A v State of NSW & Ors (HCA) (6 and 7 September 2006)

In this matter Greg Walsh represented the appellant, A, following up on the grant of special leave on 10 February 2006.

The appellant brought proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the second respondent, the second respondent’s employer (the first respondent) and another police officer. This followed the dismissal of two charges of homosexual intercourse against him under s78H of the Crimes Act 1900 (NSW). The trial judge found that the claim of malicious prosecution was established against the first and second respondents in respect of one charge only. (The first respondent’s liability was based upon its vicarious liability as the second respondent’s employer). His Honour however dismissed the rest of the appellant’s claims.

The appellant appealed against the dismissal of the other claim for malicious prosecution. He also appealed against the dismissal of the claims for false imprisonment, false arrest and abuse of process. The appellant further appealed against various components of the award of damages. The first and second respondent cross-appealed, seeking a verdict on both claims of malicious prosecution.

In determining whether the respondents had acted without reasonable and probable cause in laying the charges, the trial judge applied the test stated by Jordan CJ in Mitchell v John Heine & Son Ltd (“Mitchell”). At the outset of the appeal however, the Court raised the issue of whether Jordan CJ’s statement was contrary to those made by this Court in Sharp v Biggs (“Sharpe”) and Commonwealth Life Assurance Society Ltd v Brain. One of the main issues upon the appeal therefore was the identification of the proper test to apply in such cases.

On 2 September 2005 the Court of Appeal (Beazley JA, with whom Mason P and Pearlman JA agreed) held that an accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause to succeed in an action for malicious prosecution. They also found that a prosecutor will act without reasonable probable cause if they lacked an honest and reasonable belief that charging a person was justified. In reaching these conclusions their Honours followed Sharp as opposed to Mitchell. The Court of Appeal further held that a prosecutor will “honestly and reasonably believe” that charging a person is justified if the evidence would lead a person or ordinary caution and prudence to conclude that it was warranted. Their Honours held however that a prosecutor need not actually believe that an accused is guilty. It is sufficient that they honestly and reasonably believed that there was a proper case to put before a Court.

The Court of Appeal further held that malice will be proved if an accused can show that a prosecutor was motivated by spite, ill-will or by improper motives towards the accused. This could include succumbing to pressure from bureaucratic superiors to lay a charge. In this case however there were no improper motives.

The pressure to charge the appellant existed because there was a “prima facie case” against him.

The grounds of appeal include:

• The Court of Appeal erred in determining the appeal and cross-appeal by formulating and applying an incorrect test for determining the absence of reasonable cause in a case of malicious prosecution.
• The Court of Appeal erred in finding that the appellant had not established absence of reasonable and probably cause to lay the charge in respect of D.
• The Court of Appeal erred in finding that a reasonable prosecutor, exercising ‘prudence and judgment’ would have been justified in laying the charge in respect of C
• The Court of Appeal erred in finding that malice had not been established in respect of charging C and D.

On 21 March 2007 the High Court unanimously upheld the appeal by A, represented by Greg Walsh, in respect of his claim for malicious prosecution.

Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution the High Court held today.

A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12 and 10 year old step-sons, D and C, when they were aged 8 and 9 respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The Magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him.

A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros has told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation, Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from the Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C.

A appealed to the High Court which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominantly purpose of the prosecutor in brining the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probably cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probably cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.