29The primary judge found (at [38]) that the terms of the Director's notification to the registry of the Court of Criminal Appeal as per the Particulars constituted an exercise of the Director's power under s 7(2)(b) and, in particular, that it constituted the entry of a nolle prosequi. It was common ground that a nolle prosequi could only be entered if, at the time of entry, there was an extant indictment. The respondent submitted that the indictment containing the counts referred to at [9] and [10] above and which was presented at the appellant's trial in 1991 was not spent and remained extant as a consequence whereof the direction of the Director that no further proceedings be taken against the appellant constituted the entry of a nolle prosequi.
30In this respect it is now well established and his Honour acknowledged at [38], that the power conferred by s 7(2)(b) includes a power to enter a nolle prosequi and that a direction under that provision constitutes such an entry: R v Howard [1992] 29 NSWLR 242 at 249 D-F; R v GKA (1998) 99 A Crim R 491 at 494 per Cole JA with whom Gleeson CJ and Barr J agreed; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [181] per Wood CJ at CL.
31However, the appellant submitted to the primary judge and on the appeal that at the time the Court of Criminal Appeal quashed her convictions the indictment upon which she had been originally charged was spent. Accordingly, it was submitted that a new indictment would have to be presented on any new trial as there was no evidence of the Director founding a bill pursuant to s 7(2)(a) of the DPP Act. In fact the statement in the Particulars which was relied on crossed the "No" box in answer to the question: HAS A BILL BEEN FOUND.
32The primary judge did not have the benefit of Mr Wright's recommendation of 21 September 2005 and the Director's endorsement of that recommendation on 22 September 2005. However, as the authorities to which I have referred make clear, although s 7(2)(b) includes the power to enter a nolle prosequi, its terms permit of a wider application the extent of which has yet to be determined: cf GKA at 494.
33However, the statement in the Particulars relied upon by the appellant is not an answer to the question of whether, once the appellant's convictions with respect to the charges on the indictment were quashed and a new trial of those charges ordered, the indictment was then spent in the sense that it was not resurrected, as it were, by the order of the Court of Criminal Appeal so that the appellant could not be re-tried unless a new indictment was presented. Accordingly, as the primary judge noted at [25] of his reasons, the initial question to be decided was the status of the indictment upon which the appellant had been originally tried.
34His Honour dealt with this issue at [26] to [33] of his reasons, concluding at [34] that when the Court of Criminal Appeal quashed the convictions on the relevant counts of the indictment and ordered a new trial, the indictment upon which the appellant had been tried remained extant and was not spent. Accordingly, a decision of the Director not to proceed further on the charges amounted to an entry of a nolle prosequi.
35In coming to this conclusion his Honour primarily relied upon the decision of the Supreme Court of Tasmania in R v Nicholas (1989) 45 A Crim R 299. He dealt with that decision in the following paragraphs of his reasons:
[27] In R v Nicholas (1989) 45 A Crim R 299 the indictment upon which the accused was charged contained three counts. At the conclusion of the Crown case the trial judge upheld a submission that the Accused had no case to answer on count 2 and the Accused was acquitted on that count by direction. He successfully appealed against his conviction on the other 2 counts in the indictment. The Court of Criminal Appeal ordered that the convictions on counts 1 and 3 on the indictment be set aside and a new trial held on those counts. Prior to the commencement of the second trial the relevant Crown law officer entered a nolle prosequi on counts 1 and 3 on the indictment, and in due course a further indictment was filed containing eight counts, two of which were similar to counts 1 and 3 in the original indictment.
[28] At the commencement of the second trial the Accused moved to quash the indictment (relevantly for present purposes) on the basis that it was formally defective. That submission was made on the basis that the two counts which were similar to counts 1 and 3 in the original indictment had been the subject of the nolle prosequi by the Crown, and it was argued that he could no longer be tried on those counts. The trial judge dismissed the application, and the Accused appealed.
[29] The principal judgment in the Court of Criminal Appeal was given by Cox J with whom Nettlefold and Wright JJ agreed. Cox J set out the provisions of s 404 of the Criminal Code 1924 (Tasmania) which, in similar but not identical terms to s 8 Criminal Appeal Act 1912 (NSW) (R v Murrell (2001) 123 A Crim R 54 at [23]), gives power to order a new trial where there has been a miscarriage of justice. He then went on to say this (at 303):
Prima facie therefore where an appeal against conviction succeeds the court is required not only to quash the conviction but to direct a judgment and verdict of acquittal to be entered, thereby terminating all proceedings against the appellant on the indictment and arming him with a clear plea of autrefois acquit to any further proceedings in respect of the same subject-matter. Of course to the extent that any further indictment may allege new issues, not the subject of the first indictment and in respect of which issues the appellant has not hitherto been in jeopardy, that is a perfectly acceptable course (see, for example, Gerakiteys (1984) 153 CLR 317 ; 12 A Crim R 54) and not one in respect of which the above plea could be maintained. However, if the court sees fit to exercise certain other powers it has, including that of ordering a venire de novo or a new trial, its order will quash the original conviction and will refrain from directing a judgment and verdict of acquittal which would obviously be inconsistent with such an order. Consequential orders under s 404(2) will provide a mechanism for further proceedings upon the only process then before the court, that is the subsisting indictment. Because that is the only document identifying the issues before the court, it is by reference to that document that the court would indicate the issues in respect of which the judgment and verdict of the court should stand, be set aside or remitted to another panel of jurors for retrial. In the present case the verdict of not guilty on count 2 (forgery) was not challenged and had to stand. The court could have dismissed the appeal in respect of one of the remaining counts or upheld it in respect of both, quashing them and directing a verdict of acquittal on one and ordering a retrial on the other or, as was the case here, directing that both remaining counts should be retried. The order conveniently indicated, by reference to the existing indictment, the issues which rather than being concluded by virtue of verdict and judgment and giving rise accordingly to a plea of autrefois acquit should be re-submitted to a court of trial. It in no way in my view prevented the Crown from exercising its non-examinable prerogative power (Radford [1951] Tas SR 1; Barton (1980) 147 CLR 75) to enter a nolle prosequi on that indictment and to present the accused on a further indictment drafting the issues in a different form and including, where appropriate, any new issues. (emphasis added)
[30] His Honour then went on to consider the common law position prior to a statutory appeal being available to challenge a conviction by moving using a writ of error. He cited Blackstone where this appears:
When judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused. ... But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby.
(Blackstone's Commentaries (1st ed, 1769), Vol IV, p 386), also Chitty and Russell.
[31] His Honour then said (at 305):
This brief survey of the powers and practice of courts of criminal appeal indicates to me that though ordinarily the court will either affirm or substitute the verdict on the record, thereby concluding all issues raised on the indictment upon which the accused took his trial, where the court orders a further trial by virtue of a power to order either a new trial or a venire de novo the verdict on the record of the court of trial will be set aside and the issues raised by the indictment will remain justiciable. It is a mere matter of mechanics whether the new trial proceeds on the same indictment or upon some fresh indictment substituted by an authorised officer of the Crown. In this regard the situation is essentially the same as that contemplated by the Jury Act 1899 (Tas), s 49, where the first trial results in a disagreement or is otherwise aborted. It remains a proper matter for the discretion of a Crown law officer whether to proceed to a further trial at all, notwithstanding the apparently mandatory order for a new trial, and equally a matter of discretion whether or not to proceed with the count charged or some other one upon which the appellant could have been convicted on the first indictment. One can easily imagine cases where, despite an order for a new trial on an indictment alleging murder, the Crown may think it proper to proceed only with an allegation of manslaughter. (emphasis added)"
36At [26] his Honour referred to Janceski at [181] and [221] observing that it was there held that where a jury could not agree and the trial judge ordered a new trial, the indictment was not spent. Although the primary judge did not deal with Janceski in any detail it is convenient for me to do so at this point.
37The relevant factual steps in Janceski were summarised by Spigelman CJ at [17] as follows:
"(i) The appellant was committed for trial by way of a paper committal on 20 November 2002 on the charge contained in subsequent indictments;
(ii) On or about 16 December 2002, a Crown Prosecutor found a bill for the charge;
(iii) On 16 December, an indictment was signed by a Crown Prosecutor;
(iv) The matter came on for trial in the District Court on 25 August 2003. The appellant was arraigned before his Honour Judge Nicholson SC on a joint indictment charging him and the three other accused with the charge;
(v) Mr Fox, Crown Prosecutor, who appeared for the Crown, presented a further indictment, in the same terms as (iii), signed by himself and dated 25 August 2003 (the Fox indictment);
(vi) The jury was unable to reach a verdict in the trial before his Honour Nicholson DCJ and a new trial was ordered on the same charge;
(vii) On 23 February 2004, the second trial commenced before her Honour Judge Tupman. Ms Traill, a barrister at the private bar, was briefed to prosecute for the Crown. She presented an "indictment" signed by herself (the Traill indictment), in the same terms as the Fox indictment."
38For present purposes, the relevant question was whether the Fox indictment was still extant notwithstanding that the jury was unable to reach a verdict at the trial of the charges in that indictment so that if the Traill indictment was invalid, the second trial could have proceeded on the basis of the Fox indictment. At [84] of his reasons the Chief Justice indirectly answered that question in the affirmative. At [181] Wood CJ at CL answered it directly when he said:
"[181] The simple fact is that it was the Traill indictment to which the appellant pleaded, and upon which the trial proceeded. There was no attempt to revive or to rely on the original Fox indictment, which the parties clearly regarded as having been superseded. The position would have been otherwise had the Fox indictment been re-presented and had the trial proceeded upon it, as could have happened since it had not been spent by verdict, by plea of guilty, or by entry of a nolle prosequi (now by a direction under s 7(2)(b) of the Director of Public Prosecutions Act 1986: R v Howard (1992) 29 NSWLR 242 at 247)."
39Howie J, with whom Hunt AJA and Johnson J agreed, was of a similar view. His Honour said:
"[221] I am of the view that in the present case the Fox indictment could have sustained the trial of the appellant before Tupman DCJ, if the Traill indictment had not been presented. There is no doubt that the proceedings before Tupman DCJ were a continuation of the proceedings commenced by the presentation of the Fox indictment: R v Taylor [2003] NSWCCA 194. That indictment had not been spent because the trial upon it concluded without verdict. Proceedings for an offence charged on an indictment can only be brought to a conclusion in one of three ways: by verdict after trial, by plea of guilty or by entry of a nolle prosequi: R v Howard (1992) 29 NSWLR 242 at 247. As none of these events occurred, the proceedings commenced by that indictment were still on foot when the appellant came before Tupman DCJ. Had the presentation of the Traill indictment caused some unfairness to the accused, the court could have stayed it and thereby required the Crown to proceed on the earlier indictment: R v Harris (No 2) [1990] VR 305."
40Having concluded that the Director had entered a nolle prosequi and that it had been notified to the Court of Criminal Appeal registry by the Particulars, the primary judge then considered the effect of that action on the requirement in an action for malicious prosecution that the relevant criminal proceedings be terminated in favour of the plaintiff. The issue which therefore arose was whether, in the case of the entry of a nolle prosequi, the proceeding can only be said to have terminated in favour of the plaintiff if the latter establishes his or her innocence. The resolution of this issue depended initially on the decision of the High Court in Davis discussed by the primary judge at [43] to [47] of his reasons. What follows is taken from those paragraphs with some additional citations and comments of my own where appropriate.
41The Court in Davis was constituted by Isaacs ACJ, Gavan Duffy J and Starke J. Isaacs ACJ first discussed the elements of the tort of malicious prosecution. In respect of the element that the criminal proceedings must have terminated favourably to the plaintiff, his Honour said (at 286):
"In Steward v Gromett, which is a landmark in the development of the action, the principle was clearly established - obviously on the broadest ground of inherent justice - that, where a judicial determination of innocence was impossible by reason of the form of proceeding, the plaintiff was not bound to produce such a termination. It follows necessarily from the principles adverted to that a nolle prosequi entered by the prosecuting authority on its own responsibility and discretion creates a position in which an accused person, afterwards plaintiff in an action for malicious prosecution, may properly say the proceeding was not capable of a complete termination in his favour by way of acquittal. But though so far absolved, it does not follow that the termination by way of nolle prosequi in any way establishes innocence. "The effect of a nolle prosequi when obtained" (Chitty's Criminal Law, vol. i., p 480) "is to put the defendant 'without day', but it does not at all operate as an acquittal." (And see R v Mitchell) Its evidentiary effect depends on other considerations, to which I shall later advert."
42His Honour returned to the issue at 292 where he said:
"Acquittal connotes (a) termination of the proceedings and (b) innocence of the accused. Nolle prosequi connotes the first only. This effect it must have on the civil action. But innocence in that case still remains to be proved in order to maintain the action and cannot be assumed. This is strongly exemplified in Bank of New South Wales v Piper."
43It would appear that the proposition that where a nolle prosequi is entered the plaintiff in an action for malicious prosecution must prove his or her innocence has its genesis in a passage in the judgment of Bowen LJ in Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455 where his Lordship said:
"In an action for malicious prosecution the plaintiff has to prove, first, that he is innocent and that his innocence was pronounced by the tribunal before which the accusation was made."
44At 293 of Davis Isaacs ACJ, in effect, rejected the contention that that passage meant that the plaintiff in every such action must prove as separate independent facts (a) his innocence to the satisfaction of the civil tribunal, and in addition thereto, (b) that he was pronounced innocent by the criminal tribunal. Such law was inconsistent with the proposition that where the plaintiff has been acquitted that acquittal denotes innocence so that no further issue of innocence arises. To that extent Bowen LJ's statement should, in effect, be confined to the situation where the proceedings have terminated by the entry of a nolle prosequi.
45Gavan Duffy J agreed with the other members of the court observing (at 294) that:
"... in an action for malicious prosecution the plaintiff must prove his innocence, and that proof that a nolle prosequi was entered on his trial does not entitle the jury to assume that the plaintiff was innocent."
His Honour did not find it necessary to discuss what the position would have been if the plaintiff instead of proving the entry of a nolle prosequi had been able to prove that he had been acquitted.
46On the other hand Starke J (at 296) stated that an
"acquittal no doubt establishes the fact that the proceedings have terminated in favour of the plaintiff, but it also establishes, in my opinion, his 'innocence' for the purposes of an action for malicious prosecution."
47At 297 Starke J stated that proof of innocence by an acquittal applied only where the acquittal was such as to entitle the plaintiff to plead autrefois acquit in case he be afterwards prosecuted for the same crime. However, citing "Selwyn's Nisi Prius" 13 ed Vol II p 1005, it was not necessary in an action for malicious prosecution that the plaintiff in every case should allege or prove such an acquittal for it may be brought under circumstances which precluded the possibility of such an acquittal. His Honour continued:
"He [the plaintiff] may show, for instance, that the proceedings terminated in his favour by a nolle prosequi, or by the ignoramus of a grand jury, or by the refusal of a Justice to commit for trial, or by some want of jurisdiction in the court, or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case."
As the primary judge noted at [47] of his reasons "Ignoramus" of a grand jury is the present equivalent of the refusal of the Attorney-General or the Director to find a bill of indictment.
48The primary judge then dealt with the consideration of Davis by the High Court in Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527. In that case the plaintiff in an action for malicious prosecution had been committed for trial on a charge of conspiracy with three other persons to cheat and defraud shareholders and policy holders of the Commonwealth Life Assurance (Amalgamated) Association. He was committed for trial by the Magistrate but the Attorney-General decided that no indictment should be filed.
49The relevant passages in the joint judgment of Rich, Dixon, Evatt and McTiernan JJ are set out at [48] to [51] of the primary judge's reasons. Again what follows is taken from those paragraphs with additional citations where considered appropriate. Thus the joint judgment set out (at 532) the issue for determination by the High Court in the following terms:
"At the trial of the action under consideration in this appeal the plaintiff insisted that he was entitled to lead evidence to establish affirmatively that he was innocent of the conspiracy with which he had been charged and for that purpose to prove many matters, such as what he had been informed or believed and what circumstances or alleged circumstances actuated his conduct, all of which would have been inadmissible if the issue of his guilt or innocence were out of the case. The defendant objected, and maintained that the question of the actual guilt or innocence of the plaintiff formed no part of the issues before the jury. The trial judge, on the authority of the judgments given in this court in Davis v Gell, admitted the evidence. There can, we think, be no doubt that, if this course was erroneous, then, having regard to the nature of the evidence so admitted, the defendant is entitled to a new trial. The contention that no substantial wrong or miscarriage would be occasioned by the error appears to us to be quite untenable.
The first question for consideration, therefore, is whether the plaintiff's guilt or innocence of the charge was in issue. The affirmative of this question is supported on the part of the plaintiff on the ground that his innocence is an element essential to his cause of action and also a matter going to damages. These are, of course, separate reasons for throwing open before the jury in the civil proceeding the question with which the criminal proceeding was concerned. We shall deal first with the question whether the plaintiff's guilt or innocence is an issue going to the cause of action."
50After referring (at 533) to the statement of Bowen LJ in Abrath to which I have referred at [43] above, their Honours then turned to what had been said in Davis observing (at 533-534) that:
"[a]fter an elaborate examination of the decided cases by Isaacs J. and by Starke J., those learned judges arrived at conclusions which appear to us to be substantially the same and in which, as we understand his judgment, Gavan Duffy J. concurred. Their Honours considered that in every action of malicious prosecution the plaintiff must show that the charge was "unfounded," and that meant that he must show his innocence. But if he had been tried and acquitted, this would establish his innocence for the purpose of an action for malicious prosecution. It would also show that the criminal proceedings had terminated and thus satisfy another requirement indispensable to the maintenance of the civil action. That requirement might be satisfied by other forms of termination short of acquittal, but they would not establish innocence, at all events conclusively, Starke J. stated the position as follows: 'He may show, for instance, that the proceedings terminated in his favour by a nolle prosequi , or by the ignoramus of a grand jury, or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the court, or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case. It is unnecessary, and indeed undesirable, in this case, to discuss what (if any) presumptions in favour of innocence, or other evidence would satisfy the burden'."
51Their Honours then continued (at 534-535):
"In expressing the view that the dismissal by a magistrate of an information for an indictable offence or the ignoring of a bill of indictment by a grand jury was insufficient to exclude or conclude the question of the plaintiff's guilt or innocence of the charge, the court went beyond the particular case which, as we have already said, was one where after the plaintiff had been put on his trial a nolle prosequi was entered on behalf of the Crown. Now the question whether a nolle prosequi is a sufficient termination of the criminal proceedings to enable the accused to maintain an action of malicious prosecution, assuming that he can establish the other elements in the cause of action, is one which has never been settled by English authority. A nolle prosequi does no more than bring the trial to an end. The accused may again be indicted or fresh process may be awarded in the same indictment and the prisoner again put on his trial.
...
The development by an action on the case in the nature of conspiracy of the remedy for malicious prosecution was perhaps somewhat late and relatively slow. The elements of the cause of action did not become definite and certain before the nineteenth century and it is evident that there has survived to the present time a difficulty in the application of principles, otherwise settled, to the special case of proceedings brought to an end by nolle prosequi . The view adopted in Davis v Gell covered that difficulty and solved it by leaving the question of innocence or guilt open for inquiry in the civil proceedings. But the opinion expressed by the members of the court that proceedings which ended in favour of the accused by a refusal of the magistrates to commit fell under the same rule was unnecessary to the decision, and, in view of the unreported case in the Privy Council, Balbhaddar Singh v Badri Sah (No 66 of 1924), it cannot now be followed."
52At 541-543 their Honours further observed:
"As Isaacs J. explains in Davis v Gell, Bowen LJ [in Abrath] did not mean that innocence must be proved and acquittal also. He meant that a decision in favour of the accused must be proved, which decision thus established innocence. When he said that the plaintiff must prove first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made, he used words which cover discharge by a magistrate, the ignoring of a bill of indictment and a judgment of acquittal after a verdict of not guilty. He appears to us to have meant no more than is meant by the statement of Byles J. in Basebe v Matthews which we have quoted.
...
Unless the termination of the criminal proceedings has been by nolle prosequi , a case which is covered by the decision of Davis v Gell, the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff. The plaintiff must prove that the prosecution terminated in his favour. He must prove that there was no reasonable and probable cause for the prosecution. But he need not prove that in truth he was innocent of the charge, and it is not open to the defendant to attempt to prove as an answer to the action that in truth he was guilty, notwithstanding the termination of the criminal proceedings in his favour.
...
Except in the case of a nolle prosequi covered by the decision in Davis v Gell, we are of opinion that the guilt or innocence of the plaintiff is not an issue going to the cause of action in malicious prosecution.
The present case is not one where the proceedings were terminated by the entry of a nolle prosequi. They ended by the refusal of the Attorney-General to file an indictment. Under the law of New South Wales there is no grand jury, and the Attorney-General discharges a duty analogous to or replacing that which, under the common law, was performed by a grand jury. See sec 5 of 9 Geo. IV. c. 83; Crimes Act 1900, sec 572, and Justices Act 1902-1931 NSW, secs 39, 41 (6) and 42, and R v McKay, to which Rich J. has referred us. When an accused person is committed for trial, it is for the Attorney-General to consider whether the accused should be put on his trial and for what precise offence, and this he does by filing or refusing to file an indictment. This is an entirely different function from that of entering a nolle prosequi upon an indictment after it has been filed, which does no more than non. pros. the indictment. The decision in Davis v Gell was upon the effect of a termination by the latter process and both on principle and upon the authority of the decision of the Privy Council in Balbhaddar Singh v Badri Sah it cannot be extended further." [emphasis added]
53At [53] of his reasons, the primary judge noted the submission on behalf of the appellant that the jurisprudence contained in Davis had now been superseded, that it did not represent the present state of the law, and that his Honour should not follow it. In support of that submission the appellant relied on the recent decision of the High Court in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500. At [55] the primary judge concluded that he did not think that anything said in A cast any light on the present issue. Relevantly, neither Davis nor Smith was referred to in A and the issue in that case did not concern the question of whether criminal proceedings had been terminated in the plaintiff's favour. This is so notwithstanding the reference in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ at [57] that because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider was where the plaintiff had been acquitted for the offence charged. Such an acquittal was not to be controverted. Like the primary judge I cannot discern any basis upon which it could be said that anything said in A reflected on the correctness or otherwise of Davis.
54The appellant nevertheless submitted that the decision of the Full Court of the Supreme Court in Mann v Jacombe [1961] NSWR 273; (1961) 78 WN(NSW) 635 was inconsistent with Davis and should be followed in preference to that decision. The primary judge correctly rejected that submission. The case involved a pleading issue under the old forms of pleading in New South Wales. The plaintiff, Mann, sued the defendant, Jacombe, for malicious prosecution arising out of criminal proceedings issued by Jacombe against him. There were four counts in the plaintiff's declaration to which Jacombe demurred upon the ground that the declaration did not allege termination of the proceedings referred to in each count in the plaintiff's favour. The basis of this submission was that the entry of a nolle prosequi was not a termination of proceedings in favour of the plaintiff Mann in the criminal case.
55In their joint judgment Evatt CJ, Herron and Sugerman JJ said, with appropriate succinctness:
"All that need be said on the point is to refer to the decision in 1891 of the Full Court of New South Wales in Gilchrist v Gardner (1891) 12 LR (NSW) 184, from which it appears that the balance of the decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution. See also Commonwealth Life Assurance Society Ltd v Smith (1938) 59 GLR 527; and cf. Davis v Gell (1924) 35 CLR 275. In the result, the objection to the declaration by the defendant fails in respect of each count."
There was therefore judgment for the plaintiff on the demurrer.
56The primary judge dealt with the effect of the decision in Mann at [61] of his reasons in the following terms:
"[61] It does not seem to me that Mann v Jacombe is inconsistent with Davis. Mann v Jacombe says nothing about the need of a plaintiff to prove his or her innocence. It dealt simply with the question of whether the entry of a nolle prosequi was a termination of proceedings in favour of the plaintiff. Indeed, in the passage from the judgment of Starke J (which I have set out at para 47 above) he expressly says that the Plaintiff may show that the proceedings terminated in his favour by a nolle prosequi but then goes on to say that proof of that did not establish the innocence of the Plaintiff. That view was reaffirmed in Smith in the passage that I have set out in para 51 above. In any event, the question I am determining has as its introduction the words 'accepting that the proceedings terminated in favour of the Plaintiff'."
57His Honour then referred to two other decisions relating to the effect of the filing of a nolle prosequi with respect to an action for malicious prosecution. The first was the decision of Nettle J in Skrijel v Mengler [2003] VSC 270. At [63] the primary judge set out [224] to [230] of Nettle J's judgment. The latter accepted that in Davis a majority of the High Court had held that a nolle prosequi was not enough to establish that the proceeding had terminated favourably to the plaintiff. Nettle J also referred to Smith noting that first, that was a case where the Attorney-General had refused to file an indictment and was not a nolle prosequi case and, secondly, that the High Court expressly stated that Davis still covered a case where the termination of the criminal proceedings had been by nolle prosequi. That being so his Honour considered that until the High Court says otherwise, the law in relation to nolle prosequi remained as in Davis.
58However I note that the primary judge (at [65]) agreed with Nettle J's comment that Mann v Jacombe was not consistent with Davis. However at [229] of his reasons in Skrijel Nettle J, after quoting the passage from the judgment of Starke J in Davis which I have reproduced at [46] above, observed that he saw no necessary inconsistency as between Starke J's observations and what had been held in Mann v Jacombe. I agree with Nettle J's observation that there is no inconsistency between the two decisions as in Mann v Jacombe no issue arose as to whether it was necessary for the plaintiff (Mann) to plead that he was innocent of the criminal charges in question. With respect his Honour seems to have misinterpreted Nettle J's comment.
59The primary judge then quoted extensively from the judgment of Heenan J in Noye v Robbins and Crimmins [2007] WASC 98 and, in particular, [238] to [246] of his Honour's reasons. It is unnecessary to repeat what Heenan J said for it does not differ in substance from what Nettle J had said in Skrijel. However, at [241] his Honour did suggest that there was an element of inconsistency between Davis and Smith observing that that inconsistency became apparent
"when one considers the previously long accepted view that the importance of the termination in the plaintiff's favour is not that he or she is innocent but that he or she has not been convicted."
Heenan J identified further problems with the decision in Davis v Gell at [242] and [243]. However, at [246] his Honour recognised the binding authority of the High Court in Davis which required him to decide that proof of the filing of a nolle prosequi was insufficient, by itself, to establish the termination of the criminal proceedings in the plaintiff's favour.
60Finally, at [68] of his reasons, the primary judge referred to an article by G P Donovan entitled "The Effect of a nolle prosequi in Relation to the Action for Malicious Prosecution": (1939) 12 ALJ 457. The learned author analysed in some detail both Davis and Smith as well as the decision of the Full Court of the Supreme Court of New South Wales in Gilchrist v Gardener (1891) 8 WN(NSW) 21, a decision not referred to by the primary judge, but relied upon on the appeal by the appellant and to which I shall refer to below. The learned author concluded that a nolle prosequi was a sufficient termination of proceedings within the meaning of that requirement first, because it puts an end to the particular prosecution and, secondly, because in any event it is a mode of termination, beyond the power of the plaintiff, of which the proceedings are capable. It would be fair to say that the learned author set out a number of reasons why he considered the decision in Davis to be incorrect. Nevertheless, he recognised that the decision had been preserved in Smith and remained the law until the High Court says otherwise.
61Accordingly at [68] and [69] of his reasons the primary judge concluded in the following terms:
"[68] ... I consider myself bound to apply the law as enunciated in Davis v Gell as approved and modified in Smith. That law is that although the entry of a nolle prosequi will not mean that the proceedings have not terminated favourably to the Plaintiff, it leaves the issue of innocence of the Plaintiff undecided in a way that other forms of termination of the criminal proceedings, including the refusal or determination of the Attorney-General or DPP not to find a bill of indictment, do not.
[69] The result is, in my opinion, that a nolle prosequi has been entered in relation to the criminal proceedings against the Plaintiff, but that means that the Plaintiff must prove her innocence of the charges in the present proceedings in relation to counts 1, 2, 5, 6 and 7."