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Wed, 21 Mar 2007 03:56 From: Neil Foster Subject: Malicious Prosecution - A v NSW
Dear Colleagues The High Court of Australia has, in A v NSW [2007] HCA 10 apparently reformulated part of the law relating to the tort of malicious prosecution. I say "apparently" because a quick reading of the unfortunately lengthy joint majority judgement (Gleeson CJ, Gummow, Kirby, Hayne, Heydon & Crennan JJ) leaves me still in some doubt. But I think that is what happened! The case involved an apparently concocted story of child sexual abuse by two boys, C & D, which led to a failed prosecution of their step-father A. The Court outlines the four elements of the tort (derived from Bullen & Leake's 1868 edition, apparently!) in para [1]: (1) relevant proceedings were initiated, (2) the proceedings terminated in favour of the plaintiff, (3) the defendant in initiating proceedings acted with malice, and (4) the defendant acted without "reasonable and probable cause". The final two points were in issue here. On "reasonable and probable cause" the NSWCA (from whom the appeal came) had considered two possible tests which they said were available for this, one offered by Jordan CJ in the Supreme Court of NSW in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 (which focused on whether the prosecutor actually believed in the guilt of the accused), the other set out by Dixon J in the High Court in Sharp v Biggs (1932) 48 CLR 81 (which effectively said a prosecution might be justified "in the interests of justice" even if the prosecutor did not personally believe in the accused's guilt). Obviously as a matter of pure precedent the test offered by the High Court, if different to that given by the NSW SC, was binding. But judges in NSW (the trial judge here among them) had tended to rely on Sir Frederick Jordan's formulation. (Others on this list might be able to offer more information than I can, but my understanding is that Sir Frederick was a highly respected common law judge, whom many thought ought to have been elevated to the HC but never was.) In this appeal in A, rather than adopting one or the other views, the joint majority judgement here spends a lot of time explaining why in fact Jordan CJ's view was not contrary to Dixon J's view, the point of distinction being that Jordan CJ was speaking to a situation where the defendant had personal knowledge of the facts behind the alleged offence, whereas Dixon J was offering a more general test: paras [65]-[69]. To be frank, this is one of those rare cases where I find myself in agreement with Callinan J, who gave a single minority judgement. His Honour simply noted the differences between the two approaches and said the court ought to prefer that of Dixon J. Dixon J's test asks "does the prosecutor believe the probability of the accused's guilty is such that upon general grounds of justice a charge against him is warranted"? - eg [159]. Callinan J said that one reason for adopting this test is that "the suggested alternatives to it suffer from an unnecessary and inconvenient degree of over-elaboration" - [174]. His Honour's comment is fairly pointed in light of the lengthy reformulation undertaken by the majority. As far as I can tell the heart of the majority judgement winds its way to para [80] where we are told that "a relevant question" for this test 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." (See also the summary at [118].) The emphasis in this element then is "honesty" of the prosecutor. We are told that the material on which the decision was made must also have been objectively sufficient: [82]-[87], and that "malice" is still a separate element of the tort. Even if an honest decision has not been made (or not on objectively sufficient grounds), the plaintiff must also establish malice - which here means with a dominant purpose other than the proper invocation of the criminal law: [91]. In the end the HC restored the trial judge's verdict that in one of the cases in question there had been an actionable malicious prosecution because the plaintiff had established that the prosecution was brought as a result of "pressure" that was put on the prosecuting officer from his superiors and another government body, not for the dominant purpose of bringing a wrongdoer to justice. (The "pressure" concerned stemmed partly from the fact that the accused, A, was a member of the Police Force, and hence there was an attempt to ensure that no-one could accuse the force of protecting one of its own members.) That, the court held, was sufficient to amount to malice for the purposes of the tort. Callinan J, as noted above, adopted the Dixon J test for "cause". But applying that to the findings of the trial judge he held that he would have come to the same view as he had come to applying the wrong test of Jordan CJ on the "reasonable and probable cause" issue - [185]. Malice was also established on the same grounds as applied by the majority. Hence, while disagreeing with the reasoning of the majority, he also overturned the CA decision and restored the trial judge's verdict in favour of A.
Regards Neil Foster
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