Bayliss v Cassidy & Ors [1998] QSC 186 - QSC 1998 case summary — Zoe

QLDQSC

Bayliss v Cassidy & Ors [1998] QSC 186

[1998] QSC 186

Supreme Court of Queensland|1998-09-18|Before: Muir J

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At a glance

Source facts

Court

Supreme Court of Queensland

Decision date

1998-09-18

Before

Muir J

Source

Original judgment source is linked above.

Judgment (250 paragraphs)

[1]

For the reasons given below in respect of the allegations of malicious prosecution I find that the plaintiff has not established that Sergeant Cassidy acted maliciously or without reasonable and probable cause in arresting the plaintiff.

[2]

Conclusions on the allegation of malicious prosecution against Sergeant Cassidy

[3]

It was submitted on behalf of the plaintiff that if Sergeant Cassidy did not bring an independent mind to bear on the issue of the plaintiff's guilt or innocence at the time of the police operation, the question of whether he had reasonable grounds for having a belief that the offence of conspiracy, as then charged, had been committed, stood to be decided at the date on which he decided to arrest Bayliss. That date, it was submitted, was "after Sturgess' instruction of 8th May 1985 to bring a conspiracy charge" when "Cassidy was merely acting as Sturgess' instrument". I do not accept that Sergeant Cassidy merely acted as Mr Sturgess' instrument. I find that he turned his mind to a consideration of the plaintiff's guilt during the police operation on 20 May and concluded that the plaintiff had probably committed the offence with which he was ultimately charged. I also find that Mr Sturgess did no more than "advise" as to possible courses of action. He did not "direct" police officers. Although that expression was used by some police officers, when the matter was raised with them, they conceded that "direction" was not an appropriate characterisation of Mr Sturgess' conduct.

[125]

Sergeant Patterson and Constable Adams took statements from patients 4 and 6 and also from Dr O'Sullivan. Sergeant Patterson (who was designated the investigating officer in relation to Dr Errey) was thus a witness of some potential importance. Constable Adams (now a Sergeant) said that Patterson now lived "around Sunnybank somewhere" and that he had seen him recently. Sergeant Patterson's absence was unexplained, except on the broad basis of selectivity. I am prepared to draw the inference that his evidence would not have assisted the defendants' case. Detective Sergeant Moskwa was the senior officer at the Bureau of Criminal Intelligence whilst the surveillance of the Greenslopes Clinic prior to the raid took place. Evidence revealed that Sergeant Moskwa was no longer a member of the police force but was living in the Ipswich area and there was no reason to suspect that he could not have been called by the defendants to give evidence had they so desired. Instead, the defendants called the more junior police officers who participated in surveillance. The plaintiff's counsel made it plain that the central cause of action was that of malicious prosecution. Sergeant Moskwa's evidence went more to the obtaining of the search warrant than to the malicious prosecution issue. The defendants were entitled to regard his evidence as being less than central and, in making any decision about whether or not to call him, to have regard to the fact that there were other witnesses available through whom relevant records could be tendered and explained. His importance as a witness lies in the fact that Sergeant Cassidy swore to relying on the written records and on oral communications from surveillance officers. I infer that Sergeant Cassidy's principal point of contact with the surveillance officers was Sergeant Moskwa. Although I regard the question as a somewhat marginal one, I am prepared to draw the inference that Sergeant Moskwa's evidence would not have assisted the defendants.

Parties

Applicant/Plaintiff:

# Bayliss

Respondent/Defendant:

Cassidy & Ors \[1998\] QSC 186

Cases Cited (30)

45 Halsbury's Laws of England 4th ed. para. 1371; Little v The Institute of Vic [1990] VicRp 25; [1990] VR 257 at 262; Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1934-1935) 53 CLR 343 at 350-1 per Starke J.

Malice in this context was said Gibbs v Rea [1998] UKPC 3; [1998] 3 WLR 72 at 80 to have the special meaning common to other torts and covers not only spite and ill-will but also improper motive.

In Gibbs v Rea (supra) the view was expressed in the Judgment of the Court that the true foundation of the torts of malicious prosecution and maliciously procuring an arrest was "intentional abuse of the processes of the court". In Mohammed Amin v Jagendra Kumarbanner Jee [1947] AC 322 (PC) it was put this way -

It is also an essential element of an action for malicious legal proceedings that the plaintiff suffer damage: Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 285 and Little v Law Institute of Victoria (supra) at 265.

In Glinski v McIver [1962] AC 726 at 768 Lord Devlin said -

He then went on to quote the following passage from the judgment of Dixon J (as he then was) in Sharp v Biggs [1932] HCA 54; (1932) 48 CLR 81 -.

It seems to be implicit in Jordan CJ's condition (2), when read in conjunction with condition (3), that any relevant belief on the part of the prosecutor must be based on material in the possession of the prosecutor to which the prosecutor adverted in forming any relevant state of mind. The preponderance of authority clearly supports that conclusion. In Herniman v Smith [1938] AC 305 at 317, Lord Atkin said -

A plaintiff alleging an abuse of process must show that the predominant purpose of the defendant in using the legal process was one other than that for which it was designed: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529 and Metall & Rohstoff A.C. v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 469. The plaintiff has the onus of proof and the onus has been described as "a heavy one": Goldsmith v Sperrings Ltd [1977] 2 All ER 566 at 582 and Williams v Spautz (supra) at 529.

The plaintiff in an action of trespass to goods must prove that, at the time when the unlawful act was committed, he had actual possession, or a right to the immediate possession, of the chattel in question: Halsbury para 1494 and Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204 at 226-227. The plaintiff's full submission on this point was as follows -

The right of an arresting police officer to seize and take possession of articles in the possession or under the control of an accused person is not entirely dependent on the holding of a warrant by the police officers. There is power at common law, which exists as an incident of the power to arrest, to seize and take possession of articles as evidence tending to show the guilt of the person being arrested: Field v Sullivan [1913] VicLawRp 16; [1913] VLR 70 at 80 (FC); Levine v O'Keefe [1929] ArgusLawRp 100; [1930] VLR 70 at 72 and Reynolds v Commissioner of Police [1985] 2 WLR 93 at 98. Consequently, the power to seize property exists in the absence of a search warrant. It may also be used by a police officer armed with a warrant to seize items which do not come within the scope of the search warrant if those items are reasonably believed to be material evidence in relation to the crime for which the arrest is being effected: Reynolds at 104 and Ghani v Jones [1970] 1 QB 693 at 706. Reynolds is also authority for the proposition that the seizure by a police officer of goods which do not fall within the terms of the warrant may be justified if there are reasonable grounds for thinking, in relation to any particular document or group of documents, that they may fall within the terms of the warrant or within the common law power of seizure, and if it is reasonable that they be taken elsewhere for a further detailed examination.

In Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Mason J stated that "practical considerations" must be kept "steadily in mind", and that:

In Commercial Union Assurance Co of N.Z. Ltd v Lamont [1988] NZCA 247; (1989) 3 NZLR 187, Richardson J, after a careful review of English, Canadian, Australian and other Commonwealth authorities, expressed the opinion that, in determining whether a person other than the actual prosecutor should be liable as a prosecutor, particular weight should be given to the considerations that -

(1924) 35 CLR 275

(1932) 48 CLR 81

(1992) 174 CLR 509

(1946) 74 CLR 204

(1983) 153 CLR 52

(1955) 94 CLR 147

(1990) 170 CLR 104

(1981) 151 CLR 170

(1991) 173 CLR 132

(1981) 157 CLR 351

(1995) 128 ALR 657

(1987) 164 CLR 1

(1985) 155 CLR 448

(1959) 101 CLR 298

(1976) 1 NSWLR 191

(1997) 186 CLR 541

(1971) 125 CLR 383

(1990) 169 CLR 279