Horton v Padoani

The Proceedings

1. The plaintiffs now sue the defendant in malicious prosecution.
2. The elements of the tort of malicious prosecution are well-known and are as follows: "(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause" (A v State of New South Wales (2007) 230 CLR 500 at [1])
3. Of these elements, clearly the prosecution was unsuccessful, and thus the proceedings were resolved favourably to the plaintiffs.
4. The main battleground of the proceedings was the issue as to whether the defendant should be considered to have instigated and maintained the prosecution, to which issue I will now turn.

Is there a Liability in the Plaintiff for Instigating and Maintaining Prosecution?

1. There was no dispute as to the applicable legal principles. These principles were, with respect, well summarised by the Court of Appeal in Sahade v Bischoff [2015] NSWCA 418, where the Court stated: "In A v State of New South Wales at [34], the High Court pointed out that "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward." The joint judgment continued: "[t]o incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (citing John G Fleming, The Law of Torts, (9th ed 1998, Law Book Company Information Services) at 676). Their Honours referred at [35] to Martin v Watson [1996] AC 74, a case involving a complaint made to the Police: In Martin v Watson, a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a Police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the Police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had 'in substance procured the prosecution' [at 89]. The Police officer to whom the complaint was made had no way of testing the truthfulness of the accusation [at 89]. Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand [Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208], that a person may be regarded as the prosecutor if he puts the Police in possession of information which virtually compels an officer to bring a charge. Earlier Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 56; 53 CLR 343 at 379, in a passage which was referred to by Lord Keith in Martin v Watson at 81, referred to the criteria by which a complainant to the Police may be said to have instigated the prosecution: It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted if it is actually instituted as the result of an independent discretion on the part of that authority …. But, if the 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 …. The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. [Citations omitted.] Notwithstanding the reference by Dixon J to "joint wrongdoers" in the passage set out in the preceding paragraph, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself or herself was party to the wrongdoing: Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 at [39]-[40] (Basten JA). His Honour noted that the authorities for this proposition included Commonwealth Life Assurance Society Ltd v Brain at 379 and 381-382 (Dixon J) and Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255]. In Mahon v Rahn (No 2) at [266], Brooke LJ (Mantell and Laws LJJ agreeing) noted that in Martin v Watson at 84, Lord Keith also relied on the Restatement of the Law, Torts, 2d (American Law Institute, 1977), s 653, which deals with the matter in this way: When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false." [113 - 116]
2. Mr Sheller SC who appeared for the plaintiff's, submitted that the defendant satisfied the tests set out above leading to the conclusion that she instituted the prosecution. He submitted that she gave false evidence to Police. This submission was in part, based on the assertion that Mrs Padoani, the defendant, lied to Police when she said she had experienced ear pain. He also submitted that the defendant was selective in the provision of CCTV footage to the Police, more specifically, that she did not provide CCTV footage, which was less flattering to herself, than that which was relied upon by Police in the Local Court.
3. The defendant was subjected to close cross-examination as to the events of the day on which the incidents occurred, in an attempt to demonstrate that parts of her Police statement were incorrect. To some extent that cross-examination was successful, but I do not consider that the cross-examination should lead to a conclusion that in substance her complaint to the Police was knowingly false.
4. For example, the defendant's statement suggested that the first incident occurred while she was at her clothes line. The CCTV evidence adduced before me showed that this was incorrect. Similarly, that footage cast doubt on whether the defendant was as close to the air horn when it was discharged, as she initially suggested to Police. Also, the defendant in her Police statement suggested that before the second incident she was pruning bamboo leaves on her side of the fence. As I have earlier indicated, the CCTV footage clearly shows that on some occasions she was leaning across the boundary and trimming the leaves from the bamboo on the plaintiff's side of the fence.
5. This latter fact clearly infuriated the second plaintiff and led to the second incident. This provocative behaviour on the defendant's part is interesting in so far as it illuminates the background to the second incident, but to my mind, it is not material to the substance of the offence for which the second plaintiff was charged. In that regard it is well to recall that provocation is not a defence to a charge of assault.
6. Similarly in my view, the allegation that the defendant did not supply to Police all of the relevant CCTV footage available from her security system, is not material to the substance of the assault charges. The extracts from the CCTV footage which showed the incidents, and which were played in the Local Court in the Police case, did not differ in substance from the vision which the plaintiffs suggest the defendant withheld. This is to be expected. All of the relevant footage shows the substance of what occurred namely; that the plaintiffs discharged the air horn deliberately in the direction of the defendant while she was in close proximity to them.
7. It is true that some of the CCTV footage which was in evidence before me was less flattering to the defendant than the vision that was relied on in the Police case in the Local Court. Nonetheless all of the footage shows the substance of the elements of the offences for which the plaintiffs were charged. I should add that the Police were aware that there were several other cameras positioned around the defendant's home. If they considered that they would be assisted by further CCTV footage, they could have obtained that other footage either consensually, or if needs be, by way of search warrant.
8. This would also be true in relation to CCTV footage captured on the cameras mounted on the first plaintiffs house, which also to some extent captured the incidents.
9. That they did not do so, suggests that the Police were satisfied that the footage which had been provided to them by the defendant corroborated her statement.
10. I should add that I do not consider that the plaintiffs have established that the defendant withheld the CCTV footage from Police. The officer in charge of the matter, Constable McKinnery took custody of the USB stick provided to Police by the defendant, and transferred certain of the material on that stick to another medium, which was ultimately accessed by Police prosecutors.
11. When she had done this, she had placed that USB stick in her "pigeonhole" at Waverly Police Station, from where it went missing. The defendant gave evidence that the USB stick which she provided to the Police, contained all of the relevant CCTV footage from both of her cameras which captured the events in question.
12. The defendant said that she supplied the Police with the USB containing the files appearing on the Defendant's video exhibit Digital Exhibit 2 which forms part of Exhibit AP-1 ("Digital Exhibit 2") to the defendant's affidavit of 30 September 2022.
13. Digital Exhibit 2 contains four video files and three other files.
14. The four video files are: 1. two long videos, one titled "04_20191102 121638 Air Horn" and the other titled "05_20191102121637 Air Horn" respectively; and 2. two short videos, extracted from the above two long videos, titled "A - Richard Horton Blows Air Horn Two Times at Alida" and "B-Ben Horton Blow Air Horn at Alida" (referred to below as "Short Video A" and "Short Video B" respectively).
15. Digital Exhibit 2 also contains three other files, being Microsoft Word format files titled: 1. "Air Horn" 2. "Screen Shot-BH Air Horn (1)" 3. "Screen Shot-BH Air Horn (2)"
16. What distinguished Short Video A and Short Video B from the long videos and from the three Microsoft Word documents was that the titles of Short Video A and Short Video B contained a clear description of what was on the short videos.
17. It was the two short videos, Short Video A and Short Video B which were provided by Constable McKinnery to the Police prosecutor in the proceedings brought against the plaintiffs.
18. As I have earlier indicated, the USB which was actually provided to the Police seems to have been lost by Constable McKinnery. Its whereabouts are at best unknown.
19. In her evidence, Constable McKinnery conceded that once having received the USB she may have only transferred Short Video A and Short Video B to her own computer having regard to the clear titles that they bore (by comparison with the other documents on the USB) without realising that there were other files that should also be transferred.
20. Her evidence in cross-examination as to what may have happened was as follows: Q. What I'm suggesting to you is that what's happened is that you've received the USB, seen their names, spoken with Mrs Padoani about her complaint, and assumed that they were the only relevant computer files on that disc or on that USB and transferred that to your computer only? A. I don't recall but that could have happened. (Transcript 23.08.2023 p 209 lines 43-47)
21. In summary, it is quite possible that as the defendant asserts, she provided to Police the USB stick which contained all of the relevant footage. To the extent that it is necessary to do so, I find that the plaintiffs have not established on the balance of probabilities, that the defendant did not provide all relevant video footage to the Police, that is to say from both of the cameras on her property which captured the events in question.

Did the Defendant in Fact Experience Ear Pain?

1. The plaintiffs maintain that the defendant was being untruthful when she asserted that she had experienced ear pain following the incidents. In that regard, they point inter alia to her defiance in the immediate aftermath of the incidents as captured on some of the CCTV footage relied upon by the plaintiffs. They also suggest that the CCTV footage is not consistent with her allegation of ear pain.
2. I do not accept this submission. The CCTV footage in evidence in the matter before me, clearly shows the defendant flinched immediately following each air horn blast. This to my mind is consistent with both her being put in fear, and it is also consistent with resulting ear pain. The assertion that the video footage does not show that the defendant suffered ear pain, is to my mind ill-conceived. Ear pain in my experience is seldom accompanied by external indicia of that pain.
3. The plaintiff's case in this regard also fails to deal with the fact that in the Local Court, the defendant gave evidence to the following effect: Q. You subsequently attended a doctor? A. Correct Q. As a result of both air blasts can you describe to the Court what affect that had on you? A. Okay, I was dizzy, I felt nauseous, I had a headache, I had this need to put my finger in my ear to stop the pain, I had this massive pain in the back of my neck as well. The whole side of my head was killing me so I went to the medical centre straight away and I had to get my husband to drive me because I didn't think I could drive. I was in that much pain, and I had my husband drive me to the medical centre. (PX1 p.180)
4. This evidence was adduced in the plaintiffs' case, before me. I note however, that neither Mr Bolton SC who appeared for the then accused's in the Local Court, nor Mr Sheller SC who appeared for them in this Court, put to the defendant that she was untruthful in saying that the consequence of the blast left her in a condition that she did not consider that she is capable of driving herself to the medical centre at nearby Bondi Junction.
5. Finally, that on the balance of probabilities the defendant did in fact suffer injury to her ear, albeit minor, is corroborated by both reports of Dr Yang.

The Police Maintained a Discretion as to whether to Prosecute

1. As the authorities to which I have earlier referred make clear, a complainant may be found to be a prosecutor for the purposes of the tort of malicious prosecution, if he or she gives a statement to Police, which they do not believe to be true, which evidence is solely within the complainant's knowledge. In such circumstances this may lead to a conclusion that the Police had no way of testing the truthfulness of the accusation (Martin v Watson [1996] AC 74 at 89). In order to be actionable, this conclusion in turn must lead to a further conclusion that the complainant put Police in possession of "information which virtually compels an officer to bring a charge" (A v State of New South Wales at 35).
2. In my view, this is not such a case.
3. In this case, the CCTV footage, which was relied upon in the Local Court and that on any view was provided to the Police by the defendant, provided objective evidence which was in substance corroborative of what she was asserting. As I have early indicated the Police also knew that there was further video footage available to them should they require it.
4. Moreover, the Police were also in possession of Dr Yang's brief report of 2 November 2019, on which, following his recitation of the history given by his patient he stated: "On examination, both her tympanic membranes (eardrums) were intact but noted a trace capillary on the anterior (front) part of the left tympanic membrane, likely caused by loud exposure (PX1 page 118).
5. On 29 July 2020, as part of the evidence adduced by the Police in prosecution, Constable McKinnery requested a further report of Dr Yang. Which report he provided. That report stated: "she was examined by colleague Dr Kundan Geri and myself. On my examination, she had intact tympanic membrane (eardrum's) in both years, there was a trace of engorged capillary on the front of the left tympanic membrane but no visual perforation or haemorrhaging (bleeding). The ear canals were normal on both ears As a general practitioner Mrs Padoani suffered a minor acoustic trauma from exposure to loud noises to her left hear"
6. In my view, these reports also provide a form of objective corroboration of the plaintiff's statement to Police in so far as that statement refers to ear pain. Dr Yang's reports thus tend to corroborate that it is likely that the circumstances alleged to initiate the assault took place, as asserted by the defendant.
7. The obtaining of the further report of Dr Yang by Police, also demonstrates that the Police were maintaining the prosecution in the normal course. There was no suggestion in the evidence, that the prosecution was only progressing due to the defendant's continual harassment of Police.
8. It is also important to note in this regard that the belief that the prosecution should be instigated and maintained was not just the view of Constable McKinnery. It was obviously also the view of Sgt Fenton the Accepting Officer, and after him it must have been the view of the Police prosecutors.
9. It is also relevant to note that the Police Fact Sheet was prepared a month after the incidents to which it referred, suggesting that the decision to prosecute was one which received Police deliberation after the complaint was made.
10. Further and importantly in my view, notwithstanding that the plaintiffs called Constable McKinnery in their case, they did not ask her whether she felt that she had no discretion, other than to initiate the prosecution. Arguably, what Constable McKinnery in fact was asked in chief, demonstrated that she did not in fact consider that she lacked a discretion to not proceed with the prosecution. She gave the following evidence: Q. Is it fair to say that the decision to prosecute each of Richard and Ben Horton was at least largely reliant upon what Mrs Padoani had told you? A. Yes. Q. Plus the CCTV that you'd seen? A. Yes. Q. In the short videos? A. Yes. Q. Plus what she told some doctors and what the doctors had recorded or observed. A. Yes. (TP 206:12-24) (my emphasis)
11. Certainly, Constable McKinnery was not asked whether, in all the circumstances she felt that she was robbed of any discretion as to whether she should prosecute. In these circumstances, I infer that the examiner in chief feared to ask that question (Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419, per Handley JA), as its answer would not have assisted the plaintiffs' cases.
12. In these circumstances, I do not consider that the plaintiffs have established that the defendant should be considered to have either instituted or maintained the prosecution. Rather I find the prosecution was initiated and maintained in the conventional manner by Police, and in accordance with New South Wales Police prosecution policy, which policy requires prosecutions to be instituted only if they are in the public interest, and recognising that the resources available for the prosecutorial task are finite.

The Balance of the proceedings

1. On my factual analysis, I consider that the plaintiffs have also failed to establish the elements of malice and reasonable and proper cause.
2. As findings on those issues are unnecessary to be decided by me on my reasoning set out above, I shall only touch on them briefly.
3. As to malice, while there may have been significant ill will on the part of the defendant towards the plaintiffs, I do not consider that she made the complaint to Police other than for the dominant purpose of the proper invocation of the criminal law. I agree with the submission of Mr Rogers of counsel, who appeared for the defendant, who submitted that even if the plaintiffs and the defendant were unknown to each other, what objectively occurred on the afternoon in question justified the invocation of the criminal law.
4. As to the issue of reasonable and proper cause, as the High Court explained in A v State New South Wales this element in fact involves two sub elements, one objective and one subjective.
5. To my mind, and on the factual findings which I have earlier made, I find that a reasonable person would have concluded that the facts reported by the defendant, which were to some extent corroborated, were sufficient to ground the laying of the charges.
6. As to the subjective element, my factual findings virtually compel the conclusion that Mrs Padoani, the defendant had an honest belief that the two offences had been committed

Conclusion

1. For these reasons, the proceedings should be dismissed with costs.

Orders 1. That there be judgment and verdict for the defendant against the plaintiffs. 2. That the plaintiffs pay the defendant's costs.

I certify that this and the preceding 12 pages are a true copy of the reasons for Judgment herein of his Honour Judge Weber SC Associate Date 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. Decision last updated: 30 October 2023