His Lordship held that the immunity did not apply on the facts of the case before the House. His Lordship then made reference to the decision of Drake J in Evans and concluded, at 452, that the decision did not extend the immunity to alleged negligent conduct not reflected in a written report or statement. His Lordship expressly rejected the statement of Simon Brown LJ in Silcott v Commissioner of police of the Metropolis (1996) 8 Admin LR 633, in which Simon Brown LJ accepted that Drake J was correct in holding that the immunity " covers all conduct that can fairly be said to be part of the investigatory … process ". It should be noted that Simon Brown LJ also considered that that conduct that properly could be described as part of the preparatory process also fell within the immunity.
77 It will be remembered that Darker involved the fabrication of evidence by police. That was a matter of significance in the approach taken by Lord Cooke of Thorndon. As his Lordship pointed out, at 453, none of the conduct alleged against the police as the basis upon which the plaintiff's claim was brought, could fairly be described as part of the process of investigating a crime. As his Lordship said, the fabrication of evidence is "almost the antithesis of investigation; it is creation". He endorsed Sir Thaddeus McCarthy P's statement in Rees v Sinclair [1974] 1 NZLR 180 at 187, that the protection afforded by the immunity "should not be given any wider application than is absolutely necessary in the interests of the administration of justice …".
78 Lord Cooke acknowledged that allegations of conspiracy to give false evidence fell within the immunity and referred to Marrinan v Vibart. See also Cabassi, which is discussed above at [44]-[45]. His Lordship recognised that there may be borderline cases where it is not easy to draw the line as to the precise extent of witness immunity. His Lordship considered, at 453-454, that in such cases, the determination of the question as to whether immunity applied:
"… may be helped to some extent by bearing in mind that witness immunity is a general doctrine applying to all persons called upon to give evidence, whereas the function of official investigation is limited to the police and various other public officials. Conduct which is primarily and naturally to be seen as belonging to the investigatory function, even though it may have some ultimate link with the giving of evidence, should not be within the general protection ." (Emphasis added)
79 Lord Clyde, at 458, also confirmed the existence of the immunity in its traditional sense but went on to observe that the immunity would be worthless if it was confined to evidence given in court. He considered, therefore, that it extended to a statement of the evidence that a witness was going to give in court, regardless of whether the person was called as a witness. His Lordship was of the view that the same consideration, namely that the immunity should not be rendered worthless, applied to justify the application of the immunity to early stages of litigation or a prosecution where evidence was being collected with a view to proceedings being brought, or a prosecution being conducted. As his Lordship said at 459:
"It is then not enough that there be an investigation; the investigation must also be with a view to an action or to a prosecution which is already under consideration. Before that stage is reached it would be very difficult to justify the grant of an immunity. Even after that stage, if proceedings are commenced, it does not necessarily follow that all that is said or done in connection with the proceedings will be immune."
80 Earlier, his Lordship had emphasised that the distinction between when the immunity applied and when it did not was whether the material in question was or was not provided with a view to court proceedings. His Lordship then considered the approach that should be taken in drawing the line between what was protected by the immunity and what was not. At 460, his Lordship indicated that it may be necessary to examine precisely what was being done and how closely it was linked with the proceedings in court. He stated that the immunity should not attach to things said or done which would not form part of the evidence to be given in the anticipated proceedings. His Lordship considered that the approach that he had formulated in determining what matters fell within or outside the immunity was underpinned by the purpose that the immunity was intended to serve, namely, the prevention of collateral attack on the witness and the circumvention of the immunity that that person might have within the court. Importantly, his Lordship added that the immunity did not protect against a charge of perjury, nor did it protect conduct that was designed to defeat the ends of justice, rather than to serve those ends.
81 Lord Hutton, at 466, referred to the statement of Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177:
"It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192: 'the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.' This formulation excludes statements which are wholly extraneous to the investigation - irrelevant and gratuitous libels - but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other."
82 His Lordship stated at 469:
"The underlying rationale for the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended … to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence . There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not." (Emphasis added)
83 Lord Hutton's judgment draws a distinction between fabricated evidence and a case where evidence was not fabricated. His Lordship also appears to distinguish Evans, as he commented at 466 that in Taylor's case the House considered the test stated by Drake J in Evans in relation to statements, and not in relation to conduct, and no question arose as to the fabrication of evidence or the planting of evidence.
84 This review demonstrates that there are differences in the reasoning of the Lordships as to the extent of the application of the immunity. It is not appropriate for me to state for what the decision authoritatively stands. However, it appears to me that the following, at least, can be discerned. First, there is no doubt that the immunity extends beyond giving evidence in court. However, for the immunity to apply, there must remain a connection with the evidence that is to be given in court (regardless whether evidence is, in fact given). That latter proposition emerges from the reasoning of Lord Hope of Craighead.
85 Insofar as the various views expressed by their Lordships might be seen to apply to this case, no clear picture emerges. It is arguable that the reasoning of Lord Hope of Craighead may not protect Mr Ballard from suit, if the analyses undertaken (other than those upon which the certificate of analysis was based) are properly characterised as the collection of evidence. However, the better view of the early analyses and in particular, Mr Ballard's analysis undertaken on 6 July 2003, the day before Mr Griffiths was charged, was part of what he was required to undertake to enable him to give evidence at the trial. It is possible that under Lord Hutton's formulation the immunity would apply, provided that all of the analytical testing undertaken by Mr Ballard related to the giving of evidence. I consider this further below.
86 It is difficult to determine whether the immunity would apply on Lord Cooke's reasoning, as it is unclear from his Lordship's reasoning whether the early testing undertaken by Mr Ballard was part of the investigative phase. It is likely, subject to what I say below, that the immunity would apply on the basis of the approach taken by Lord Clyde, if the work Mr Ballard undertook from the beginning was undertaken with a view to a prosecution that was already under consideration. The immunity would not apply on the basis of Lord Mackay's formulation of the extent of the application of the immunity.
87 However, senior counsel for Mr Griffiths placed particular emphasis on Lord Clyde's observation that in circumstances such as here, where the immunity is sought to protect from suit in respect of conduct that occurred, at least, arguably, at the investigative stage, an investigation of all the facts is required to determine on which side of the "immunity" line a case falls. It was submitted that it was not so apparent that this case fell within the immunity such that it ought to have been summarily dismissed.
88 Senior counsel for Mr Griffiths reinforced this submission by reminding the Court that initially, a Mr Murtagh was involved in the process of determining the nature of the seized substance, so that it could not be assumed that Mr Ballard had been requested to undertake the analysis for the purposes of providing evidence in court. It was hypothesised that Mr Ballard may, for example, have been requested to provide confirmatory evidence as to the nature of the substance.
89 The difficulty with this submission is that it flies in the face of such evidence as there was before the Court which indicated that Mr Ballard was at all times providing certificates of analysis, albeit preliminary, of the substance to the police, and finally provided the certificate of analysis that was ultimately demonstrated to be inaccurate. Mr Ballard undertook his first analysis after the substances had been seized. Mr Griffiths was arrested the following day. His co-accused had already been arrested. It is apparent that the arrest, both of the co-accused and Mr Griffiths, was not a chance event. Rather, it may be inferred that it was as a result of an investigative process which was sufficiently advanced to enable the police to obtain warrants to undertake a search of the premises. The search was undertaken in the presence of Mr Murtagh. The police returned shortly after the original search and made the initial arrest of the co-accused. It may be inferred that in doing so, they had a reasonable suspicion that the seized substances were prohibited drugs. Whatever basis they had for that suspicion was not because of any testing undertaken by Mr Ballard.
90 Further, Mr Ballard was not in the process of investigating the commission of a crime. He was performing his task as an analyst for the purposes of providing an analyasis of the seized substances which had led to the arrest of Mr Griffiths and more significantly, to the earlier arrests of the co-accused.
91 In my opinion, Mr Ballard was not 'investigating' the crime alleged against Mr Griffiths. He was analysing a sample of a substance that had been seized from Mr Griffiths' premises and which was to have been used in furtherance of a prosecution, if the substance was a prohibited substance. Lord Hope of Craighead's remarks cited above at [73] make particular mention of people in Mr Ballard's position and states they would be protected by the immunity.
92 The matter may be tested by considering it in this way. It seems that the certificate of analysis was not tendered in Mr Griffiths' trial. Rather, he was called to give evidence and gave evidence of all of the tests that he conducted and the manner in which he conducted those tests. The action against Mr Ballard is based upon the manner he conducted those tests. Although Mr Griffiths has advanced a number of possible arguments as to why those tests may not have been carried out with a view to, or in furtherance of, the prosecution case, the fact is, Mr Ballard gave evidence of all of them. Nor was there any suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. And, in my opinion, there is no possible basis to suggest that his earlier or later testing was carried out for any other purpose unassociated with the prosecution.
93 The matter may then be tested further by having regard to the underlying rationale for the immunity. As was stated by the High Court in D'Orta-Ekenaike the immunity is founded ultimately in consideration of the finality of judgments. If this matter were to proceed to trial, it would involve a suit based upon negligent conduct of a series of tests carried out. Those tests were relied upon by the Crown for the purpose of proving that the substance found in Mr Griffiths' possession was methcathinone. Mr Ballard gave evidence of all of the testing that he undertook. That could only have been relevant and admissible evidence if the whole of the testing was relied upon as proof that the substance was methcathinone. Accordingly, a trial based upon the negligent performance of that testing would involve the retrial, not only of the evidence given at trial but also of the preparatory steps taken to prove an essential ingredient of the charge brought against Mr Griffiths, namely, that the substance was the prohibited substance methcathinone.
94 It follows in my opinion, that even without resort to the English authorities, this case falls within the principle stated by the High Court as to the application of the immunity. When regard is had to the English authorities, then, on balance, the claim against Mr Ballard would have the protection of the immunity, on the basis of the principles discussed in those cases.
95 Before departing from this topic, I should mention that senior counsel for Mr Griffiths also relied upon a statement in the majority judgment in Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 215, where their Honours held that it was not necessary that statements made to prosecuting authorities be absolutely privileged for the purposes of the law of defamation. Their Honours pointed out that the function of a prosecuting authority was not to determine the truth and justice of a particular matter, but to ascertain whether the circumstances were such that the institution of proceedings to ascertain the truth of the matter were warranted. It was held that absolute privilege was not required for the effective discharge of that function.
96 It was submitted that this approach was similar to the approach that had been taken in Darker, namely, that just as the defence of absolute privilege was not necessary to protect statements made to prosecuting authorities, likewise, the immunity was not necessary to protect steps taken during the investigative stage of proceedings. In taking that approach to the availability of absolute privilege in the law of defamation, the High Court in Mann v O'Neill emphasised, at 213, that the privilege should not be extended to statements that were said to be analogous to statements in judicial proceedings, unless there was a demonstrated necessity of the kind that dictated that judicial proceedings be absolutely privileged.
97 Mention should also be made at this stage to Meadow v General Medical Council where the question arose as to whether witness immunity, in whole or in part, operated so as to preclude disciplinary proceedings being taken against Professor Meadow in respect of evidence he had given in criminal proceedings refuting the proposition that the children of the accused (the mother of the victims) might have died of Sudden Infant Death Syndrome. The English Court of Appeal remarked upon the reluctance of the courts to extend the immunity, noting at 477 [17] that when it did operate, the immunity is absolute. Sir Anthony Clarke MR (Auld and Thorpe LLJ agreeing) held that the immunity did not extend to the disciplinary proceedings that had been instituted against Professor Meadow: see also Scanlon v Director-General, Department of the Arts, Sport & Recreation [2007] NSWCA 204.
98 Accepting that the courts have been keen to ensure that the immunity is not unnecessarily or inappropriately extended, the application of the immunity to the claim against Mr Ballard does not offend that principle. For the reasons I have given, I consider that the claim falls within the normal application of the principle, so that Mr Ballard is not amenable to suit.
99 Having concluded that Mr Ballard is protected by witness immunity, the question then arises whether AGAL is protected by the immunity. I propose to consider that question in the first instance on the basis that AGAL, as his employer, is vicariously liable for his actions.