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[1924] HCA 56
High Court of Australia
1924-07-01
Starke JJ
Original judgment source is linked above.
, ' : - ' - Fi . APPELLANT ; DEFENDANT, t AND i Wa lt Sw. RESPONDENT. ' PLAINTIFF, ON APPEAL FROM THE SUPREME COURT OF ; VICTORIA. » Malicious Prosecution - Essentials of action - Innocence of plaintiff - Termination of H.C. or A. criminal proceedings in favour of plaintiff - Acquittal - Nolle prosequi - New trial. 1924,
i Held, by Isaacs A.C.J., Gavan Duffy and Starke JJ. that in an action for \fernourwe, malicious prosecution the plaintiff must prove his innocence, but the fact Qci, 3, 6, that on his trial a nolle prosequi was entered, although it establishes that the
proceedings terminated in his favour, does not establish his innocence. SyDNEy,
' Sey Tee Oot ace eek Ui, ik ix: ich ax abtion'e: verdict ©; OO 1?
of acquittal establishes the innocence of the plaintiff as well as that the lsaacs A.C.J,
'The plaintiff in an action for malicious prosecution had been prosecuted on acharge of maliciously killing certain animals belonging to the defendant, who informed the police that the animals had been poisoned by eating maize from a maize crib in his paddock and that he had seen the plaintiff under suspicious circumstances in the paddock near the crib the night before the poisoning. On the plaintiff pleading not guilty a nolle prosequi had been entered. At the trial of the action the jury were directed that they should assume that the plaintiff was innocent because the criminal proceedings had ended in his favour, 'and they found a verdict for the plaintiff.
Held, that a new trial should be had as the wrong direction might, in the circumstances, have led to a miscarriage of justice.
Decision of the Supreme Court of Victoria (Full Court): Gell v. Davis, (1924) V.L.R. 315; 45 A.L-T. 161, reversed.
H.C. or A. Apprat from the Supreme Court of Victoria.
An action was heard in the County Court at Sale by his Judge Woinarski and a jury by which Clarence Norman Gell s to recover from William Henry Davis £499 damages for ma prosecution. It appeared from the evidence that the def had given certain information to the police, who thereupon char the plaintiff upon information with unlawfully and malicioy killing twenty-two pigs, one cow and twenty fowls of the defend that the plaintiff was committed for trial, and that on his trial af he had pleaded not guilty the Crown Prosecutor entered a » prosequi. The jury found a verdict for the plaintiff for £380, defendant by summons applied to the learned Judge for a new tr on the ground (so far as material) that he had misdirected the in directing them that they should, for the purposes of the a assume that the plaintiff was innocent of the charge which had b made against him. The application having been dismissed, defendant appealed to the Full Court of the Supreme Court, ¥ held that there had been a misdirection but that in the circumst no substantial wrong or miscarriage of justice was occasioned by Gell v. Davis (1).
From that decision the defendant now appealed to the High Cour
Other material facts are stated in the judgments hereunder. |
Latham K.C. (with him O'Bryan), for the appellant. Assumit that there was a misdirection, that misdirection must have affect the jury's minds and may have produced a substantial misca of justice.
Owen Dizon K.C. and Gorman, for the respondent. The innocence of the plaintiff is not, in an action for malicious prosecutio itself a separate issue decisive of the liability of the defend The termination of the proceedings in the plaintifi's favour is condition which the law makes in order to prevent the pi of a guilty person succeeding in an action for malicious prosecut The action supposes that another tribunal has acquitted plaintiff or that the proceedings have terminated in his ff
be a contradiction between a decision in a civil case and a verdict ina criminal trial. This view is supported by Delegal s. Highley (1), where the Court assumed that facts which go to how the guilt of the plaintiff are not relevant unless the defendant w of them at the time the charge was made. No distinction can e drawn between a case where there has been a verdict of not and a case where a nolle prosequi has been entered. The nents in cases which are relied upon to support the view that plaintiff must prove his innocence have been made when the was dealing with other matters. [Counsel referred to Heslop v. apman (2); Turner vy, Ambler (3); Abrath v. North-Eastern Railway (4); Johnson vy. Emerson (5); Bank of New South Wales v. per (6); Crowley v. Glissan [No. 2] (7); Varawa v. Howard "Smith Co, (8); 2 Hawkins' P.C., chap. 25, sec. 6.) At common law ithe finding of any jury of twelve men that a man was guilty of an Hence was sufficient to put him on his trial; so that, if it were open an action of malicious prosecution to prove guilt notwithstanding previous verdict of not guilty, the effect would be to leave him open to be again put upon his trial. As to substantial injustice, 'the question of the plaintiff's innocence was as consistent with his 'having been near the maize bin as with his not having been there,
Tatham K.C., in reply. On the authorities the plaintiff must show isinnocence, and he does not show it merely by proving the termina- sion of the proceedings in his favour (Crowley v. Glissan [No. 2] (9) ; Bank of New South Wales v. Piper (10) ).
» [Srarxe J. referred to Bynoe v. Bank of England (14) ; Chitty on sading, 7th ed., vol. 11, p. 441.]
}) (1837) 3 Bing. N.C. 950. (8) (1911) 13 C.L.R. 35, at pp. 81, 82. _ (2) (1853) 23 L.J. Q.B. 49, at p. 52. (9) (1905) 2 C.L.R., at pp. 754 et seq. (1847) 10 Q.B. 252. (10) (1897) A.C., at p. 390. (1883) 11 Q.B.D. 440, at p. 455 ; (11) (1905) A.C. 168. AL App. Cas, at p. 252. (12) (1878) 8 Q.B.D. 167, at p. 173; (6) (1871) TR 29, at p. 344. (1882) 46 L.T. (1897) A.C. 383. (13) (1786) 1 510, at p. 544." (1905) 2 C.L.R. 744. (14) (1902) 1 467.
the guilt or innocence of the plaintiff were a separate issue, there H.C. or A. , 1924.
A conviction is not in civil proceedings conclusive evidence generally not evidence, of guilt (March v. March (1); White v. W) (2); In re Crippen (3) ). Ifa conviction is not evidence of a fortiori an acquittal is not evidence of innocence (see Ta Evidence, par. 1693). The issue in a criminal trial is, is the aeg beyond doubt guilty ? Itis not, ishe innocent ? Even if an aequ is evidence of innocence a nolle prosequi is not. A nolle prose is not a bar to further proceedings on the same charge (Arehbol Criminal Pleading, 25th ed., p. 123).
Isaacs A.C.J. This is an action for malicious prosecution. appellant William Henry Davis and the respondent Clarence Norm Gell are neighbouring farmers at Glenmaggie. In November If some pigs belonging to Davis died from poisoning after eating m fed to them from a certain maize crib on his property. informed the police that he had seen Gell under suspicious cire stances the night before on Davis's property, about thirty-five y from the maize crib, and walking in a direction away fromit. | police instituted a prosecution, with the result that Gell committed for trial. He was presented at the Supreme Court March 1922 for maliciously killing twenty-two pigs and one the property of Davis. The respondent pleaded " not guilty," : the Prosecutor for the King entered a nolle prosequi. Ther this action was brought in the County Court at Sale, and was hi before Judge Woinarski and a jury of four. The damages ch were £499, of which £80 were legal expenses. The defences st were: (1) Defendant denies he was prosecutor; (2) defe denies that proceedings terminated in favour of the plaintiff malice ; (4) what he did, he did with reasonable and probable ca (5) he does not admit the innocence of the plaintiff. The ju a verdict for the plaintiff, with £380 damages. As the only exp proved was the sum of £80, it is clear the balance of £300 was
(1) (1858) 28 L.J. P. & M. 30. (2) (1899) 21 A.L.T. 76, at p. (3) (1911) P. 108.
"for general damages, necessarily on the ground that the prosecution H. C. or A.
_ was on an indictment " involving either scandal to reputation or the
possible loss of liberty to the person" (per Bowen LJ. in Quartz
fill Gold Mining Co. v. Eyre (1) ). This is a very material cireum-
because, unless the plaintiff's innocence be properly
blished in the action, such general damages are obviously "impossible.
The present appellant then took out a summons before the learned "Judge of the County Court for a new trial. Several grounds were included, but only one of them is now directly in issue, namely, in effect, misdirection by directing the jury that they should for the purposes of the action assume that the plaintiff was innocent. In the affidavit of Mr. Wise, the appellant's solicitor, it is (inter alia) stated that the learned Judge said " You may assume the plaintiff was an innocent man because proceedings ended in the plaintifi's favour. . . . It is fair to assume for the plaintiff that he is an innocent man. . . . You are not trying the question of Gell's innocence or guilt. You should assume for the purposes of this action that Gell is innocent." When the jury retired, Mr. O'Bryan for the defendant asked the learned Judge to redirect the jury, and Mr, Gorman contended that the direction as given was correct. The learned Judge declined to redirect the jury.
In deciding the application for a new trial the learned Judge said: - " Mr. O'Bryan relied on duty of plaintiff to prove his innocence and that the direction I gave denied the necessity of that duty, and that it was too favourable to plaintiff, in that I told the jury that they were to assume plaintiff was innocent and that they were to deal with the action on that basis. Well, I do not think it is a material issue for plaintiff to prove his innocence; all the law requires is that he show a favourable determination in his favour, and the passages cited by Mr. O'Bryan were merely introductory to what is material. I think the passages correctly state what I say, but they were only introductory to other matter that I put to the jury re the heavy burden the plaintiff had to sustain. On the whole, with some disquietude, as to notice of motion I dismiss it with costs £3 3s." Temphasize the point that the directed assumption of innocence
was for the purposes, not of the single issue of reasonable and pi cause, but of the whole action, which includes the assess damages.
The defendant appealed to the Supreme Court, which dis the appeal. From that dismissal the present appeal to this Co is brought. The learned Judges of the Supreme Court held that direction to assume the respondent innocent for the purposes of action was wrong, but that, in view of all the circumstances, t] was no substantial miscarriage of justice and therefore the new t was rightly refused. That conclusion is arrived at by reasoning tl I may, I think properly, put into the form of three proposition (1) The termination of the criminal proceedings in favour of respondent by nolle prosequi was evidence of his innocence. was, however, only prima facie evidence of innocence. (3) In circumstances the jury having found, quite independently of direction complained of, that the appellant's statement as to se the respondent in a suspicious situation was a concocted there was no evidence to disturb the prima facie effect of the d mination of the criminal case and his innocence was thet established.
Mr. Latham on behalf of the appellant contended that a judgmen in a criminal cause, even if it be one of acquittal, is res inter acta and not, as between the parties here, any evidence whate the plaintifi's innocence. Mr. Dixon for the respondent maint that in an action for malicious prosecution the innocence of plaintiff is never a separate distinct issue, but is part of some o issue, as, for instance, the termination of the proceedings or reasonable and probable cause. I am unable to assent unres to any of the three divergent views stated. It is, therefore, ob' a matter of serious difficulty. Among the intricacies of the ¢
Railway Co, (3) and Bank of New South Wales v. Piper (4). Up to a certain point these proceedings permit of a com,
easy solution. Without investigating the problems of law tl
(1) (1837) 3 Bing. N.C. 950. (3) (1883) 11 Q.B.D. 440; (18 (2) (1853) 23 L.J. Q.B. 49. App. Cas., at p. 252. (4) (1897) A.C. 383.
third proposition of the Supreme Court. Its basis is that the
guilt of the plaintiff depended entirely on whether the defendant's ' story of the plaintiff's presence on Sunday night in suspicious circumstances was concocted. Innocence or guilt was the conclusion sought. Concoction or non-concoction was the necessary premise. If the premise were found the conclusion followed, because they were inseparably connected. The Supreme Court thought that notwithstanding the jury were told they might assume the conclusion, their search for the premise was independent. The jury having the contradictory evidence of Davis on the one side and Gell on the other - Buchanan being a tainted witness - and the jury having to determine whether Gell or Davis was lying as to Gell's presence at the place and time stated, it is plain to me that, once they were told they should assume Gell's innocence, it was equivalent to assuming Gell's absence, and the consequent corroboration of Buchanan, and the disbelief of Davis. It is impossible to my mind to regard the directed assumption of innocence as entirely separate from and independent of the issue of concoction. Consequently, we are compelled to consider the case from the standpoint of the effect in law of a termination of the prosecution by nolle prosequi. Unless it be conclusive evidence of innocence, there must be a new trial. But in that case there remain the three distinct diverse positions and, as I think, a fourth to be considered, and, unless this matter be determined now, the ruling of the Supreme Court would necessarily be followed and the new trial would be only the source of further and possibly prolonged litigation, That I regard as my duty to endeavour to avoid. ~ Tam unable, except arbitrarily, to express my final opinion on the case without reference to some fundamental considerations of the history and nature of the action for malicious prosecution, and without having regard to a line of important decisions. This I can do without, I hope, undue prolongation, particularly in view of the fact that to a very great extent I have already expressed my views in Varawa v. Howard Smith Co. (1), and to these I refer as part of this _ judgment. he all-important feature to bear in mind for present
have been presented, I may at once say I cannot agree with the H-C. or A.
purposes is that the essentials, as they are called, of the action of "malicious prosecution - a term I shall use to include the setting the law in motion in matters sufficiently analogous to a criminal prosecution - are not a number of independent and disintegrated requirements. The result of a careful estimation of the history of the action and the various expressions of the Judges is that the recognized essentials are the combined outcome of a well established and gradually developed public policy, that of permitting members of the public who may have, as Lord Shand said in Lightbody's Case (1), "not only a duty but a right" to take steps to vindicate the law, but not oppressively. In assisting that public poliey the common law, adapting itself to social advance, has laid down limitations and safeguards which, it thinks, taken together properly 4 adjust in harmony with the circumstances of the time the right of the prosecutor and the correlative right of the accused party to fair protection from unnecessary accusation. Unless these limitations and safeguards are considered as one scheme by which the mutual rights are balanced in the scale of justice, there is great danger of misconception of their nature and of giving either too great or too little weight to any one of them. They may, I think, be conveniently thus enumerated : - (1) The defendant must be the prosecutor. (2) The prosecution must have been groundless. (3) It must have produced damage. (4) It must have terminated favourably to the _ plaintiff, so far as such termination was possible. (5) It must have been without reasonable and probable cause. (6) It must have been malicious. I omit reference to special cases, such as naval - and military proceedings, which depend on considerations here immaterial; and I take the above in order.
information to the police is not necessarily the prosecutor yet, on H. C. oF A.
the other, the mere fact that the police conduct the prosecution does not exclude him from that position. The law is stated by Sir Andrew Scoble (for Lord Robertson, Lord Atkinson, Lord Collins, Sir Arthur Wilson and himself), in Gaya Prasad vy. Bhagat Singh (1), in terms as appropriate to Australia as to India. His Lordship says : - ''In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (except giving such honest assistance as they may require) think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant ; if he misleads the police by bringing suborned witnesses to support it; if he influences the police to assist him in sending an innocent man for trial before the magistrate - it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him. The question in all cases of this kind must be - Who was the prosecutor ? and the answer must depend upon the whole circum- stances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hac vice represents the Crown." As already stated, this doctrine is one of the mutually balancing considerations, and prevents the application of the principle res inter alios acta.
that primitive action was not the prosecution, but the cons)
good indictment, and by verdict, so that he, if again prosecuted the crime, could plead autrefois acquit. But out of this, and in development of the public policy referred to, there grew an : superficially resembling the true action of conspiracy but gradi becoming essentially different, namely, that which is now the ac comprehensively called the action for malicious prosecution. differed in several ways from the older action. One way was it was an action, not for a conspiracy, but for setting the eri law in motion. The gist of the action was the damage re: from a groundless prosecution. The authorities for this down to 18 are to be found in Sehwyn's Nisi Prius, 11th ed., pp. 1062 et seq and in 1 Williams' Saunders (Notes), pp. 271 et seqq. Lo
(1), an action for malicious prosecution for perjury, the plaint having been acquitted. Reasonable cause was shown in the ci trial for some of the charges, but not for others. Gibbs J. " The charge here is not that the defendant imputed perjury w probable cause, but that he preferred that indictment without probab cause." What must be shown as to the indictment or o analogous proceeding appears from various decisions covering a long period. In Waterer vy. Freeman (2) it is said that it m appear in the second action " that the first was unjust," a reas says the Court, that had been given by the Judges in 2 Rich. In Johnson v. Emerson (3) Cleasby B. refers to the prosecu tion "wholly unfounded," and "really without foundation." M
law." In Ram Coomar Coondoo v. Chunder Canto Mookerje Sir Montague E. Smith, for the Privy Council, refers to " the prine that the prosecution of legal proceedings which are instigated
(1) (1812) 4 Taunt. 616, at p. 618. (4) (1871) LR. 6 Ex., at p. 373 (2) (1617) Hob. 266, at p. 267. (5) (1876) L.R. 4 Ind. App. 23, (3) (1871) LR. 6 Ex., at p. 344. 38; 2 App. Cas. 186, at p. 201.
5 malice, and are at the same time groundless, is a wrong to the person H. C. or A
who suffers damage in consequence of them." In Allen v. Flood (1)
Lord Davey speaks of "a causeless prosecution." In the case
_ already cited of Gaya Prasad y. Bhagat Singh (2) the Privy Council
_ speaks of " innocent persons aggrieved by such unfounded charges."
_ This accords with what Watson B. says in Weston v. Beeman (3).
_ The second essential, then, means that the plaintiff in the civil action is innocent, because, the prosecution being groundless, there was, when all the circumstances are known, no real cause for it. The proof of innocence must be made in accordance with the ordinary rules of evidence, there being nothing special in this respect by reason of the nature of the action, once it is realized that by reason of the defendant being the prosecutor the criminal proceedings are not res inter alios aca,
(1) (1898) A.C. 1, at p. 173. (6) (1813) 5 Taunt. 187. (2) (1908) 30 AIL, at p. 536. (7) (1876) 2 App. Cas. 186. (3) (1857) 27 LJ. se a 5 (8) (1851) 11 C.B. 713, at p. 730.
(4) (1698) 1 i (9) (1883) 11 (8) (1617) Hob. 266. (10; (1915) 1
later actions was in the requirement of termination. What th action of conspiracy needed has been stated. The later action, bein adopted not for technical reasons but on a broad ground of soci justice, limited the accused neither to cases of treason and fi nor to terminations by rigorously formal and complete acquittal, Henceforth the termination need not be an acquittal, but might be by the ignoramus of the grand jury or by the indictment being sho to be coram non judice or defective. This clearly appears from Selwyn's Nisi Prius (loc. cit.). The extensions referred to were stat by the learned author to be " circumstances which preclude possibility of such an acquittal, that is, an acquittal supporting pl of autrefois acquit." See also 1 Williams' Saunders (Notes), at p. This was no departure from the general rule laid down in Parker y. Langly (1), resting on the reason, which Parker C.J. says is as old as the time of Richard II., namely "non intelligitur quosque terminetu that the action was unjust." He adds: " No man can say of action still depending, that it is false and malicious." So in Whitw v. Hall (2), Gilding v. Eyre (3) and Johnson v. Emerson (:
a general comprehension of the matter, to observe that the law, its quest of justice between the parties, moulds and modifies it requirement as to termination according to the necessities of situation. In Bynoe v. Bank of England (5) Collins MLR. qi the words of Crompton J. in an earlier case : ' It is essential to shov that the proceeding alleged to be instituted maliciously and with out probable cause has terminated in favour of the plaintiff, if from i nature it be capable of such a termination." In Steward v. Gron (6), which is a landmark in the development of the action, he principle was clearly established - obviously on the broadest ground inherent justice - that, where a judicial determination of innocent was impossible by reason of the form of proceeding, the plaintiff not bound to produce such a termination. It follows neces from the principles adverted to that a nolle prosequi entered by prosecuting authority on its own responsibility and disere (1) (1714) 10 Mod. 2 (2) (1831) 2 B. & Ad. 6 = at p. 698. per Cleasby B.
(3) (1861) 10 C.B. ( 592, at p. (5) (1902) 1 K.B., at p. 470. 604, (6) (1859) 7 C.B. (N.S.) 191.
in an action for malicious prosecution, may properly say the proceed- ing 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
(1) (1848) 3 Cox C.C. 93. (2) (1900) I.L.R. 25 Bomb. 332, at p. 336. (3) (1909) A.C. 549, at p. 555.
creates a position in which an accused person, afterwards plaintiff H.C. oF A-
admissible as evidence to be submitted to the jury upon an is as to the actual guilt of the accused" (Hicks v. Faulkner (1) ).
In short, as Lord Atkinson says in Corea v. Peiris (2), both as reasonable and probable cause and malice, "the pivot upon whic almost all such actions turn is the state of mind of the prosecutor the time he institutes or authorizes the prosecution." For th purposes of reasonable and probable cause the circumstances a known to the defendant (Delegal v. Highley (3) ) may be but not, as will be seen, for the purpose of controverting a judg
cipally for passages in the judgments of Jervis O.J. and Pollock OR upholding the charge of Coleridge J. that, if the plaintiff had in fae sworn falsely, there was reasonable and probable cause for pi the indictment. Reading the case as a whole, that appears to bi merely intended as a truism and introductory to the real questi If a man is guilty, there is real cause for indicting him, and minor "reasonable and probable cause" does not really arise because the greater includes the less. This is illustrated by Bank 0 New South Wales v. Piper (5). But what the Court was eng on in Heslop v. Chapman was to point out that, even apart
malicious. I do not regard that case as intended to affirm although the plaintiff produces a verdict and judgment of acquitt perhaps, as in Abrath's Case (6), without a blemish on his chara he may be retried and found actually guilty by the civil tri That would, as will be seen, be contrary to very powerful a direct authority as well as to all notions of fairness. '
(1) (1878) 8 Q.B.D., at p. 173. (5) (1897) A.C. 383.
(2) (1909) A.C., at_p. 555. (6) (1883) 11 Q.B.D. 440. (3) (1837) 3 Bing. N.C. 950. (7) (1908) 30 All, at p. 534. (4) (1853) 23 L.J. Q.B. 49 ; 18 Jur, 348.
issue of whether the defendant was the prosecutor says : - " In India H- ©. oF A.
a private person may be allowed to conduct a prosecution under sec. 495 of the Criminal Procedure Code, which provides that 'any magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police. . . . Any person conducting the prosecution may do so personally or by a pleader.' When this is permitted, it is obviously an element to be taken into consideration in judging who is the prosecutor and what are his means of information and motives. The foundation of the action is malice, and malice may be shown at any time in the course of the inquiry." It now remains to apply to the considerations stated the ordinary rules of evidence. One well-recognized rule of evidence - and we now arrive at the real crux of this case - is that a judgment inter partes is conclusive as between them in respect of what it decides. 'The object of the tule of res judicata is always put upon two grounds - the one public policy, that it is the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause " (per Lord Blackburn in Lockyer v. Ferryman (1) ).
Effect of Termination. - As already observed, the law as a rule demands of a plaintiff in malicious prosecution that the proceeding of which he complains shall have terminated in his favour. That is, that it shall have terminated, and without adverse consequences to him. But on the principle lex non intendit aliquid impossibile (Fishing in the River Thames (2) ) that requirement is not made where either from the nature or course of the proceeding such a termination was impossible. If possible, the rule stands. A prosecution may terminate by (1) conviction, (2) acquittal and (3) otherwise than by conviction or acquittal, as, for instance, by defect of indictment (Pippet v. Hearn (3), where there was only a nolle prosequi). If by conviction, it is definitely settled that in the civil action it cannot be questioned. That is established by such cases as Vanderbergh v. Blake (4), Barber v. Lesiter (5),
(1) (1877) 2 App. Cas. 519, at p. 530. (4) (1662) Hard. 194. (2) (1612) 12 Rep. 89. (5) (1859) 7 C.B. (N.S.) 175. (8) (1822) 5 B. & Ald. 634,
Castrique v. Behrens (1), Metropolitan Bank v. Pooley (2), Basé v. Matthews (3), Bynoe v. Bank of England (4) and Turley Daw (5). On what principle is that judgment unquestionable the civil action? First, a judgment in the criminal case admissible in evidence in the civil case because, and only because, the defendant, by hypothesis, is shown to be the prosecutor a1 so the parties are taken to be the same. Next, being admissi it is, because a judgment, incontrovertible as to what it deci Collins M.R. has stated the law in Bynoe's Case (4). In case 0 conviction neither the facts nor the law on which the jud rests can be contested in the civilaction. Perhaps the most comple statement of the reason is by Lord Selborne L.C. in Metropo Bank v. Pooley (6), where he says: " Otherwise the most sol proceedings of all our Courts of justice, civil and criminal, when they have come to a final determination settling the rights and liabilities o the parties, might be made themselves the subject of an independent controversy, and their propriety might be challenged by actions this kind." The judgment has the effect stated even where it isno evidenced by record. Thatis familiar. Butit is not out of place . recall the words of Brett M.R. in In re May (7) : - ' The doctrine res judicata is not a technical doctrine applicable only to re It is a very substantial doctrine, and it is one of the most mental doctrines of all Courts, that there must be an end of litigati and that the parties have no right of their own accord, after hav tried a question between them and obtained a decision of a Court to start that litigation over again on precisely the same q} If the termination be by acquittal, the same rules apply. It be strange indeed if the law were not so. It would be dii contrary to the very first principles of our law if a man conv were shut out from establishing his innocence by an action malicious prosecution, and yet a man declared innocent in | prosecution instigated or conducted by the defendant, could retried and found guilty in such an action. It would, moreover, quite contrary to the scheme of adjustment I have referred
(1) (1861) 3 E. & E. 709. (5) (1906) 94 LT. 216. 4 (2) (1885) 10 App. Cas. 210. (6) (1885) 10 App. Cas., at p. 217. (3) (1867) L.R. 2 C.P. 684. (7) (1885) 28 Ch. D. 516, at p. 8
There are some very distinct pronouncements on the point. In H.C. or A. Johnson v. Emerson (1) Cleasby B. says: " As regards the first " -
(that is, the first necessary element of the action) - ' namely, the Davis
proceeding being unfounded (or, as it is called in the declaration, false) - the judgment of Lord Justice James, annulling the bankruptcy, is conclusive." I understand that to be based on the view of the learned Baron that "the adjudication was entirely erroneous, and
was afterwards annulled by Lord Justice James upon appeal " (2). The opinion, for instance, of Martin B., that the adjudication was set aside on grounds other than the merits (3) is not opposed to the opinion of Cleasby B., but it assists on the question here of nolle prosequi. There is, however, decisive authority as to the effect of acquittal in Pestonji M. Mody v. Queen Insurance Co. (4). That case is one of those I cited in Varawa's Case (5). It was a Privy Council case heard by Lords Hobhouse, Macnaughten and Lindley, Sir Richard Couch and Sir Henry de Villiers in 1900, The plaintiff in an action for malicious prosecution had been acquitted on trial for cheating. As to that Lord Macnaghten in delivering judgment said (6): M. Mody was acquitted of the charge made against him. It must therefore be taken that he was innocent." That is all that was said as to innocence; but it is enough. The learned Lord then proceeds to deal with malice and reasonable and probable cause. I take that to be a clear pronouncement that for all purposes of the action, there is in such a case an irrebuttable presumption of innocence. But, thirdly, suppose the termination, while favourable to the plaintiff, to fall short of acquittal - as in the present case. What then is its evidentiary effect? I see no reason, technical or substantial, either in the general law or in the special scheme of adjustment appropriate to this class of action, for giving to it any weight on the meritorious issue of innocence. The suggestion of Lord Tenterden C.J. in Wilkinson v. Howel (7) that "the termina- tion must be such as to furnish prima facie evidence " cannot, in view of later cases, be sustained. In Gilding v. Eyre (8) Williams
(1) (1871) LR. 6 Ex., at p. 345. (6) (1900) ILAR. 25 Bomb., at p. (2) (1871) LR. 6 Ex., at p. 339. 335.
(3) (1871) LR, 6 Ex., at p. 374. (7) (1830) Mood. & M. 495, at p. 496. - (4) (1900) LL.R. 25 Bomb. 332. (8) (1861) 7 Jur. (N.S) 1105, at p. 1106.
J., in arguendo, observes of Wilkinson v. Howel (1): " It is difficult to reconcile the reasoning in that case with other cases."
The true rule appears to be that it must appear that the plaintiff may succeed in the civil action consistently with there being no b "conflict of decision," as is said in Gilding v. Eyre (2), between the two Courts. Acquittal connotes (a) termination of the proceedings i 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 (3). That was an action by Piper _ against the Bank for malicious prosecution. The declaration alleged that the plaintiff was committed for trial at Quarter Sessions "and afterwards the Attorney-General refused to file a bill against - the plaintiff, and the said prosecution was so ended " (4). There was a plea of not guilty in the action. The Privy Council mentioned the fact that "the Attorney-General refused to prosecute" (5), Reference is made to the contention that upon the plaintiff's own - evidence he was guilty of the offence, and that therefore on the - admitted facts there was reasonable and probable cause (6). This contention their Lordships proceeded to examine, and they held that the facts constituted the statutory offence, and therefore the Judge ought to have ruled there was reasonable and probable cause and should have directed the jury to find a verdict for the defendants. But that shows only that (1) the favourable termination of the criminal charge by nolle prosequi made the civil action possible; (2) it was not treated as affording any evidence that the plaintiff was innocent ; (3) guilt is consistent with that mode of termination ; (4) where there is guilt, and therefore real cause, there is necessarily reasonable and probable cause quite apart from any belief in the mind of the prosecutor, the questions as to that being held to have been unnecessary and improper (7). The final effect of the decision i that (a) where there is termination but no acquittal the question of guilt is open and (b) where guilt appears the plaintiff must fail.
(1) (1830) Mood. & M. 495. (5) (1897) A.C., at p. 386. (2) (1861) 7 Ji , at p. 1107. (6) (1897) A.C., at p. 388. : (3) (1897) A.C. (7) (1897) A.C., at p. 390. +" (4) (1895-96) 17
'The ground seems to be that then the charge was not, as Lord Davey expressed it in Allen v. Flood (1), " causeless."
Only now do I feel at liberty to express my opimion as to the controlling effect of the passage in the judgment of Bowen L.J. in Abrath v. North-Eastern Railway Co. (2), repeated in Cox v. English, Scottish and Australian Bank Ltd. (3), namely: "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made." The appellant's contention was that the passage means 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 a rule was not called for by the circumstances of the case, and is not involved in the decision at the trial (4); no issue was raised as to innocence, the plaintiff having been acquitted. The judgment of Brett M.R. (5) leads to the belief that innocence was conclusively assumed from the acquittal. The appellant's interpretation is certainly inconsistent with the general construction of the whole passage in which those words occur. The Lord Justice stated "' three propositions," and the words quoted constitute " the first." The suggested interpretation would make four propositions. Further, that interpretation is inconsistent with the principle, already fully
worked out, under which such cases as Steward v. Gromett (6) were decided, and with the qualification already adverted to of Crompton J, adopted by Collins M.R. in Bynoe's Case (7). It is also incon- sistent with what Cleasby B. said in Johnson v. Emerson (8) and with Lord Maenaghten's judgment in Mody's Case (9). It is, again, contrary to the principle stated as early as Parker v. Langly (10) by Parker C.J. that admitting a declaration to be good which did not show what became of the former action " would introduce great absurdities, namely, inconsistent and incongruous verdicts in different actions." Then, to show how deeply the matter had
(1) (1898) A.C., at _p. 173. (7) (1902) 1 K.B., at p. 470.
(2) (1883) 11 Q.B.D., at p. 455. (8) (1871) L.R. 6 Ex., at p. 345. (8) (1905) A.C., at p. 170. (9) (1900) LL.R. 25° Bomb., at p. (4) (1883) 11 Q.B.D. 79. 336.
(5) (1883) 11 Q.B.D., at p. 454. (10) (1714) 10 Mod., at p. 210. (6) (1859) 7 C.B. (N.S.) 191.
go off by nonsuit, it may be said, that in another action b for the same cause, there may be a verdict given inconsistent wi the verdict given in the present cause. That may be; but possibility of such a verdict in a future and not existing action shi not hinder a man from bringing such an action as this." added observations indicate that it is no argument against : principle stated that in a future possible prosecution a diff result might be reached. Such a possibility is too remote to the existing situation.
In the result, my opinion is that the application for a new should have been granted by Judge Woinarski - who, it should fairness be added, said it was with some doubt and some disquii that he dismissed it. It follows also that the appeal should allowed and a new trial be had, to be guided by the considerati I have stated.
Gavan Durry J. In my opinion the learned Judge who this case misdirected the jury when he told them that they assume that the plaintiff was an innocent man_ because fl proceedings ended in his favour, and that they should assw for the purpose of the action that he was innocent. I agree the other members of the Court in thinking that in an action malicious prosecution the plaintiff must prove his innocence, that proof that a nolle prosequi was entered on his trial does entitle the jury to assume that the plaintiff was innocent. It unnecessary to discuss what the position would have been if. plaintiff instead of proving the entry of a nolle prosequi had be able to prove that he had been acquitted. I also agree with other members of the Court in thinking that it is impossible to that no substantial wrong or miscarriage was occasioned by misdirection.
In my opinion the appeal should be allowed, and a new ordered.
Srarke J. This is an action for malicious prosecution- modern development of the action on the case in the nature conspiracy, which in turn supplanted the old writ of consp
(see History of, Conspiracy and Abuse of Legal Procedure, by Dr. P. ¥- ©. or A.
H. Winfield (1921)). The plaintiff alleges that the defendant maliciously and without reasonable and probable cause preferred 'and prosecuted a charge against the plaintiff of poisoning the defendant's cattle, that the proceeding on that charge terminated in the plalntiff's favour, and that he suffered damage. The defendant denies these allegations, and also puts in issue the plaintifi's 'innocence: he did not, he said in his formal defence, admit the innocence of the plaintiff. As a matter of fact, the plaintiff was committed for trial on the charge preferred against him, but during the trial a nolle prosequi was entered, and he was discharged. And the question we have to determine is, in substance, whether a plaintiff in an action for malicious prosecution must show that the charge preferred against him was unfounded, or, in other words, prove his innocence.
Mr. Dizon, in his interesting argument, contended that the guilt or innocence of the plaintiff was not a separate issue, but was an element in the issue of reasonable and probable cause. A guilty man might, according to this contention, recover in an action for 'malicious prosecution. The Supreme Court rejected this argument, and the opinions of many learned Judges clearly support its view. Tt may be that the history of the writ of conspiracy and the action 'on the case in the nature of a conspiracy influenced those opinions ; but, whether that be so or not, they are so uniform and so strong and so well founded in justice that they must command ready assent from every Court. To take a few instances. Parker C.J., delivering the opinion of the Court in Jones v. Givin (1) - an action for malicious prosecution, - said : " The true grounds of these sorts of actions are on the plaintiff's side, his innocence and the damages sustained by him through a false accusation; on the defendant's side, that this was not an honest prosecution of justice, and a bare mistake ; but it was done in downright malice, i.e., merely wickedly and without any cause." Again, Bowen L.J. in Abrath's Case (2) said that "in an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was
(1) (1714) Gilb, 185, at pp. 201-202. (2) (1883) 11 Q.B.D., at p. 455.
made." And this was approved by the Judicial Committee Cox's Case (1) and by this Court in Crowley v. Glissan [No. 2}( Further, the same principle has been adopted by the Supreme Co of the United States. In Wheeler v. Nesbitt (3) Clifford J., deliv the opinion of the Court, said that to support an action for malicio criminal prosecution the plaintiff " must also prove that the chan preferred against him was unfounded . . . . Proof of th several facts is indispensable to support the declaration, and cle the burden of proof in the first instance is upon the plaintiff tom out his case, and if he fails to do so in any of these particulars, # defendant has no occasion to offer any evidence in his defence, And it is settled law that the criminal proceeding must h terminated in favour of the plaintiff before he can maintain an aetio for malicious prosecution, Consequently, a man convicted of crime charged against him cannot maintain an action for malici prosecution (Basébé v. Matthews (4); Bynoe v. Bank of Englan (5) ). Conversely, the acquittal or the termination of the crin proceedings in favour of the plaintiff establishes, it is said,
Now, that gives rise to some little difficulty. 'There are cases in th books, of high authority, which show that a judgment of convictior or acquittal in criminal cases does not, in subsequent eivil proce
or any other person from endeavouring to show that he was guil (Castrique v. Imrie (6) and the cases collected by Mr. Spencer Bow " Res Judicata," p. 139.) An acquittal no doubt establishes the fi that the proceedings have terminated in favour of the plaintiff, it also establishes, in my opinion, his " innocence " for the pt of an action for malicious prosecution (cf. Crescent' Live Stock C v. Butchers' Union (7)). Tt may be that this conclusion can supported on the technical ground that the plaintiff and defendant are in substance parties to the criminal proceedings resulted in acquittal, but it is rested more properly, I think, u the broad ground mentioned in Bynoe's Case (8) - the peculiar
(1) (1905) A.C., at pp. 170-171. (5) (1902) 1 K.B, 467. : (2) (1905) 2 C.LR., at p. 754. (6) (1870) LR. 4 HLL. 414, at p. 43 (3) (1860) 24 Howard 544, at p. 549. (7) (1887) 120 U.S. 141, at pp. 149 (4) (1867) L.R. 2 C.P. 684. (8) (1902) 1 K.B., at p. 470.
exceptional character of the action for malicious prosecution, and H- ©. oF A.
considerations of public policy. " If this were not so, almost every ease would have to be tried over again upon its merits"; " the judgment would be blowed off by a side-wind." _ But it is necessary to define what is meant by acquittal. Under old law, evidence of nolle prosequi was not sufficient to sustain ~ ease for a malicious indictment " unde legitimo modo fuit acquietatus," for it " is a discharge as to the indictment, but is no acquittal of the erime " (Goddard vy. Smith (1); cf. Jones v. Givin (2)). In other _ words, " lawfully acquitted imports such an acquittal as will entitle the plaintiff to plead auter foits acquit in case he be afterwards prosecuted for the same crime " (Selwyn's Nisi Prius, 13th ed., vol. tL, p. 1005; Buller's Nisi Prius, 7th ed., p. 14). That seems to me good law and good sense. Consequently, in my opinion, if the plaintiff in an action for al, then he must establish it in the sense already indicated. But it is
malicious prosecution seeks to prove his innocence by acquii
"not necessary in an action for malicious prosecution that the plaintiff should allege or prove such an acquittal, for it may be brought under circumstances which preclude the possibility of such an acquittal " (Selwyn's Nisi Prius, 13th ed., vol. 11., p. 1005). 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 juris- diction 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. The case of Delegal v. Highley (3) must be mentioned. It was much relied upon for the respondent. But it is not contrary to the conclusion I have reached. " A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances
(1) (1704) 1 Salk. 21. (2) (1714) Gilb,, at pp. 198 et seq. ' (3) (1837) 3 Bing. N.C. 950.
which he really believes, proceed upon apparent guilt, and in neith case is he liable to this kind of action " (Johnstone v. Sutton (1) The plea in Delegal's Case (2) was not a plea of real guilt, but th the defendant had reasonable cause to believe and did believe th the plaintiff was guilty of the accusation made against him. it was held that the plea was insufficient unless it alleged that at he time of the charge the defendant had been informed of or knew the facts on which the charge was made. But if, instead of relying a plea of not guilty, the defendant had pleaded real guilt on the part of the plaintiff, there is nothing in Delegal's Case to show that such a plea would have been demurrable. The question would. then have arisen whether "innocence" was an essential of the plaintiffs cause of action, and also whether the real guilt of th plaintiff did not establish a state of facts affording reasonable and probable cause for the prosecution.
It follows from what I have said that the Supreme Court rightly held that the jury were misdirected at the trial. They were told that the nolle prosequi conclusively proved that proceedings had terminated in the plaintiff's favour, and that they might " assume the plaintiff was an innocent man because proceedings ended in " his "favour," and that they were 'not trying the question of" the plaintiff's "innocence or guilt," that they * should assume for the purposes of this action that" he was " innocent." But the Supreme Court refused a new trial on the ground that no substantial wrong or miscarriage was occasioned by this misdirection. The disputed facts: were whether the plaintiff entered a paddock and poisoned feed ina bin, whereby the defendant's pigs, &c., were killed. Now, the question whether the plaintiff entered the paddock was critically connecte with the question whether he had any motive or purpose for entering" it. But the charge had already informed the jury that they should assume that the plaintiff was innocent of the accusation of poisoning
the pigs, &c., and practically concluded the question of motive i favour of the plaintiff. And it might easily lead to a misearmi for the jury might conclude that a man who was innocent and had no motive or purpose for being in the paddock was not in th
(1) (1786) 1 'T.R., at p. 545. (2) (1837) 3 Bing. N.C. 950.
paddock, and that those who deposed to his presence there had H. ©. or A. concocted their story. It is safer, I think, upon so material a Hrs
misdirection as was given in this case, that a new trial should be - Davis ordered, and, according to the statute, before a Judge of the Supreme Ms
Appeal allowed. Judgment appealed from set aside and new trial ordered before a Judge of the Supreme Court. Appellant to have
costs of this appeal and of appeal to the Supreme Court. Costs of the County Court trial to abide the event of the new trial.
Solicitor for the appellant, G. 1. Wise, Sale, by Madden, Butler, Elder & Graham.
Solicitor for the respondent, A. F'. Rice, Maffra, by Croft & Rhoden. . B.L.
DOWNIE (DEPUTY FEDERAL COMMIS- | SIONER OF TAXATION FOR TAS- APPELLANT ; MANIA) |
PLAINTIFF, AND THOMAS 1G renegn ey: aac c aes RESPONDENT. DEFENDANT, ON APPEAL FROM THE SUPREME COURT OF H.C. or A. TASMANIA. 1924. ~ Income Tax - Action to recover tax - Action in Local Court of Tasmania - What gvonny constitutes cause of action - Making of assessment - Notice of assessment - py, 5"
Failure to pay - Nonswit - Local Courts Act 1896 (Tas.) (60 Vict. No. 48), sees. 33, 34 - Income Tax Assessment Act 1915-1918 (No. 34 of 1915 - No. 18 Knox C3, of 1918), secs. 31, 36, 41, 44 - Income Tax Regulations 1917 (Statutory Rules Starke JJ