In this appeal, Greg Walsh acted for A in an appeal to the High Court of Australia concerning two (2) of the four (4) elements of the tort of malicious prosecution.
On 9 March 2001, the Appellant was arrested and charged with two (2) offences of homosexual intercourse contrary to s.78H Crimes Act 1900 (NSW). The first charge was against the Appellant’s stepson, D (then aged 8) between 8 May and 31 December 1997. The second charge was with the Appellant’s stepson C (then aged 9) between 1 and 11 October 2000. The hearing of committal proceedings comments at the Children’s Court at Campbelltown on 23 August 2001. The Office of the Director of Public Prosecutions had taken over the conduct of the prosecutions at that time.
On 23 August 2001, each of D and C testified that the appellant had engaged in an act of anal intercourse with him. The proceedings were part heard on that day. They continued on 28 August. On 28 August, in the course of cross-examination, C admitted that his evidence in chief was false, and that he had told lies to help his brother. The magistrate, with the concurrence of the representative of the Director of Public Prosecutions, discharged the appellant on the charge concerning C, stating that he was of the opinion “that a jury would not be likely to convict on the evidence”
The case was then adjourned to 31 August 2001 and, on that day, D completed his evidence. The magistrate, concluded “that there was no reasonable prospect that a jury could convict the appellant”. The appellant was discharged.
After the charges were dismissed, A sued for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The action was commenced in the District Court of NSW and was head by Cooper DCJ. His Honour upheld the claim for damages for malicious prosecution.
A was a civilian employee of the Police Service and had married S on 8 May 1997. At the time, S had three (3) children from a previous marriage, including D and C. According to S, D disliked and resented the Appellant to the point of hatred. In January 2000, D made a vague complaint to S which could have suggested sexual misconduct by the Appellant towards D. Later, D told S that C had been sexually assaulted by the Appellant. C confirmed this but later denied it.
The second respondent was a member of a Joint Investigation Team within the Child Protection Enforcement Agency. The team comprised officers of the Department of Community Services and the Police Service. Cooper DCJ was critical of some aspects of the methods of investigation employed by the team where, he said, “fairness gave way to zealotry”. In July 2000, the team received a complaint about the conduct of the appellant towards D and C.
On 6 July 2001, after the prosecution had been taken over by the Director of Public Prosecutions, the second respondent telephoned the appellant’s solicitor, Mr Walsh. Mr Walsh had asked to see the video recordings of the interviews with D and C. The second respondent then went on to make comments about the case. He said that he had advised the appellant to apply to have the complainants cross-examined at the committal hearing. He said that he felt sorry for the appellant and that he (the second respondent, as a police officer) had been under pressure to charge the appellant because the appellant was employed by the Police Service. He said that he had been advised by people above him to the following effect: “Look, if you had a prime facie case, you’ve got to leave it up to the court”.
On 28 August 2001, at the committal hearing during an adjournment after C had admitted he had lied in his evidence in chief, the second respondent referred to earlier telephone conversations. He, again, reported that felt under pressure to charge the appellant because the appellant was an employee of the Police Service, and said that if it had been up to him he would not have charged the appellant.
Cooper DCJ held that A was entitled to damages to compensate him for the consequences of the laying of the charge involving C on 9 March 2001 and the maintenance of the prosecution up to 16 May 2001.
His Honour referred to the evidence of Mr Walsh at the hearing and found that the charges against the appellant were made not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to the pressure from officers of the Child Protection Enforcement Agency to charge the plaintiff because he worked for the Police Service.
This finding was reversed by the Court of Appeal.
The High Court, in dealing with the absence of reasonable and probable cause observed that it contains both subjective and objective elements. The subjective element is what the prosecutor made of the available material and the objective element relating to the question of does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion in the mind of the prosecutor? The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies the relevant state of persuasion will necessarily entail a conclusion about guilt.
In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. If the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated.
In the context of malice, this amounted to the prosecutor acting for purposes other than a proper purpose of instituting criminal proceedings.
The High Court held that the Court of Appeal erred in setting aside the trial judge’s findings about the state of mind of the second respondent in relation to the charge concerning the complaint by C.
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