AW & Ors v State of New South Wales

CATCHWORDS: TORT - malicious prosecution - reasonable and probable cause - malice - TORT - false imprisonment - unlawful detention - unlawful arrest - District Court Rules 1973 (NSW), Part 26 rr 7 and 8

Crimes Act 1900 (NSW) LEGISLATION CITED: District Court Rules 1973 (NSW)

AW & Ors v State of New South Wales [2005] NSWCA 543 Baker vTelevision & General Finance Co (Australia) Ltd [1968] 1 NSWLR 3 Bales v Parmeter (1935) 35 SR(NSW) 182 Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR(NSW) 36 Broad v Ham (1839) 5 Bing NC 722 Brown v Hawkes (1891) 2 QB 718 BRS v The Queen (1997) 191 CLR 275 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Dallison v Caffery [1965] 1 QB 348 Dawson v vansandau (1863) 11 WR 516 Glinski v McIver [1962] AC 726 Grainger v Hill (1838) 4 Bing (N.C.) 212 Haddrick v Heslop (1848) 12 QB 267 Herniman v Smith [1938] AC 305 Hicks v Faulkner (1878) 8 QB 167 Hobbs v Tinling (CT) & Co Ltd; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1 Houston v Stone (1943) 43 SR(NSW) 118 CASES CITED: Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76 McDoanld v Coles Myer Ltd (t/a K-Mart Chatswood) (1995) Aust Torts Reports 81-361 Mitchell v John Heine & Son Ltd (1938) 38 SR(NSW) 466 Nye v State of New South Wales (2004) Aust Torts Reports 81-725 Nguyen v Nguyen (1990) 169 CLR 245 R v Dann [2000] NSWCCA 185 R v RTB [2002] NSWCCA 104 R v Skaf & Ors [2004] NSWCCA 84 Sharp v Biggs (1932) 48 CLR 81 Stevens v Midland Counties Railways (1854) 10 Exch 352 Tempest v Snowden [1952] 1 KB 130 Thacker v Crown Prosecution Service [1997] EWCA Civ 3000 Thompson v Vincent [2005] NSWCA 219 Trobridge v Hardy (1955) 94 CLR 147 Varawa v Howard Smith Co Limited (1911) 13 CLR 35 Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286 Williams v The Queen (1986) 161 CLR 278 Williams v Spautz (1992) 174 CLR 509

CA 40137/2004 A (Appellant) State of New South Wales (First Respondent) John Floros (Second Respondent) Sharyn Hannigan (Third Respondent) PARTIES: CA 40182/04 John Floros (Appellant) A (Respondent) CA 40184/04 State of New South Wales (Appellant) A (Respondent)

FILE NUMBER(S): CA 40137/2004; 40182/04; 40184/04

D Campbell SC/L Whalan (Appellant) COUNSEL: J Maconachie QC/P Sadie/J Chapman (1,2,3 Defendants)

Greg Walsh & Co SOLICITORS: I.V. Knight - Crown Solicitor

OF NEW SOUTH WALES COURT OF APPEAL CA 40137/2004 CA 40182/2004 CA 40184/2004

MASON P BEAZLEY JA PEARLMAN AJA

2 September 2005 A v STATE OF NEW SOUTH WALES & ORS. FLOROS v. A STATE OF NEW SOUTH WALES v. A

The appellant brought proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the second respondent, his employer (the first respondent) and another police officer following the dismissal of two charges of homosexual intercourse laid under s.78H of the Crimes Act 1900 (NSW). The trial judge found the claim of malicious prosecution had been made out against the first and second respondents in respect of one charge. The first respondent's liability was based upon its vicarious liability as the second respondent's employer. His Honour dismissed the rest of the appellant's claims.

The appellant appealed against the dismissal of the other claim for malicious prosecution; the dismissal of the claims for false imprisonment, false arrest and abuse of process, and against various components of the award of damages. The first and second respondents 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 (1938) 38 SR(NSW) 466, which, for many years, has been considered authoritative in this State. At the outset of the appeal, the Court raised with the parties whether Jordan CJ's statement was contrary to statements made in the High Court in Sharp v. Biggs (1932) 48 CLR 81 and Commonwealth Life Assurance Society Ltd v. Brain (1935) 53 CLR 343. A central issue on appeal, therefore, was the proper test to apply in resolving a claim for malicious prosecution.

HELD per Beazley JA (Mason P and Pearlman AJA agreeing):

(i) To succeed in an action for malicious prosecution, the accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause: Sharp v Biggs (1932) 48 CLR 81

(ii) A prosecutor will act without reasonable and probable cause where an accused can show that a prosecutor lacked an honest and reasonable belief that the laying of a charge against an accused was justified: Sharp v Biggs (1932) 48 CLR 81 ; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 ( approved ); Mitchell v John Heine & Son Ltd (1938) 38 SR(NSW) 466 ( not followed )

(iii) A prosecutor will "honestly and reasonably believe" that the laying of a charge is justified where: upon the material available to the prosecutor, the prosecutor forms a genuine belief that upon general grounds of justice a charge against the accused is warranted; and where the evidence would lead a person of ordinary caution and prudence to conclude that the laying of a charge was warranted: Sharp v Biggs (1932) 48 CLR 81 (iv) A prosecutor need not believe that the accused was guilty of the offence charged, in the sense that an accused will be convicted. It is sufficient that a prosecutor honestly and reasonably believed that, upon the available evidence, there was a proper case to lay before the court: Sharp v Biggs (1932) 48 CLR 81

(v) It is not appropriate for a prosecutor to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so, for example, to assist in an assessment of the credibility of other material.

(vi) Although much of the material considered by the second respondent was inconsistent and inadmissible, there was sufficient material in his possession such that a reasonable and prudent person would consider that the charges were warranted.

(vii) Although there was pressure on the second respondent from his superiors, it was pressure to lay the charge if there was a " prima facie " case.

(viii) The second respondent believed, on the material he considered, that the charges were warranted. 3. Malice

(ix) Malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by either spite or ill-will towards the accused, or by indirect or improper motives, namely, motives other than a desire to bring the accused to justice: Hicks v Faulkner (1878) 8 QB 167 ; Trobridge v Hardy (1955) 94 CLR 147 ; Glinski v McIver [1962] AC 726

(x) An improper motive in charging an accused with an offence, such as succumbing to pressure from bureaucratic superiors to lay a charge, may, in some cases, support a finding of malice. In this case, however, the pressure was to lay a charge if there was a "prima facie case".

(xi) Absence of reasonable and probable cause and malice, respectively, are distinct elements of the tort of malicious prosecution. However, where it can be shown that a prosecutor's belief in the justification of charging the accused was distorted by malice or prejudiced by improper motives, it can hardly be said that a prosecutor acted with reasonable and probable cause: Glinski v McIver [1962] AC 726 ; Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76

4. False arrest, unlawful imprisonment and abuse of process

(xii) At the time the appellant was arrested, the second respondent suspected that the appellant had committed the alleged offences and there was ample evidence to support that suspicion: s.352(2)(a) Crimes Act 1900 (NSW) .

(xiii) There was no evidence that the appellant was falsely imprisoned, or arrested or detained for an impermissible length of time merely for the purposes of investigating the allegations of abuse or deliberating whether he should be charged.

(xiv) There was no suggestion that the criminal proceedings against the appellant were brought to obtain some collateral advantage other than laying the allegations of abuse before a court: Varawa v Howard Smith Co Limited (1911) 13 CLR 35; Williams v Spautz (1992) 174 CLR 509 .

Matter No. CA 40137/2004

1. That the appeal be dismissed;

3. That the verdict and judgment of Cooper DCJ in favour of the appellant dated 3 February 2002 be set aside;

4. In lieu thereof enter a verdict and judgment in favour of the respondents;

5. Set aside Order 1 made by Cooper DCJ on 19 February 2004;

6. That the appellant pay the respondents' costs of the proceedings at first instance, and of the appeal and cross-appeal; and

7. That the appellant have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled, in respect of the cross-appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40137/2004 CA 40182/2004 CA 401/84/2004 DC 9360/01

MASON P BEAZLEY JA PEARLMAN AJA

A v STATE OF NEW SOUTH WALES & ORS. FLOROS v. A STATE OF NEW SOUTH WALES v. A Judgment

1 MASON P: I agree with Beazley JA. 2 BEAZLEY JA: The appellant, A, was charged with two offences under s.78H of the Crimes Act 1900 (NSW). The first alleged offence was that he had homosexual intercourse with his stepson, D, between 8 May and 30 July 1997, at which time D was 8 years old. The second alleged offence was that the appellant had homosexual intercourse with his other stepson, C, between 1 and 11 October 2000, when C was aged 9. The charges were laid by the second respondent, a police officer, on 9 March 2001, at which time D and C were aged 11 and 10, respectively. The prosecution was subsequently taken over by the Office of the Director of Public Prosecutions (DPP). 3 Both charges were ultimately dismissed. 4 The appellant brought proceedings against the State of New South Wales, the second respondent and the third respondent, an officer of the Child Protection Agency, for malicious prosecution, false imprisonment, false arrest and abuse of process. He claimed general damages, past and future medical expenses, the recoupment of his legal costs in defending himself, as well as aggravated and exemplary damages. 5 The trial judge, Cooper DCJ, found that in charging the appellant with an offence against C, the second respondent was guilty of malicious prosecution. He found the State vicariously liable on this claim. His Honour dismissed the claim insofar as it related to D. His Honour awarded compensatory damages in the sum of $20,000, aggravated damages in the sum of $5,000 and exemplary damages in the sum of $5,000. With interest, the judgment sum was $31,250. His Honour rejected the appellant's claim for legal costs and medical expenses. 6 The claims relating to false arrest, unlawful imprisonment and abuse of process brought against the State and the second respondent were dismissed under Pt 26 rr 7 and 8 of the District Court Rules 1973 (NSW), which provide, respectively, for the dismissal of claims and judgment by direction. 7 All claims against the third respondent were dismissed by his Honour under Pt 26 rr 7 and 8. 8 Subsequently, his Honour gave a separate judgment as to costs in which he ordered that the respondents as defendants pay 90% of the appellant's costs on a party/party basis and ordered that there be no order as to costs of the third respondent. Presumably, in making the order in the appellant's favour his Honour intended that order only to operate against the State and the second respondent, the third respondent having been wholly successful in defending the action. 9 The appellant appeals from his Honour's dismissal of the malicious prosecution claim insofar as it related to the criminal charge involving D and appeals against the awards of damages. The appellant also appeals against the trial judge's ruling under Pt 26 rr 7 and 8 in relation to the other claims. 10 The second respondent and the State have cross-appealed. They challenge his Honour's finding as to malice and the finding that the second respondent succumbed to pressure in laying the charges, being findings that relate to the claims in respect of both D and C and the finding that there was not reasonable and probable cause to charge C. They also appeal against the costs orders made by his Honour. 11 The effect of the appeal and the cross-appeal is that every relevant legal and factual finding of the trial judge on liability, damage and costs is challenged. I will deal with the appeal and the cross-appeal insofar as they relate to the malicious prosecution claims together and the other issues, insofar as they need to be decided, separately. 12 The trial judge determined the malicious prosecution claim based on the test propounded by Jordan CJ in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466. During the hearing of the appeal the Court raised the question whether this test was in fact contrary to what the High Court (and in particular, Dixon J) had earlier said was meant by reasonable and probable cause for the prosecution, in the case of Sharp v. Biggs (1932) 48 CLR 81. 13 The Court of Appeal is not bound by its own decisions. However, there is a well entrenched convention that it will only depart from the principles stated in earlier cases where it is convinced that the earlier decision is wrong. This convention and its strictures were commented upon by the High Court in Nguyen v Nguyen (1990) 169 CLR 245 where Dawson, Toohey and McHugh JJ said at 268-9: "The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself….The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here:…..It should be observed, however, that …the Court of Appeal in New South Wales [does not] regard [itself] as strictly bound by its previous decisions. … Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law: see Queensland v Commonwealth (1977) 139 CLR 585; per Aickin J at 620 et seq." 14 Before turning to a consideration of whether this Court should follow Mitchell v John Heine or whether it should apply the formulation of Dixon J as to what constitutes reasonable and probable cause, I will first review the factual background of the allegations. Factual background of the allegations 15 The appellant commenced a relationship with S, the mother of C and D in 1996. Sometime later the appellant and S commenced cohabitation. C and D were part of the family constellation as was their older sister CA. In May 1997, the appellant and S married. At that time D was 9 years old and C was 8. The relationship between the appellant and D commenced to deteriorate shortly after this. About two and a half years later, in December 1999, D commenced seeing his natural father, after which the relationship between D and the appellant further deteriorated. 16 At some stage, and at least by 2000, the relationship between D and the appellant was such that D was determined to get the appellant "out of the house". At about the same time, he alleged the appellant had sexually assaulted him. He alleged the assaults commenced within a month of his mother's marriage to the appellant. At that time D had a plaster cast on one of his legs, up to his thigh, following an operation for a club foot. Cooper DCJ found that D galvanised C into making a similar complaint. The magistrate who heard the charges, for his part, considered that C made his allegations to support D's claims. 17 In July 2000, S made a complaint against the appellant to the Child Protection Enforcement Agency (CPEA) in respect of D's allegations. The CPEA comprises officers of the Department of Community Services and the Police Service. According to the COPS (police) report of the complaint, S informed the police that "the stepfather of the victims had been performing oral sex" on the "victims". The complaint was not investigated until October when interviews were conducted with D and C. By the time of first being interviewed C had made a complaint that about a week previously, he too had been sexually assaulted by the appellant a short time prior to the Record of Interview. The allegation of each was of penile-anal penetration. D and C were removed from their home on 13 October 2000 and, following an application to the Children's Court, they were made wards of the State. 18 On 9 March 2001, the charges which form the basis of the malicious prosecution claims were laid by the second respondent. 19 The committal proceedings relating to both charges commenced on 23 August 2001. On that day each boy gave evidence of a sexual assault. On 28 August 2001, C admitted in cross-examination that his allegation of sexual assault was "a lie". The charge involving him was then dismissed. Although D maintained his allegations the magistrate found that there was "no reasonable prospect that [a] jury would convict" the appellant of the offence and dismissed the charge. A number of factors led the magistrate to this conclusion including the following matters: the complaint was first made at about the time contact with D's natural father was re-established; D wanted the appellant "removed from the home" so that he might have more contact with his natural father; there had been collusion between D and C in making the allegations; D's account of the assault was itself dubious, particularly as there was no allegation that the assault was painful, and immediately after the alleged assault D walked out of the room and engaged in family activities, giving no indication that anything untoward had happened; D gave varying accounts of the times and details of the assaults. The magistrate also considered there was doubt as to whether the second alleged assault occurred, given that D gave evidence of assisting in household activities (collecting household goods from the family car) immediately afterwards despite the fact that at the time he was in plaster and using a walking frame. Finally, the corroborating evidence relied upon, namely, the assault on C, had been proved to have been a fabrication. 20 Both before and during the committal proceedings, the second respondent spoke with the appellant's solicitor, Mr Walsh. According to Mr Walsh, the second respondent expressed doubts about the strength of the prosecution case and indicated he had been "pressured" by his superiors to charge the appellant. This evidence was central to the appellant's claim of malicious prosecution and I will return to it in more detail when dealing with the trial judge's reasons. Before doing so, it is important to have a complete understanding of the allegations that were made by D and C in the course of their Records of Interview.

D's Records of Interview 21 During his first Record of Interview taken on 13 October 2000, D was initially reluctant to speak about the sexual abuse. He was 10 years and 9 months at the time and was interviewed by a Detective Constable of police and a District Officer. After being asked on at least two occasions about "good touches" and "bad touches" it was apparent that D did not want to discuss anything. The Detective Constable said: "Q. O.K., and why don't you want to talk about it? A. I dunno.

The District Officer intervened: Q. Is there anything that we could do to make you comfortable about talking about it? A. A different time. Q. At a different time. O.K. And why would a different time make it a bit, make you a bit more comfortable? A. 'Cause it'll give me a little time to know what to say." (emphasis added) 22 He was then asked whether something had happened to him. He agreed, but again expressed a wish not to say anything. He was then told by the interviewing officer that they had been informed the appellant had done something to him. It was only at that point in the Record of Interview that D made any allegation of sexual assault. 23 In the course of the interview, D alleged that the first act of anal sexual assault occurred in his bedroom. He was not able to put a date on when it occurred. He said it occurred on his bunk bed. He could not remember what he was wearing (but he could remember specifically what the appellant was wearing). His statement was non-specific as to what occurred as he was being assaulted, other than that it was "gross". In relation to the first assault he replied "I dunno" when asked what was occurring. 24 D then said he remembered the second time and identified an occasion when his mother was out shopping. He said he went to the toilet in the ensuite of his parents' bedroom. The appellant was on his bed. He said when he came out of the toilet the appellant sexually assaulted him. However, as the story unfolded, D said that after he went to the toilet he went and laid in the appellant's bed to read because that bed was "big and comfortable", whereas his own bed was "really small". D then said it was at this time the appellant "came in and did that", meaning anally sexually assaulted him. When asked what it felt like when being assaulted he said "weird" and "gross". When asked to explain what he meant by "weird", he said "Just didn't feel right". When asked "… what did your bum feel like" immediately after the assault, he answered "I'm not sure". 25 He said he knew the appellant had assaulted his brother because C had told their mother. When asked whether he had overheard the conversation between C and his mother, he said "I heard [C] laughing". I pause to observe that that answer, in my opinion, was so incongruous with what might be expected from a young boy complaining of serious sexual assault that it should have alerted a prosecutor to take care when assessing the reliability of the allegations. 26 A second Record of Interview was conducted with D on 19 October 2000. By that time he had been placed in foster care. Much of the questioning was directed to D not wanting to be in foster care and some 'interference' by his older sister who suggested that he should withdraw the allegations and tell the police that he had "made them up" because he was "looking for attention". However, D denied this was the case and confirmed that the assaults had occurred, and again provided details of the assault in the appellant's bedroom. He described the appellant as a "filthy disgusting person". 27 D was also questioned about the doorknob. He said that the doorknob on the bedroom he shared with C was broken and that C had broken it when he had had the bedroom to himself. However, in her affidavit in the Children's Court proceedings filed on 7 December 2000, the mother referred to the broken doorknob and the bedroom arrangements. The only inference to be reasonably drawn from the affidavit is that the boys shared a room at this time and there was not a time when C had a room on his own. The matter of relevance for present purposes, however, is that there were inconsistent accounts relating to the doorknob. C's Records of Interview 28 C was first interviewed on 13 October 2000 and then again 5 days later, on 18 October 2000. He was 8 years and 9 months old at the time. C was severely hearing impaired and was required to use hearing aids. In the first Record of Interview, which was conducted by the same District Officer who interviewed D, and in the presence of C's teacher, C was asked a series of questions about "good touches" and "bad touches" and about the various parts of the body. He displayed a clear understanding that in relation to "bad touches" he could tell his mother, the police, or 'welfare' and if he was subjected to a 'bad touch' he "would tell somebody" (emphasis added). It also appears that he understood that he was being interviewed by "the welfare". 29 The District Officer asked whether there was anything he wanted to tell them, but he replied in the negative. He was then asked a series of questions relating to whether he had been touched on various parts of his body. Relevantly the following emerged in the course of this questioning: "Q. Has anybody touched you and it's been a bad touch? Either on all the parts that you've pointed to me that are bad? A. Touching, but not the bad parts, but on the back and that. … Q. Who's touched you with a tap on the back? A. My friends and that and they do jokes. Q. Yes, O.K. So you're, if I say to you that you're telling me that nobody's touched you in a bad touch, is that right or is that wrong ? A. Yeah, it's right. (emphasis added) … Q. What about if somebody rang me up and said that they think somebody touched you in a bad touch? A. … touch you was in trouble Q. Yes. But what if somebody told me that that happened to you? A. Then, that … touch you was in trouble Q. Yes. O.K. You're not in any trouble today, O.K. … Q. So you know how we were talking about these good touches and bad touches? A. Yeah. … Q. O.K. You know, O.K., which part. How about if I just ask you each part of the body somebody's touched you. Is that a good idea? Do you understand? … Q. O.K. Has anybody ever touched you on the penis? A. No. … Q. O.K. I just forgot to ask you one question about the penis. Have you ever seen anybody else's penis? A. No. … Q. Has anybody ever touched you on your, you've given my three names now, anus - - - -(emphasis added) A. Yeah Q. - - - buttocks and bum. A. No. No one's touched me there . (emphasis added) Q. … somebody told us that you told your mum that your dad, [the appellant], did some bad touches ? (emphasis added) A. Who? Q. I can't tell you who told me, but is that true or is that a lie? A. No, it depends on who it is. Q. Well, what do you think it might be? A. Probably a lie to me. Q. So what are you trying to say? Are you trying to say that yes, you did tell mum that you told, I can't even speak English anymore, I'm all very confused, sorry, …. O.K. O.K. So I'm saying that somebody told me that you told your mum that your dad, [the appellant], touched you and it was a bad touch. A. He hasn't touched me yet . (emphasis added) Q. Yet. What does, he hasn't touched me yet, mean? A. He hasn't touched me. Q. O.K. A. One of those bad touches. Q. Pardon. A. He hasn't touched me in all those bad touches. Q. He hasn't touched you in all those bad touches. O.K. Why would somebody tell me that you told your mum that your dad touched you, your dad, [the appellant], touched you and it was a bad touch? A. I dunno. To get him out of the house, I suppose. Q. Get him out of the house. A. 'Cause [D] really wants to do that. Q. [D] really wants to get him out of the house, O.K. Do you know if your dad's done this bad touch to anybody else? A. No, but he's done it to my brother. Q. He's done it to your brother. O.K. How do you know that he's done it to your brother? A. He's told me that, my brother told me." 30 C said that "it" had happened to his brother about 2 years previously, that D had told the mother and that the mother had become "angry" but had told the boys she wanted to "get [the appellant] out of the house [and] she wanted [the appellant] to stop doing it [abusing C and D] but she couldn't afford to be by herself". 31 The questioning continued: "Q. O.K. So that day that [D] was telling your mum about what happened, did [D] say anything else? A. No. Q. No. A. And mum told me if that ever happens to you, just tell me, but nothing of that's happened. Q. Somebody told me that that has happened to you. A. Who? Q. I can't tell you who. A. Maybe mum, or something. Q. Why would your mum tell me something like that, do you think? A. I dunno. Q. Have you ever told you mum that that's happened to you? A. No. It's never happened . (emphasis added) Q. O.K. So you've never told you mum that anybody's penis has gone into your anus? A. No. Q. No. Has anybody, O.K. So, so far you're saying to me that nothing's happened with you and nobody's ever touch you in a bad way? Is that right? A. Yeah. Q. Yes, O.K. Do you think you could tell me if they did? A. Pardon. Q. If somebody touched you and it was a bad touch, could you tell me? A. Who? Q. Could you tell me if somebody touched you and it was a bad touch? A. Yeah. Q. Yeah. A. This is like a welfare (sic), something." 32 The second Record of Interview with C was conducted on 18 October 2000 by the second respondent, assisted by the same District Officer. C had been brought to the interview by the District Officer after C and D had been at the Children's Court earlier that day. C told the District Officer that at the Court he had spoken to a person who worked there about "all the disgusting things …Dad did ..to me and [D]". The interview continued: "Q. Cool. So when you say the word, disgusting, what does that mean? A. That it's rude um, awful things. Q. Like what, tell me? A. Like how he wants, would put a penis in a person's anus and all that. … A. Well, he um, he did all these awful things. … A. He um, he um, when he started it was in 1999 and he um, he first started, he said, Do you want to do this? And I said no, and he said, Oh well I'm doing it to you anyway then this happened … and he sat on me and all that. … A. I said, No. … A. Then he kept doing it and doing it and I told … … A. Yeah and um, he um, put his penis in my anus. … A. … nice kisses that he likes. … A. He went out into the kitchen, right … these things. I don't … watches me taking clothes off all the time when I go in the bath. … A. And he, … a few weeks ago he um, he wanted me to put my um, penis into his anus and I said, No. … A. I didn't go to school, do you know where's Canberra, the um, Heritage Hotel .. all that. Q. In Canberra, what did he do? A. He laid on me in this hotel, hotel, it's called The Heritage hotel. … A. That's … and every time he comes home from work he winks at me, he um, loves me too much. … A. … um, he tells me not to tell Mum … that's all. … A. Not to tell anyone, tell anyone. That's all. … 33 On being questioned as to where and when the assaults had occurred, C's evidence was specific that they started in May 1999 at the house in which the family lived first at W. His account then changed. He said that the assaults had commenced at N where the family was currently living, having moved there about two and half years previously: "Q. I want to talk about each of those different things that you told me about. You said that it started in 1999. How do you know that? A. Because that's when he started because I just remembered it. … Q. … When you say it started in 1999, what part of 1999 did it start? … A. It was in um, May. Q. In May. How do you know it's May? A. Because I … remember it. … Q. O.K. Now, how is it that this started in 1999 which is last year, A. Yeah. Well it happened down at … [the present home]. … Q. It's very important. So, did it happen at [the first home] or [the second home]? A. [the present home]. Q. Are you sure about that? A. Yeah. 34 The interview continued and C made the following allegations about the assaults: Q. .. And you said before that he said, Do you want to do these things? A. And I said, No. Q. .. Do you remember where you were when he said that to you? A. I was just in the loungeroom (sic), nobody was there and no one else. Q. Do you know where the other people were at that time? A. My Mum was at work, my sister was at a friend's house … … Q. So when your dad said, Do you want to do these things, what time of day was it? A. Monday. I mean Saturday Q. Saturday. How do you know it was Saturday? A. I had to remember it. … Q. Yes, what time of the day was it? A. 3 o'clock in the afternoon. Q. How do you know it was 3 o'clock in the afternoon. A. It's in my brain. … Q. … All right, so, and you said to him, No? A. Yeah. … Q.. He said, I don't care, I'm doing it anyway. … Q. What did he say that he wanted to do? A. I can't remember … Q. And after you said, No, and he said, I don't care, I'm going to do it anyway, what happened then? A. I said, What? And … call Mum … then I told her what happened, what he was going to do and he got in trouble on the phone . (emphasis added) A. I got out, I snuck out of my room and I got the phone and rang Mum up. 35 He repeated this and also confirmed that the appellant did not in fact "do anything" to him that day. 36 C then described how his mother had taken the door knob off his bedroom door and told him where a butter knife was so that he could open it. C said that thereafter the bedroom door was kept locked every day and every night. He was asked some questions about who slept in the same bedroom (his brother D shared the room with him). The interview continued: Q. You said before that he put his penis into your anus, who is he? A. [the appellant]. Q. When did he do that? A. Heaps of times, all the time he … at home … at work. … Q. So how many times has he put his penis in your anus? A. Ten. Q. Ten. Are you guessing or do you know for sure, ten? A. I know for sure. Q. O.K. Ten times. When was the first time? … A. I can't remember. Q. How old were you when he started doing that? A. I can't remember. Q. Was it this year, last year, the year before? A. Last year. … Q. So the first time happened .. Where were you when he put his penis in your anus? … A. I can't remember. … Q. … Do you remember the last time that happened? A. About last Wednesday. … Q. … what part of the day …? A. Around 2 o'clock. … Q. Were you at school last Wednesday. A, Yes … it happened at 4, I don't know. Q. It happened at 4 because you've forgotten it? A. Yeah." 37 C then referred to incidents of the appellant watching him in the bath. 38 A little later in the interview the second respondent returned to the topic of the trip to Canberra. C said that he and the appellant had travelled to Canberra in the appellant's car. He alleged that whilst staying at the Heritage Hotel the appellant had sexually assaulted him in the shower. 39 Further on in the interview, C said that he had denied the sexual assaults in the first Record of Interview because he had been embarrassed. 40 Apart from the general allegation made in the early part of the Record of Interview, the only specific instances of assault that C alleged were, first, one on "about" the Wednesday prior to the interview and secondly, the assault he alleged had occurred in Canberra. 41 C was interviewed a third time on 8 February 2001 by the District Officer and a female sergeant of police. His understanding of telling the truth was clarified. C then said that he had "not really" told the truth last time. The interview continued: "Q. Not really? What, what wasn't the truth? A. Well, the other way round. Q. I don't understand A. You probably don't understand, yeah. … Q. Did you, did you say true things when we've spoken before or did you tell some lies? A. Some lies. Q. Some lies? Yes. What were some lies? A. Like what [the appellant] didn't do like. Q. What [the appellant] didn't do? O.K. what, what did - - - A. Some parts he did. … Q. What are some parts he did? A. Well, he did the bottom part. … A. Yeah. He kissed me and that. … A. And he sucked down here or something … Q. And you've, sucked the penis. A. And that's the only parts of … he did. … Q. What parts, you said that there were some parts that he didn't do, what didn't, what didn't [the appellant] do? A. Well, really I can't remember. … A. 'Cause, 'cause [D], I was a bit shy to tell it to Ray [the welfare officer at the Children's' Court] Q. Yes. A. But then when [D] told Ray and he had a talk to me. Q. O.K. So you were shy to tell Ray and then [D] told Ray for you. What did [D] say to Ray? A. That it didn't happen. … A. Some things happened but mostly it didn't happen. … Q. - - - but mostly it didn't happen. … Q. Well, what was it you want to change? A. Like I go home, but mostly nothing did, didn't happen. Q. So you want to go home? A. Yeah. Q. Is that right? A. 'Cause I just had to speak the truth. Q. Yes, O.K. So you said the truth because you want to go home? A. Yeah. Q. Yes, O.K. A. The reason I can just tell a lie 'cause I really didn't like [the appellant] too much . (emphasis added) … Q. It would be O.K. Are you worried that he might do those things that you said he, that he, that you said he did. Are you worried about that? A. No. … Q. Why, why don't you think he would do those things? A. 'Cause I can just go and tell him to stop it. That's what I've done the last time and he just stopped it.

Record of Interview with S 42 A Record of Interview was conducted with S, the boys' mother, on 30 October 2000. This interview was also lengthy. S referred to the appellant's abrupt manner and lack of communication skills. She continued: "…[D] started saying, you know, like, 'Well, I can get rid of him'. And I'd say 'Well, what do you mean? [D], you can't just take things into your', 'Yes, I can'. … 'Well, if told people that he, if I told people he did things to me that he shouldn't have done, he'd be gone then." 43 S dated this complaint as being made in January 2000. She said she had been sceptical of the veracity of the complaint but said that from then on she had "endeavoured to ensure … that [the appellant] had not been left with the children unattended". 44 S said D told her that "it's even happened to [C]" but when she questioned C he said "no, don't be silly". About three weeks later C and D together went to S and C said: "'Yeah, you want me to tell you about the things that dad's been doing to me as well, do you?' And I said 'Yeah, what?' And he said, 'He said [D] told me'. And I said, 'No, no. I don't want to know what [D's] told you to tell me, you tell me'. And he made mention that, what did he say, 'Dad's been doing things to me that he's not supposed to do'." 45 When S pressed C as to what the appellant had been doing, C responded: "… [H]e just does things that are disgusting that he's not supposed to do. You're supposed to do those with women, not with children." 46 This conversation occurred not long after the boys had had "child protection" lessons at school. S later learned that after the "child protection" lessons, C and a friend had discussed matters at school in which the friend alleged his father "does the wrong things to him too" and C said "yes, so does my dad". 47 After this conversation, S had taken a knife to the appellant's throat. S described what happened as follows: "I held it [the knife] at [the appellant's] throat .. and said to him, "you know, if this is what it's going to take, I want the truth, because I'm not going to live with my children living in fear of disliking you to this point where they've got to make these allegations up". And he just, "yeah", I mean he stood there, looked me straight in the eye and said 'No, I haven't done anything at all'. And I turned to [C] and I said, 'Have you or have you not, which is the truth?' And he just said, 'No, but [D] wanted me to'. And I said, 'O.K. That tells me enough. It's all right". 48 S described D as being "desperately unhappy … has been for a long time". She also said she observed the boys' behaviour closely but did not notice any change. This was significant to her because she understood from extensive reading she did at the time that behavioural changes, such as children becoming withdrawn, were an indicator of abuse. However, neither boy had shown any disinclination to be with the appellant as she believed might have been expected if any assault had occurred. 49 She described her reaction when first informed by DOCS that sexual abuse allegations had been made at Q and A 87: "When they first said there was (sic) sexual abuse allegations made and I just said, 'What? That's ridiculous'. And then … in some ways it didn't surprise me because of what [D] had been saying and the fact that he'd made several straight out point blank claims that he was going to do something along these lines because he'd do whatever it took to get rid of him . I mean, the night before this actually occurred, [C] had actually said to [the appellant], 'Do you know, has [D] told you that he's going to take you to court and I'm going to have to be his witness." (emphasis added) 50 S was also asked about the removal of the doorknob. She denied that it was done in any way to protect the boys from the appellant. Apparently, a number of doorknobs in the house had come off. She described the allegation as being "so silly". As mentioned above, D also gave an account about the doorknob that was different from C's. 51 Specifically S said she did not believe the allegations of abuse but was acutely conscious that there were difficulties in the appellant's relationship with the boys, especially with D. She said, however, that she was not prepared to take any risk with the children. 52 The second respondent took statements from numerous other witnesses and a Record of Interview was also conducted with CA, the boys' older sister. It is not necessary to set out that material in detail. To the extent it is relevant, I have considered it as part of the discussion of the trial judge's factual findings. The law 53 Cooper DCJ determined the appellant's claim for malicious prosecution on the basis of the principles stated by Jordan CJ in Mitchell v John Heine. His Honour also had regard to the comments of Lord Denning in Glinski v McIver [1962] AC 726. Both parties allege error in his Honour's purported application of the principles stated in those cases, and in particular in the application of the test stated by Jordan CJ. 54 However, as I have already indicated, a more fundamental question arose during the course of the appeal, namely, whether the test stated by Jordan CJ ought to be applied given that there are persuasive statements of the High Court to a different effect which had been made prior to his Honour's consideration of the matter in Mitchell v John Heine. That question, which is directly called into issue in this case has been raised extra-judicially by Ipp JA: see "Must a Prosecutor believe the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?" (2005) 79 Australian Law Journal 233. It will be apparent that what follows draws heavily from this article. 55 Jordan CJ's statement of principle has been viewed as authoritative for many years. It was most recently applied in this State by O'Keefe J in Nye v State of New South Wales (2004) Aust Torts Reports 81-725, and was considered by the trial judge in this case to be binding on him. It is convenient, therefore, to first turn to Mitchell v John Heine. The relevant passage is found at 469. There, Jordan CJ pointed out, uncontroversially, that there were two elements in the tort of malicious prosecution that a plaintiff must prove: first, that the prosecution acted without reasonable or probable cause; and secondly, that the prosecution acted maliciously. It is the next passage which throws up the controversy. His Honour said at 469: "In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

Jordan CJ said at 469 that for a plaintiff to establish absence of reasonable and probable cause: " [I]t is essential that he should establish that one or more of these conditions did not exist . This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds". (emphasis added) 56 It is apparent that to establish the absence of any of Jordan CJ's 5 conditions evidence of some fact or facts would be required which, of itself, or coupled with other matters proved in evidence, would enable the inference to be drawn that the defendant did not believe in the plaintiff's guilt. Jordan CJ said that if such evidence was given, the question must be left to the jury as to whether it has been proved to their satisfaction that the defendant did not believe in the plaintiff's guilt. However, "unless such evidence is given it is not proper to put a question to the jury as to the defendant's belief" (Mitchell v John Heine at 469-70 per Jordan CJ). 57 Jordan CJ continued at pp 470-471: "Merely to prove that the defendant had before him information which might or might not have led a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant's belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative. … If he contends that the defendant did not believe some of the information which he had, he must supply evidence supporting an inference as to what the defendant's belief actually was with respect to the accuracy of the information in question, not a guess as to what it was. If the plaintiff does place before the Court evidence of the nature of the whole of the information which the defendant had, it is for the judge and not the jury to determine whether it was reasonable for the defendant to believe in the accuracy of the information … and also to determine whether it was reasonable for him to act on it, ie, whether it was sufficient to justify a man of ordinary prudence and caution in believing that the plaintiff was probably guilty."

58 The question of the correctness of Jordan CJ's formulation of what constitutes reasonable and probable cause calls for an understanding of the legal background to Mitchell v John Heine as well as the cases that came after it. In considering both the prior and later case law, it is important to recognise that the focus of the respective courts was often on whether questions had been correctly left to the jury, and in particular, as to whether the question whether the prosecutor reasonably believed in the accused's guilt was a proper question for the jury. Mitchell v John Heine itself involved that question. The other thing to bear in mind is that the courts have consistently looked at the question of reasonable and probable cause by considering what is required of the prosecutor. However, to establish this element of the tort of malicious prosecution, it is necessary to establish the absence of reasonable and probable case. In other words, the plaintiff must prove a negative. 59 Mitchell v John Heine was decided by the Full Court of the Supreme Court of New South Wales constituted by Jordan CJ, Davidson and Owen JJ in 1938. Six years earlier the requirement of "reasonable and probable cause" for the purposes of the tort of malicious prosecution had been considered by the High Court in Sharp v Biggs. There, Dixon J said at 106: "Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted." 60 Dixon J continued: "Such cause may be absent although this belief exists if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment" 61 His Honour considered that the question whether the material before a prosecutor was sufficient would be satisfied by determining what further steps the reasonable person would take to inform him or herself before laying the charge. 62 There are two matters of note in Dixon J's judgment. The first is his Honour's reference (at 106) to a prosecutor holding a belief that "at least" a charge is warranted. This indicates that his Honour had in a mind a test that did not require a belief in the guilt of the accused. That is different from Jordan CJ's formulation. If a prosecutor formed the view enunciated by Jordan CJ that "the information … reasonably believed by [the prosecutor] to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty", it would also satisfy Dixon J's test. The question is, however, whether a prosecutor must satisfy the higher threshold expounded by Jordan CJ.

63 The second matter to observe is how Dixon J dealt with the decision of Hicks v Faulkner (1878) 8 QB 167 which had long been accepted as authoritative as to the requirement of reasonable and probable cause in the tort of malicious prosecution. In that case, Hawkins J stated (at 171) that a plaintiff must prove an absence of the following elements to show want of reasonable and probable cause: first, an honest belief on the part of the accuser as to the guilt of the accused; second, such an honest belief must be based on the honest conviction of the existence of circumstances which led the accuser to conclude that the accused was guilty; and finally, these circumstances must be such that an honest and "fairly cautious" person would also form such a conclusion of guilt, that is, there must be, objectively, reasonable grounds to justify the accuser's belief in the accused's guilt. 64 The question arises as to what Hawkins J meant by "belief in the guilt of the accused". If his Lordship intended to refer to the ultimate guilt of the accused, as appears to be the way Hicks v Faulkner has been consistently interpreted, then there is a difference in the test stated in Hicks v Faulkner and that stated by Dixon J. It is somewhat curious therefore that Dixon J refers to, and seemingly adopts, Hawkins J's formulation of the necessary ingredients of the tort without comment.

65 An analysis of the judgments of Rich and McTiernan JJ in Sharp v. Biggs indicates that their Honours may have accepted that belief in the guilt of the accused was a necessary ingredient. Rich J stated at 95: "Although reasonable belief in guilt is an important fact, it is not the same by any means as reasonable and probable cause for prosecution."

66 In this passage, Rich J was referring to whether it was appropriate to leave to the jury a question (which was the fourth question posed to the jury in that case) whether the prosecutor's belief that the plaintiff had committed the crime charged, was based on reasonable grounds. The jury had been asked as a prior question, and had answered affirmatively, whether the prosecutor honestly believed that the plaintiff had committed the crime charged. Question 4, in the terms it was asked, appears to involve the question of belief in the guilt of the accused. It had been submitted to the Court that the question of "reasonableness" as asked in question 4 should not have been left to the jury as that issue was a question of law for the Court's determination. Rich J considered that in the circumstances, the question had been appropriately referred to the jury. This approach appears to reflect the traditional approach that there is a subjective element of the prosecutor's belief in the accused's guilt and a separate, cumulative requirement of reasonable and probable cause equivalent to Jordan CJ's fifth condition.

67 McTiernan J also considered that the question had been appropriately left to the jury. His Honour said at 112: "The peculiar traits of the appellant, which are disclosed by the evidence, would suggest that though he may have had a sincere belief that the respondent committed perjury, his belief may not have been based on reasonable grounds. It is quite proper to obtain the assistance of the jury in determining the question of fact contained in the fourth question. The answer to that question established part of the premises for the decision of the learned Judge of the question of law, whether there was an absence of reasonable and probable cause… The inquiry whether the defendant's belief - honest though it may have been - was based on reasonable grounds, is, in my opinion, quite different from the question whether there was an absence of reasonable and probable cause for prosecuting the plaintiff for perjury."

68 Gavan Duffy CJ and Starke J, in their joint judgment, state the relevant test in such a way that reasonable grounds for laying a charge and reasonable ground for belief in the guilt of the accused were interchangeable concepts. Citing the decision of Lord Esher MR in Brown v Hawkes (1891) 2 QB 718 at 726, their Honours said at 87-88: "The presence or absence of reasonable and probable cause must be determined by the facts which the defendant [prosecutor] knew when he instituted the proceedings….Reasonable and probable cause is shown when it appears that the facts which were known to the defendant at the time of the institution of proceedings, if believed, 'would create a reasonable suspicion in the mind of a reasonable man', or would afford a reasonable ground for the institution or carrying on of those proceedings."

However, in their discussion (at 89-90) of whether the fourth question should have been put to the jury, their Honours said: "Authority exists for putting such a question, in some cases, to the jury. But if…such a question is to be put in every case, the result will be to transfer the decision of what is reasonable and probable cause from the Judge to the jury. The question is not whether the prosecution was wise or foolish, well considered or hasty, but whether the facts within the knowledge of a party himself or deduced by him from credible information afforded a reasonable and probable ground of belief that the person accused of the offence was guilty ." (emphasis added) 69 No reference was made in any of the judgments in Sharp v Biggs to either Haddrick v Heslop (1848) 12 QB 267 or Broad v Ham (1839) 5 Bing NC 722, both of which had also long been accepted as authority that the prosecutor was required to believe in the guilt of the accused. 70 Dixon J's formulations of what constitutes reasonable and probable cause therefore appears to have been a departure from the law as it had long been accepted. That departure was made without any express acknowledgement that that was the case. 71 Dixon J reaffirmed his formulation of the relevant test in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382, where he repeated what he said in Sharp v Biggs. The issue in that case, as summarised in the headnote, was whether a defendant could be liable for malicious prosecution even if he or she did not lay the charge, but instead counselled or persuaded the prosecutor to do so or procured the prosecutor to do so by the provision of false information or other dishonest means. The case was heard before a jury who were required to answer a number of questions, including whether "the defendant …genuinely and honestly believe[d] that the prosecution was justified". Dixon J found this question was properly left to the jury. His Honour then considered the role the jury's answer played in the ultimate determination of the question whether there was reasonable and probable cause for the prosecution. It was in the course of consideration of that question that his Honour restated what he had said in Sharp v Biggs: "Upon the issue of the absence of reasonable and probable cause the jury were asked one question only, namely, whether the appellant company genuinely and honestly believed that the prosecution was justified. In the circumstances of this case, I think that it was desirable, if not necessary, to put the question to the jury and that the answer given to it, unless set aside, makes it impossible for the Court to decide that there was not an absence of reasonable and probable cause for the prosecution of the respondent Brain. When it is not disputed that the accuser believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place, and no question arises as to the materials upon which his opinion was founded, it is a question for the Court to decide whether the grounds which actuated him suffice to constitute reasonable and probable cause. In such a case, unless there be some additional element of an exceptional kind, there is no further fact needed to enable the Court to judge whether the prosecutor was warranted in proceeding. I repeat what I said in Sharp v. Biggs : 'The ultimate inference, whether or not the facts of the case amount to a want of reasonable and probable cause, is for the Court, but it is for the jury to determine what are the facts of the case. Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted. Such cause may be absent although this belief exists if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment.' The question submitted to the jury was aptly framed to obtain their opinion as to the existence of the requisite belief. If that belief had been found to exist, the question would have remained whether the materials were enough to arouse it in a man of reasonable prudence and judgment, and this latter question it would have been for the Court to decide".

72 Evatt and McTiernan JJ (at 391), however, expressly recognised that there were two streams of authority. They also observed that Dixon J's statement of the law "differs in no essential way from that of Sir John Salmond" in his textbook The Law of Torts 5th Ed (1920) p 548, where the principle was stated in these terms: "There is no reasonable and probable cause unless the defendant genuinely and honestly believed that the prosecution…was justifiable." 73 Starke J, the other member of the Court, seems to have considered that the tests of belief in the guilt of the accused and honest belief that the prosecution was justified, were interchangeable (see Commonwealth Life Assurance Society Ltd v Brain at 353). 74 As Ipp JA observes in his article, it is apparent from Evatt, Starke, and McTiernan JJ's resolution of the issue that their Honours accepted the correctness of Dixon J's formulation. 75 Commonwealth Life Assurance Society Ltd v Brain thus provides an authoritative, albeit obiter, statement of the High Court that for a prosecutor to have reasonable and probable cause to lay a charge the prosecutor must, in the words of Dixon J, at least believe "that the probability of the accused's guilt is such that upon general grounds of justice a charge … is warranted." (emphasis added) 76 Commonwealth Life Assurance Society Ltd v Brain was an appeal from the Full Court of the Supreme Court of New South Wales in which Jordan CJ had written the principal judgment. Three years after the High Court decision, Mitchell v John Heine was decided. Jordan CJ delivered the judgment of the Court, which has been treated as the seminal authority in this State on what is required for there to have been reasonable and probable cause for the bringing of a prosecution. However, his Honour did not refer either to Sharp v Biggs or to the decision of the High Court in Commonwealth Life Assurance Society Ltd v Brain. Rather, his Honour applied his own formulation of reasonable and probable cause as he had stated it in Brain before the Full Court in September 1934 (Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR(NSW) 36). 77 This might be thought to be unusual, particularly in the case of a jurist of the stature of the Chief Justice, leading one to wonder whether there was not some form of judicial brinkmanship involved, or as Ipp JA put it in his article, in terms reminiscent of notorious political comment in this country: perhaps Sir Frederick Jordan was being "recalcitrant". Ipp JA also postulated (at p 235) that Jordan CJ may have felt vindicated by the decision of the House of Lords in Herniman v Smith [1938] AC 305, decided about 8 months previously, which applied the principles stated by Hawkins J in Hicks v Faulkner in a manner that reflected his own approach in Brain v. Commonwealth Life Assurance Society Ltd. 78 In Herniman v. Smith, Lord Atkins said at 318: "On the facts ascertained by [the prosecutor], I think they would have induced a conviction founded upon reasonable grounds of the existence of a state of circumstances which would reasonably lead any ordinary prudent and cautious man placed in [the prosecutor's' position to the conclusion that [the accused] was probably guilty of the crime imputed." 79 However, Herniman v Smith was not binding on the New South Wales Full Court: see Houston v Stone (1943) 43 SR(NSW) 118. It would have been expected that a judge of an intermediate appellate court would have had regard to statements to a different effect made by a majority in the High Court on a point sufficiently close to the matter in issue before the Court and would have applied the principles as stated by the High Court, unless there was some principled reason not to do so.

Subsequent developments in the United Kingdom 80 It is convenient at this point to trace the development of the tort of malicious prosecution in England subsequent to the High Court's decision in Commonwealth Life Assurance Society Ltd v Brain. 81 In Tempest v Snowden [1952] 1 KB 130, Evershed MR (with whom Morris LJ agreed) and Denning LJ both held that the question whether there was reasonable and probable cause for the bringing of a prosecution had to be determined objectively. Accordingly, even if a prosecutor had an honest belief in the guilt of the accused, it did not necessarily follow that there was reasonable and probable cause for the prosecution: see Evershed MR at 134; Denning LJ at 139. Denning LJ further pointed out that the belief the prosecutor holds is not necessarily an element that must exist in order for it to be said that there was reasonable and probable cause to lay the charge. As his Lordship said at 139: "It is sometimes said that, in order to have reasonable and probable cause there must be an honest belief in the guilt of the accused. But I do not think that should be regarded as a universal proposition applicable to all cases. It depends on the particular case. There are many justifiable prosecutions where the prosecutor had not himself formed any concluded belief as to the guilt of the accused. If he is a very fair-minded man he may well say to himself 'The case is so black against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the court finds him to be so .' Such a man would, I should have thought, have reasonable and probable cause for instituting a prosecution even though he did not affirmatively believe the man to be guilty. It is said sometimes that in order to have reasonable and probable cause there must be an honest belief that there was reasonable ground for prosecuting. This again is by no means always necessary. Let me give another illustration. Take the case of a fair-minded man who is personally convinced that the man is guilty but does not himself think the evidence sufficient to justify a prosecution. His solicitor advises him that the evidence is sufficient. He may well say to himself 'I do not myself belief there is sufficient evidence, but my solicitor says there is, so I feel justified in going on.' If the judge afterwards takes the same view as the solicitor, then I should have thought that such a man would have reasonable and probable cause for instituting a prosecution, even though he did not himself affirmatively believe that there were reasonable grounds for it." (emphasis added) 82 A decade later the question as to what constitutes reasonable and probable cause was again subject to extensive discussion in the House of Lords in Glinski v McIver. In that case, Viscount Simonds (with whom Lord Reid agreed) said at 744: "To believe in a fact is one thing: to believe that it constitutes an offence may be another. No doubt in the great majority of cases the issue is simple enough, and to ask whether the prosecutor believed in the existence of a particular fact is equivalent to asking whether he believed that the accused was guilty or probably guilty of an offence."

This view appears to reflect the long accepted principle stated in Hicks v Faulkner that belief in the guilt of the accused is a necessary ingredient in that element of the tort that requires that a prosecutor have probable and reasonable cause to lay a charge. 83 Lord Radcliffe said at 753: "… that if the defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the charge … he cannot be said to have acted upon reasonable and probable cause." (emphasis added) 84 Whilst this statement is closer to what Dixon J said in Sharp v Biggs and in Commonwealth Life Assurance Society Ltd v Brain, Lord Radcliffe makes a further observation (at 755) in which he reverts to the traditional formulation in Hicks v Faulkner. He says, for example, that he had never seen "anything amiss with various formulations such as 'belief in guilt'; 'belief in the case laid'; 'belief in the truth or propriety of the charge'; or 'belief that the facts amounted to the offence'". It is also apparent from a further passage (at 766) that his Lordship considers that belief in the guilt of the accused was a necessary ingredient. In referring to a case where a prosecutor lays a charge because of "departmental instructions to do so", Lord Radcliffe said: "I can only say that my present view is that it would be undesirable in the public interest to allow such a reason to serve as a substitute for the belief in guilt that has habitually been required." 85 Lord Radcliffe's view therefore also reflects the approach that seems to have been commonplace in the jurisprudence on this question, namely, that belief in the charge and belief in the guilt of the accused are interchangeable. 86 Lord Denning, for his part, deals with the matter more comprehensively, and in my opinion, more satisfactorily. In particular, his Lordship does not oscillate between belief in the charge and belief in guilt as if the two notions meant the same thing. Rather, he clearly differentiates the two (at 758-759) in the following passage, which, although lengthy, needs to be set out in full in order to appreciate his Lordship's reasoning: … in Hicks v Faulkner Hawkins J put forward a definition of 'reasonable and probable cause' which later received the approval of this House. He defined it as an 'honest belief … in the guilt of the accused' and proceeded to detail its constituent elements. The definition was appropriate enough there. It was, I suspect, tailor-made to fit the measurements of that exceptional case. It may fit other outsize measurements too. But experience has shown that it does not fit the ordinary run of cases. It is a mistake to treat it as a touchstone. It cannot serve as a substitute for the rule of law which says that, in order to succeed in an action for malicious prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution. Let me give some of the reasons which show how careful the judge must be before he puts to the jury the question: 'Did the defendant honestly believe that the accused was guilty?' In the first place the word "guilty" is apt to be misleading. It suggests that, in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in truth he has only to be satisfied that there is a proper case to lay before the court , or in the words of Lord Mansfield, that there is a probable cause 'to bring the [accused] to a fair and impartial trial'. After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him . Test it this way. Suppose he seeks legal advice before laying the charge. His counsel can only advise him whether the evidence is sufficient to justify a prosecution. He cannot pronounce on guilt or innocence. Nevertheless the advice of counsel, if honestly sought and honestly acted on, affords a good protection: see Ravenga v Mackintosh . So also with a police officer. He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him. He is no more concerned to convict a man than is counsel for the prosecution. He can leave that to the jury. It is for them to believe in his guilt, not for the police officer . Were it otherwise, it would mean that every acquittal would be a rebuff to the police officer. It would be a black mark against him, and a hindrance to promotion. So much so that he might be tempted to 'improve' the evidence so as to secure a conviction. No, the truth is that a police officer is only concerned to see that there is a case proper to be laid before the court ." (emphasis added) 87 Lord Denning (at 760-761) considered that there were circumstances when the formulation of Hawkins J in Hicks v Faulkner might be appropriate: e.g. where the prosecution was based on the prosecutor's own evidence: "The issue then appears simple. If [the prosecutor who based the charge on his own evidence] was speaking the truth, there was good cause for the prosecution. If he was lying, there was no cause for it. … If he honestly believed that the facts were as he stated, then, even though it turned out to be a mistaken belief, he would have reasonable and probable cause to prosecute: but if he had no such honest belief and was consciously putting forward a false case, he would, of course, have no cause to prosecute. In such cases the judge may properly put to the jury the question: Did he honestly believe in the guilt of the accused? Or, as I would prefer: Did he honestly believe in the case he put forward? For that is the core of the matter." (emphasis added) 88 Lord Devlin adopted a similar position to Lord Denning. After referring to Hicks v Faulkner, his Lordship said at 766: "This does not mean that the prosecutor has to believe in the probability of conviction. The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried." 89 In stating this principle, Lord Devlin cited Dawson v Vansandau (1863) 11 WR 516 where the Court of Queen's Bench (Cockburn CJ, Crompton and Blackburn JJ) accepted that evidence sufficient to make out a prima facie case was sufficient to establish reasonable and probable cause even if it was not sufficient evidence to convict. Dawson, a solicitor, was charged by the defendant with conspiracy to defraud. The conspiracy alleged involved collusion with a client and others to defraud the client's creditors. At the time the charge was laid, the only evidence available to the defendant was that of an accomplice which, it would seem from the report of the case, required corroboration. Other evidence, which would amount to corroboration, only became available after Dawson had been charged. Dawson was subsequently acquitted. The trial judge directed the jury that there was no evidence of reasonable and probable cause because the only evidence available at the time of charge was the uncorroborated evidence of the accomplice and the other material which supported the commission of the offence had only become available after Dawson was taken into custody. The Court (at 518) held that this direction was erroneous: "An accomplice, or a tainted witness, may give evidence sufficient to make out a prima facie case, and warrant the preferring of a criminal charge, though it might not be sufficient evidence upon which to convict." 90 Having referred to Dawson v Vansandau, Lord Devlin (at 767) then adopted Dixon J's statement in Commonwealth Life Assurance Society Ltd v Brain at 382: "that the prosecutor must believe that 'the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted.'" 91 Lord Denning, sitting as the Master of the Rolls, again made his point clear in Dallison v Caffery [1965] 1 QB 348. That case, which had been heard by a jury, involved a claim for damages both for false arrest and for malicious prosecution. Dealing with a submission relating to the claim for malicious prosecution that the jury should have been asked whether the prosecutor honestly believed the accused was guilty, his Lordship said at 368: "I know that question has been asked of juries for well over 150 years now, but it has caused a cartload of trouble. The House of Lords in Glinski v McIver pointed out its defects. I hope it will now be cast into the limbo. It is only to be used in the most exceptional circumstances."

Danckwerts LJ agreed with Lord Denning. 92 Diplock LJ commenced his discussion of the issue by explaining what was meant by the concept of "reasonable and probable cause" in relation to the tort of false arrest. He said at 370: "Where a felony has been committed, a person, whether or not he is a police officer, acts reasonably in making an arrest without a warrant if the facts which he himself knows or of which he has been credibly informed at the time of the arrest make it probable that the person arrested committed the felony. This is what constitutes in law reasonable and probable cause for arrest. …"

His Lordship then said (at 371) that reasonable and probable cause for the prosecution bore the same meaning: One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this context it means no more than that he himself at the time believed that there was reasonable and probable cause, in the sense I have defined it above, for the arrest or for the prosecution, as the case may be."

His Lordship added the test was an "objective one": "Whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe there was reasonable and probable cause."

His Lordship then cited Herniman v Smith with approval.

Subsequent developments in Australia 93 The chronology of legal developments next leads back to Australia and to Baker v Television & General Finance Co (Australia) Ltd [1968] 1 NSWR 3 in which Sugerman JA, who wrote the principal judgment, followed Jordan CJ in Mitchell v John Heine and Brain v Commonwealth Life Assurance Society Ltd in the New South Wales Full Court. Herron CJ, although recognising the difference in point of principle between Jordan CJ and Lord Denning in Glinski, did not find it necessary to determine which test was correct. Holmes JA took a similar approach to Sugerman JA.

94 An analysis of Sugerman JA's judgment reveals the following. First, in regard to the element of belief in the guilt of the accused, his Honour did not mention Sharp v Biggs and, although he referred to what Dixon J had said in Commonwealth Life Assurance Society Ltd v Brain, he did so in regard to a different issue (namely, as to which matters were for the jury and which for the judge). Thus, he treated what Jordan CJ had said in Mitchell v John Heine and in Brain v Commonwealth Life Assurance Society Ltd as authoritative. This approach was understandable, but, in light of the analysis set out above, it was incorrect. 95 Secondly, although Sugerman JA referred to Glinski v McIver, and certain remarks Lord Denning made in that case, his Honour made no mention of those views expressed by Lord Denning and Lord Devlin (to which I have referred) which, in substance, were to the effect that a prosecutor need not be convinced of the guilt of the accused and need only be satisfied that there is a proper case to go before the court. 96 Thirdly, Sugerman JA (at 10-11) quoted a passage from Lord Denning's judgment in Glinski v McIver (at 761-762) where his Lordship discussed the exceptional circumstance where evidence exists tending to establish that a prosecutor had no reasonable or probable cause for the prosecution. The quotation in question terminated with the sentence, "If so, the question can properly be put to the jury: Did he honestly believe that the accused was guilty?" Sugerman JA did not, however quote the next phrase, which was: "or, as I would prefer, did he know there was no good ground for the charge he made?". It is this latter phrase that properly reflects his Lordship's view as to the correct test to be applied in determining whether reasonable and probable cause has been shown. 97 Fourthly, although Sugerman JA referred to Dallison v Caffery, he did so solely in regard to the question of what were the questions for the judge and jury respectively. His Honour made no mention of whether absence of belief in the guilt of the accused was an element of the tort of malicious prosecution, or of the difference between the views of Sir Frederick Jordan and those of the members of the English Court of Appeal. 98 In summary, Sugerman JA dealt with the views of Sir Frederick Jordan, those expressed by Dixon J and McTiernan and Evatt JJ in Commonwealth Life Assurance Society Ltd v Brain, those of Lord Denning and Lord Devlin in Glinski v McIver, and those of the members of the English Court of Appeal in Dallison v Caffery, as if they were all to the same effect. That, however, with great respect to a most eminent judge, is patently not the case. 99 Herron CJ, in Baker v. Television & General Finance, plainly recognised the difference between the respective tests propounded by Sir Frederick Jordan and Lord Denning. His Honour first quoted what the former had said about honest belief in Brain v Commonwealth Life Assurance Society Ltd, and then referred to Glinski v McIver and Lord Denning's comments upon the problem concomitant with the proposition that a prosecutor's want of belief in the guilt of the accused was an element of the tort of malicious prosecution. His Honour did not, however, attempt to resolve the difference and did not express an opinion as to which view was correct. 100 Holmes JA dealt with the matter in the same way as Sugerman JA. He referred to Jordan CJ's exposition of the rule as to honest belief as expressed in Mitchell v John Heine and Brain v Commonwealth Life Assurance Society Ltd. Although his Honour referred to the remarks of Dixon J in Commonwealth Life Assurance Society Ltd v Brain, he did not mention or recognise that the High Court's statement of principle differed from Jordan CJ's. Nor did he refer to Sharp v Biggs or to the remarks of McTiernan and Evatt JJ in Commonwealth Life Assurance Society Ltd v Brain, where the difference was clearly pointed out. 101 In Williams v The Queen (1986) 161 CLR 278, the High Court was concerned with the question whether a person, once taken into custody, could be detained for interrogation before being brought before a justice. The relevant statutory provision governing police powers required the arrested person to be brought before a justice as soon as practicable after he has been taken into custody: Justices Act 1959 (Tas) s 34A. In the course of considering that issue, Mason and Brennan JJ said at 300: "If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution: see Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 (at 469); Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 (at 382); Glinski v McIver [1962] AC 726 (at 766-767)." (emphasis added) 102 This passage is a little curious given the citation of Mitchell v John Heine, the High Court's decision in and Commonwealth Life Assurance Society Ltd v Brain, and Glinski v McIver. However, read in its entirety, the statement appears to support Dixon J's formulation in Sharp v Biggs and the High Court's statements in Commonwealth Life Assurance Society Ltd v Brain.

Recent application of principle 103 Courts in both Australia and England in recent years have stated a test for reasonable and probable cause in terms that are consistent with either Dixon J or Denning LJ's respective formulations. In McDonald v Coles Myer Ltd (t/a K-Mart Chatswood) (1995) Aust Torts Reports 81-361 Powell JA specifically stated (at 62,691) that the prosecutor did not have to believe that the plaintiff was guilty of the charge (although his Honour cited Hicks v Faulkner for this proposition). The other members of the Court did not deal with the matter on this basis: see also Brooke v Grimpel (1987) Aust Torts Reports 80-108 at 68,768. In England, Denning LJ's formulation has been endorsed: see Thacker v Crown Prosecution Service [1997] EWCA Civ 3000.

104 Likewise, modern textbook authority supports Dixon J's and Denning LJ's formulation: see Clerk & Lindsell on Torts 18th ed, paras 16-33; Civil Actions Against the Police, Clayton and Tomlinson 1992 at 297; Fleming, The Law of Torts 9th ed, 1998 at 673-82.

105 More recently, Giles JA in Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals Inc & Ors [2005] NSWCA 76 at [163] expressed the opinion, obiter, that Jordan CJ's formulation requiring belief of the police officer in the guilt of the accused stated the test too highly.

106 The question of the correct test to apply arose directly in AW & Ors v State of New South Wales [2005] NSWSC 543. In that case, the plaintiff contended that a prosecutor's belief had to be based upon a "full conviction" of guilt. The submission was said to be based upon the formulation of Hawkins J in Hicks v Faulker. Bell J rejected the submission, holding that the proper test to apply was that stated by Dixon J in Sharp v Biggs and Commonwealth Assurance Life Society Ltd v Brain. Her honour, after pointing out that a plaintiff on this element of the cause of action in malicious prosecution was required to prove a negative, adopted (at [88]) the statement of Fleming on Torts (at 683) as to how that absence of belief might be established: "…The requisite evidence may be supplied, for example, by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff's innocence that no reasonable person could have believed in his guilt, but it is not sufficient merely that he had information, some of which pointed to guilt and some to innocence." Conclusion: Correct test to apply of reasonable and probable cause

107 In my opinion, the Court should not follow Jordan CJ's formulation but rather should apply the test articulated by Dixon J. That test has strong judicial endorsement both by way of the ratio of decided cases as well as in obiter dicta. It also appears to have unanimous academic endorsement and the convincing extra-judicial analysis undertaken by Justice Ipp, to which reference has been made earlier. 108 Dixon J's formulation focuses upon the question whether the material available to the prosecutor is such as to at least lead to "a belief that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted" (emphasis added). The prosecutor does not have to believe in the guilt of the accused. This statement has to be read subject to the qualification mentioned by Denning LJ, that in a case where the prosecution is based upon the prosecutor's own evidence, an absence of honest belief in the case being advanced would be evidence of absence of reasonable and probable cause. That qualification does not apply in this case as the second respondent was not prosecuting on his own account but rather was doing so in the course of his duties as a police officer. 109 Dixon J's formulation bears the mark of good sense given the task a prosecutor must undertake when deciding whether to lay a charge. In my opinion, Jordan CJ's formulation poses the test too highly and in doing so gives rise to a number of potential problems. In particular, it could lead either to unwarranted timorousness or excessive zealousness on the part of a prosecutor in deciding whether to lay a charge. Either would be an unwelcome development in the criminal justice system. Modern prosecutorial practice also reflects this approach: see Ipp JA's article at 239-240.

110 The test as formulated by Dixon J itself provides the necessary restraint upon the exercise of this very serious power given to police officers and other prosecutors and, for that matter, to any private individual who seeks to bring a prosecution in relation to the commission of a criminal offence. The test carries with it a standard, that is of reasonable and probable cause, which is well understood by the common law. This is important for a number of reasons, not the least of which is that the same test applies regardless of whether the charge relates to an offence that involves little or great factual complexity. Dixon J's formulation also provides adequate parameters around the decision making process. First, it requires that a prosecutor must be seised of sufficient information to warrant the laying of the charge. Secondly, it protects a prosecutor from action for malicious prosecution (insofar as the want of reasonable and probably cause element of the tort is concerned) should it transpire that over the course of proceedings potentially exculpatory evidence emerges, an accused raises a successful defence, witnesses fail to "come up to proof", or the credibility of evidence is successfully attacked. Such a point was made by Denning LJ in Glinski v. McIver, where his Lordship (at 758) alluded to the impossibility of a prosecutor being fully cognisant, at the time the charge is laid, of whether "witnesses are telling the truth" or "what defences the accused may set up".

111 For those reasons, I am of the opinion that this Court ought not to apply Mitchell v John Heine. Rather, it should follow Dixon J formulation in Sharp Biggs and Commonwealth Life Assurance Society Ltd v Brain. It follows that the trial judge erred in his application of principle in this case, although he was in good company in doing so. Accordingly, the trial judge's findings in the matter have to be considered against that test. I should point out that in approaching the matter in this way, all parties indicated that it was open to the Court to consider the matter for itself, as there was no attack on the trial judge's credit findings. Trial judge's factual findings 112 Cooper DCJ examined the second respondent's evidence to determine his reasons for charging the appellant. In doing so, his Honour not only referred to the particular matters upon which the second respondent relied, but he also analysed those matters and made findings as to whether they were relevant matters to consider in determining whether to lay charges, and if not, why not. He found most of the matters relied upon by the second respondent to be irrelevant or flawed. 113 The respondents contend that contrary to the trial judge's findings, the material considered by his Honour was available to the second respondent. I understand this submission to mean that there was relevant material supporting the proposition that there was reasonable and probable cause for the laying of the charges. It is thus necessary to consider that material to determine whether it was sufficient to establish reasonable and probable cause for the laying of the charges. For the sake of convenience, I have summarised this material by reference to categories of information. 114 The Children's Court Order: The second respondent regarded this as an important consideration because "an independent organisation had established that abuse had occurred, based on the information the children had offered." However, he said he knew he was required to make his own independent investigation. The trial judge commented in relation to this material that the standard of proof was different and the Children's Court was not bound by the rules of evidence. 115 The respondents contend that in making these remarks his Honour deprecated the second respondent's reliance on this material. For myself, I have not read the remarks as being deprecatory. Rather, they are cautionary. The Children's Court proceedings were certainly a relevant consideration in relation to the investigation of the charges. Whether it was sufficient to lay the charges is another question. That would depend upon a number of factors, most particularly, the strength of the material relied upon in the Children's Court. That material, of course, had to be independently assessed by the second respondent given the different standard of proof that apply in a Children's Court matter as compared to the criminal process. Although the second respondent did not state in express terms that he understood as much, it is implicit in his evidence that he did so because he knew he had his own duty to investigate. Attention has, therefore, to be given to the investigations that the second respondent carried out. 116 Pressure from others. The second respondent was telephoned by members of the CPEA to inquire about the progress of the matter. He was not telephoned in respect of any other matter. I deal with this later. 117 Reliance on the mother's state of mind. The second respondent considered S's reactions to the allegations to be significant. These reactions included complaints she had made to a friend, such as her comment: "every dog has its day and his day would (sic) come"; and her conduct in taking a knife to the appellant when C made allegations of sexual assault. When questioned why this was relevant, the second respondent said: "I thought: why would you do that, if you didn't think it was true? And if you are the mother of your children and they told you something, you would act in such a way to establish the truth and whether or not it has happened. But more so, you would have suspicions and as a parent you would know if there was time available to say, in this example, Mr. A with the children, hence that is why you would suspect that there was a possibility that it did occur. That was pretty significant for me." 118 Likewise, the second respondent thought it was relevant that S had expressed a wish that she have her ex-husband kill the appellant "and that would have got both of them out of my life". The second respondent said he did not know whether that statement would be admissible in evidence - his position was that he would "just supply all the information that I had at that time and I would leave it up to the Court to decide". Of this evidence, the trial judge observed: "[it] neither proves nor tends to prove that either of the offences was committed. It does prove that allegations had been made by one or more of the boys to her." 119 Whilst his Honour's observation is correct, the time when complaint of a sexual assault is made is often a critical question in sexual assault prosecutions. Accordingly, the material relating to the fact of the making of the complaints and their timing were relevant matters to take into account, and to that extent the second respondent's position that he would "supply all the information and … leave it up to the Court …" was reasonable. 120 However, the respondents seek to defend the second respondent's reliance on material in this category not on that basis, but as being material that a prosecutor of ordinary caution and prudence could properly use in determining whether to lay charges. However, this submission confuses material that was available to alert authorities to the possible commission of an offence and the need to investigate, and the quite separate consideration as to whether a charge should be laid. S's reaction to the allegations was not material that could go to establishing reasonable and probable cause.

121 The respondents also defend the second respondent's failure to have regard to S's uncertainty as to whether the offences occurred. This submission suffers from the same flaw as that to which I have just referred, namely the difference in having regard to complaints or concerns for the purpose of deciding whether to investigate and the question whether, on the material in the prosecutor's possession, there was reasonable and probable cause to lay the charges. 122 Reliance upon the alleged assault on C in Canberra. C had alleged that he went on a trip with the appellant to Canberra and that the appellant sexually assaulted him there. It appears to have been accepted that C was alleging that only he and the appellant had taken the trip.

123 There was a significant amount of material about the Canberra trip, including a letter to the school from the appellant in which he sought permission for C to have days off school to go on a trip to Canberra, as well as hearsay evidence from a school teacher about an essay C had written about the trip. There was also a statement from the bus operator with whom the appellant was employed on a casual basis, who had said that the appellant had made a request to take C with him on a coach trip to Canberra.

124 His Honour was critical of the second respondent's reliance on the evidence relating to the trip to Canberra, for the reason that even if the evidence was capable of satisfying the second respondent that C had been sexually abused on a trip to Canberra, that matter was not the subject of any charge. Accordingly, the energy that the second respondent had devoted to ensuring the accuracy of some of the information, such as the dates of the trip, was, at the end of the day, expended on material that was irrelevant to the charges laid. 125 The respondents submitted that his Honour's approach to the Canberra trip was misconceived. They contended that even if evidence relating to the Canberra trip was inadmissible, it was nevertheless material available to the second respondent as prosecutor that was rationally capable of affecting the mind of a person of ordinary prudence and caution with respect to the question of belief in guilt. That submission was made in the context of the trial judge's reliance on the test in Mitchell v John Heine. However, even if the submission is considered against Dixon J's formulation, it is problematic. The information about the Canberra trip was an appropriate matter about which to make enquiries. However, the information gleaned from such inquiries had to be assessed to determine whether it added anything to the task the prosecutor was undertaking, namely, in deciding whether there was a proper case to bring before the court.

126 In that regard, it is not appropriate for a prosecutor, when considering whether the material is such as to warrant the laying of a charge, to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so. For example, if a case involved only uncorroborated evidence, so that it was a case of "one person's word against another's", there may be circumstances where a prudent prosecutor might wish to have some satisfaction of the likely credibility of the complainant. It is possible that inadmissible material might assist that assessment. But that is not the use that was made of this material. Rather, it was material that the second respondent considered directly relevant to whether he should lay charges. For the reasons explained by his Honour, it was not.

127 Further, the evidence relating to the Canberra trip was inconsistent. For example, C said he and the appellant went to Canberra on their own. S said that the family always went away together. The appellant also said this in his Record of Interview. This was a factor that the second respondent should have weighed up when considering whether to lay the charge against the appellant in respect of the allegations made by C. However, as his Honour pointed out, the second respondent failed to give any consideration, at least to the possibility, that S's statement about travelling to Canberra as a family was truthful, and thus, that C was lying. Given the inconsistency in the material the second respondent had on this matter, the logical inquiry was to the hotel itself. The second respondent did not make these enquiries. In the absence of having done so, this material only added to the inconsistencies in the information the second respondent had. 128 Other inconsistent material. The second respondent was also influenced by C's allegation in his second Record of Interview that on the Wednesday prior to the interview, the appellant had attempted to sexually assault him but the assault had been averted because he had telephoned his mother. C said this occurred at about 4 pm. The mother said that she arrived home at 3:15 pm on that Wednesday and denied there was such a telephone call. The second respondent could easily have verified this material, by enquiries of S's employer and/or of the telephone company. He did not do so. 129 There was other inconsistent evidence in relation to that occasion. Specifically, C had said his older sister CA was at a friend's home when the attempted assault occurred, whereas CA said that C was with her that afternoon and that she did not return home with him until about 5:30 pm. The appellant gave a similar account of CA's and C's activities and movements that afternoon. 130 The second respondent explained that S's and CA's statements had not weighed more heavily with him because he realised some time later that C had not specifically identified the day but had said "about last Wednesday". However, the imprecision of C's evidence and the inconsistencies thrown up by S's, CA's and the appellant's statements were such as to require the second respondent, as prosecutor, to be particularly careful in deciding whether to lay charges.

131 Use of material that had no corroborative value. The second respondent was "impressed" by the fact that C said he knew it was good to tell the police about acts of sexual abuse but not to ring "Triple O". I agree with the trial judge that that could not have had any relevance to the consideration of whether charges should be laid.

132 Reliance on coincidental evidence. The second respondent gave evidence that he was influenced by the "coincidence" that, 3 years after the event, D described an occasion of assault that occurred on a Thursday night a month after his mother's wedding when his mother was out shopping. D alleged that after the assault he went outside and helped remove groceries from the family car and carry them up the driveway into the house. The coincidence was that Thursday was the respondent's day off work. The second respondent's investigation of this aspect of the allegations established that on nearly all Thursdays in the month or so after the wedding, the appellant was rostered off duty and was not driving the coach. The investigations also established that the appellant was likely to have been at home alone with D on some of these Thursdays. 133 The trial judge considered that the second respondent's reasoning in relying on this material overlooked the fact that at the time of this alleged offence, D's left leg was in plaster and he was using a walking frame so that it was unlikely that he would have been helping to carry in the groceries as he alleged. Whilst those factors had to be weighed up by the second respondent, it does not, in my opinion, take away the significance this coincidence could have on the mind of a prosecutor in deciding whether there was material available to warrant the laying of the charge. In my opinion, his Honour's criticism misses the point on the relevance of this material.

Trial judge's general criticisms of the second respondent's approach

134 The trial judge made findings that were critical of the significance the second respondent attached to the material I have reviewed briefly above, as well as to his overall approach to the material in his possession. In particular, he was critical of the second respondent's failure to properly analyse the material upon which he relied. For example, as already mentioned, his Honour criticised the failure to question how D could in fact have helped carry in the shopping on the night of the alleged assault if both hands were occupied using his walking frame. His Honour considered that the second respondent's reliance upon his personal experience when his mother was using a walking frame was not a substitute for appropriate forensic investigation, such as an inspection of the driveway of the home to see if D could in fact have negotiated it with the walking frame and a plaster cast on his leg. However, his Honour appears to have overlooked the appellant's statement in his Record of Interview that D was getting around reasonably well. Moreover, there was no material to suggest that D always used two hands on the walking frame, or that he could not carry anything while using the walking frame. Whilst it would have been more helpful to the investigation if there had been such an inspection, I do not consider that the failure to carry out an inspection warrants the level of criticism made by the trial judge.

135 His Honour also considered that some of the second respondent's reasoning was illogical. The most damning example, in his Honour's view, related to S's statement to the police about C's complaint. The statement, and his Honour's findings, bear setting out in full: "319. Here Detective Constable Floros indicates the fallacy in his line of reasoning. In the first place the allegation made by C which led to [S's] reaction was in general terms and related to no specific time period. The allegation which [S] referred to in Q 72 of her interview was: 'C said 'Yeah, you want me to tell you about the things that Dad's been doing to me as well, do you? And I said, 'yeah, what?' and he said, 'he said D told me'. And I said 'no, no. I don't want to know what D's told you to tell me, you tell me.' And he said '[the appellant's] been doing things to me that he's not supposed to do'. She said 'what? What's he been doing to you?' C replied 'he just does things that are disgusting that he is not supposed to do. You're supposed to do those with women, not children'. (Q 72) 320 From this general allegation it would have been impossible for [S] to know if there was time available for the plaintiff to have committed the act(s) upon C. 321 In the second place [the second respondent] referred to the fact that [S] must have suspected that there was a possibility that it occurred. From this he jumps to the conclusion that she believed in fact that it did occur and then to the further conclusion that it had in fact occurred. So her spur of the moment reaction is used by him to form the belief that it did in fact occur. Such reasoning is not only illogical and irrational but it is also an unreasonable and dangerous course for an experienced detective to follow." (original emphasis)

In my opinion, his Honour's criticism is well founded. 136 Cooper DCJ was also critical of the second respondent's failure to adequately assess the material he had gathered, particularly having regard to the inconsistencies in C's statements. In this regard the second respondent said that he was "absolutely" aware of the inconsistencies in the Records of Interviews, although he was unclear what matters C was asserting were lies and what were not. Whilst there was some confusion in that regard, the real point is that the second respondent was aware that there were inconsistencies and the confusion itself should have sounded a warning to a prudent and cautious prosecutor. His Honour's criticisms were thus well directed. 137 Likewise, the trial judge was critical of the failure to analyse inconsistencies between matters asserted by C and the statements of others about the same matters. Again, I agree with the trial judge that the second respondent should have recognised that these inconsistencies were significant when assessing whether to lay a charge in respect of C. That assessment should have recognised the inherent weaknesses in C's allegations. 138 Not only does it appear that the second respondent did not fully grasp the forensic significance of the inconsistencies, he also appears to have been unduly influenced by other aspects of the investigation. This is evident from his evidence as to whether he believed the boys: "A. Believed every single word? I cannot answer 'yes', I cannot answer 'no' because some of the things they said were, like I said, inconsistent, but the things about the alleged abuse I certainly did. The things about - the things in particular that they said about like C with the door knobs and D about the financial situation with Mrs. A, things like that, they really stood out to me."

Admittedly, however, many of the flaws in the second respondent's handling of the matter and in his assessment of the evidence, are apparent with the benefit of hindsight and intense scrutiny by this Court. 139 The respondents submitted that, as this evidence revealed, the second respondent had the opportunity to appropriately assess the demeanour of the boys so as to assess their credibility, and he had done so. However, as I have already intimated, I consider that the assessment he did make was ill-based, and there were many instances of differing versions that should have alerted the second respondent to problems with the credibility of the boys' evidence. The doorknob question to which he referred in this answer was itself such an instance.

140 If the mother's evidence about the doorknob was correct, C's version was either a misunderstanding, a figment of the imagination of a young boy living in stressful circumstances, or a lie. Accordingly, it should not have been given the significance it was given by the second respondent at the time he was weighing up whether to lay charges. Likewise, D's statement about the family's financial position did not add anything to the likelihood of the commission of the offences.

141 In making these criticisms I am conscious of the need to ensure that the issues for determination are not judged in hindsight. Hindsight is not an available judicial tool. However, as I indicate later, there are legitimate criticisms to be made of the second respondent's handling of the investigation. That of itself however does not mean that the appellant's claim of malicious prosecution has been made out. Medical examination 142 The respondents also contended that there was other material available that was reasonable for the second respondent to rely upon and which supported the reasonableness of laying the charges. For instance, following a medical examination of C shortly after the alleged 'last assault', Dr Johns, after referring to a normal genital examination and advising that no forensic swabs were taken, stated: "Based wholly or substantially on the above knowledge, I am of the opinion that the absence of abnormal findings on examination does not preclude an assault as described to me having taken place". Dr Johns had expressed the same opinion in relation to a medical examination of D. 143 Dr John's opinion that the absence of any abnormal findings did not preclude there having been a sexual assault was a neutral opinion, that is, his examination neither established nor precluded the likelihood of an assault. Significantly, for present purposes, it is now established that such evidence is inadmissible: see R v Dann [2000] NSWCCA 185; R v RTB [2002] NSWCCA 104. 144 I have expressed the view in these reasons that a prosecutor should not, when considering whether to lay a charge, rely upon inadmissible material, unless there is some proper purpose in doing so. This medical evidence would have been inadmissible and there is no apparent proper purpose for which it could have been used in the investigation process. Whilst it was proper for there to be a medical examination, and a failure to obtain one would itself have drawn criticism, that line of enquiry in effect "drew a blank". The opinion expressed by Dr Johns should, therefore, have been put aside by the second respondent. In saying that, I do not mean to be unduly critical. It would be surprising if the second respondent was aware of the decision in R v. Dann, which was only decided 10 months before the second respondent laid the charges. Statements of legal principle by courts often take time to filter through to relevant sections of the profession. That this is so is demonstrated by the fact that the admissibility of a medical report in similar terms was again a matter for comment, not only in 2002 in R v. RTB, but also in R v Skaf & Ors [2004] NSWCCA 84, where more senior prosecutors than the second respondent were involved.

145 That leaves two other critical pieces of evidence, the conversations with Mr Walsh and the appellant's own Record of Interview.

Conversations with Mr Walsh 146 The second respondent had two conversations with the appellant's solicitor, Mr Walsh. In those conversations the second respondent told Mr Walsh he was under a lot of pressure to charge the appellant because the appellant worked for the police service and that "if it was up to me, I wouldn't have charged him". Mr Walsh made a file note of each conversation, which, except for one matter, the trial judge accepted was an accurate record. 147 The first conversation occurred on 6 July 2001 about 6 weeks before the commencement of the committal hearing. The file note states, relevantly: "Mr. Floros said to me words to the following effect: I am ringing you about the A matter. … I told your bloke to do a 48E and the matter was dumped on me. You know really there's so many inconsistencies in this case. I am just surprised that they are even going ahead with it. I told him it would not go past the 48E and I don't think it will.' You know I got a lot of pressure from management to charge him because of the position that he's in you know with the Police Department. … Yes, that's right I was under a lot of pressure to charge him. … … but your bloke opened his mouth in the Record of Interview. He handled himself pretty well in the Record of Interview but he did make admissions that just made it possible that it could have occurred you know so far as what the boy was saying. I know it's probably impossible but there it is. … my client supposed to have been on top of him having anal intercourse… … Yea but he did make admissions in the record of interview that sort of made it possible according to the kids (sic) story."

The reference to s.48E is to s.48E of the Justices Act 1902 (now repealed) provided that a justice may require a witness for the prosecution to attend at a committal proceeding with the intent that such witness could be cross-examined. 148 The second conversation occurred on 28 August 2001 at Campbelltown Court House during the committal hearing. Mr Walsh's file note records that after C admitted in the course of his evidence that he had not been sexually assaulted by the appellant, the matter was stood down for a period. During this break, the second respondent introduced himself to Mr Walsh. The note continues: ".. I feel sorry for him, if it was up to me I wouldn't have charged him, what did [C] say, it didn't happen, I wouldn't be surprised. … I said: You were there when the interviews were done, the children were repeatedly led and it seemed to me obvious that they were not telling the truth indeed [C] was pleading at the third interview for you to accept that what he had previously said in the second interview were lies. It seems to me, with respect quite obvious what has happened here. [D] was a very unhappy boy, he had been reunited or made contact with his natural father in late 1999 or early 2000, he wanted to get rid of [the appellant], he didn't like him, the emotional climate in the household was negative especially towards [the appellant] and he set out to make a false allegation against him knowing that he'd get him out of the house, but the whole thing is not as simple as that and now these boys are in foster care and the Department no doubt wants them to be Wards of the State. Its an absolute tragedy don't you think? … Yeah I agree but what could I do, they told me in town I should have done this or I should have done that but what could I do? I said: Well one thing you could have done is if you didn't think there was proper or sufficient evidence to charge a man not charge him but I suppose that's the system isn't it? He said: Yeah, what can you do?" 149 Mr Walsh conceded in cross-examination, however, that the second respondent had said something more than what was in his file note: "I also recall, now that you have asked me, there was some - in the first conversation, about prima facie case, that those - that people advised him above him, 'look, if you had a prima facie case, you've got to leave it up to the court' . I think there was conversation about that." (emphasis added) 150 The trial judge accepted Mr. Walsh's evidence and rejected the second respondent's denial and lack of memory as to these conversations [Red 102]. However, although his Honour referred to Mr Walsh's concession in cross-examination, he does not otherwise deal with it. In particular, he does not indicate whether on the evidence, and despite the second respondent's denial of the text of the conversations in Mr Walsh's file notes, the second respondent believed the material was sufficient to establish a 'prima facie' case or whether he laid the charge in response to departmental pressure. Mr Walsh's concession as to this part of the conversation reveals that although there may have been departmental pressure, it either was, or included, pressure to lay a charge if there was a prima facie case. When that evidence is coupled with the second respondent's evidence that he believed the allegations of abuse, a quite different picture emerges.

Appellant's Record of Interview 151 The second respondent also told Mr Walsh that the appellant had made admissions in his Record of Interview. There was in fact no express admission. Rather, the appellant denied the allegations. However, the appellant did agree that he was off work on a number of Thursdays in the month or so after his marriage and that he could have been alone with D during this time. He agreed that S did the supermarket shopping on Thursday nights. He also proffered that he had a communication problem with the children and with D in particular. This information was consistent with D's statements on these matters and to that extent was corroborative of it. He described C as a sincere child. He agreed that it was likely that if C was embarrassed he might not say anything, stating that he thought that a child of that age "would probably be embarrassed". The question which prompted this response undoubtedly flowed from C's statement in his second Record of Interview that he had been embarrassed in his first Record of Interview to make any allegation. The appellant also said he thought that C's severe hearing impairment might have been a problem for him in responding to questions. 152 Thus, even though the appellant denied the allegations, the material in the Record of Interview did not irrefutably negate the allegations.

Did the second respondent have reasonable and probable cause to lay the charges? Case against D 153 In the case of D, Cooper DCJ found that the appellant had established malice in bringing the charge, but had not established that the second respondent did not have reasonable and probable cause to lay the charge so that the appellant had not made out both ingredients of the offence.

154 The finding in respect of malice is dealt with below. 155 In reaching his conclusion in respect of reasonable and probable cause, his Honour referred to D's allegations and his complaint to S. His Honour recognised that there were countervailing considerations, in particular D's wish to get his stepfather out of the house and the fact that D's leg was in plaster at the time of one of the early alleged incidents. His Honour also found it highly unlikely that a jury would convict. However, his Honour held that the appellant had failed to satisfy him that the second respondent "did not have reasonable grounds for believing and that he did not in fact believe that the plaintiff had committed the offence upon D notwithstanding the countervailing evidence". 156 Senior counsel for the appellant submitted that once it was found that the second respondent had laid the charges, not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to pressure from officers of the CPEA, then it must follow that the appellant did not have reasonable and probable cause to lay the charges. 157 There is legal support for this submission in the sense that often, if malice is established in circumstances where a charge was laid not for the purpose of bringing a person to justice but for some extraneous reason, such as succumbing to pressure from bureaucratic superiors, then it is likely that there was no reasonable and probable cause to lay the charge. I discuss this more fully below. Perhaps the best statement is that of Denning LJ in Glinski v McIver reproduced at [86] above. However, it must be recognised that the elements are distinct. But in any event, the evidence does not support the inference that the charges were laid because the second respondent succumbed to pressure to do so. As I have discussed above, the second respondent felt pressured. He formed the view some time later that the charges would be dismissed at a preliminary stage. On the evidence, it is clear that at the time of laying the charge, the second respondent believed the central allegations of abuse. There was no credit finding of the trial judge that affected this aspect of the second respondent's evidence. The case as argued before this Court was that the prosecution was "malicious" in the legal sense at the time the charge was laid. 158 As I have already mentioned, it is not unusual for charges of sexual assault, especially involving minors in family situations, to be dependent upon the evidence of the purported victim. In this case, D had made statements, the essence of which he maintained throughout the investigation process. There was a difficult relationship between the appellant and D. The time factor alleged by D was independently supported as being a time when the appellant was likely to have been off work. The appellant admitted there were occasions when he may have been alone with D. 159 There were the countervailing considerations to which I have referred and there was a considerable body of inconsistent evidence. I have referred to much of this above. One inconsistency to which I have not specifically referred is that the complaint D made to his mother in January 2000 was of genital touching and kissing, not anal intercourse, which is the allegation D made to the police. Further, there was little independent material to support D's allegations. 160 Notwithstanding that these were shortcomings which the second respondent should have weighed up in his decision whether to lay a charge, I am nonetheless of the opinion that a reasonable and prudent prosecutor could, on all of the material, consider that it was an appropriate matter in which to lay a charge and bring the case before the Court. It was not necessary for the second respondent, in making that decision, to believe that the appellant had committed the offence. As has been explained, in a case such as this where the second respondent was not the party making the allegations, that is not the test. Nor was it necessary for the appellant to establish that the second respondent did not have reasonable grounds for believing the appellant has committed the offence. A test stated in those terms focuses on the subjective assessment of the prosecutor as to the guilt of the accused. Instead, what is required is, first, an assessment as to whether the prosecutor believed that, upon general grounds of justice, the available material justified the laying of a charge and secondly, that such a belief on the part of the prosecutor was reasonable in the sense that a person of ordinary prudence and judgment would consider that the laying of the charge was warranted. 161 The bi-fold test applied by his Honour is a more onerous test than is required. As the trial judge was not satisfied on the more onerous test, it is not likely that a court would be satisfied on the correct test. But in any event, a review of the whole of the evidence has lead me to conclude that the appellant has not established that there was not reasonable and probable cause to lay the charge in respect of D. Case against C 162 By contrast, the trial judge considered the second respondent did not believe that the appellant was guilty of the charge relating to C, or alternatively, any belief he may have had was not based upon reasonable grounds. His Honour's finding was based on the following considerations. First, there were inconsistencies in the three Records of Interview conducted with C in which he at first denied any sexual abuse, then alleged sexual abuse and then, in the third Record of Interview, partially retracted the allegations and then partially confirmed them but in equivocal terms. Secondly, C had alleged an assault two days before he was removed to foster care - but made no complaint of pain or other physical problems which his Honour considered would inevitably accompany such an assault. There was also doubt as to whether there was an opportunity for the alleged assault. His Honour also considered that although there was evidence that there was an opportunity for a sexual assault in Canberra in October 1999 which may have justified a reference to the ACT police, this "fell far short of establishing the committing of the offence on about 11 October 2000 at N".

163 His Honour concluded: "390 [At] the end of the day all that Detective Constable Floros was left with was [C's] contradictory records of interviews with unsupported allegations and the possibility, not fully investigated, of an offence in Canberra." 391 I can well appreciate that Detective Constable Floros had great difficulty in determining what he should do in relation to [C's] allegation. And it is in this context that what he called 'pressure' becomes significant. On the balance of probabilities I am satisfied that Detective Constable Floros succumbed to the pressure from senior officers in the Child Protection Enforcement Agency to charge the plaintiff because he was employed by the Police Service. 392 In relation to the charge involving [C] the totality of the evidence satisfies me on the balance of probabilities that Detective Constable Floros did not believe that the plaintiff had committed the offence or alternatively, that if he did believe it, then such belief was not based upon reasonable grounds."

164 The respondents submitted that even though his Honour purported to apply the principles propounded by Jordan CJ, he in fact applied a different test in relation to C. They submitted that his Honour considered that it was necessary that the second respondent believed the appellant was in fact guilty of the offence in order for him to have reasonable and probable cause to lay the charge. It was submitted that this was apparent from the trial judge's statement at that the evidence in relation to the Canberra trip "falls …far short of establishing the committing of the offence…", and further that the second respondent "did not believe that the plaintiff had committed the offence" (emphasis added). The error, according to the respondents, was that his Honour failed to assess the second respondent's subjective belief against the objective requirements specified by Jordan CJ's fifth condition as stated in Mitchell v. John Heine (see [55] above). 165 There are, I think, two responses to this submission. First, earlier in his judgment, the trial judge had recognised that the word "guilt" in the passages he had quoted from Jordan CJ (and set out at [55] above), could be misleading, unless understood in the manner explained in Glinski v McIver.

166 Secondly, it seems that his Honour, having concluded that the second respondent did not hold the necessary belief in the guilt of the appellant in relation to C, it was not necessary to separately consider the fifth condition expounded by Jordan CJ in Mitchell v. John Heine. However, for the reasons already discussed, the test as formulated by Jordan CJ is not the correct test to apply, nor was this a case where belief in the guilt of the accused had any relevance. The second appellant was an independent prosecutor (that is, not prosecuting on his own account), investigating an alleged crime in the course of his duties as a police officer: cf Glinski v McIver per Denning LJ at (760-761), discussed above. 167 The case against C was always problematic. Other than C's Records of Interview, the material available to the second respondent was entirely circumstantial and much of that material was inadmissible. It is not unusual in cases of this sort for prosecutions to be based on circumstantial evidence. However, that calls for an investigating officer to be vigilant as to the quality of the information, both as to its credibility and its legal admissibility. 168 That does not mean that a finding of lack of reasonable and probable cause must follow if the evidence is found not to be credible or is ultimately ruled to be inadmissible. My comment is directed to those situations where material would be obviously incredible or obviously inadmissible, for example, where it was fanciful, was hearsay, or was based upon an assumption. The position might be different in the last two examples if such material led the prosecutor to relevant avenues of investigation or inquiry, which in turn produced material that was likely to be admissible, or if there was inadmissible material which tended to support the reliability of other material that was likely to be admissible. The Children's Court material fell into the latter category. So did some of C's assertions about a trip to Canberra. In those instances, an initial reliance on inadmissible material would not, of itself, be evidence of want of reasonable and probable cause.

169 In this case, the only evidence likely to be admissible in respect of C's allegation was his own evidence that would be given in court and his Records of Interview. The inconsistencies in the Records of Interview were a matter of concern. However, there were considerations that explained some of the inconsistencies. For example, the appellant himself accepted that a boy C's age might have been embarrassed about making statements relating to sexual abuse. In relation to the third Record of Interview, although C retracted some of what he said, he did so in circumstances where he was clearly homesick and wanted to be returned to his mother's care. Even so, in that Record of Interview, C maintained an allegation of abuse.

170 It is apparent that the second respondent devoted a great deal of time to an examination of the material. It is also apparent that he felt pressured by his superiors to lay the charges in the context in which I have discussed. However, given that his Honour accepted that what the second respondent was in fact told by his superiors was that if there was a "prima facie" case he had to "leave it up to the court", the fact that he did feel pressured to lay charges against the appellant is not evidence supporting a want of reasonable or probable cause. When the evidence relating to the charge in respect of C is viewed as a whole, I do not consider that it can be said that there was not reasonable and probable cause to lay the charge. The appellant told the second respondent that C was a "sincere child" and that a child of that age would be likely to be embarrassed about being interviewed about such matters. Likewise, it is apparent from S's Record of Interview that she considered C to be less likely than D to fabricate such a matter. She also considered that there was less motivation for him to do so as unlike D, C generally had a good relationship with the appellant. When those factors are added to the fact that there was reasonable and probable cause to lay the charge in relation to D, I am of the opinion that a prosecutor, exercising proper caution, would be justified in laying the charge against C. 171 It is also possible that the Crown may have sought to use the charges in respect of D and C as being mutually corroborative, although neither party advanced that argument in this Court and there would have been a real question whether they could be so used: see BRS v The Queen (1997) 191 CLR 275 at 283. But even if the cases did not corroborate each other, they were closely linked and it was a reasonable response to lay charges in both matters. There are other ways to test the matter. Accepting the weaknesses in the case relating to C to which I have referred, but also accepting that there were factors that supported the likelihood that C was being truthful, the question might be asked as to what a prudent prosecutor ought reasonably to have done. One answer might have been to lay the charge against D and adopt a "wait and see" approach to the charge against C. There are many public policy reasons why that would have been quite inappropriate. Another answer was not to charge in relation to C at all. Again, in circumstances where a police officer has a responsibility to investigate and to charge if appropriate, in the sense that has been discussed in these reasons, that, too, would not have been a reasonable response by the second respondent in this case. Accordingly, I am of the opinion that a reasonable prosecutor exercising "prudence and judgment" would have been justified in laying the charge in respect of C. 172 I do not consider that the second respondent's statements that he would not have charged the appellant had it been left to him, or that he was not surprised that the case in relation to C had collapsed, detracts from that finding. Those statements reveal an understanding by the second respondent that the case in relation to C was weak. It is also apparent on the evidence as discussed earlier that at some later stage the second respondent formed the view that the case may not survive the criminal process. The evidence does not establish when the second respondent formed that view. But in any event, such a belief does not, of itself, amount to evidence that the there was not reasonable and probable cause or that he did not believe the material upon which he could properly make an assessment was such as to justify the laying of a charge. After all, the trial judge was of the same view in relation to the charge relating to D, stating that it was "highly unlikely that there would be a finding of guilt beyond reasonable doubt", and yet found that the appellant had failed to establish that there was not reasonable and probable cause.

173 Having reached that conclusion in respect of each charge, it is not strictly necessary to determine whether the appellant had made out the element of malice. However, as it was fully argued, I should deal with it briefly.

Malice 174 The trial judge found that the second respondent laid both charges against the plaintiff "not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to the pressures from officers of the Child Protection Enforcement Agency to charge the [appellant] because he worked for the Police Service."

175 Malice, for the purposes of the tort of malicious prosecution concentrates upon the motives of an accuser in laying a charge against an accused. In Hicks v Faulkner, Hawkins J said at 174-5: "the malice necessary to be established …[is that] the party was actuated by either spite or ill-will towards an individual, or by indirect or improper motives " (emphasis added). 176 In Trobridge v Hardy (1955) 94 CLR 147, the High Court was concerned with whether the respondent, against whom an action was brought for malicious arrest, was entitled to the protection of the Police Act 1892 (WA) which provided that no action lay unless, "there was direct proof of … malice" Fullagar J said (at 155) that malice within the meaning of the statute bore the same meaning as malice in malicious prosecution cases and involved "personal spleen or ill-will or some motive other than that of bringing a wrongdoer to justice" (emphasis added). Similarly, in Glinski v McIver, Devlin LJ stated (at 766) that malice covered not only "spite and ill-will but also any motive other than a desire to bring a criminal to justice" (emphasis added). 177 Malice is most commonly tied to the subjective belief of a prosecutor as to whether the laying of a charge against an accused is warranted. In Sharp v Biggs, Dixon J said (at 106) that to prove a case of malicious prosecution, it must be shown, among other things, that an accuser acted without reasonable and probable cause. A central element of the presence or absence of reasonable and probable cause is whether the prosecutor honestly and reasonably believed that the laying of a charge against an accused was warranted. This test embodies a subjective and objective element: there must be reasonable evidentiary grounds supporting the institution of proceedings, and the prosecutor must hold a belief that such action is justified (see generally Dixon J at 106-109). 178 In Glinski v McIver, Denning LJ noted (at 759) that the presence of malice is usually apparent where it can be shown that a prosecutor lacked an honest belief in the justification of commencing proceedings, because in such circumstances it typically follows that some extraneous and improper purpose actuated the prosecution of an accused: "A belief which is distorted by malice, or biased by an improper motive, can hardly be said to be an honest belief. That is why a jury which has found "malice" will very likely also find "no honest belief". To them it is the same thing." 179 In Trobridge v Hardy, Kitto J said at 164: 'If [a jury] think it more probable than not that that the prosecutor lacked a belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice….". 180 This statement has to be read with caution. For the reasons explained, it is not necessary for a prosecutor to have a belief in the guilt of the accused in order for a prosecutor to have reasonable and probable cause to lay the charge. It would be strange, and in my opinion contrary to principle, to then transpose that requirement into the element of malice. Kitto J's statement should, in my view, be read subject to the qualification that that is a wrong test. For that reason, Denning LJ's statement in Glinski v McIver is more satisfying and in my view, should be preferred. 181 Most recently, in Krivoshev v RSPCA, Giles JA said at [161]: "Absence of reasonable and probable cause and malice are distinct requirements, see also Mitchell v John Heine & Sons Ltd at 469, although absence of reasonable and probable cause can be evidence of malice."

182 The position is more complicated where the evidence reveals that there were a mixture of purposes for the institution of proceedings against an accused. In Glinski v McIver, Devlin LJ (at 766) referred to the situation where a prosecutor believed in the guilt of an accused (or that the charge was warranted), but nevertheless was actuated by improper motives in launching the prosecution. His Lordship found (at 777) that "there can be no occasion on which…a mixture of motives could be accepted as excusable": see also Stevens v Midland Counties Railways (1854) 10 Exch 352.

183 However, in Trobridge v Hardy, Kitto J (at 162) said that the proper test was one of looking for the predominant motive behind the prosecutor's actions: "… the party alleging [malice] must establish that the conduct of which he complains was actuated solely or predominantly by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted 'from an indirect and improper motive, and not in furtherance of justice'. That is to say, from some desire other than 'to discharge his duty to the public'." 184 The trial judge relied upon the second respondent's statements to Mr Walsh, to which I have referred, as proof of malice. Senior counsel for the respondents submitted that that evidence was not sufficient for a finding of malice to be made. This was particularly so given Mr Walsh's concession in oral evidence that the second respondent had said that the advice that he had been given was "look, if you have a prima facie case, you've got to leave it up to the court". It was submitted that when this evidence was "factored" into the statements recorded in the file notes, the Walsh conversations did not support a finding of "absence of belief". 185 The trial judge held, however, that it was not sufficient for there to be a prima facie case "in the sense of information which if accepted would establish the elements of the criminal charge. In addition, the person laying the charge must have the belief based upon reasonable grounds that the allegations are probably true". That is not, however, a correct statement of the relevant principles relating to malice. These have already been set out. 186 The question whether to charge the appellant clearly caused the second respondent a great deal of anxiety. His investigations were far reaching. He had a lot of material, much of it subjective and inadmissible. Nonetheless, his evidence was such that it appears he was a conscientious police officer who was ill-trained to undertake much of the work he was required to do in this case. C's Records of Interview provide perhaps the best example of this. The questioning conducted by the second respondent was often inappropriate in content and form. The same must be said of the questioning by the young District Officer. 187 The Records of Interview were not the only matters that indicated that the second respondent was not well trained in cases of this sort. The importance he attached to S's reactions to the complaints and to some comments made by the two boys that were peripheral to the allegations are other examples. There are more, as will be obvious from the material that has been reviewed above. 188 However, it is one thing to find that a person was under pressure to charge if there was a prima case. It is another to find that a prosecutor, in laying a charge, had a motive "other than bringing a wrongdoer to justice", as must be established to prove malice. Despite the second respondent's sometimes confused thinking as to what was important and what was not, I do not consider that it was established that he did not believe he had a "prima facie case", being the phrase used by his superiors, or that his intention in charging the appellant was other than to bring him to justice. "Bringing a person to justice" does not mean that the person must be convicted. It means to bring a person before the processes of the law. That may be done where there is reasonable and probable cause to lay the charge. Indeed, the trial judge appears to have held that he did believe that, but did not believe the appellant was guilty. The two matters are both logically and juridically distinct and the latter is not a necessary aspect of malice.

189 Mr Walsh's agreement about mention of a prima facie case in cross-examination, to which I have referred above at [149], must also be considered in the light of the second respondent's evidence on the point. At the committal proceedings, Mr Walsh reminded the second respondent about the first conversation. The second respondent either did not recall or "disagreed" with most aspects of the conversation. In cross-examination, however, the second respondent gave the following evidence: "Q. You did say that, didn't you? You said that you only charged him because people had put pressure on you to charge him because he's an employee of the Police Service. A. No, that's not right. Q. You deny that under oath? A. Yes. Q. I'm putting to you that's what you said. A. I would not charge someone because somebody told me to, okay. The only thing I can say is this, is that I spent hours upon hours upon hours on reading transcripts and trying to figure out what the situation is here, or trying to establish is there a case. Albeit it being very, very difficult that there's one transcript that there's no - it didn't happen, the other one it says yes. Then asking for advice to senior police and saying, 'This is a scenario, how would you deal with it?' Their answer would be, 'Well, if you've got a prima facie case, you should go to court.' So the pressure was things like - I think it must be policy or protocol that -- Q. I'm just not sure whether you're answering the question or you're just talking generally about this case. I'm putting to you, with respect, sir, conversations. A. Yes. I would not charge anyone because somebody -- Q. I'm not asking you that. I'm asking you whether you said those words to me or words to that effect A. There may have been words to the effect but not - I wouldn't have ." (emphasis added) 190 In cross-examination, the second respondent again sought to explain his thought processes in charging the appellant: "Q. And one of the ways to do it, and therefore relieve the pressure, was to charge him: A. That's my decision, to charge and I decided to charge. Like I said, I sat down and I read and read and read and I came to the decision to charge. Yes, there was a lot of - how come it has taken so long and questions like that, and I'm sure there were other matters behind . That's the decision I made. I charge him on my decision. I assessed the case. It was my investigation." (emphasis added) 191 Senior counsel for the second respondent submitted to the Court that although the trial judge did not believe the second respondent when he denied or did not remember the conversation with Mr. Walsh, that did not prove that he laid the charges because he was pressured by his superiors: see Hobbs v Tinling (CT) & Co Ltd; Hobbs v. Nottingham Journal Ltd [1929] 2 KB 1 where Scrutton LJ said at 21: "If by cross-examination to credit you prove that a man's oath cannot be relied on, and he has sworn he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject." 192 There is no argument with that principle. But that is not the position here. Rather, this is a case where the Court, by making a credit finding, preferred evidence of one witness (Mr Walsh) over that of another (the second respondent). On Mr Walsh's evidence, the second respondent made statements to the effect that had the matter been one for him, he would not have charged the appellant and that he did not think the evidence was sufficient to take the case beyond the s.48E stage. So, rather than this being a case of "no evidence", it is a case where the question is what are the proper inferences to be drawn from the conversations that the trial judge accepted had occurred. 193 In my opinion, for the reasons I have given above, I consider that malice has not been established. 194 The trial judge held that the second respondent acted maliciously in laying both charges because he was motivated "not [by] 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." 195 There is a throwaway line in the respondents' written submissions that his Honour had failed to give adequate reasons for his decision, as he had "not made plain in an understandable or logical way the test he applied". As there is no ground of cross appeal to that effect it is not necessary to deal with the submission. I would only say that a misstatement of principle by a judge, or even a confused statement of principle, although giving rise to other appellate considerations, does not mean that the reasons are inadequate. But in any event, I have concluded that the appellant has not discharged the onus of proving that the prosecutions were malicious.

Summary dismissal of abuse of process, false arrest and unlawful imprisonment claims 196 In his Amended Ordinary Statement of Claim, the appellant pleaded that on 9 March 2001 he was taken into and kept in custody at the Camden Police Station for about 4 hours before being charged with the two offences which are the subject of the malicious prosecution claims. His pleading then refers to the withdrawal of the prosecution in relation to C and the dismissal of the charge in relation to D. The appellant then pleaded that as a consequence of his "arrest, his imprisonment and Committal Hearing, [he] … suffered loss and damage …". 197 The appellant further pleaded in his Statement of Claim that: "The criminal trial process was utilised by one or more of the Police Officers to achieve an improper purpose, in consequence whereof the plaintiff has suffered loss and damage. In the premise, [the respondents] are guilty of the tort of abuse of process". 198 The particulars of improper purpose were pleaded as: "Utilising the criminal trial process to conceal the prior wrongful conduct of the Police Officers." 199 The trial judge dismissed each of these causes of action under the provisions of Pt 26 rr 7 and 8 of the District Court Rules. The appellant submitted that the trial judge erred in so doing. In his written submissions in support of this ground of appeal, the appellant contended that once it was shown that the purpose for setting the criminal justice system into motion was driven by a collateral motive other than that of bringing the appellant to justice, it was arguable there was a prima facie case of false arrest, wrongful imprisonment and abuse of process. 200 The appellant's case in relation to false arrest was that the whole process of interviewing him on 9 March 2001 constituted a false arrest because the second respondent did not suspect that the appellant had committed an offence. This argument was linked with the basis upon which the malicious prosecution claim had been put: the arrest was wrongful because on his case, there was a lack of reasonable and probable cause to prosecute the appellant. It followed therefore that he should not have been arrested. In support of that submission, the appellant relied upon the comments the second respondent made to Mr Walsh. 201 There was no further elaboration of this argument in the appellant's written submissions other than a reference to Bales v Parmeter (1935) 35 SR (NSW) 182 and Williams v The Queen (1986) 161 CLR 278 at 294.

202 The authority of a police officer to arrest is contained in Pts 10 of the Crimes Act. Pursuant to s 352(2)(a), a police constable may apprehend a person without warrant if the constable "with reasonable cause, suspects [that person] of having committed [an] offence". The effect of Bales v Parmeter and Williams v R for present purposes is that the power of arrest without warrant is constrained by s 352 of the Crimes Act. It is not lawful to arrest a person for the purpose of questioning that person or for making investigations to determine whether the person should be charged.

203 The application to have the claims dismissed came at the conclusion of all of the evidence and during the course of final addresses. 204 The application was made under Pt 26 rr.7 and 8 of the District Court Rules. Rule 7 provides for the dismissal of a case before a verdict has been returned or judgment given "on the ground that, on the evidence given, a judgment or verdict for the plaintiff could not be supported" in respect of any cause of action. Rule 8 provides for judgment being entered for the opposing party where the proceedings or a claim for relief in the proceedings are such that "on the evidence given, an order directing the entry of judgment for the beginning party could not be supported". 205 The evidence relied upon was that used to support the claim of malicious prosecution.

206 The trial judge held that there was no evidence to contradict the evidence of the second respondent that he suspected that the appellant committed the offences. His Honour also considered that there was ample evidence to a show a reasonable cause for that suspicion. His Honour found that evidence was contained in the boys' Records of Interview. The appellant did not demonstrate that there was any appealable error in his Honour's findings: see generally Thompson v. Vincent [2005] NSWCA 219. 207 It appears that part of the appellant's concern, if not distress, in relation to his arrest was that he was not advised that that was the purpose for which he was asked to attend the police station. Whilst the appellant's distress is understandable, that circumstance did not constitute a false arrest, provided of course that the second respondent with reasonable cause, suspected that the appellant had committed the offences with which he was charged. His Honour made a factual finding in favour of the second respondent on that issue. 208 The power to detain for investigation is contained in Part 10A of the Crimes Act. Section 356C provides that a police officer may detain a person who is under arrest for the investigation period provided for in s. 356D. That period is a maximum of 4 hours. There was no suggestion that that section had been breached. Given that his Honour found that the arrest was lawful and there was no breach of s. 356C there was no basis to uphold the claim for false arrest. 209 Accordingly, no appealable error has been shown in relation to the summary dismissal of those 2 claims. 210 That leaves for determination the dismissal of the proceedings in relation to the claim based on the tort of abuse of process, and certain aspects of the costs claims.

211 In order to be able to sustain an action for abuse of process, it must be shown that the legal process was "employed for some purpose other than the attainment of the claim in the action": Varawa v Howard Smith Co Limited (1911) 13 CLR 35 per Isaacs J at 91. The tort differs from the action for malicious prosecution in that it is not necessary to show that the "abusive" proceedings have terminated with a verdict in favour of the plaintiff, nor is it necessary to show want of reasonable and probable cause for the institution of the proceedings: Grainger v Hill (1838) 4 Bing (N.C.) 212 at 221; Williams v Spautz (1992) 174 CLR 509 at 523. In Williams v Spautz, a majority in the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) in a joint judgment, stated at 523: "Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers." 212 Their Honours recognised, however, that although that notion was central to the establishment of the tort, a statement in those terms, without more, might unduly expand the concept. They explained their concern (at 526-527) by reference to the following examples: "Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour. It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers ." (emphasis added) 213 See also Van Der Lee & Ors v State of New South Wales & Ors. [2002] NSWCA 286. 214 In this case, there was no suggestion that the criminal proceedings brought against the appellant were brought for any collateral purpose within the meaning of the principle to which I have just referred. 215 It follows, in my opinion, that this ground of appeal has not been made out.

Costs 216 The conclusions that I have reached in relation to the claims against the State and the second respondent mean that his Honour's costs order in favour of the appellant should be set aside and that they should have their costs at first instance. 217 That leaves the costs order in respect of the third respondent. The trial judge considered that the costs of the preparation of her defence would not have been of any significance and that for the most part, they would have been caught up in the preparation by the State of its case. Whilst that is true enough and would have been a proper reason to support the trial judge's exercise of discretion on the costs question relating to the third respondent, the question must now be asked whether that is an appropriate exercise of discretion given that the respondents have all been successful. 218 In my opinion, in a case such as the present, there is no reason to make an order other than that costs follow the event. In that regard, it is undoubted that a great deal of the costs of all three respondents would have been common, the legal representation at the hearing being the most obvious example. However, the extent to which there is an overlay and how costs ought to be apportioned is for a costs assessor if the parties are not otherwise able to reach agreement on this aspect of the case.

219 Before concluding, it is necessary to finalise certain procedural matters. On 11 June 2004, the respondents filed a Notice of Cross Appeal to A's appeal in No. CA 40137/04. In addition, two applications for leave to appeal were filed. The first, No. CA 40182/04, was filed by the second respondent against A, the State and the third respondent. The second, No. CA 40184/04, was filed by the State and the third respondent against A and the second respondent. On 12 August 2004, Tobias JA directed that the applications for leave to appeal be heard concurrently with the appeals and in conjunction with the appeal and cross-appeal in No. CA 40137/04. 220 The matters were listed for hearing on 7 and 8 March 2005. 221 On 8 March 2005, the second respondent, in proceedings No. CA 40182/04, filed a Notice of Discontinuance against the State and the third respondent. On the same date, in proceedings No. CA 40184/04, the State and the third respondent discontinued proceedings against the second respondent. That meant that the applications for leave to appeal as against A remained on foot. It appears, however, that the matter sought to be raised in these two appeals, if leave was granted, was the same as the relief sought in the Notice of Cross Appeal to A's appeal in No. CA 40137/04. 222 No mention was made of these matters by counsel at the hearing of the appeal. However, as final orders need to be made in the matter, the appropriate order to make in each matter (Nos. 40182/04; 40184/04) is to dismiss the summons. There will be no order for costs on those summonses as they were not argued.

Orders 223 Accordingly, I would propose the following orders in appeal No. 40137/04:

That the verdict and judgment of Cooper DCJ in favour of the appellant dated 3 February 2002 be set aside;

In lieu thereof enter a verdict and judgment in favour of the respondents;

Set aside Order 1 made by Cooper DCJ on 19 February 2004;

That the appellant pay the respondents' costs of the proceedings at first instance, and of the appeal and cross-appeal; and

That the appellant have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled, in respect of the cross-appeal.

224 In the applications for leave to appeal in Nos. CA 40182/04 and 40184/04, I propose that that the summonses be dismissed with no order as to costs 225 PEARLMAN AJA: I agree with Beazley JA. **********

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