movement by Constable Walsh to break the appellants grip rather than the apparently polite request made by Constable Walsh to the appellant "to let go", but His Honour did not find it necessary to make findings of fact. His Honour left open the question which now arises for determination in the present case.
I do not have the evidence in the trial before the magistrate which provided the basis for the reasons of White J. The evidence before the magistrate and White J. gave rise to credibility arguments which did not arise in this court. I must determine the claim upon the basis of the evidence before this court.
Constable Walsh gave evidence in this court that as he was escorting the plaintiff through the charge gallery in the Watchhouse the plaintiff took hold of his testicles and penis and twisted them. He said that he told the plaintiff to stop and to let go. Constable Walsh said that the event can be seen in the video recordings.
Paragraph 6.4 of the defence alleges that "the plaintiff grabbed Constable Walsh’s genitals". There is no specific plea of self defence. Whether self defence should have been specifically pleaded as a special defence to satisfy the requirements of the Supreme and District Court Rules was never raised. It must be remembered that the defendant was self represented. Having regard to the history of the matter before the magistrate and White J., the plea in paragraph 6.4 of the Defence and the way in which the hearing was conducted before this court, I am satisfied that the plaintiff was on a notice that the defendant sought to justify the actions of Constable Walsh on the basis that the plaintiff had grabbed the genitals of Constable Walsh.
The issue in the case is whether that evidence of Constable Walsh should be accepted. To the extent that the defendant relies upon the defence of self defence, or claims that the actions of Constable Walsh were reasonable, the onus of making out that defence rests with the defendant.
The video recordings of the events in the charge gallery were played several times during the evidence of the plaintiff and the evidence of Constable Walsh. There were several police officers in the charge Gallery before Constable Walsh and the plaintiff came through the door. The recordings show that immediately after Constable Walsh and the plaintiff moved into the charge gallery the plaintiff's left hand moved to the area of Constable Walsh's groin and Constable Walsh said "Don't touch my penis" then reacted violently and placed the plaintiff in a headlock.
The recordings also show that Constable Walsh had his left hand upon the plaintiff’s left hand at the time that the plaintiff’s left hand moved to Constable Walsh's groin. What can be seen could also be consistent with Constable Walsh moving or guiding the plaintiff's hand towards his own groin area with his own left hand. However that is not the plaintiff's case: the plaintiff did not say that happened and he denies touching the genitals of Constable Walsh.
Both films show that the reaction of Constable Walsh in placing the plaintiff in a headlock and forcing him to the ground was sudden and followed the movement of the plaintiffs left hand towards the groin of Constable Walsh. On my interpretation of the recordings that was the type of instinctive and abrupt movement that White J. would have expected.
Constable Walsh denied that he placed his knee on the plaintiff's head. He said he took hold of the plaintiff around his neck, put him to the ground and held his arms. The recording shows that while Constable Walsh had one arm around the plaintiff's neck his free arm was supporting the plaintiff’s head. The plaintiff was struggling. Constable Walsh denied that he caused the plaintiff’s head to hit the ground. He said that when they took the plaintiff to the cells he was conscious and lucid.
The video recordings show that neither of Constable Walsh's knees were on the plaintiff's head. The recordings show police officers restraining the plaintiff on the ground and a further female police officer producing a pair of handcuffs which were used to restrain the plaintiff.
The recordings have a soundtrack which recorded the plaintiff making a great deal of noise, much of which is indistinct. After he was placed in the headlock and taken to the ground the plaintiff cried out incessantly. It was similar to the noise he had been making in the interview room. The occurrence caused mirth amongst those police officers standing in the charge gallery who were not actually involved in the fracas. Their demeanour was not consistent with a dangerous situation or an injury about to be caused. Much of what the plaintiff was calling out is too indistinct to understand, however statements that can be heard are similar to "I didn't hurt you", "I never touched your balls", "I swear to myself", "I never touched anything" "Get off me" "Please" and "Get off my head".
If the evidence established nothing more than that Constable Walsh suddenly placed the plaintiff in a headlock and forced him to the ground I would be satisfied that was an unreasonable application of force and the claim of assault and battery would be made out. However if one accepts the evidence of Constable Walsh that the plaintiff had grabbed his penis and testicles it becomes necessary to consider whether the actions of Constable Walsh amounted to self defence or reasonable force to restrain a prisoner.
After Constable Walsh had placed the plaintiff in a headlock and forced him to the ground other police officers joined in and helped Constable Walsh restrain the plaintiff and to handcuff him. The melee involved a pile of bodies on the ground and the video recordings do not show clearly exactly what happened to the plaintiff, because his body is obscured by other bodies at the bottom of the pile. What can be seen and the noise that can be heard do establish that the plaintiff was struggling and the police officers were attempting to restrain him. Relevantly the recordings do not show Constable Walsh forcing his knee onto the plaintiff’s head as claimed by the plaintiff. Constable Walsh's knees can be seen to the side of the plaintiff's body. At the time the plaintiff called out "Get off my head" his head does not appear on the screen. There is no recording which shows any police officer on the plaintiff's head.
I accept the evidence of Constable Walsh. The video recordings show the plaintiff's left hand in the area of Constable Walsh's groin. They contradict the evidence of the plaintiff. The action of Constable Walsh in placing the plaintiff in a headlock is consistent with a reaction to the plaintiff touching his genitals. The event took place in the presence of other police officers who were in the charge gallery. It was not a place where Constable Walsh was likely to assault the plaintiff. The evidence of Constable Walsh receives some support from the uncontested fact that Constable Walsh told the plaintiff to let go of his penis and the fact that while he was being held on the ground the plaintiff can be heard saying "I never touched your balls".
Placing the plaintiff in a headlock and forcing him to the ground might be considered an overreaction, but in such situations a person cannot be expected to weigh with precision the exact measure of defensive action that is appropriate. The actions of Constable Walsh must be assessed in the agony of the moment. It is a defence to an assault if a person under attack has only done what that person instinctively believed to be necessary and reasonable judged from that person's point of view. I accept that what Constable Walsh did was a genuine reaction by way of self defence and was reasonable for the purpose of securing the prisoner in his custody.
In my opinion the evidence establishes that the force used by Constable Walsh and the other police officers to restrain the plaintiff was reasonable in circumstances. There is nothing to suggest that self defence or the need to restrain a prisoner was made a cover for aggression. It was not a case of retaliation, but a case of a police officer protecting himself and attempting to restrain a difficult prisoner in his custody.
I find that no police officer knelt on the plaintiff’s head as he has claimed.
In my opinion the plaintiff has not established that the defendant is liable on the basis of the torts of assault and battery.
The alleged injury
I find that the plaintiff has not established that he suffered any relevant injury as a consequence of the events which took place in the City Watchhouse.
In his evidence the plaintiff said that he had suffered "bruising to the brain". There is no evidence of such an injury apart from the plaintiff’s own unsubstantiated assertion. In his evidence the plaintiff referred to a CAT scan, but never identified the actual scan with any precision and no scan was ever produced. Nor were the findings of any CAT scan revealed.
Exhibit D3 is part of the South Australian Prison Health Service record relating to the plaintiff. The first entry in the exhibit was made on 12 May 2003 on the plaintiff's admission to the Adelaide Remand Centre. The next entry records that on 13 May 2003 the plaintiff complained of migraine headaches and showed a medical officer an abrasion over his left wrist, which was noted as a "very superficial scratch" and "lumps" over the left temple. The entry also refers to a complaint of a head injury in 1988. The plaintiff told the note taker that police "banged him around" many times and he requested the note taker to arrange a CT scan.
A further entry in exhibit D3 dated 26 May 2003 which was made on the plaintiff's admission to the Yatala Labour Prison reads:
No medical problems but claims that he received a head injury in the Watchhouse from the police Friday 23-5-03. No loss of consciousness. Some dizziness - some memory loss. Can't remember whether he saw a GP in the Watchhouse or not. Pupils equal and reacting to light. Aware of which day it is and date. Migraine as usual. Given Codis x2…
The complaint made by the plaintiff on 26 May 2003 that he received a head injury in the Watchhouse on 23 May 2003 is consistent with the plaintiff’s claim. However the person who wrote the note did not record any observation which corroborates the alleged head injury. Also the note that there was no loss of consciousness is contrary to the plaintiff’s evidence before this court.
On 21 June 2003 the plaintiff wrote to the Police Complaints Authority alleging that he had been assaulted by the police on two separate occasions. The first alleged occasion was on 10 May 2003 at the charging cells at the Adelaide Watchhouse. The second was on 23 May 2003. In the letter the plaintiff claimed there was a pattern of police harassment.
The plaintiff did not produce any medical evidence in support of his claim that he suffered an injury. His own evidence was vague, inconsistent and unbelievable. He has not established on the balance of probabilities that he sustained the alleged injury, namely a head injury or bruising to the brain.
In his evidence the plaintiff said that initially he had no memory of being assaulted but his memory came back after a couple of months when he was going through the apprehension report with his solicitor. He said "I got bits and pieces of it back. For the first month or so I had no recollection of it whatsoever". He said that when he was admitted to Yatala Labour prison on 26 May 2003 he had no understanding of a head injury from the assault. He said he had no idea that he had even been assaulted. That evidence is inconsistent with the note made in the medical file on 26 May 2003.

The evidence does not establish any loss of earning capacity due to migraine headaches, panic attacks, anxiety attacks, memory loss or sleep deprivation. First the evidence does not establish that the plaintiff had any relevant earning capacity prior to the events which gave rise to this claim. He last worked in "real estate" in New South Wales before he came to South Australia in 1994 and has never had employment in South Australia. Since 1994 he has not had any lawful source of income. Secondly, the evidence does not establish that he has injuries which have affected his earning capacity.
Apart from some vague evidence about three persons who had pledged $1.5 million to the plaintiff to invest there was no evidence that the plaintiff had a business. I do not accept the evidence that there were three persons who had pledged $1.5 million in the way claimed by the plaintiff. Even if there were potential investors the plaintiff's evidence as to how he would have used money to generate income was fanciful and unacceptable. The plaintiff said in evidence:
I would set up businesses, purchase real estate, set up businesses, operate the business for 12 months, for example say a night club or a clothing store or something. I think to myself "This location needs a clothing store", so I set up a clothing store. It would cost be may be 2 or 300,000 to set up the business. I operate it for 12 months. What I've generated in that 12 months, say a turnover of 750,000/800, 000, that is the selling price. I put it on the market for that price and basically a double/ triple my money in that one year and that's how I was able to-
As I have said the plaintiff has not worked since 1994 and he has no history of profitable trading or investment. No particulars were provided of the alleged loss of income from the plaintiff's business. I find that he had no relevant business prior to 23 May 2003.
Furthermore the evidence does not establish that the plaintiff has been incapacitated from participating in any particular activity since 23 May 2003. As I have mentioned there is no medical evidence which corroborates the plaintiff's injuries.
There is no evidence to support the allegation that the plaintiff will require medical treatment or medicine in the future. There is no evidence of him having incurred expenses for any relevant treatment between 23 May 2003 and the present time.
Even if the plaintiff had established that the defendant was liable to pay damages for assault and battery, he has not established that he suffered an injury, he has not established any physical disability and has not established any financial loss.
The plaintiffs claim for malicious prosecution
As I have mentioned count four in the complaint before the magistrate, the allegation that the plaintiff had assaulted Constable Walsh in the execution of his duty, was never proceeded with and the fifth count, that the plaintiff resisted Constable Walsh in the execution of his duty, was dismissed by White J.
White J. dismissed count five on the basis that evidence of a "tensing" of the plaintiffs left arm for no more than one or two seconds as he was being escorted by Constable Walsh after leaving the interview room was not necessarily indicative of resistance of a police officer. The fact that the evidence was not sufficient to make out count five does not establish that the prosecution was malicious. Nor does the fact that the prosecution decided not to pursue count four establish that the prosecution was malicious.
What the plaintiff must establish is that the prosecution was brought maliciously and that the proceedings were brought without reasonable and probable cause. The plaintiff must prove the existence of both of those requirements.
Mr Keane, who appeared for the defendant, referred me to the decision of the High Court of Australia in A v New South Wales and Another (2007) 233 ALR 584 where the majority of the court confirmed that for a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1)That proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2)that the proceedings were terminated in favour of the plaintiff;
(3)that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4)that the defendant acted without reasonable and probable cause.
In Hicks v Faulkner (1878) 8 QBD 167 Hawkins J. said at 174:
The malice necessary to be established is not even malice in law such as may be inferred from the intentional doing of a wrongful act… but malice in fact - malus animus - indicating that the party was actuated either by spite or ill will towards an individual, or by direct or improper motives, though these may be wholly unconnected with any and charitable feeling towards anybody.
In Rapley v Rapley (1930) 30 SR (NSW) 94 Street C. J. said
…. in actions of this kind what is meant by malice is malice in fact, and that is a matter to be determined by the jury on a consideration of all the circumstances of the case.
A fundamental difficulty with the plaintiff’s claim is that no prosecutor has been identified. In his final address the plaintiff said:
It (the prosecution) was initiated by Constable Walsh. Constable Athans carried on the prosecution all the way to trial so far as that element has been made out, that there was an issue by the Department, it was carried out by the defendants.
Despite questioning the plaintiff was unable to be more precise as to the identity of the complainant.
Apart from the fact that the plaintiff has not identified the prosecutor there are issues as to whether the plaintiff has satisfied the third and fourth requirements. The fact that the proceedings were concluded in favour of the plaintiff, which satisfies the second requirement, by itself is not sufficient.
Because the actual complainant was never identified, the plaintiff has not proved that a person for whom the Crown is vicariously responsible acted maliciously or without reasonable and probable cause.
There is no evidence against Constable Bailey and accordingly there is no basis for a finding against her.
Constable Walsh may have been an arresting officer but he was not the prosecutor in the relevant sense. Constable Walsh did not act without reasonable and proper cause in initiating or continuing the prosecution. In my opinion there is no evidence of malice on the part of Constable Walsh. Accordingly the Crown is not vicariously liable on the basis of the actions of Constable Walsh.
Sergeant Athans is a senior trial prosecutor in the police force. He is the person who appeared at the hearing of the complaint against the plaintiff before the magistrate. In that sense he was a prosecutor, but that is not the relevant sense. He gave evidence as to his role.
Sergeant Athans said that prosecution files are adjudicated and then passed down the line to the prosecutors such as himself. His supervisors allocated the file relating to the plaintiff to him. Previously he had dealings with the plaintiff in connection with a criminal trespass, larcenies and breach of bail matters. There is nothing to suggest that those other dealings were other than in the ordinary course of his duties. Sergeant Athans said, “Because of the number of files that Mr Tazroo had, the powers that be thought they would consolidate them to one prosecutor and that was me.” He was not able to say why that occurred but said "it just happened that way."
While Sergeant Athans was unable to say who laid the charges in respect of counts four and five he could say that it was not him.
Sergeant Athens said it was not his task to assess the sufficiency of the evidence against the plaintiff. That was done by "adjudication" or the supervisor of the arresting officers.
Sergeant Athans gave evidence that after the appeal the matter came back for retrial on one of the counts. He spoke to his supervisors and prepared documentation to withdraw the outstanding count (count four). He said it wasn't worth proceeding and "Mr Tazroo, in my view, had been incarcerated because of other offending. I came to the decision that Mr Tazroo shouldn't have to face that charge any longer. It's just enough was enough". Sergeant Athans made a recommendation and the final decision was made by his supervisor. The reasons for the recommendation are set out in a withdrawal form prepared by him.
Clearly the decision not to proceed with count four cannot form the basis for a finding of malicious prosecution. That was a decision not to prosecute. Whether the prosecution was malicious or not must be assessed by reference to events which occurred prior to the withdrawal of the charge.
In my opinion there is no evidence which forms a basis for criticism of Sergeant Athans. There is certainly no evidence that he acted maliciously or other than in the ordinary course of his duties. He was not the person who initiated proceedings and the evidence does not establish that he maintained the proceedings in the relevant sense. He prosecuted a complaint in accordance with material produced by the arresting officers which had been adjudicated upon in the normal way. There is no evidence that in appearing before the magistrate as a police prosecutor that Sergeant Athans acted without cause. The fact that he handled all files involving the plaintiff has been explained and does not establish malice.
The position with a public, as opposed to a private, prosecution was discussed by the majority in A v New South Wales (2007) 233 ALR 584 at 588 paragraph 3 in the following terms:
As Viscount Simonds pointed out in Glinski v McIver (footnote (19 62) AC 726 at 744), different factual considerations arise "where in the administration of criminal justice the information is laid by a particular police officer who is in charge of the prosecution and responsible if it is held to be malicious, but it is, as a matter of police organisation, obvious that he must act upon the advice and often upon the instruction of his superior officers and the legal department", and, it may be added, where the prosecutor is acting upon information given to him by a member of the public. In that context, the concept of "belief", as a fact relevant to the question whether a defendant had reasonable and probable cause to institute a prosecution, bears a different aspect.
Later at page 597 their Honours said:
[40] Similarly, where a plaintiff alleges that a prosecutor acted maliciously, that is for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make. Absence of reasonable and probable cause may, in a given case, the evidence of malice; but there are two separate issues to be decided.
[41] in the case of the public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be a factual importance in deciding the issue of malice.
The evidence establishes that the process was initiated by the arresting officers, adjudicated upon in the normal way and then assigned to Sergeant Athans by his superiors.
I find that there is no evidence of malice on the part of any police officer. The evidence does establish a cause for the prosecution which was reasonable. The facts which gave rise to the prosecution are obvious.
In reaching my conclusion I have disregarded the fact that counts four and five were initially found to have been established by the magistrate but the convictions were set aside by White J. on appeal. Clerk and Lindsell On Tort 17th ed states at paragraph 15-35:
There has been some difficulty in cases where the prosecution resulted in a conviction at first instance which was quashed on appeal. The better opinion is that this will be considered in the light of all the facts in determining whether there was a reasonable and probable cause, and the fact that the first tribunal convicted will not settle as a matter of law that there was reasonable and probable cause for the prosecution.
As I have mentioned a fundamental difficulty is that because the actual prosecutor has not been identified questions of malice and the absence of reasonable and probable cause are really academic. Whether there is reasonable and probable cause depends upon the information and belief of the defendant. Clerk and Lindsell, paragraph 15-24. If the actual person for whom the Crown is said to be vicariously liable is not identified it is just not possible to consider what effect the established facts would have upon the mind of an unknown person.
In my opinion the claim based on malicious prosecution must be dismissed.
There is one aspect of this case which has troubled me. The plaintiff said that he was sentenced on counts one and two, that is the larceny charges, to imprisonment for three months from 21 October 2003 until 20 January 2004. He then remained in custody from 20 January 2004 until 5 June 2004 when he was released. He said he spent that time in custody solely on these charges, that is counts four and five, and he had been refused bail. On his evidence he spent about four months and sixteen days in custody after completing the three month sentence for larceny.
In the charge discontinuance notice prepared by Sergeant Athans there is reference to the non parole period ending on 13 January 2004. The document notes:
Whilst he could have sought to be released on bail-it was decided by his counsel not to pursue-bail. He remained in custody up to and including the trial and he was released on bail on 3 June 2004. He spent 5 1/2 months in custody. Ms Panogiotidis (the magistrate) had intimated on several occasions that she was of the view that a term of imprisonment of in the vicinity of 4-5 months was her intended penalty. Since the accused’s appeal was upheld - Tazroo has paid his penalty.
Whilst the fact that the plaintiff was held in custody for four or five months pending trial on a charges which were subsequently dismissed or withdrawn by the prosecution is a matter of concern, it is not something which I can remedy in these proceedings, particularly having regard to my decision that the claim for malicious prosecution should be dismissed.
If the claim for malicious prosecution had been upheld then the time spent in custody would have been taken into account in assessing damages, although for the reasons which I have already expressed I would have dismissed any claim for loss of earnings during the period that the plaintiff was held in custody.
The plaintiff’s claim is dismissed. There will be judgment for the defendant.