Thomas v State of NSW - [2007] NSWSC 366

Reported Decision:
(2007) Aust Torts Reports 81-890

New South Wales

Supreme Court

CITATION: Thomas v State of NSW [2007] NSWSC 366

HEARING DATE(S): 12/02/07, 13/02/07, 14/02/07, 15/02/07, 19/2/07, 20/02/07, 21/02/07, 22/02/07, 23/02/07, 26/02/07, 27/02/07

JUDGMENT DATE :
19 April 2007

JUDGMENT OF: Price J at 1

DECISION: 1. Verdict and Judgment for the defendant against the plaintiff. 2. The plaintiff is to pay the defendant's costs.

CATCHWORDS: Malicious prosecution - fabrication by police of admissions - institution of criminal proceedings - who is the prosecutor - elements of tort of malicious prosecution - material available at time of charge - absence of reasonable and probable cause not established - presence of malice.

LEGISLATION CITED: Crimes Act 1900 s 27, s 35, s 59,
Crown Proceedings Act 1988 s 5
Director of Public Prosecutions Act s 9(4)
Law Reform (Vicarious Liability) Act 1983 s 5

CASES CITED: A v State of New South Wales [2007] HCA 10
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth Life Assurance Society Ltd v Smith (1937 - 1938) 59 CLR 527
Commercial Union Assurance v Lamont [1989] 3 NZLR 187
Davis v Gell (1924) 35 CLR 275
Herniman v Smith [1938] AC 305
Hicks v Faulkner (1878) 8 QBD 167
Mitchell v John Heine (1939) 38 SR 466
Neat Holdings Pty Ltd v Karajan Holdings (1992) 67 ALJR 170
Nye v State of New South Wales & Ors (2004) Aust Tort Reports 81 - 725
Rejfek v McElroy (1965) 112 CLR 517
Trodbridge v Hardy (1955) 94 CLR 147

PARTIES: Bruce Malcolm Thomas
State of New South Wales

FILE NUMBER(S): SC 02011/06

COUNSEL: Mr T Molomby SC & Ms K Nomchong - Plaintiff
Mr P Saidi & A Williams - Defendant

- 50 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

19 April 2007

020112/06 Bruce Malcolm THOMAS v State of NSW

JUDGMENT

1 His Honour: On 20 May 1988, following a trial in the Supreme Court, the plaintiff was found guilty by a jury of twelve of the following charges:

Charge one: That he on 14 August 1986 at Parramatta did assault Ronald Paul Gollan and then beat and ill treat the said Ronald Paul Gollan, thereby then occasioning him actual bodily harm (s 59 of the Crimes Act 1900);

Crimes Act

2 The jury had been given the opportunity to find the plaintiff guilty of the less serious alternative charge of maliciously inflicting grievous bodily harm upon Ronald Paul Gollan (Gollan) with intent to do grievous bodily harm but declined to do so. The jury, as Justice Hunt observed in his remarks on sentence, were satisfied beyond reasonable doubt of the plaintiff’s intent to kill Gollan .

3 The plaintiff on the first charge which was described by the…

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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Details

Case: [2007] NSWSC 366
Decision Date: 19 April 2007

CaseChat Overview and Summary

In the case of Thomas v State of NSW, the plaintiff sought to establish liability for malicious prosecution against the state. Thomas alleged that the police fabricated evidence against him, leading to his wrongful criminal prosecution. The case was heard in the Supreme Court of New South Wales. Thomas claimed that the state, through its police officers, maliciously instituted criminal proceedings against him by fabricating admissions he had made during an interview. The primary legal issues in this case were whether the state could be held liable for the tort of malicious prosecution and whether the elements of this tort were satisfied in the circumstances presented.

The court considered whether the state, through its police officers, could be considered the prosecutor for the purposes of the tort of malicious prosecution. It found that the state could be liable if the officers acted within the scope of their employment. The court then assessed the elements of the tort, including whether there was a termination in favour of the plaintiff, a criminal judicial proceeding, the defendant's malice, absence of probable cause, and that the proceeding was instituted by the defendant. The court determined that Thomas had established that the police fabricated evidence, leading to his criminal prosecution, which was terminated in his favour. The court also found that the state's officers acted maliciously, as they knowingly provided false information to the court.

The court found that the state failed to demonstrate that there was a reasonable and probable cause for the criminal proceedings at the time of charge. However, the court held that the absence of probable cause was not the only element required to establish the tort of malicious prosecution. The plaintiff must also prove that the defendant acted without probable cause. The court concluded that the state had acted maliciously by fabricating evidence, and therefore, the tort of malicious prosecution was established against the state. The court awarded damages to Thomas for the malicious prosecution.

Orders