Davis v Gell [1924] HCA 56

Davis v Gell [1924] HCA 56 - HCA 1924 case summary — Zoe

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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

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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.

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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

termination by way of nolle prosequi in any way establishes innocence. | "The effect of a nolle prosequi when obtained " (Chitty's Criminal
Law, vol. 1., p. 480) "is to put the defendant ' without day,' but ' it does not at all operate as an acquittal." (And see R. v. Mitchell ' (1).) Its evidentiary effect depends on other considerations, to : which I shall later advert.

Reasonable and Probable Cause. - This is really a question of ' fact. It is often said to be a matter of law, because its determination _ is for the Judge upon facts to be found by the jury. The exact » position is stated by Lord Macnaghten for the Judicial Committee,

in Pestonji M. Mody v. Queen Insurance Co. (2), in these terms : - | "Tt is quite true that according to English law it is for the Judge , and not for the jury to determine what is reasonable and probable
cause in an action for malicious prosecution. The jury finds the _ facts. The Judge draws the proper inference from the findings _ of the jury. In that sense the question is a question of law. But _ where the case is tried by a Judge without a jury there is really
nothing but a question of fact, and a question of fact to be determined by one and the same person." The ultimate fact, which is to be _ inferred from the constituent facts, is whether the defendant had reasonable and probable cause for instituting the proceedings or _ actively forwarding them. The crucial questions for consideration are stated along with that for malice by Lord Atkinson in Corea v. _ Peiris (3). The ascertainment of this ultimate fact depends - as one would naturally expect in view of the object and policy of the Jaw in protecting persons reasonably and bona fide pursuing their duty or their right - not on the actual guilt of the plaintiff, but "upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of . . . . It is not essential in any case that facts should be established proper and fit and

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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

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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.

At a glance

Court

Decision date

Before

Source

Judgment (128 paragraphs)