Griffiths v Ballard & 2 Ors

Supreme Court of NSW|2004-07-28|Before: Mr J, Mr P

CITATION : Griffiths v Ballard & 2 Ors [2004] NSWSC 763 HEARING DATE(S) : 28 July 2004 JUDGMENT DATE : 25 August 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The plaintiff's FASC as against the first and second defendants is dismissed; (2) The plaintiff is to pay the first and second defendants' costs as agreed or assessed.

CATCHWORDS : Dismiss proceedings - whether witness immunity covers expert Drug Misuse and Trafficking Act 1985 (NSW) LEGISLATION CITED : Poisons and Therapeutic Goods Act 1996 (NSW) Supreme Court Rules 1970 (NSW) - Part 13 r 5; Part 15 r 26 Trade Practices Act 1974 (Cth) - s 52 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998) Cabassi v Vila (1940) 64 CLR 130 Darker v Chief Constable of West Midlands [2001] 1 AC 435 Dey v Victoria Railways Commissioners (1949) 78 CLR 62 Evans v London Hospital Medical College [1981] 1 WLR 184 CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gibson v Parkes District Hospital (1991) 26 NSWLR 9 Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 Jovanovic & Anor v Woods & Ors [2001] TASSC 96 (15 August 2001) Mann v O'Neill (1997) 71 ALJR 903; (1997) 191 CLR 204 Sovereign Motor Inns Pty Limited v Howarth Asia Pacific Pty Limited [2003] NSWSC 1120 Webster & Anor v Lampard (1993) 177 CLR 598 John Henry Griffiths (Plaintiff)

Peter Ballard (First Defendant) PARTIES : Commonwealth of Australia (Second Defendant)

State of New South Wales (Third Defendant) FILE NUMBER(S) : SC 20188/2003 Me E J Lennon QC with Mr B Hughes (Plaintiff) COUNSEL : Mr S J Gageler SC with Mr G R Kennett (First & Second Defendants) Steve Masselos & Company City Agent for Mr J M O'Connor, John M O'Connor & Company, Brisbane SOLICITORS : (Plaintiff)

Mr P Ward, Blake Dawson Waldron (First & Second Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20188/2003 - JOHN HENRY GRIFFITHS v PETER BALLARD & 2 ORS

JUDGMENT (Dismiss proceedings; whether witness immunity covers expert) 1 MASTER: Mr Griffiths was charged and convicted with being knowingly concerned in the manufacture of a prohibited drug, namely Methcathinone. The issue in this case is whether the principle of witness immunity applies to a pharmacist who was criticised both at trial and on appeal in his methodology in analysing the drug. Mr Griffith's appeal was upheld on the basis that the conviction was unsafe because the jury should have had serious doubts about the correctness of Mr Ballard's opinion. On the basis of this principle, the first and second defendants seek that the proceedings as against them be dismissed or alternatively, that paragraphs 15-44 and 50 of the amended statement of claim be struck out (notice of motion filed 23 March 2004). 2 The first defendant is Peter Ballard. The second defendant is the Commonwealth of Australia (the Commonwealth). The third defendant is the State of New South Wales (the State). The first and second defendants relied on the affidavit of Peter Jeffery Ward sworn 22 March 2004. On the hearing of this motion, the plaintiff sought to file a further amended statement of claim (PFASC). The first and second defendants object to it being filed on the basis of futility. The plaintiff's case is to be taken at its highest namely the case pleaded in the PFASC (Ex A). The first defendant consents to the filing of the PFASC. The plaintiff relied upon the affidavit of John O'Connor sworn 26 July 2004.

The law in relation to summary judgment 3 Part 15 r 26 of the Supreme Court Rules 1970 (NSW) (SCR) provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Part 13 r 5 of the SCR says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed, (b) the proceedings are frivolous or vexatious, or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 5 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 6 According to their Honours, this is because:

"It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities" (at 58). 7 Similarly, in Air Services Australia v Zarb (Unreported, NSWCA, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. 8 Master Allen (as he then was) in Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 said:

"…It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development." 9 This passage was quoted with approval by Justice Badgery-Parker in Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35.

The background 10 The Commonwealth conducted a unit known as the Australian Forensic Drub Laboratory of the Australian Government Analytical Laboratories (the laboratory) which was a business unit within the Analytical and Mapping Division of the Commonwealth Department of Industry, Tourism and Resources. The laboratory was the employer of the first defendant and the supplier of the services to the New South Wales Police Service (the Police) and others. Mr Ballard was authorised to provide certificates of analyses. 11 On the 2 or 3 July 1999 the Police seized chemical substances (the substances) from an industrial unit at Castle Hill. On 7 July 1999 the Police arrested the plaintiff, took him into custody, and laid charges against him including being knowingly concerned in the manufacture of the prohibited drug, Methcathinone, pursuant to s 24 of the Drug Misuse and Trafficking Act 1985 (NSW). The plaintiff remained in custody until he was released on 26 October 2001. The substances were provided by the Police to the laboratory for analysis to determine what the substances were. The substances were provided to the first defendant for analysis. On 7 September 1999 the first defendant issued a Certificate of Analysis (the Certificate) pursuant to the Drug Misuse and Trafficking Act. 12 On 29 January 2001 the plaintiff stood trial before His Honour Judge Davidson and a jury in the District Court. On 15 June 2001 the jury found the plaintiff guilty. The major issue at the trial was whether powder found in the seven bags seized contained Methcathinone. Mr Ballard analysed the contents of the bags so his evidence was critical to the proof of the crown case. The plaintiff appealed to the Court of Criminal Appeal. On 7 June 2002 the appeal was upheld and a verdict of an acquittal was entered. 13 The Court of Criminal Appeal in its judgment was critical of Mr Ballard's methods of analysing the white substance and the evidence he gave. The Court observed that at the initial visual comparison test conducted by Mr Mutagh (an analyst chemist), told Mr Ballard, prior to his carrying our further analysis, that the bags might contain Methcathinone (J 7.27). The Court stated that in view of the remarkable discrepancy between the relative ion intensities of the reference sample and the tested sample and the acceptance/rejection criterion of plus or minus 20% provided for in the manual, the jury ought to have regarded Mr Ballard's conclusion as tentative at best (J paras 37 & 38). Mr Ballard formed his conclusion by reference only to the second of the criteria, namely the appearance of the characteristic pattern of ions. Given that the relative intensity of ion 77 was almost twice as great as in the literature standard and that that for ion 51 was more than twice as great. The Court of Appeal was of the opinion that the jury ought to have wondered how firmly Mr Ballard could hold the view that the pattern appearance of the tested sample matched the literature standard. 14 Additionally, the Court referred to the cross examination of Mr Ballard where he admitted "interacting" with the CMS testing on 25 August 1999 because it had become apparent that the machine had produced a retention time inconsistent with his previously formed opinion. The NSWCCA does not go so far as to say that Mr Ballard fabricated evidence but it did consider that Mr Ballard put forward a misleading summary of tests programmed and that these acts should have thrown serious doubt on the integrity of his opinion based on these test results (J 22.62).

The statutory framework - the pleadings 15 In the PFASC the plaintiff has pleaded against the first and second defendants' causes of action of negligence, misfeasance in public office only against the first defendant and s 52 of the Trade Practices Act 1974 (Cth) (TPA). He claims damages including trauma, stress and anxiety, injury to reputation and economic loss. I shall refer to the causes of action pleaded in more detail shortly. The critical issue raised in this application is whether the plaintiff's case as pleaded in one that is recognised as falling within the witness immunity principle and whether the expert owes a duty of care to the plaintiff during the time he was charged, tried and convicted of an offence. 16 Recently in Sovereign Motor Inns Pty Limited v Howarth Asia Pacific Pty Limited [2003] NSWSC 1120, cases in relation to the scope of the witness indemnity both here and in England were discussed. In Sovereign, I held that Mr Vains, an expert who wrote reports, gave evidence and was cross-examined during litigation was covered by witness immunity. The statement of claim was summarily dismissed. What I wrote at paragraphs 21 to 32 is also applicable here and I do not intend to repeat it all. 17 In Australia, the witness immunity rule was discussed in Cabassi v Vila (1940) 64 CLR 130 where Starke J held at 140-141: "No action lies in respect of evidence given by witnesses in the course of judicial proceedings however false and malicious it may be, any more than it lies against Judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts. …

But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared ( Watson v McEwan [1905] AC 480 at 486), given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice ( Seaman v Netherlift (1876) 2CPD 53 at 62; Goffin v Donnelly (1981) 6 QBD 307 at 308) . The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of Contempt of Court: see Watson v McEwan ." 18 The rule expressed above has been referred to in English decisions as "the core immunity". But how far does the witness immunity rule extend? When this immunity has been challenged, the courts have examined the connection (or proximity) between witness and the court proceedings. In England the immunity does not extend to cover police officers that have deliberately fabricated evidence. 19 In the English case Evans v London Hospital Medical College [1981] 1 WLR 184, the facts are somewhat similar to these current proceedings. In Evans the first defendants provided post mortem investigations and reports and toxicological investigations at the request of the police and the DPP, after the plaintiff's 5-month-old son died. The defendants carried out the analysis where concentrations of morphine were found in various organs. These test results were communicated to the police who then charged the plaintiff with murder. At trial, the prosecution offered no evidence so she was acquitted. The plaintiff claimed damages as a result of her arrest, detention and having to undergo a trial. The particulars of negligence included that the defendants had been negligent in allowing the organs to be removed at the post mortem to become contaminated with morphine. The defendants successfully sought summary dismissal of the proceedings on the basis that they were immune from civil proceedings. 20 In Evans, Drake J discussed witness immunity and his approach is discussed and refined in subsequent cases. According to Drake J, if the administration of justice was impeded because witnesses would be in fear that persons against them might subsequently involve them in costly litigation, then if this occurred, it is essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement was made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. 21 If immunity does not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be out-flanked and rendered of little use. Immunity must extend also to the acts of the witness in collecting or considering material on which they may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him. 22 Since then, in England the House of Lords have refined Drake J's view as expressed in Evans. While the House of Lords in Darker v Chief Constable of West Midlands [2001] 1 AC 435 reaffirmed that witnesses in a civil or criminal trial have complete immunity from suit if the plaintiff's claim relates to things said or done in the witness box, but held that such immunity did not apply where police officers were found to have deliberately fabricated evidence. This is because what was under attack in the case was not the investigation of "possible realities but the preparation of a fiction." - (per Lord Clyde at 461). 23 The issue is whether in the case before me, it is arguable that immunity should not be extended to Ballard in circumstances where he "interacted" with the CMA testing and put forward a misleading and inaccurate summary of tests done. The shortcomings in carrying out the testing of the drug caused serious doubt upon the integrity of his opinion. If the English law were applicable I would allow this matter to go to trial as it is arguable that Mr Ballard's evidence borders on being classified as fabricated. 24 Reverting to Australia law, in Mann v O'Neill (1997) 71 ALJR 903; (1997) 191 CLR 204, the High Court (per Brennan CJ, Dawson, Toohey and Gaudron JJ) referred to it being well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It also extends to oral statements and to statements in the originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. However, in Mann McHugh J, at 221, warned against "the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence." In Jovanovic & Anor v Woods & Ors [2001] TASSC 96 (15 August 2001) and Sovereign the court considered whether the immunity extended to the preparation of expert reports and held that it did so extend. In Australia, the law has not as yet excluded fabricated evidence from being covered by witness immunity. 25 Nevertheless, taking the McHugh approach in Mann, I should examine the factual circumstances in these proceedings in light of the underlying rationale for the witness immunity principle. The public policy reasons for the immunity are firstly, so as to encourage honest and well meaning persons to assist the higher interest of the advancement of public justice even if a dishonest and malicious person may on occasions benefit from the immunity; secondly, the rule is designed to encourage freedom of speech and communication in judicial proceedings by protecting persons who take part from fear of being sued for something they say in the judicial process from the preparation of reports to the giving of evidence; and thirdly, to ensure that there is finality to litigation, so there is no opportunity for relitigating the same issues by means of subsequent actions. 26 This is one case where if the public policy objective is to be achieved then Mr Ballard gains the advantage of being given immunity even though his integrity was in doubt. The second and third objections are achieved if the witness immunity rule is applied. I accept that the common law develops incrementally but I do not think that it is arguable Mr Ballard's evidence and the issue of the certificate falls outside the principle of witness immunity. 27 The allegations of misfeasance in public office as against the first defendant are firstly, that the first defendant signed the certificate in the purported exercise of powers under ss 37A and 37B of the Poisons and Therapeutic Goods Act 1966 (NSW) and the Drugs and Misuse and Trafficking Act 1985 (NSW) which were limited to certifying "the result of analysis of substances provided to him for analysis"; secondly, intending that it would be provided to and relied on by the DPP; thirdly, knowing that it would prejudice the plaintiff's interests; fourthly, "recklessly not caring" whether it was correct; and fifthly, accordingly, "recklessly indifferent as to whether it was a certificate he was empowered to give". The malicious prosecution, the TPA and negligence claims are covered by the witness immunity principles - see Sovereign paras 41-45. 28 The law in Australia in respect of witness immunity is well settled. It is my view that the plaintiff's claims in the PFASC as against the first and second defendants are futile. The FASC should be dismissed against them. The FASC discloses no reasonable cause of action against them and should be dismissed. 29 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first and second defendants' costs as agreed or assessed.

(1) The plaintiff's FASC as against the first and second defendants is dismissed.

(2) The plaintiff is to pay the first and second defendants' costs as agreed or assessed.

Last Modified: 08/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Poisons and Therapeutic Goods Act 1996(NSW)

Trade Practices Act 1974(Cth)

Drugs and Misuse and Trafficking Act 1985(NSW)

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