Cannon & Rochford v Tahche & Ors [2002] VSCA 84

Cannon & Rochford v Tahche & Ors [2002] VSCA 84 - VSCA 2002 case summary — Zoe

[26]

After hearing the parties on the issue, we gave leave to the applicants to appeal against his Honour's orders and said that we would state our reasons later, should that prove to be necessary. It is convenient that we do so now, bearing in mind that it is the practice in Victoria that applications for leave to appeal are disposed of without giving detailed reasons - X v. Director of Public Prosecutions[10]. First, we considered that the principal legal issue raised by the proposed appeal is clearly one of general public importance. No case has been cited to us, and we have not been able to find one, where counsel who has been briefed to prosecute for the Crown has been successfully sued by the accused for damages for misfeasance in a public office. The same can be said in relation to a solicitor who instructs such a prosecutor. The circumstances in which the second applicant conducted the prosecution of the plaintiff and the circumstances in which the first applicant instructed him, occur almost daily in our courts. Consequently, a determination as to whether the plaintiff can claim damages from the two applicants for misfeasance in a public office would have considerable ramification for the potential liability of counsel who are briefed to prosecute in criminal trials and for their instructing solicitors. This, in turn, would have a significant bearing on the preparedness of members of the independent Bar to accept unconditionally briefs to prosecute for the Crown and on their ability to obtain appropriate professional indemnity insurance. There would be flow-on implications for the cost of such insurance as well. Next, after consideration, we found that his Honour's decision that the applicants were holders of a public office for the purpose of the tort in question and that they could be held liable to the plaintiff for that tort, was attended with sufficient doubt. We were also of the view that, in the circumstances, substantial injustice would arise if, in the event of error, his Honour's decision was not set aside.

[30]

We turn to consider first whether his Honour erred in deciding that, at the relevant times, the applicants were holders of a public office for the purposes of the tort. The plaintiff's case below was that the applicants were public officers during the period of his trial and that the first applicant continued to have that status after the trial, including the period during which she received the post-trial information. The applicants[12], however, argued that an essential indicium of a public office was the attachment to it of statutory or common law powers which are to be exercised by its holder for the public benefit. They claimed that they did not hold or exercise any such powers and, therefore, they were not holders of a public office. The learned judge rejected this argument. His Honour considered that the question whether an office is a public office is to be determined not by an analysis of what powers, if any, are attached to the office, but by seeing whether the person occupying it owes duties to the public in the discharge of that office. His Honour noted that cases such as Henly v. Mayor of Lyme[13] and Tampion v. Anderson[14] decided that the office was a public office on the ground that each occupier owed duties to the public and not by reference to any power that may be attached to it. His Honour considered that, on the basis of the authorities to which he referred, the applicants owed a duty to the public, and to the plaintiff as a member of it, to conduct the prosecution fairly. That duty, he considered, involved disclosing the information to the plaintiff in the course of the trial (and in the case of the first applicant, also involved disclosing the post-trial information to him). On that basis, the learned judge concluded that the "duty" requirement of the tort was satisfied and that, since the applicants were paid from public funds and were, at the relevant times, performing an important public service, they were holders of a public office for relevant purposes. His Honour also considered that the ability of the applicants to withhold the relevant material from the plaintiff effectively amounted to a power which was attached to the positions they held so that, on that basis, it could also be concluded that they were public officers.

[94]

The historical development of the prosecutor's "duty of disclosure", its discretionary nature and the variability of the circumstances which will inform its content all confirm that it is a duty which is owed to the courts and not to the accused or the public generally. Further, it seems to us that the obligation is one which lacks the characteristics of a duty, breach of which is enforceable at law at the instance of the accused, whether by way of "malicious prosecution" or "misfeasance in a public office". The prosecutor does not have a duty, as his Honour seems to have assumed, to ensure that the accused has a fair trial. The prosecutor's obligation is to assume standards of fairness which will assist the court in the fulfilment of its task of ensuring that the accused has a fair trial. As Newton, J. and Norris, A.J. pointed out in R. v. Lucas[94], prosecuting counsel are "ministers of justice" whose duty it is "to assist the court in the attainment of the purpose of criminal prosecutions, namely to make certain that justice is done between the subject and the State". The obligation is, we think, ethical in nature[95] and, quite apart from any question of prosecutorial immunity, is incompatible with the existence of the type of public power or duty breach of which will or might support an action for the tort of misfeasance. As Deane, J. said in Whitehorn v. R.[96], those requirements of "the standards [of fairness] are not ... directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of the trial judge ... to ensure that an accused receives a fair trial and the powers of the appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial."

[97]

In considering this question, it is convenient to deal first with the position of the second applicant who, as we have said, was at the relevant time a member of the independent Bar and was briefed by the Solicitor for Public Prosecutions to appear for the Crown to prosecute at the plaintiff's trial[98]. In our view, it is plain, having regard to what we have said, that the position of prosecutor did not have, as an incidence of it, any relevant power. As Mrs. Crennan, who appeared for the Director, pointed out in her helpful and informative submissions by reference, inter alia, to the history of the Office of the Crown Prosecutor[99], even the Director and a statutorily appointed Crown Prosecutor, each of whom is, probably, a holder of a public office, are not invested with any relevant powers in respect of the conduct of a prosecution. Whatever powers may be said to attach to the office of the Director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial.[100] That function incorporates the ethical "duties of fairness" to which we have previously referred. This position applies, a fortiori, to the second applicant who, as a member of the Bar was bound, subject to exceptions which are not presently relevant, to accept any brief that was proffered to him. When briefed to prosecute at the plaintiff's trial he did not thereby assume any office and did not acquire any relevant power as prosecutor. Throughout the trial he did no more than fulfil his brief by appearing as prosecutor. Nowhere in R. v. Apostilides[101], where the High Court laid down[102] a number of general propositions applicable to the conduct of a criminal trial, including the obligations of the prosecutor, was it suggested that, in conducting the prosecution or in making relevant decisions as to its conduct, the prosecutor is exercising any relevant power, whether judicial, executive or administrative.

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