_Cosentino v Kent & Anor_

District Court of Queensland|2009-03-24

**[1] The plaintiff is a former casual employee of the second defendant (Club). The first defendant was at all material times its Chief Executive Officer (CEO). The plaintiff seeks damages from the defendants for malicious prosecution relating to an incident on 3 April 2006 leading to her being charged with stealing as a servant. She lost her job at the Club subsequently. Although the Queensland Police Service was the actual prosecutor, the plaintiff says that, in law, the first and second defendants were the prosecutors, the first defendant at all times acting with the authority of the second defendant.

[2] The plaintiff alleges[1] that the first defendant, on behalf of the second defendant, maliciously and without reasonable cause instigated a police investigation of the plaintiff which resulted in her being charged. The particulars of the malice and absence of reasonable cause provided by the plaintiff were:-**

(a) prior to instigating the complaint the first defendant had acknowledged the plaintiff's innocence during a discussion with the plaintiff's father on 6 April 2006;

(b) the first defendant reported to the president of the Club about the missing money and it was agreed, by concurrence on the basis of that report, that the plaintiff's alleged conduct should be referred to the police;

(c) the first defendant made a false and misleading claim of fact during a recorded interview with the plaintiff by stating that in respect of $300 being taken from the cash tin, that the plaintiff's conduct in taking the money was recorded on the Club's security tape, which false and misleading claim of fact was included in his report to the president of the club;

(d) in the interview the plaintiff maintained her innocence without there being any evidence to contradict her;

(e) the first defendant did not conduct interviews with other staff members who had the opportunity to access the cash tin during the period when the money went missing;

(f) after interviewing the plaintiff the first defendant then reported the matter to the police on 26 April 2006;

(g) in a statement provided to the police on 10 July 2006 the first defendant made the following false and misleading statements of fact:-

(i) that on viewing the security tape he saw no persons other than the plaintiff go near the cupboards where the cash tins were kept except at the time the Club closed on the date in question;

(ii) the plaintiff had no reason to go into the cupboard where the cash tins were kept;

(iii) the plaintiff maintained throughout the interview that she never went near the cupboard where the cash tins were kept on the date in question;

**[3] The plaintiff worked as a casual behind the bar of the Club and had done so on average for one shift of six hours per week since she started on 9 April 2004. She was at the same time an apprentice hairdresser. Her father Mr Joseph Cosentino also worked as a casual at the Club and had done for approximately four years prior to 3 April 2006, the night of the incident in question. On that night the plaintiff was working at the bar and there was a function in the adjoining dining room.

[4] The first defendant gave evidence that in a cupboard in the bar area where the plaintiff worked there were kept what he called bulk cash tins, one of which was a poker machine bulk tin with $500 in cash in it together with a plastic bottle containing $500 of one dollar coins. Those funds were available to make small payouts on the gaming machines.

[5] Around the time in question, each morning it was the first defendant's responsibility to prepare the bulk tins in readiness to be sent up to the bar. At the end of each day the supervisor or duty manager in charge of closing the Club reconciled the amount in the change tin.

[6] On the night in question that reconciliation showed a short fall of $300 in the poker machine change tin in that the amount which should have been in the tin was $1,000 but the actual amount was $700.[2]

[7] Since December 2005 there had been CCTV security cameras in the Club which photographed, relevantly, the bar area where the plaintiff worked. Those cameras are motion sensitive so that whilst they remain on, they do not record anything until there is motion within the ambit of the lens which activated the camera recording component.

[8] The following day, 4 April 2006, having been informed of the discrepancy, the first defendant examined some three hours of the footage of the security camera and became suspicious of the plaintiff's behaviour particularly one passage where she went to the cupboard, bent down and took out a first aid tin, placed it on the top of the bar, appeared to take something from it and then kneeled down and placed it back in the cupboard. The suspicious aspect to the first defendant was that the plaintiff spent quite a lot of time in seconds down in the cupboard area.[3] The plaintiff accepted this was 10 to 15 seconds[4] Subsequent to that he asked the Club manager Rory Lundin to speak to all staff involved on the day in question and specifically those working in the bar area.[5] He himself spoke to staff members Hayley Mauger and Susannah Plant. He could not recall whether he spoke to another staff member Chanel van Praag[6] and did not interview Sergio Rotta. It seems more probable than not that he did not interview Ms van Prag given that was his evidence at the plaintiff's committal hearing in November 2006.[7]

[9] He also asked his assistant Ms Karen Taylor to view the security footage, which she did, prior to the first defendant and Ms Taylor interviewing the plaintiff on Thursday, 6 April.[8] Ms Taylor gave evidence that what she saw as unusual behaviour by the plaintiff on the footage gave rise to concerns in her mind. She described the plaintiff's behaviour on that footage as furtive and, when asked to elaborate, she referred to the plaintiff entering the area in the region of the cabinet (cupboard) on a couple of occasions, looking around, walking away, coming back, then opening and accessing the cabinet and being below the level of the camera and the level of the bar for a period of time which did not seem to her to be quite right.

[10] The plaintiff gave evidence that she did not know anything about cash tins being kept at the bar but she did know that a first aid kit was kept in the subject cupboard. She said that on the night in question she had cut her finger on a glass while stacking the dishwasher and had gone to the cupboard on two occasions that evening to access the first aid kit to get a band aid to put on her finger. The first occasion was about 6 pm shortly after she cut her finger and the second occasion was approximately 9 pm when she needed to replace the band aid. She had kept working after cutting her finger. She said from memory the first aid kit was located on the bottom shelf of the cupboard and that when she went to the cupboard she noticed there were other tins in the cupboard but was unsure what was in them. She said she did not open the tins and did not take any money or anything from them. She explained that the period of 10 to 15 seconds when she was seen to have remained squatted down in front of the cupboard as the time spent getting a band aid.[9]

[11] After viewing part of the footage on 4 April either the first defendant or Mr Lundin contacted the plaintiff and arranged a meeting with the first defendant which took place in his office two days later on Thursday, 6 April. She was interviewed by the first defendant in the presence of Ms Taylor. Prior to the interview the first defendant had prepared a series of questions which he relied upon during the interview. The record of interview is Exhibit 3. It is accepted by the plaintiff as being an accurate account of the conversation which took place, except that she said Mr Kent said two further things, namely that he did not want to have to tell her father and did not want to have to tell the police.[10]

[12] The interview is not long and I shall set it out:-**

"INTERVIEW - ANGELA COSENTINO. 6****th April 2006 0915 is

Thank you for your time; I have a very serious issue I need to talk to you about, is that OK?

Do you know where the bulk change tins are kept?

I don't know what you mean; I'm not sure, I know they are kept in the bar, but not exactly where.

Did you go to the cupboard where the bulk tins are kept on Monday night?

Are you absolutely certain you did not go to the cupboard where the change tins are kept?

Would you change your answer if I said I know you did go to the cupboard? No, I didn't go anywhere near it. How is your finger by the way, did you hurt it? Oh yes, I did get a band aid out of the First Aid Kit.

Did you put the band aid on while you were down there or pull the kit out? I don't remember.

Did you know that the Club's Auditors counted the poker machine bulk tin on Monday?

Did you know that $300 was taken from that tin on Monday night?

Would you change your answer if you knew we have your actions recorded on our security tape?

Between June and August last year, $1,000 (that has been detected) has been stolen from our tills - do you know anything about that.

I was aware as Rory (Manager Club Operations) has spoken to all of us about that.

Do you think that it is coincidental that you were on shift on every occasion that money has been stolen from those tills?

Is it coincidental that you were the only person of all staff (except for the supervisor) on every one of those shifts?

We are having this conversation to give you the opportunity to tell us what you may know about these occurrences before we hand our information to the Police.

You leave me with no choice other than to involve the Police and your father.

I'm informing your father out of courtesy and respect for your family. Joseph has worked for us for 5 years and we respect him.

You leave me no choice other than to involve the police and I do hope for your sake that you didn't do it.

Look I'm buying a house right now and I don't need this hanging around. I'll take the $300 out of my pay so you don't have to worry any further.

Why would you offer to do that if you are not responsible for this theft?

I'm sorry if it's an inconvenience but I am responsible to the Board which is responsible to the members of the Club. Also I take theft very personally. I hope you understand that I have to put it in the hands of the Police.

Don't hesitate to ring me if you wish to add anything further.

**[13] The plaintiff said that during the interview she felt embarrassed and upset because she felt like she was being accused as a thief.[11] A few days after the interview the plaintiff said she was telephoned by Mr Rory Lundin, the Club duty manager and told that she would not be getting any more shifts until the matter was resolved. She has not been offered any shifts since then.

[14] The first defendant said there were aspects of the plaintiff's demeanour during the interview which caused him concern. The first thing was the plaintiff not acknowledging that she knew that the tins were kept in the cupboard when he thought she knew where they were kept. Secondly, he thought her demeanour was evasive and possibly nervous. Thirdly, he felt it was odd that the plaintiff did not disclose responsibility for the theft but wished to pay the money that was missing.[12] Those three matters when coupled with his concern about what he had seen on the camera footage were the basis for his suspicion of the plaintiff.

[15] Ms Taylor, also present at the interview, found the plaintiff angry and defensive. When asked to explain what she meant by defensive she said that the plaintiff was not emotionally involved in a concerned or fearful sort of manner. Ms Taylor pointed to what she said was a very strong denial by the plaintiff of going the cupboard on the night in question but later changing her answer which Ms Taylor regarded as very suspicious. She also thought the plaintiff's offer to pay the $300 stolen was an unusual thing to do for someone who declared they had not had anything to do with the situation. All those matters gave rise to suspicions in Ms Taylor's mind that the plaintiff was involved in the theft.[13]

[16] After the meeting the first defendant and Ms Taylor discussed the matter and, according to Ms Taylor, agreed there was enough suspicion that the matter needed to be referred to the police.[14] The first defendant said that, prior to this incident, he did not dislike the plaintiff, bear her any ill will or dislike or bear any ill will towards her father. Further he said that as a result of this incident he had not developed any ill will towards them.[15] The plaintiff agreed that prior to the incident she had never had a cross word with the defendant, to her knowledge he had never been angry or annoyed with her and that she was not on bad terms with him or anyone else at the Club.[16] There is no evidence to contradict that evidence of the first defendant and plaintiff.

[17] Mr Kent said he intended telling the plaintiff's father of the matter out of respect for friendship with and courtesy to him but also because he thought that if there was further information the plaintiff wished to share with him perhaps her father might disclose it.[17] He was obviously thinking that the plaintiff may confide in her father who may then pass information on to him.

[18] The first defendant contacted her father Mr Joseph Cosentino who came to see him. At the meeting he told Mr Cosentino what had happened and of his concerns that, in his view, the plaintiff's actions were suspicious although he hoped that she was not responsible for the theft. He told Mr Cosentino he would be referring the matter to the Club's board.[18]

[19] According to Mr Cosentino at the meeting the first defendant explained that some money had gone missing and that his daughter had worked on the night in question. Mr Cosentino asked him if that was coincidental and the first defendant said it was not, as on previous occasions, money had been found to be missing. According to Mr Cosentino the first defendant told him that he had viewed the video of the security footage and noticed the plaintiff had opened the cupboard twice although he conceded he did not see her take any money. According to Mr Cosentino, the first defendant said he did not believe it was the plaintiff who had taken the money because he did not think she had a problem with gambling or alcohol. The first defendant denied saying that[19]and I accept his evidence. Mr Cosentino said he told the first defendant if his daughter had stolen the money she would feel the full ramifications from him. According to Mr Cosentino, the meeting finished on the basis that the first defendant would let him know the outcome of the matter. Subsequently some time later but before the board meeting of 20 April 2006, according to Mr Cosentino, the first defendant told him the matter was to be referred to the Board and that he would let Mr Cosentino know the outcome. He said he was never told any outcome. As with the plaintiff, Mr Cosentino has not had any work with the Club since then.[20]

[20] On 20 April 2006 the Club's Board met and the minutes[21] relevantly record:-**

"Martin Kent reported on some serious staff issues involving ... and suspected cash theft. The first involved suspected ... and the second was a cash theft from the poker machine on the 3rd April 2006. Martin Kent informed the meeting that he requested support to make a formal complaint. AGREED"

That recommendation was consistent with the evidence of Ms Taylor as to the conversation had with the first defendant subsequent to plaintiff's interview when, according to her, they agreed that the evidence was such as to warrant it being referred to the police.[22]

**[21] In accordance with the Board's resolution the first defendant put the matter in the hands of the police and the investigating officer was Senior Constable (SC) Kitto, a detective of 7 years experience, who first visited the first defendant at the Club on 26 April 2006. He discussed the matter with the first defendant who gave him four CD disks of the security footage, some auditor's documentation and the cash count for the poker machines. He was also shown the bar area and where the cash tins were kept at the time of the loss.[23]

[22] In the weeks subsequent to 26 April, 2006 SC Kitto had a number of conversations with the first defendant and went to see him on two further occasions. The first one was to give him a copy of a statement he had prepared to which the first defendant made a couple of minor changes. He had started preparing that statement on 10 July 2006, the date the final statement bears.[24] The second occasion was some time after 20 July 2006 when he returned to see the first defendant after amending the statement on which occasion the first defendant signed his statement.[25] The police brief prepared for the plaintiff's committal hearing evidences that SC Kitto or his associates[26] interviewed and prepared statements of Hayley Mauger, Susannah Plant and Rory Lundin.[27]

[23] The names of those witnesses, Mauger, Plant and Lundin were given to SC Kitto by the first defendant. SC Kitto said at the time the names were given the first defendant did not tell him what conclusions he had formed on the matter or whether or not any of them were suspects.[28] Importantly he said that the first defendant did not encourage him at any time to prosecute the plaintiff, did not tell him that he wanted her prosecuted and that he, SC Kitto did not feel under any pressure from anyone to prosecute her. He also said he did not believe the first defendant had any reason to lie to him and that he did not believe that any of the documentation provided by the first defendant was false.[29]

[24] SC Kitto said, having viewed the security footage, he had formed the opinion that the plaintiff might be a suspect in the matter. The matters he found significant or suspicious were these; the plaintiff walked past the cupboard, went about her duties and as she walked back she reached down for the door handle, appeared to open it slightly and then continued out and walked straight through the bar area to the cupboard again. Next he said she was alone and the opportunity presented to her to take the money if she was minded to do so which was one of his considerations in forming his suspicions. Next he said that footage from another camera had shown the plaintiff walking away to another part of the Club where there was no camera footage. With these matters, he considered that it would have been reasonable from the information he had to form an opinion that she was a suspect or at least that he should approach her and speak to her in relation to the matter.[30]

[25] Subsequently, on 15 May 2006 SC Kitto called at the plaintiff's home, and spoke to her father and arranged for her to attend the Dutton Park Police Station the following day, which she did with her father. On the morning of that day 16 May 2006, before the plaintiff and her father arrived SC Kitto had received a facsimile from the plaintiff's solicitor advising that she declined to be formally interviewed. She was then charged and issued with a Notice to Appear in the Magistrates Court.[31] The evidence of the first defendant was that he first became aware that the plaintiff had been charged when he sent an email to SC Kitto on 20 July 2006 asking for a report on progress. In an email response the same day, SC Kitto informed the first defendant that the "matter for Cosentino is going to go to court" and then sought further information from the first defendant.[32] It was after SC Kitto received this further information that he finalised the first defendant's statement and had it signed. The plaintiff's committal hearing commenced on 6 November 2006 when the charge was dismissed.**

**[26] The elements of the tort of malicious prosecution relied on are:-

(1) The prosecution of the plaintiff by the defendants;

(2) That the proceedings complained of terminated in the plaintiff's favour;

(3) That the prosecution was instituted without any reasonable or probable cause; and

(4) That the defendant instituted or continued the proceeding maliciously.[33]**

There is no issue that the second element has been satisfied because halfway through the committal the DPP offered no further evidence and the charge of stealing as a servant was dismissed by the magistrate.

[27] The Court of Appeal in Seabrook v Asher[34] recently reviewed the authorities on this issue and delivered a unanimous decision. I can do no better than set out some extracts from the judgment of Holmes JA[35] who wrote the judgment with whom the Chief Justice and Helman J agreed. Her Honour said:-**

"[12] Malicious prosecution is an action for 'setting the criminal law in motion' (Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 284 per Isaacs ACJ). It has long been established that a defendant to such an action need not be the prosecutor in a formal sense:

'...the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge ...' - (supra at 282 per Isaacs ACJ).

Provision of information to investigating authorities in good faith cannot occasion liability, but:-

'...if the [prosecutorial] discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible' -(Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 per Dixon J at 379)

[13] In Commercial Union Assurance of NZ Ltd v Lamont, Richardson J expanded on that qualification:

'In the difficult area where the defendant has given false information to the police that in itself is not a sufficient basis in law for treating the defendant as prosecutor. That conduct must at least have influenced the police decision to prosecute.' [1988] NZCA 247; (1989) 3 NZLR 187 at 196.

He went on to review authorities from other jurisdictions, and observed there were two important considerations in the modern New Zealand context. The first was that given the training, experience and professionalism of police investigators, it was not to be assumed that the provision of false information rendered a proper exercise of the discretion to prosecute impossible. The other was that members of the public should not be regarded as having instigated a prosecution except in rare and exceptional circumstances, because of the public interest in encouraging the provision of information to police.

[14] Richardson J concluded his observations with a passage set out in the judgment of the learned judge at first instance:

'The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases however the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution.' - [1988] NZCA 247; (1989) 3 NZLR 187 at 199)

'A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded or if he withholds information in the knowledge of which police would not prosecute.' - (supra at 207-208)

[15] Lord Keith of Kinkel, with whom the other members of the House of Lords agreed, in Martin v Watson (1996) 1 AC 74 at 84) adopted those passages from Lamont as embodying a correct statement of the relevant principles. He went on to add:

'Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.' - ( supra at 86-87)."

[28] The plaintiff says[36] that the following evidence establishes this element:-**

(a) that not only did the defendants contact the police but the first defendant continued to contact the police to enquire about the progress of the complaint thus evidencing the defendants' desire and intention that the plaintiff be prosecuted;

(b) the defendants influenced the police prosecutor by conducting their own investigation and providing the results of that information to SC Kitto;

(c) the first defendant dishonestly prejudiced SC Kitto's judgment by stating at the first meeting that he had spoken to all of the other staff involved on the day in question when he had not spoken to Mr Rotta and could not be sure whether he had spoken to Ms Van Praag;

(d) the defendants furnished information to SC Kitto that they knew to be false in asserting that all of the staff involved had been spoken to by the first defendant; and

(e) the defendants withheld information from SC Kitto which they knew to be true namely that the video surveillance cameras could be turned off and that any staff member had access to the technology to switch it off.

**[29] By reference to the authorities reviewed in Seabrook I do not think it could be said that the prosecutorial discretion was misled by false information provided by the first defendant. Nor that he ever provided false information to the police thus influencing the police decision to prosecute or that he did in any way procure the use of the power of the State to hurt the plaintiff .Further, in my view, the information provided by the first defendant did not compel SC Kitto to charge the plaintiff. The facts were never solely within the knowledge of the first defendant so as to make it virtually impossible for the police to exercise any independent discretion or judgment.

[30] In my view the evidence clearly shows that Mr Kent as CEO of the Club was carrying out his functions genuinely and diligently as he understood them. He held suspicions in relation to the conduct of the plaintiff but clearly from his conversations with her father was rather hoping that a full investigation would not bring those suspicions to reality. The evidence does not support any finding that he ever bore any ill will towards the plaintiff, or that he acted at any time with any malice towards her or anyone else. Neither does it show that he acted other than with the legitimate purpose of having the matter investigated by the appropriate authority, the Queensland Police Service. He was simply doing his job. Minds may differ as to whether or not the evidence relied upon by the first defendant and Ms Taylor to found their suspicions of the plaintiff's conduct was sufficient to support the views they formed but that is not to the point. The suspicions were genuinely formed and held and there is no room for any inference that the first defendant acted other than appropriately.

[31] It is true that he did not personally interview all the staff who were on duty at the relevant time as he said in his statement he had done. I am referring here to Chanel Van Praag who he was not sure whether he interviewed and Sergio Rotta who he did not interview. But the important thing is that he put the matter in the hands of the police as the appropriate authority to carry out investigations. SC Kitto was in no way thereby overborne by the first defendant nor could it be said that the facts of the matter were solely within the knowledge of the first defendant so as to deprive SC Kitto of any independent discretion or judgment in the course of his investigation. Whereas first defendant's statement did say[37] that he had spoken to all staff involved on the date of the incident when that was not correct, that is a far cry from establishing that there was any evidence that the first defendant deliberately set out to deceive SC Kitto by supplying false information. That did not happen. The language, that of SC Kitto as the author of the statement, was loose but, as I have said, the first defendant had asked Mr. Lundin to speak to all staff on duty on the day. A more careful reading of it by him prior to execution should have identified the error but the oversight was, in my view, no more than that, an oversight, lacking any sinister overtone contended for by the plaintiff. The failure of the first defendant to mention the availability of staff access to the camera housing room is in the same category. The first defendant was not, and did not purport to be, an experienced investigator so his failure to mention matters which may occur to such an investigator as important is not surprising. The important feature is that I consider he acted at all times in good faith without any dishonest or improper purpose. Honest mistakes are not sufficient to elevate the first defendant to the status of prosecutor.

[32] SC Kitto was an experienced detective. In my view there is no support of the evidence that he blindly relied on the first defendant's statement that he had spoken to all relevant staff or any information provided to him by the first defendant and decided thereby to limit his investigation. Such an inference would be insulting to an experienced investigator such as SC Kitto. In my view he conducted his own investigation and made his own decision to prosecute uninfluenced, in the relevant sense, by the first defendant but taking advantage of information supplied to him by the latter.

[33] In my view the plaintiff has failed to establish the first element of the tort, that the first defendant was her prosecutor so it is unnecessary for me to address the remaining elements in issue of whether the prosecution was instituted without any reasonable and probable cause or whether it was instituted maliciously. What I will say, as I have said above, is that there was no evidence of malice in all the conduct of the first defendant. The plaintiff's claim is dismissed.**

[2] See Exhibit 2, document headed "Poker Machines".

[24] Transcript 1.38.15, 1.39.48, Exhibit 2.

[25] See Exhibit 2, Transcript 1.20-21, 1/39/25-60.

[32] Exhibit 5, Transcript 2.31.58, 2.32.15

[33] Balson v Queensland (2002) QSC 419 per Muir J at paragraph 23; 45 Halsburys 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 350-351 per Starke J.

[35] (2006) QCA 238 paragraphs 12-15

[37] Exhibit 2, Statement, paragraph 18.

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