Irving v Pfingst & Anor [2021] QCA 280

SUPREME COURT OF QUEENSLAND

CITATION: Irving v Pfingst & Anor [2021] QCA 280

PARTIES: TERRY IRVING / (appellant) / v / HELEN MAREE PFINGST / (first respondent) / STATE OF QUEENSLAND / (second respondent)

FILE NO/S: Appeal No 10781 of 2020 / SC No 234 of 1999

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2020] QSC 280 (Brown J)

DELIVERED ON: 14 December 2021

DELIVERED AT: Brisbane

HEARING DATE: 18 March 2021

JUDGES: Fraser, McMurdo and Mullins JJA

ORDERS: Allow the appeal.Set aside the orders numbered 1 and 3 made on 18 September 2020.Give judgment for the appellant against the respondents, on the claim for the malicious prosecution of the Accessory Charge, for damages to be assessed.Remit the proceeding to the Trial Division for that assessment of damages, and for consideration of the order or orders for costs which should be made for the proceeding in the Trial division.Otherwise dismiss the appellant’s claim against the respondents.Parties to provide written submissions as to the costs of the proceeding in this Court, not to exceed four pages in length, within 14 days of the delivery of this judgment.

CATCHWORDS: TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – where the appellant was charged by the respondent as an accessory after the fact to the armed robbery of a bank – where the accessory charge was particularised as having been committed by a Mr Suthers as the principal offender – where there was evidence that the respondent suspected the appellant was the robber – where the accessory charge provided the basis for the ongoing detention of the appellant while the respondent pursued investigations of the appellant as the robber – whether the respondent honestly believed there was a proper case for prosecution of the appellant as an accessory after the fact when the respondent, at the same time, suspected that the appellant had robbed the bank – whether the accessory charge was laid without reasonable probable cause – whether the appellant proved malice in the respondent charging him as an accessory / EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where the appellant was convicted of armed robbery – where the appellant successfully appealed the conviction – where the prosecution entered a nolle prosequi – where before being charged with armed robbery the appellant had been charged by the respondent police officer with being an accessory after the fact to the armed robbery – where the appellant brought a claim for damages for malicious prosecution in respect of the accessory charge and in respect of the armed robbery charge – where the appellant had conversations with the respondent police officer and another police officer over a period of three and one-half hours – where the respondent and the other police officer made notes of these conversations immediately after they concluded – where the appellant alleged that the conversations were secretly recorded, that the tape was never disclosed, and the notes were inaccurate and contained false statements – where the appellant relied upon the report of an expert in forensic linguistics to determine whether it was likely that the notes were prepared from memory or transcribed from a recording – where the trial judge concluded that parts of the report were inadmissible as expert opinion because the matters covered were matters of inference that could be drawn by lay people – whether parts of the report ought not to have been excluded as they contained reference to research in the field – whether the exclusion of parts of the report detracted from the effect given to the balance of the report / EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTION: DOCUMENTS – GENERAL PRINCIPLES – STATEMENT – where the appellant was charged by the respondent as an accessory after the fact to armed robbery – where the respondent gave evidence-in-chief at the committal hearing for the charge – where the appellant complained to the Criminal Justice Commission (CJC) that the respondent gave false evidence – where the respondent was interviewed by the CJC in respect of the complaint – where there was no available recording of the interview – where, in this trial, the appellant alleged that the respondent gave false evidence to the CJC – where it was not established that the transcript was an accurate reflection of the interview – where the respondent did not adopt the transcript as her own statement pursuant to s 92(4) Evidence Act 1977 (Qld) – whether the trial judge erred in excluding the transcript from evidence / APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – JURISDICTION TO GRANT NEW TRIAL AND OTHER MATTERS – where there was an application for a retrial – where an appeal by way of rehearing was a remedy available to the appellant – where the provisions of Chapter 18 of the Uniform Civil Procedure Rules 1999 (Qld) provide that the Court of Appeal may exercise its jurisdiction to order a new trial – where the appellant argued that the trial judge made factual errors which were critical to the outcome – whether there was some substantial wrong or a miscarriage of justice so as to warrant a new trial / Criminal Code (Qld), s 7, s 8, s 10, s 544, s 569 / Evidence Act 1977 (Qld), s 92 / Uniform Civil Procedure Rules 1999 (Qld), r 745, r 746, r 765, r 766, r 770 / A v New South Wales (2007) 230 CLR 500; [2007] HCA 10, considered / Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23, considered / George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited / Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, considered / Hussien v Chong Fook Kam [1970] AC 942; [1969] UKPC 26, considered / McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70, considered / Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526, considered / Musgrove v McDonald (1905) 3 CLR 132; [1905] HCA 50, cited / Orr v Holmes (1948) 76 CLR 632; [1948] HCA 16, cited / Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21, considered / R v Carter and Savage; Ex parte Attorney-General (Qld) [1990] 2 Qd R 371, cited / R v Kirkby [2000] 2 Qd R 57; [1998] QCA 445, cited / Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited

COUNSEL: G R Mullins with E M Gass for the appellant / S A McLeod QC, with M R Wilkinson, for the respondents

SOLICITORS: Maurice Blackburn Lawyers for the appellant / G R Cooper, Crown Solicitor for the respondents

1. FRASER JA: On 19 March 1993 there was an armed robbery of a bank in Cairns. That crime was investigated by one of the respondents, Ms Pfingst, who was then a detective in the Queensland Police Service, and other police officers. On 18 May 1993 Ms Pfingst charged the appellant, Mr Irving, with the offence of being an accessory after the fact to the robbery (“the Accessory Charge”). After Mr Irving had been held in custody for a week on the Accessory Charge, on 25 May 1993 Ms Pfingst charged him with the offence of armed robbery (“the Robbery Charge”). The Accessory Charge was later withdrawn. Thereafter, Mr Irving remained in custody for more than four and a half years, first on remand and then whilst serving a sentence of imprisonment imposed upon his conviction after a trial of the Robbery Charge. He was released in December 1997 after the Director of Public Prosecutions conceded during a hearing in the High Court that he had not been given a fair trial.

2. Mr Irving sued Ms Pfingst and the other respondent, the State of Queensland, for damages for false imprisonment and for malicious prosecution by Ms Pfingst of the Accessory Charge and the Robbery Charge. The claim was dismissed after a trial. Mr Irving appeals against the dismissal of his claims for damages for malicious prosecution. In relation to the claim in respect of the Accessory Charge, Mr Irving seeks orders setting aside the judgment against him and substituting a judgment in his favour for damages to be assessed, or alternatively a retrial of that claim. So far as Mr Irving’s appeal concerns the Robbery Charge, it is in the nature of an application for a new trial.

3. Mullins JA would dismiss the appeal. McMurdo JA would allow the appeal against the dismissal of the malicious prosecution claim in respect of the Accessory Charge, give judgment for Mr Irving on that claim for damages to be assessed, remit the proceeding to the Trial Division for the assessment of those damages and consideration of appropriate orders for costs, and otherwise dismiss Mr Irving’s claim against Ms Pfingst and the State of Queensland.

4. I agree with McMurdo JA’s reasons for dismissing the appeal against the rejection of Mr Irving’s claim for malicious prosecution of the Robbery Charge. My reasons relate only to the appeal against the rejection of Mr Irving’s claim for malicious prosecution of the Accessory Charge.

5. There is no issue about the applicable law. Those elements of a cause of action for malicious prosecution that are in issue in this appeal required Mr Irving to prove Ms Pfingst acted maliciously in initiating or maintaining the Accessory Charge and her prosecution of that charge was commenced or maintained without reasonable and probable cause. In a passage in the judgment of the plurality of the High Court in A v New South Wales¹ which is cited in McMurdo JA’s reasons, the question whether a prosecution was commenced or maintained without reasonable and probable cause was said to involve both a subjective and objective aspect, so as to require the material available to the prosecutor at the relevant time to be assessed in two ways: “What did the prosecutor make of it? What should the prosecutor have made of it?” The plurality observed, “The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion” and, in a case of this kind where the prosecutor acts upon material provided by others, “unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution” (the subjective aspect) “or to have formed that view on an insufficient basis” (the objective aspect) “the element of absence of reasonable and probable cause is not established.” The element of the cause of action that the prosecutor acted maliciously required Mr Irving to prove Ms Pfingst’s sole or dominant purpose in prosecuting the Accessory Charge was a purpose other than the proper invocation of the criminal law.

“This is a charge of accessory to armed robbery. Did you charge Terry Irving with accessory to armed robbery on the 18th of May 1993?--- Yes, I did.

At the time you charged Mr Irving with that offence, what was your belief as to the innocence or guilt of Mr Irving of that charge?--- Guilty.

What was your belief as to whether you had sufficient information to warrant charging Mr Irving? --- Yes, I believe we had sufficient information.

And what was your belief as to whether or not there was a proper case for prosecution when you charged him?--- Yes, there was a proper case.”

That evidence conveyed that at the time Ms Pfingst bought the Accessory Charge she believed Mr Irving had assisted Suthers in order to enable him to escape punishment for the crime Suthers had committed of stealing with actual violence money from the bank whilst armed with a sawn-off shotgun, she had sufficient information to warrant that charge, and she believed there was a proper case for prosecution of that charge.

11. The trial judge relied upon that evidence in finding Mr Irving had not established the subjective aspect of the element that the prosecution was commenced or maintained without reasonable and probable cause:

“Ms Pfingst gave evidence that she honestly believed there was sufficient evidence for a proper case for prosecution and that she believed at the time she charged him, that there was a proper case for prosecution of that charge. I accept that evidence. I do not find that Mr Irving has demonstrated an absence of reasonable and probable cause with regard to the First Alleged Malicious Prosecution.”¹⁰

(The “First Alleged Malicious Prosecution” is the allegedly malicious prosecution of the Accessory Charge.)

12. The trial judge summarised what her Honour found to be objectively sufficient evidence for charging Mr Irving with the Accessory Charge:¹¹

“(a) The evidence of Mr and Mrs Kerr [witnesses at the scene of the robbery] was that they had both identified a vehicle leaving the driveway of the block of units that they had seen the person that they were following enter. That was to a lesser extent, supported by Ms Adkins who had also followed the Robber once he left the Bank, saw him run into the driveway of the flats and then saw a vehicle exit shortly after;

(b)The registration of the vehicle Mr and Mrs Kerr saw matched Mr Irving’s registration;

(c)Mr Irving’s car had not been reported stolen;

(d)Mr Irving had stated to Ms Pfingst and Mr Sturgess on 17 May 1993 that he was aware of the Robbery and had not reported the fact that the car registration was his car;

(e)That he had stated that he had lent Mr Suthers his car at the time of the robbery and that he had been gone for some time;

(f)That after he knew about the Robbery and that the registration of the vehicle that was being sought in connection with the Robbery was his car;

(g)Mr Irving had stated that he had put a tarp over the car and hidden the registration plates under concrete “So youse wouldn’t find it”;

(h)Mr Irving stated that he did not approach the police “because of the car and the description, it all pointed to [him]”; and

(i)That even though there was one Robber in the Bank and there was no evidence that Mr Suthers was that person, there was evidence that another person was seen to be driving the getaway vehicle. Mr Suthers was nominated as having possession of the vehicle at the time of the Robbery. Therefore, the evidence supported that he was a co-offender in the Robbery.”

13. As is reflected in sub-paragraph (i), upon the evidence there was only one robber and Ms Pfingst gave evidence, which the trial judge accepted,¹² that when she charged Mr Irving with the Accessory Charge she had no evidence Suthers had committed the robbery. In relation to sub-paragraphs (e) and (i), the only information available to Ms Pfingst that Suthers might have participated in the robbery is a statement to police by Mr Irving that he had lent his car to Suthers during the period in which the robbery took place. In a statement on oath dated 23 June 1993 Ms Pfingst set out statements she said in evidence were made by Mr Irving before Ms Pfingst brought the Accessory Charge. Ms Pfingst attributed to Mr Irving the following statements relating to any role of Suthers in the robbery:

“Detective Sturgess, Terry Irving and I then went into the interview room.

He said, “This is about my car isn't it.”

I said, “Well, yes. Your·car was seen leaving the scene of the armed hold up at the ANZ Bank at Portsmith. Actually the male who held up the bank was seen to get into the back seat of the vehicle.”

He said, “I knew you were looking for the car.”

I said, “Look Terry I have to get this conversation on tape.”

IRVING cuts in and says, “No, tapes, I've been through this before, no tapes. I'll talk to you about it, but not on record.”

I said, “OK fair enough. How do you know we were looking for your car.”

He said, “OK I'll tell you what happen. I was down at the pub drinking and playing pool with a guy by the name of Wayne.”

I said, “Which pub.”

He said, “The Big O”

I said, “Who is Wayne.”

There was a pause and then he said, “Suthers.”

I said, “Where does he live.”

He said, “Don't know, don't know anything else about him.”

I said, “How old is he.”

There was a pause and then he said, “30.”

I said, “OK go on.”

He said, “He said could he borrow my car for 10 minutes but he was gone for a couple of hours. I was really pissed off with him. When he came back I asked where he had been and he said there was a hold up at the hospital. He said he had been at the hospital seeing his mrs.”

I said, “OK, how did you know we were looking for your car.”

He said, “I was driving down Sheridan Street and l heard on the radio that the Police were looking for a car used in a hold up. Then I nearly shit myself. They said my rego number. Then I shit myself and went back to the hotel that night to get Wayne but he didn't front.””

14. Upon the face of that account it seems unpersuasive. According to Ms Pfingst’s evidence, Mr Irving gave that account after she told him his car had been seen leaving the scene of the robbery. The account was self-serving to any extent to which it inculpated Suthers in the robbery. Mr Irving indicated he was willing to talk to police only off the record. Mr Irving paused before answering each of her simple questions seeking information about the man to whom he said he had lent his car. The only information Mr Irving conveyed about that man was that Mr Irving played pool with him at the pub, his name was Wayne Suthers, and he was 30 years old; yet Mr Irving, who professed to know nothing else about the man, lent the man his car.

15. In cross examination, Ms Pfingst was again shown the document which records the Accessory Charge. Counsel read the charge aloud to Ms Pfingst. She agreed the first element of the charge was “Wayne Suthers committed the robbery”. Ms Pfingst did not reject the suggestion she “had no evidence that Suthers committed the robbery”. Instead, she said, “Well, that was the only person we knew of because that’s who Terry Irving had nominated as the person who had his car and did the robbery.”¹³ Upon Ms Pfingst’s own evidence, Mr Irving had not nominated Mr Suthers as the person who did the robbery.

16. In answer to the next question in cross examination, Ms Pfingst conceded that when she brought the Accessory Charge she had no evidence Suthers had committed the robbery:¹⁴

“No, Mr Irving never said that Suthers did a robbery, did he?---No, he said he had his car.

Yes?---And his car was used in the – in the armed hold up.

And so that’s the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery?---At the time that he was charged, we knew that he had knowledge of the – that Terry Irving had knowledge of the armed hold up because he had heard it on the radio. He admitted that. We had his car. We had his numberplates and he had nominated Wayne Suthers. So we were still doing inquiries on Wayne Suthers.

He had nominated Wayne Suthers as borrowing his car?---Yes.

You had no evidence that Wayne Suthers has committed the robbery? ---No.”

17. In re-examination, Ms Pfingst gave the expected answer “Wayne Suthers” to the question, “And in him telling you that Wayne had the vehicle at – at the times he said Wayne had the vehicle, who – who did you take him to be telling you had the vehicle at the time of the armed robbery.”¹⁵ The only other evidence Ms Pfingst gave upon the topic in re-examination was as follows:

“Now, you were asked some questions about what you had at the time you charged Mr Irving with the offence of accessory. What was the basis upon which you charged him?---Well, we already had the car, the number plates, the hiding of the number plates, the tarp over the car. We had some identification of photo boards and identification of clothing.

Okay?---And Wayne Suthers didn’t exist. …”¹⁶

18. Ms Pfingst did not at any point in her evidence say she had ever believed Mr Irving’s account or that Suthers had committed the robbery.

19. The trial judge sought to reconcile Ms Pfingst’s evidence in cross examination that she had no evidence Suthers committed the robbery with the Accessory Charge that Mr Irving had assisted Suthers to escape punishment for the armed robbery whilst knowing Suthers had committed the armed robbery; the trial judge reasoned that Ms Pfingst’s evidence “supports the fact that she was relying on Mr Suthers being involved in the Robbery, such that Mr Suthers would be liable for the offence by reason of s 7 or 8 Criminal Code rather than being the person who robbed the bank himself” and “the most probable explanation” for the wording of the charge referring to Mr Suthers having the shotgun “is that was an incorrect particular in the wording of the charge”.¹⁷ That analysis is inconsistent with the effect of Ms Pfingst’s evidence in chief, which the trial judge accepted (see [10] and [11] of these reasons). It is also difficult to reconcile with Ms Pfingst’s agreement in cross examination that one of three elements of the Accessory Charge is that “Wayne Suthers committed the robbery” and her failure to mention any mistake in the text of the Accessory Charge in her answer to the question, “And so that’s the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery?” (see [15] and [16] of these reasons).

20. The objective insufficiency of the material to warrant the Accessory Charge is demonstrated by the absence of material in Ms Pfingst’s possession to warrant the allegation that Suthers had committed the robbery. That allegation is not merely a particular. It is at the heart of the Accessory Charge. The insufficiency of the material was so obvious as of itself to supply support for an inference that Ms Pfingst could not honestly have formed the view that there was a proper case for prosecution of the Accessory Charge.¹⁸ The trial judge did not take that into account.

21. A related issue concerns evidence that when Ms Pfingst brought the Accessory Charge against Mr Irving she suspected he was the robber. The trial judge considered that the fact that Ms Pfingst suspected Mr Irving had committed the armed robbery was not inconsistent with her having at the same time believed that he was an accessory after the fact.¹⁹ In a footnote the trial judge referred to the distinction between belief and suspicion drawn in George v Rockett. The relevant discussion in was directed to the meaning of the terms “suspecting” and “believing” in s 679 of the .

“That on the 19th day of March 1993 at Cairns in the State of Queensland one Wayne SUTHERS stole from one Ruth Mary OASTLER with actual violence a sum of money namely $6100.00, the property of one Australia and New Zealand Banking Group and at the time aforesaid the said Wayne SUTHERS was armed with a dangerous weapon, namely a sawn-off shotgun AND THAT Terry IRVING between the 18th day of March 1993 and the 18th day of May 1993 at Cairns in the State of Queensland, knowing that the said Wayne Suthers had committed the said crime assisted him in order to enable him to escape punishment.”

32. At that time Ms Pfingst knew almost nothing about the man whom she alleged was the robber. In her evidence in this case, Ms Pfingst accepted that she had no evidence that Suthers was the robber. All that she knew about Suthers had come from Mr Irving’s statement that Suthers had borrowed his car at the relevant time. That provided no reasonable basis for a charge in these terms, which had it been pursued, would have required the prosecution to prove that it was Suthers who had robbed the bank.

33. But the accessory charge was not pursued. Only a week later (on 25 May 1993) Mr Irving was charged with having been the robber himself. I will refer to this charge, as the trial judge did, as the Robbery Charge. The Accessory Charge was withdrawn on 2 July 1993.

34. On 8 December 1993, Mr Irving was tried in the District Court by a jury on the Robbery Charge. The prosecutor closed his case early in the afternoon and Mr Irving neither gave nor called evidence. The prosecutor addressed the jury for about 10 minutes and defence counsel addressed the jury for about 20 minutes. After that, the judge’s summing up was given over the next half hour. The issue was whether the prosecution had proved that it was Mr Irving who was the robber. The judge told the jury that the prosecution case depended significantly on the identification evidence given by witnesses who had inspected a photoboard and selected Mr Irving from among those whose photographs appeared there. It was Ms Pfingst who had the witnesses undertake that exercise. Remarkably, Ms Pfingst was not called as a witness at the trial, although at the beginning of the day, the prosecutor told the jury that she was a person who might be called.

35. The jury retired at 4.25 pm and returned with their verdict about 10 minutes later. Mr Irving was convicted, and on the following day, he was sentenced to a term of seven years and five months’ imprisonment, having regard to the seven months which he had spent in custody.

36. By then without legal representation, Mr Irving appealed against his conviction. At the hearing of the appeal, he sought to adduce evidence which was not tendered at the trial, in the form of recordings of the photoboard identifications, together with transcripts of what could be heard on those videos. He was endeavouring to demonstrate that Ms Pfingst had led the witnesses, or at least some of them, in the photoboard identification. He told the Court that his trial counsel had not followed his instructions in cross-examining those witnesses about the photoboard identification. His appeal was dismissed.²⁷

37. Some years later, in 1996, Mr Irving applied for special leave to appeal to the High Court. The application first came before three judges on 15 August 1997, when Brennan CJ told the parties that having read the written submissions, the Court had decided to adjourn the application with the expectation that the Crown would provide Mr Irving and the Court with a full transcript of the trial, and a written explanation by reference to that transcript of why Ms Pfingst was not called as a witness. On the adjourned date, by which time Mr Irving had the benefit of legal representation, the Crown conceded that it would “have a lot of difficulty” in contending that Mr Irving had received a fair trial. By that stage, the High Court had an affidavit sworn by Ms Pfingst, which offered an explanation for why she, as the Arresting Officer in the matter, had not been a witness at the trial. One week prior to the trial, she had undergone throat surgery and been released from hospital on that day. She said that she was then absent from work for the week which concluded on the day on which the trial occurred, and that as a result of the operation she was not able to talk properly for a couple of weeks. A transcript of the sentencing proceedings (on the morning after the trial) recorded the judge observing that “Detective Pfingst has just left the Court” (when there was discussion about obtaining Mr Irving’s criminal record). In her affidavit, Ms Pfingst acknowledged that reference, and also a record of her attendance at Court on that day in her work diary, but she said that she had no recollection of being there and that she returned to work on 9 December 1993.

The elements of the cause of action

42. The trial judge identified that on each cause of action, Mr Irving had to establish that:(a)the criminal proceeding was instituted or maintained by Ms Pfingst, such that she could be relevantly regarded as the prosecutor of the proceeding;(b)the proceeding terminated in Mr Irving’s favour;(c)Ms Pfingst, in initiating or maintaining the criminal proceeding, acted maliciously; and(d)the prosecution was commenced or maintained without reasonable or probable cause.³⁰

43. It was common ground that on each charge, the criminal proceeding was terminated in Mr Irving’s favour.³¹ It was also common ground that Ms Pfingst was the prosecutor for the Accessory Charge,³² and it is now accepted, as the judge found, that she was the prosecutor for the Robbery Charge insofar as she was responsible for the laying of that charge and the preparation of the prosecutor’s brief for the committal hearing.³³

44. In each case, the trial judge found that Mr Irving failed to establish the absence of a reasonable or probable cause for the prosecution³⁴ and that Ms Pfingst acted maliciously.³⁵

45. The elements of this cause of action were explained by the High Court in A v New South Wales.³⁶ The plurality observed that in a jury trial of an action for malicious prosecution, where a question relevant to the issue of reasonable and probable cause is left to a jury, it is usual for that question to precede the question concerning malice.³⁷ It was said that the element of the absence of reasonable and probable cause does not involve a question which is “abstract or purely objective”. Rather, the question is whether the prosecutor had “reasonable and probable cause to do what he [or she] did; not whether, regardless of the prosecutor’s knowledge or belief, there was reasonable and probable cause for [the] charge to be laid.”³⁸ Their Honours said that the question thereby involved both an objective and subjective aspect, and that:

“[T]he inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?”.

46. The plurality said that an action for malicious prosecution has a “temporal dimension”,⁴¹ in that the inquiry about reasonable and probable cause must direct attention “to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution.”⁴²

47. They discussed what has to be demonstrated, insofar as the subjective aspect of reasonable and probable cause is concerned. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies,⁴³ the absence of reasonable and probable cause will be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or probably was, guilty.⁴⁴ Where the prosecutor may not be supposed to know where the truth lies, but has acted on material provided by third parties, the question will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the process of the criminal law in motion.⁴⁵

48. As to the objective aspect of reasonable and probable cause, the plurality observed that it was not sufficient to show only that there were further inquiries that could have been made before a charge was laid.⁴⁶ Their Honours endorsed what was said by Lord Atkin in Herniman v Smith:⁴⁷

“It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution.”⁴⁸

49. As to the separate question of what will constitute malice in this context, the plurality said that it has to be demonstrated that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law, and that the improper purpose was the “sole or dominant purpose actuating the prosecutor”.⁴⁹ Although the proof of malice will often be a matter of inference, “it is proof that is required, not conjecture or suspicion.”⁵⁰

50. Their Honours further observed that proof of particular facts may supply the evidence of both the element of the absence of reasonable and probable cause and the element of malice. They said that, for example, “if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause.”⁵¹

The Accessory Charge

51. Section 10 of the Criminal Code provides that:

“[a] person who receives or assists another who is, to the person’s knowledge, guilty of an offence, in order to enable the person to escape punishment, is an accessory after the fact to the offence.”

Section 544(1) of the Code provides that if a person becomes an accessory after the fact to a crime (such as robbery), the accessory commits a crime. The offence committed by an accessory after the fact is a different offence from that committed by the person whom the accessory receives or assists. In that respect, the accessory’s criminal responsibility differs from that of a person who, by s 7(1)(b), (c) or (d) or s 8 of the Code, is deemed to have taken part in the commission of the same offence as that committed by the person whose act or omission constituted the offence.

52. Both an accessory after the fact, and an accessory in the sense of a party to an offence by s 7 or s 8, are subject to s 569 of the Code. By that provision, an accessory “may be charged in the same indictment with the principal offender, and may be tried with the principal offender or separately, or may be indicted and tried separately, whether the principal offender has or has not been convicted or is or is not amenable to justice.” Nevertheless, as noted, the commission of the principal offence must be proved, ⁵² and the Accessory Charge here would have required the prosecution to prove that it was Suthers who had robbed the bank.

53. At this point it is necessary to discuss more of the events around the Accessory Charge being laid.

54. On 19 March 1993 Ms Pfingst noted a description of the robber on the police “Running Sheet” which recorded the progress of the investigation. It read:

“DECSCRIPTION: Australian, 20’s, olive complexion, 6’, black hair with a 6” pony tail. Wearing a long sleeve pastel shirt with dark grey trousers, medium build, shoes (description unknown.) Had a black beret on his head (pony tail later seen to fall from under beret) a dark grey scarf/handkerchief tied around his face under the eyes and reaching down to chest level. Carrying a pale yellow vinyl bag. It was seen that he had small curls at the base of his neck. He was wearing a pair of sunglasses.”

55. From at least 19 March 1993 it appears that Mr Irving was treated as a “suspect”. On 19 March 1993, an entry on the Running Sheet reads: “All computer checks in all States. Has previous for armed hold ups in NSW. Not wanted in any other states. Pervious [sic] for fraud in SA.” The trial judge considered that this “appear[ed]” to be a reference to the criminal history of Mr Irving.⁵³ On the same day the Running Sheet recorded that enquiries were made with Ms Parker (Mr Irving’s former partner) in an attempt to find Mr Irving’s whereabouts. From 20 March 1993 there were further entries which appear to refer to Mr Irving as “the suspect”.

56. On 17 May 1993, Ms Pfingst and a colleague, Detective Sergeant Sturgess, travelled to Atherton. By then, police had made several unsuccessful attempts to locate Mr Irving. At 1 pm, or sometime before then, the Cairns CIB received a call from an employee of the Commonwealth Bank in Atherton, alerting them to the fact that Mr Irving was, or soon would be, at the branch. Upon arriving at the branch, Ms Pfingst and Mr Sturgess approached Mr Irving and he agreed to accompany them to the Atherton police station to discuss the Cairns robbery. He answered a number of questions and was apparently told that he had to accompany Ms Pfingst and Mr Sturgess back to Cairns because his lawyer was there, and there was an issue with him failing to appear in relation to a bail undertaking. Mr Irving then also agreed to show the police where he had hidden the registration plates from his car. After further questioning at the Cairns CIB Mr Irving refused to take part in an interview. Ms Pfingst then arrested him for the possession of cannabis and a failure to appear. She added “I’ll be making further inquiries in relation to the armed hold up”.

57. Later on 17 May 1993 Ms Pfingst and another colleague travelled to the Port Douglas area. Upon speaking to other detectives, she took possession of a shirt which was located in a bag of clothing apparently owned by Mr Irving.

58. On the morning of 18 May 1993, an operation described as Operation 3UP was established in the Cairns CIB. Its purpose was to investigate whether three recent bank robberies in Cairns, this one included, were linked, and whether the same person had been the robber in each case.⁵⁴ The three robberies were the subject of individual investigations, and Ms Pfingst was investigating only the robbery which occurred on 19 March 1993. However, as a result of the 3UP operation, Ms Pfingst saw photographs depicting another of the robberies, which had occurred in late 1992.⁵⁵ In her evidence, she accepted that there were similarities between the descriptions given by witnesses of that robbery, and those given of the robber in the subject case.

“On the 19th of March, 1993 there was an armed robbery at the ANZ Bank, Hartley St, Portsmith, Cairns. A Motor vehicle registered to this defendant was used in this Robbery.

…

On Monday the 17th Day of May, 1993 the defendant was located by Police and spoken to about his non appearance at the Court regarding this matter. He informed them that he did not appear because HE KNEW THAT THE POLICE IN CAIRNS WERE LOOKING FOR HIM REGARDING THE ARMED ROBBERY and wanted to avoid them for this reason. …”

(emphasis in original)

60. Mr Irving was arrested on the Accessory Charge early on the afternoon of 18 May. Later that day, Ms Pfingst returned to the watchhouse and asked him whether he would be willing to take part in a line-up and provide samples of his hair and saliva. He refused to do so.

61. On the following day, 19 May, Ms Pfingst applied to a magistrate for permission to take those samples. Mr Irving’s solicitor opposed that application, but the permission was granted, and samples were taken that evening by a doctor, under the supervision of another detective and in the presence of Mr Irving’s solicitor.⁵⁷ The magistrate’s approval was given under what was then s 259 of the Criminal Code, which provided that when a person was in lawful custody upon a charge of committing an offence, a medical practitioner might examine the person and take samples of his blood, saliva or hair and collect from his person any substance or thing, if that could not cause bodily harm to the person. It further provided that this could not be done, absent the consent of the person in custody, without the approval of a magistrate.⁵⁸

62. In her written request for the magistrate’s approval, Ms Pfingst expressed her belief that the examination might afford evidence of the commission of the offence which was alleged by the Accessory Charge. At the same time, she did so in terms which suggested that it was Mr Irving who had been the robber:

“The person IRVING is in custody charged with the above matter. Clothing used during the commission of the offence has been located by Police. Amounts of hair are contained throughout that clothing and they have been taken by possession of by Police. These samples are required for comparison to those found on that clothing. IRVING has admitted to Police that he hid the vehicle used in the commission of this offence. IRVING also admitted to removing the plates from the vehicle and hiding the same under cement. IRVING has also admitted that he knew that the Police were looking for the vehicle in relation to the armed robbery offence. IRVING has a similar build to the description of the offender supplied by bank staff. Clothing belonging to the offender has been identified as that being worn by the offender during the commission of the offence.”

Notable is the fact that Ms Pfingst described Mr Irving as having a similar build to “the offender”, as described by bank staff, when according to the Accessory Charge, it was Suthers, and not Mr Irving, who would have been seen by them. Further, Ms Pfingst wanted samples of Mr Irving’s blood, saliva or hair in order to compare them with what was found on clothing said to have been “used during the commission of the offence”, which was an apparent reference to the offence of the robbery.

63. Further again, Ms Pfingst was wrong to say there that clothing worn by the robber had been identified by any witness. At about 5 pm on the previous afternoon (18 May), after Mr Irving had been arrested, one of the bank officers who had witnessed this robbery, Ms Adkins, was asked to look at the shirt which Ms Pfingst had retrieved from the place where Irving had stayed at Port Douglas, as well as some trousers and a pair of shoes which had been left by someone at a beach just north of Cairns. Ms Adkins had previously given a statement, on the day after the robbery, in which she had described the robber wearing “a peachy shirt, with pink and purple swirls through it … [and with] long sleeves” which was “a trendy style shirt”. She had described the robber as wearing “a pair of dark grey trousers” and dark shoes, which “weren’t runners as in adidas, or dunlop or that type of runner”. When Ms Adkins was shown the shirt which Ms Pfingst had retrieved from Port Douglas (on the afternoon of 18 May), she said that the sleeves were the same as the shirt worn by the robber, but the cuffs were different. She did not then recognise the shirt as that worn by the robber. (However in a statement which she subsequently signed on 24 May 1993, she said that she could say that this was the shirt that this man was wearing, and she identified the shoes and trousers, which belonged to Mr Irving, as those worn by the robber although the trousers were black and the shoes were sandshoes.)

64. Earlier on 18 May, before Mr Irving’s arrest, Ms Pfingst had had another eyewitness, Ms Redgen, look at the shirt, to see whether she recognised it. She said that it was not the shirt worn by the robber. And on the morning of 19 May, Ms Pfingst showed the clothing to another eyewitness, Ms Oastler, who was unsure whether it was the clothing worn by the robber.

65. What is important, for Mr Irving’s case about the Accessory Charge, is that by having the witnesses look at these items of clothing, Ms Pfingst was investigating the possibility that it was Mr Irving who had been the robber.

66. The trial judge said that the application under s 259 referred to “facts which were relevant to the Accessory Charge but also facts pertaining to the Robbery as to the clothing which Ms Pfingst referred to as the shirt and the trousers consistent with the fact that she was at the same time also investigating the possibility of Mr Irving having committed the Robbery.”⁵⁹

67. On 20 May, Mr Irving was dealt with for failing to appear, possessing cannabis and also for driving whilst unlicensed. From then, he was to be held in custody only on the Accessory Charge. At the same time, he applied for bail. Ms Pfingst prepared the brief to the police prosecutor to oppose bail, which was dated 19 May 1993. She there wrote, amongst other things:

“[He] is a suspect for three armed hold ups in the Cairns area since December 1992 … [He] is the [subject] of a number of other inquiries being conducted by the Cairns CIB. Further charges are pending at a later date.”

Bail was refused by the magistrate.

68. On the same day, 20 May, Ms Pfingst and Detective Senior Constable Kinbacher who was the principal investigator for one of the other robberies, went to see Mr Irving’s former partner, Ms Parker. Mr Kinbacher brought photographs which had been taken in one of the other robberies (December 1992 robbery), in which that robber could be seen, and Ms Parker was asked whether she could identify that person. In the 3UP running sheet it was recorded that she “could not say that the person was or was not IRVING”. In his evidence in the present case, Mr Kinbacher said that Ms Parker made “no clear statement one way or the other” in response to the photographs. At the same time, Ms Parker was shown items of clothing, which Mr Kinbacher described as “a shirt and some footwear from [an] unrelated, potentially linked offence.” He said that Ms Parker was unable to identify these as items of clothing which she had seen Mr Irving wearing.

69. I go then to the evidence of Ms Pfingst in the present case which was relevant to the Accessory Charge.

70. In answer to a series of questions in examination-in-chief, Ms Pfingst said that when she laid the Accessory Charge, she believed that he was guilty of that offence, that police had sufficient information to warrant charging him under that offence and that there was a proper case for the prosecution of that charge.

71. In cross-examination, Ms Pfingst agreed that when she showed the shirt to Ms Adkins and Ms Redgen, she believed that the shirt was owned by Mr Irving and that it had been worn in the robbery. She agreed that at that time she was “pursuing a line of investigation that … Mr Irving was the robber”, and that this was “what she believed to be the case”.

72. Again in cross-examination, she was taken to the terms to the Accessory Charge, and agreed that the charge had three elements, the first of which was that Suthers had committed the robbery. The cross-examination then continued as follows:

“Now, a few moments ago you told the court that you believed that the plaintiff committed the robbery?---When I was doing the investigation, he was a suspect. I didn’t think he was the offender.

A few moments ago I asked you the question - - -?---You’re starting to confuse me, sorry.

A few moments ago I asked you the question, did you believe that the plaintiff committed the robbery and you said yes?---At what time?

At the time of - - -?---Is this at the time of - - -

At the time of your questioning Redgen and Atkins in respect of the shirt?---But I thought I had already done this charge and then I interviewed the witnesses.

You always believed, from the time of the commencement of Operation 3UP, that Mr Irving had committed the robbery, didn’t you?---By the time – because they’re going from the running sheet of the ANZ to – to this one. Yes, he was arrested on the – the 18th of May.

He was arrested on the 18th of May for accessory after the fact to the armed robbery by Suthers?---Yes.

You had no evidence that Suthers committed the robbery?---Well, that was the only person we knew of because that’s who Terry Irving had nominated as the person who had his car and did the robbery.

No, Mr Irving never said that Suthers did a robbery, did he?---No, he said he had his car.

Yes?---And his car was used in the – in the armed hold up.

And so that’s the evidence that you were relying upon to prove this element of the charge, that Wayne Suthers had committed the robbery?--- At the time that he was charged, we knew that he had knowledge of the – that Terry Irving had knowledge of the armed hold up because he had heard it on the radio. He admitted that. We had his car. We had his numberplates and he had nominated Wayne Suthers. So we were still doing inquiries on Wayne Suthers.

He had nominated Wayne Suthers as borrowing his car?---Yes.

You had no evidence that Wayne Suthers has committed the robbery?---No.

All right. In addition, you had no evidence that Mr Irving had done anything to assist Wayne Suthers?---I believe he had.”

73. It was then suggested to her that she believed that Mr Irving had hidden the number plates of his car “to help himself, not Wayne Suthers”, to which Ms Pfingst answered, “No, I disagree.” However, at a previous (aborted) trial of the present case, she had said otherwise. In her evidence in that trial, she said that she had believed that the plates were hidden because Mr Irving “didn’t want us interviewing him about the armed robbery”, and not to assist Suthers, but to assist himself.

74. The cross-examination (in this trial) continued:

“I suggest to you that you charged Mr Irving with being an accessory after the fact when you did not believe that he was guilty of that offence?---Not correct.

And you had no evidence to support that he had committed that offence?---No.

And you did so because you wished to hold him in custody while you further investigated the robbery?---No. We still had to make inquiries to locate Wayne Suthers. And I still say that he did certain acts to protect himself and to blame Wayne Suthers.

Now, it’s certainly the case, isn’t it, that you believed that you had – you didn’t have enough evidence, certainly as at 17 May of 1993, to charge Mr Irving with the robbery?---The actual robbery, no.”

75. Ms Pfingst was challenged by the cross-examiner about what she had written in the application made under s 259.⁶⁰ She disagreed that what she had written suggested that Mr Irving was the robber and that the evidence to which she referred was consistent with him being the robber.

76. At the end of the cross-examination, Ms Pfingst accepted that, as at 17 May 1993, there was insufficient evidence to arrest Mr Irving on an armed robbery charge.

77. In re-examination, she admitted to a suspicion, having seen photos of the earlier bank robbery, that the robber in this case was Mr Irving. She was then asked for the basis upon which she charged him with the Accessory Offence, and she answered:

“Well, we already had the car, the number plates, the hiding of the number plates, the tarp over the car. We had some identification of photo boards and identification of clothing. … And Wayne Suthers didn’t exist …”.

78. The trial judge had other evidence which was relevant to Ms Pfingst’s investigation of Mr Irving at this time. There was a substantial issue at the trial, which is raised again in the appellant’s argument in this Court, as to what passed between Mr Irving, Ms Pfingst and another detective, Detective Sturgess, on 17 May 1993. The evidence of Ms Pfingst was that on the evening of 17 May, she and Detective Sturgess recorded their conversations with Mr Irving on a laptop at the Cairns CIB. She said that she then transferred notes from the laptop to her police notebook and the notes were then signed by her and Mr Sturgess. Those notes were tendered at Mr Irving’s committal hearing. Ms Pfingst said in this case that the conversations had not been recorded, in that there was no video or audio recording of them. Mr Irving said that certain parts of the laptop notes were falsifications of what had been said, and he alleged that the detectives’ interviews of him on that day must have been recorded but that the tapes had never been disclosed.

79. In support of that argument (in the present trial), Mr Irving’s counsel tendered an opinion of Associate Professor Heydon, whom the trial judge accepted as holding qualifications in linguistics.⁶¹ Professor Heydon was of the opinion that the linguistic style of the laptop notes were unusual for a document which had been prepared only from memory some hours after a conversation. The trial judge excluded her evidence in so far as it contained conclusions which, her Honour said, required no expert knowledge or experience, and her Honour gave little weight to the balance of the report.⁶² The judge rejected the evidence of Mr Irving that the laptop notes were an inaccurate record.⁶³

80. Her Honour’s exclusion of that evidence, and her assessment of the balance of the report of the witness, are the subject of complaints in this Court, which I will discuss later in this judgment in respect of Mr Irving’s argument for a re-trial of his claim about the Robbery Charge. At this point what matters is that it is unnecessary to accept Mr Irving’s case about the laptop notes, in order to conclude that the trial judge erred in her findings about Ms Pfingst’s state of mind in making the Accessory Charge.

The Accessory Charge: the Reasons of the trial judge

81. The trial judge considered that the evidence of Ms Pfingst supported the fact that Ms Pfingst suspected that Mr Irving was “involved in the robbery”.⁶⁴ Her Honour noted Ms Pfingst’s concession that as at 18 May 1993, there was insufficient evidence to charge him with the robbery itself. Her Honour said that, “the fact that Ms Pfingst considered Mr Irving a person of interest or a suspect does not establish that she held the belief that he was the robber.”⁶⁵ That must be accepted.

82. However, her Honour then said that “[h]olding a suspicion someone is a principal offender and holding an honest belief based on the evidence that the person is guilty of being an accessory after the fact are not necessarily incompatible.”⁶⁶ In my respectful opinion, that revealed an important error of the trial judge.

83. Suspicion and belief are different states of mind.⁶⁷ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.⁶⁸

84. In Hussien v Chong Fook Kam⁶⁹, Lord Devlin said:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.”⁷⁰

In Queensland Bacon Pty Ltd v Rees,⁷¹ Kitto J said that “[A] suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it.”⁷²

85. A belief has been described as “an inclination of the mind towards assenting to, rather than rejecting, a proposition”.⁷³ The Australian Oxford Dictionary gives as one meaning of belief: “a firm opinion my belief is that he did it”. According to the Macquarie Dictionary, the word belief may mean “an accepted opinion” or a “conviction of the truth or reality of a thing, based upon grounds insufficient to afford positive knowledge”.

86. Unambiguously, Mr Irving was charged with being an accessory after the fact to an offence of armed robbery which was committed by Suthers. Mr Irving could not have been both the robber and an accessory after the fact to his own offence. Therefore, Ms Pfingst could not have held an honest belief that Mr Irving was guilty of the offence charged if, at the same time, she suspected that it was Mr Irving, and not Mr Suthers, who had robbed the bank.

87. Her Honour continued:

“The evidence supports the proposition that Ms Pfingst held suspicions Mr Irving was responsible for [the] Robbery, but not that she believed he was the Robber and did not believe he was an accessory after the fact.”⁷⁴

Respectfully, that statement involved the same error. Similarly, that was evident in her Honour’s further statement that:

“Holding a suspicion that Mr Irving may be a robber is not inconsistent with and does not mean that Ms Pfingst could not also have held a belief, on the basis of evidence she had at the time, that he was an accessory after the fact and based on the evidence, that it warranted prosecution.”⁷⁵

88. Her Honour noted a submission, for the present respondents, that “it is possible for a person to be both a principal offender by operation of ss 7 and 8 of the Criminal Code and to do an act which also makes them an accessory after the fact”,⁷⁶ which appears to have induced her Honour to reason as follows:

“[271] Much was made by Mr Irving as to the terms of the charge and the fact it identified Mr Suthers as the Robber, when Ms Pfingst accepted that there was no evidence that Mr Suthers was the person who had actually robbed the Bank, or had a gun, as stated in the charge. Ms Pfingst’s evidence supports the fact that she was relying on Mr Suthers being involved in the Robbery, such that Mr Suthers would be liable for the offence by reason of s 7 or 8 Criminal Code rather than being the person who robbed the bank himself.

[272] While Mr Suthers is said to be the principal offender in the Accessory Charge, it is apparent from the evidence given by Ms Pfingst that it is likely that she was acting on the basis that Mr Suthers was a party to the Robbery because he had Mr Irving’s car and someone other than the Robber was observed driving the car when it was exiting the driveway after the Robbery. The evidence supported Mr Irving’s car being used as the getaway vehicle, which would make Mr Suthers liable for the principal offence if he was driving the vehicle carrying the Robber. It is apparent from Ms Pfingst’s evidence that she was focused on the fact that Mr Suthers had Mr Irving’s car at the time of the Robbery in identifying him as principal offender, rather than having committed the Robbery itself. That is consistent with the fact that she relied upon Mr Irving’s knowledge the car had been used in the Robbery, and that he had hidden the registration plates and had put a tarp over the car as being the relevant evidence supporting Mr Irving being an accessory after the fact. I accept as correct, the submission of the Defendants that a person can be charged with being accessory after the fact, helping [any one] of the principal offenders by the operation of s 7 of the Criminal Code and that the evidence of Ms Pfingst did not exclude, but in fact supported, the submission that she regarded Mr Suthers’ involvement in the Robbery as based upon the fact that he had Mr Irving’s vehicle, which was used in the getaway. While the wording of the charge referred to Mr Suthers having the shotgun, I find that the most probable explanation is that was an incorrect particular in the wording of the charge. This was Ms Pfingst’s first armed robbery as senior investigating officer.”

(Footnotes omitted.)

89. That reasoning cannot be accepted. The terms of the charge unambiguously identified Suthers as the person who robbed the bank. At no time did Ms Pfingst suggest that she had mistakenly described the offence of Mr Suthers, in drafting the charge, because she meant to allege that Suthers had participated in the robbery in another way, such as being the driver of a getaway vehicle.

90. Her Honour then discussed evidence of Ms Pfingst, as who it was, in Ms Pfingst’s view, who was to be protected by hiding the registration plates. Her Honour noted the cross-examination to which I have referred earlier at [73].⁷⁷ Nevertheless, she accepted an argument (for the present respondents) that the evidence should be interpreted as a belief that Mr Irving was “seeking to assist himself … in regard to him not being interviewed about the Robbery, not regarding Mr Irving hiding the registration plates, which Ms Pfingst had previously identified as being to assist Mr Suthers.”⁷⁸ Her Honour said:

“While the hiding of the registration plates and the car was open to being interpreted as being done to hide the evidence that Mr Irving was the Robber, at the point in time when the Accessory Charge was laid and Mr Suthers was nominated as having the car, it was also capable of supporting the fact that Mr Irving hid the registration plates and the car to assist Mr Suthers to escape punishment for his part in the Robbery.”⁷⁹

91. In my opinion, that analysis was not open on the evidence. Ms Pfingst was adamant in her statement that “I still say that he did certain acts to protect himself and to blame Wayne Suthers.”⁸⁰

92. Her Honour continued as follows:

“[279] I do not find that the evidence supports the fact that at the time the Accessory Charge was laid:

(a)Ms Pfingst believed without any adequate or reasonable foundation that Mr Irving committed the Robbery and was not an accessory after the fact, nor that there was insufficient evidence to support the charge;

(b)That while Ms Pfingst had conceded that there was no evidence that Mr Suthers had committed the Robbery, there was evidence that he was liable as a principal offender by virtue of the fact that he had the car used in connection with the Robbery, and she relied on that as supporting the Accessory Charge; or

(c)That the evidence did not support that Mr Irving did anything to assist Mr Suthers to escape punishment.

[280] I do not find that Ms Pfingst did not honestly believe that Mr Irving had done an act to assist Mr Suthers by removing the registration plates, placing them under concrete and putting a tarp over the car when he had knowledge that the car was suspected of being used in the Robbery.

[281] I therefore do not find that the three facts which Mr Irving contends emerged from the evidence in respect of the Accessory Charge on the balance of probabilities. I do not find that she laid the Accessory Charge in order to keep him in custody to build a case against him for the Robbery or other robberies being investigated by Operation 3UP not having honestly formed the view that there was a proper case for prosecution. That is further supported by the fact that laying the Accessory Charge would not of itself lead to Mr Irving not being granted bail and being held in custody.”

(Footnotes omitted.)

93. Her Honour found that objectively, there was sufficient evidence for charging Mr Irving with the Accessory Charge.⁸¹ Her Honour reached that conclusion by reasoning as follows:

“That even though there was one Robber in the Bank and there was no evidence that Mr Suthers was that person, there was evidence that another person was seen to be driving the getaway vehicle. Mr Suthers was nominated as having possession of the vehicle at the time of the Robbery. Therefore, the evidence supported that he was a co-offender in the Robbery.”

(Footnotes omitted.)

In a footnote to the penultimate sentence in that passage, were added the words “And could be liable if he drove the getaway car or gave it to somebody for use in the Robbery.” A footnote to the last sentence referred to “s 7(a) & s 7(b) or (c)” of the Code. Again, it is evident that her Honour interpreted the charge, incorrectly, as one in which the offence could be proved by proving that Suthers was a participant in the offence of robbery, whilst not being the robber himself.

94. Her Honour declined to find that Ms Pfingst lacked an honest belief that there was sufficient evidence to lay the charge.⁸² Her Honour concluded, as to Ms Pfingst’s subjective state of mind, as follows:

“Ms Pfingst gave evidence that she honestly believed there was sufficient evidence for a proper case for prosecution and that she believed at the time she charged him, that there was a proper case for prosecution of that charge. I accept that evidence. I do not find that Mr Irving has demonstrated an absence of reasonable and probable cause with regard to the First Alleged Malicious Prosecution.”⁸³

95. The trial judge rejected an argument that Ms Pfingst had laid the Accessory Charge in order to ensure that Mr Irving remained in custody while she built a case against him “as the principal offender or for one of the other robberies that were being investigated by Operation 3UP.”⁸⁴ Her Honour repeated her finding that Ms Pfingst considered that there was sufficient evidence to support the Accessory Charge and that it warranted prosecution.⁸⁵ The judge accepted Ms Pfingst’s denial that she had charged Mr Irving so that she could further investigate the robbery. Her Honour said: “I accept her evidence in that regard. There is no incompatibility with Mr Irving being charged with the Accessory Charge where there is evidence to lay that charge and continuing to investigate him in relation to his involvement in the robbery.”⁸⁶

Conclusions on the Accessory Charge

96. The challenge to the trial judge’s conclusions on the Accessory Charge meets the difficulty that the trial judge reached those conclusions having seen and heard the evidence and having formed an impression that Ms Pfingst was honest and reliable in her testimony. An appellate court should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.⁸⁷

97. However, in this case the judge’s critical findings of fact are demonstrated to be wrong by a review of the evidence, including the evidence of Ms Pfingst, and by an understanding of the different bases of criminal responsibility which the judge discussed.

98. The starting point is that the Accessory Charge was unambiguous in defining the case which the prosecution would have had to prove. The prosecution would have required proof that Suthers was the person who robbed the bank, and that Mr Irving did something to assist Suthers in order to enable to Suthers to escape punishment for doing so. The charge would also have required proof that Mr Irving knew that it was Suthers who had robbed the bank. The terms of the charge did not allow for the possibility that Suthers was a party to the offence of the robbery of the bank, not as a person who did the act which constituted that offence (s 7(1)(a)), but as otherwise a party who was deemed to have committed the offence by s 7(1)(b), (c) or (d) or s 8 of the Code.

99. Nor did the charge allow for the possibility that the criminal responsibility of Mr Irving was as a co-offender in the robbery offence (by s 7 or s 8), rather than as a person who had committed the distinct offence of being an accessory after the fact.

100. In her evidence, Ms Pfingst did not suggest that she was mistaken in her drafting of the charge. She did not suggest that she thought that she was alleging that someone else may have robbed the bank, and that Suthers was a party to that offence in some way.

101. Although, in her evidence-in-chief, Ms Pfingst did say that she believed that Mr Irving was guilty of the Accessory Charge, such a belief was disproved by other evidence, including her own. She admitted that she knew nothing about Suthers, apart from what she had been told by Mr Irving. She accepted that she had no evidence that Suthers was the robber. She suspected that Mr Irving was the robber. The evidence of that suspicion was overwhelming. She was pursuing a line of enquiry that one of Mr Irving’s shirts was that of the robber. In several documents which she prepared by then, she described him as a suspect for the robbery itself.⁸⁸ She could not have held, at the same time, a belief that Suthers was the robber whilst suspecting that Mr Irving was the robber.

The Robbery Charge

111. At the trial, Mr Irving contended that the prosecution of the Robbery Charge was commenced and maintained without reasonable or probable cause, in both the subjective and objective aspects of that element. He argued for an inference that Ms Pfingst did not honestly believe the case that was instituted or maintained.⁹⁰ He sought a finding that the entirety of the evidence would not lead an ordinary, prudent and cautious person in the position of Ms Pfingst to conclude that Mr Irving was probably guilty of that offence.⁹¹

112. In this Court, his argument about the objective aspect of reasonable and probable cause was not maintained. There is no challenge to her Honour’s rejection of that part of his case.⁹²

113. Her Honour’s conclusion as to the subjective aspect of reasonable and probable cause, is challenged. It is submitted that their conclusion, which is said to have been based upon her Honour’s assessment of Ms Pfingst as a credible witness, was flawed because of a number of errors by the judge which affected that assessment. His argument identifies four errors of that kind.

114. The first is an error in determining the credibility of Ms Pfingst in respect of the Accessory Charge. It is submitted that if, in fact, Ms Pfingst had been prepared to use the process of the criminal law for an improper purpose in laying the Accessory Charge, when she did not believe that Mr Irving was guilty of that offence, this was a significant factor in the assessment of her credibility overall. As I have concluded, the judge ought to have found that Ms Pfingst did not believe Mr Irving was guilty, or probably guilty, on the Accessory Charge, and should be inferred.

115. The second error, by which the judge’s assessment of the credibility of Ms Pfingst is challenged, relates to the judge’s assessment of the evidence of Associate Professor Heydon.⁹³

116. The third suggested error is that her Honour incorrectly excluded evidence of interviews of Ms Pfingst and Ms Birchley (a scientific officer employed in the Queensland Police Service at Cairns in 1993) which were conducted in the course of an investigation by the Criminal Justice Commission (“CJC”) in October 1994. Transcripts of that evidence were sought to be tendered in Mr Irving’s case under s 92 of the Evidence Act 1977 (Qld).

117. The fourth error is in not recognising the relevance for Ms Pfingst’s credibility of falsities in documents which she prepared to oppose Mr Irving being granted bail.

The relevance of the Accessory Charge

119. The findings which ought to have been made, concerning Ms Pfingst’s state of mind and purpose in laying the Accessory Charge, would reflect poorly upon her credibility in a general way. It does not follow, however, that those findings would have significantly affected the credibility of her evidence that she believed that Mr Irving should be prosecuted on the Robbery Charge, and that she did so for the proper purpose.

120. It was significant for the claim on the Accessory Charge that there was a body of evidence which demonstrated that Ms Pfingst suspected, when she laid that charge, that it was Mr Irving who was the robber. That fact assisted Mr Irving’s claim about the Accessory Charge, but it assisted Ms Pfingst’s defence of his claim about the Robbery Charge. As I will now discuss, by the time the Robbery Charge was laid, on 25 May 1993, nothing had emerged which would have diminished Ms Pfingst’s suspicion, by that time and shortly afterwards, she had procured further evidence which could have caused her to believe that he was probably guilty of the robbery offence.

121. On 24 May 1993, Ms Pfingst asked each of the bank officers who had witnessed the robbery to identify, if possible, the robber on a photoboard. On that board were 12 photographs, one of which was a photograph of Mr Irving. His photograph was numbered 7.

122. One of the bank officers, Ms Oastler, said that it could have been either 4, 8, 9 or 10 (tending towards 10), but did not give a positive identification. Another officer, Ms Adkins, thought that the robber was either the man shown in photograph number 7 or the man in photograph number 5. The other witness, Ms Redgen, chose photograph number 7, although having heard the audio recording of her doing so, I have the impression that she was far from certain in that choice.

123. On 29 May 1993, Mr and Mrs Kerr, who had followed the robber in the street, were shown the photoboard. Mr Kerr said that he had been too far from the robber to say whether that person’s photograph was on the board. Mrs Kerr selected Mr Irving’s photograph, saying at the same time “if I had to pick somebody …”. She also said that number 7 “sort of looks as though it might be [him] to me but …” and later noted that she saw him from a distance of “about perhaps 20 feet”.

124. On 1 June 1993, two employees of a nearby post office, who had noticed a man standing outside the bank for a long time on the morning of the robbery, were shown the photoboard. One of them, Ms Lovell, said that she couldn’t be “certain” and agreed that she was “not sure”, when selecting Mr Irving’s photograph. The other witness, Ms Andrews, was inclined to select Mr Irving’s photograph, because of his skin colour, but then said that “I wouldn’t say yes, that was him, not at all.”

125. Ms Pfingst took statements from these witnesses. It is of some concern that in their statements, some of the witnesses were more certain in their identification of Mr Irving’s photograph than they appear to have been when they were shown the photoboard. In her statement dated 24 May 1993, Ms Adkins said that after looking at the photoboard, “I can say that I know the male shown in square number 7 was the male who held up the bank …”. In Mrs Kerr’s statement, made on the same day that she saw the photoboard (29 May), she said that she believed that the man shown in photograph number 7 was the male who held up the bank. In her statement, made on the same day, Ms Lovell said that she picked the male in number 7 as the man she thought she had seen. And in her statement, made on the date she saw the photoboard, Ms Andrews said that “I picked the male in number 7 as the male who I think was standing on the corner”. And in her statement, made on the same day, Ms Lovell said that she picked the male in number 7 as the man she had seen.

“Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.”

127. I have referred earlier⁹⁶ to the occasion on which Ms Pfingst showed to Ms Adkins the shirt which Ms Pfingst had retrieved from Port Douglas. As I there noted, although Ms Adkins did not then say that this was the shirt which the robber had worn, she said so in her subsequent statement signed on 18 May 1993. That is also a matter of some concern. Nevertheless, as appears from photographs showed, the shirt had a distinctive appearance which resembled that described by some of the witnesses.

128. This identification evidence was somewhat problematical, but ultimately, it was not inadmissible, and it added evidentiary support to the Robbery Charge. It was not the only inculpatory evidence. There was the fact that it was Mr Irving’s car which had been used a getaway vehicle, and the fact that Mr Irving attempted to hide the vehicle and removed its number plates.

The evidence of Associate Professor Heydon

129. For Mr Irving, it is submitted that the trial judge made two errors in her treatment of the report of the witness. The first is that three paragraphs of her report were wrongly excluded. The second is that the balance of the report was given insufficient weight.

130. The expertise of this witness could not be doubted. Her area of expertise, linguistics, is the scientific study of language, and linguists are trained to analyse the structure of language at various levels using units of sound, units of grammar, units of words and sentences, and units of entire texts or groups of texts, the last of which is called discourse analysis.

131. Professor Heydon was provided with type written notes, made by Ms Pfingst on a laptop computer, of conversations she had with Mr Irving on the afternoon of 17 May 1993. The conversations occurred at a bank in Atherton, at the Atherton CIB, in a police car en route to Cairns, at the place in Cairns where Mr Irving had hidden his number plates, at the Cairns CIB, en route to the watchhouse in Cairns and at the Cairns watchhouse. Other people, including Detective Sturgess, were involved in one or more of these conversations.

132. Professor Heydon was asked to say whether it was likely that the transcript of the conversations contained in the laptop notes was prepared, as Ms Pfingst and Mr Sturgess said, from memory, or whether instead they were transcribed from an audio recording. If her opinion was that they were likely to have been prepared from memory, she was asked to opine on whether it was likely that the notes were an accurate record of the conversations.

133. Professor Heydon wrote in her report as follows:

“… the accurate transcription of conversations from memory is extremely difficult and the features of language most likely to be omitted or distorted in a written record are turn attributions, discourse markers, non-standard forms of language, meta-linguistic notes and non-standard sequences.”

134. Turn attributions are features of a written text that indicate who was speaking, or in other words, who was taking a “turn” at talking. She explained that note-takers routinely omit or distort their own questions. Discourse markers are short words or sounds that fulfill a discourse function in spoken language, such as words which signal a change of topic: for example “well then” and “now”. A non-standard word or phrase is exemplified by the word “youse” instead of the standard “you”. Meta-linguistic notes are notes made on the transcription to indicate some aspect of the spoken interaction that is additional to the utterances produced, such as recording that a speaker is whispering or shouting next to a section of transcribed speech. The term “non-standard sequence” describes a feature of conversational language whereby a speaker produces utterances that do not comply with grammatical or pragmatic rules in their sequence or structure, which Professor Heydon said is quite common in ordinary conversation.

135. Professor Heydon said that while these five features are unlikely to be recalled accurately, they will be readily available through the use of a recording. She therefore analysed the laptop notes for these features and set out the results. This was followed in her report by an analysis of the significance of the prevalence of these features. In what follows, I will summarise that analysis, all of which preceded the paragraphs which the trial judge excluded. None of this evidence was challenged by cross-examination.

136. Professor Heydon said the laptop notes were presented as a verbatim transcript of nine conversations occurring in a period of approximately three and half hours. There were 133 separate attributions of turns at talk to various speakers. The turns at talk were typically short, mostly a single clause or phrase, so that the speakers were represented as frequently taking turns to talk.

137. She said that, according to certain published research, “[t]he way in which each information unit is carefully attributed to a speaker in this sequence is the type of detail that is rarely accurate in notes taken shortly after an interview”.

138. There were 31 discourse markers in the document, which was significant because they did not serve “any function other than to regulate the flow of conversation and maintain social norms of interaction”, with the result that it was “highly unusual to find them in this kind of document as they do not add to the substance or facts of the interaction.”

139. There were eight non-standard forms in the document, none of which added substance to the record of the conversations. Professor Heydon said that if these words or expressions had indeed been included from memory, “the author of the document must have had a remarkable knowledge of non-standard Australian English to have accurately captured some of these features”. She noted one such non-standard form: “I just come up” instead of “I just came up”.

“39. Finally, there was no evidence of a failure to recall a detail, or any lack of clarity in the officer’s recollection of the conversations. Given the findings of prior research into professional investigators’ poor performance in recalling conversations accurately without a recording, this seems implausible.

Conclusion:

The analysis finds that it is highly unlikely that the notes of these nine conversations could have been produced to this level of detail without the aid of a recording. As noted by Lamb et al, prior research raises ‘serious questions about the ability of interviewers to recall the content and structure of their interviews with the degree of precision needed for forensic purposes.’ Moreover, Stafford, Burggraf and Sharkey’s findings suggests that the notes might represent as little as ten percent of the actual conversations, if they were produced from memory.

It is therefore my opinion that these notes were either produced with the aid of a recording, or they are not an accurate record of the conversations.”

143. The trial judge excluded paragraph 39 upon the basis that it contained matters that were not derived from any of the five features which Professor Heydon had analysed, and as I have just summarised. Therefore, in her Honour’s view, it did not appear that paragraph 39 was based on Professor Heydon’s expertise.

144. In her Honour’s view, the evidence in paragraphs 39 and 40 were “matters of inference which could be drawn by a person without instruction or experience in the area of knowledge, or a human experience which would be able to form a sound judgment on those matters without the assistance of Associate Professor Heydon’s special knowledge or experience in the area …”. Her Honour excluded paragraph 41 apparently for the same reason.

145. In the Judgment, the trial judge summarised the effect of Professor Heydon’s opinion (apart from the paragraphs excluded by her ruling). Her Honour accepted Professor Heydon’s opinion “that recollections of language cannot be perfect and its complete accuracy assured”. Her Honour then said:⁹⁷

“However, given her opinion is based on generalities, I can give it little weight in the present context, insofar as it is relied upon to support the inference that the Laptop Notes were prepared from a recording. …

[H]aving heard the evidence of Ms Pfingst and Mr Sturgess as to the process adopted in producing the 17 May 1993 Record of Conversation on the same day as the conversations occurred, I accept their evidence that the conversations were not taped. The suggestion that Ms Pfingst secreted her tape recorder on 17 May 1993 and other occasions was denied by her and was supported by the evidence of Mr Sturgess. I accept that the 17 May Record of Conversation was substantially correct.”

146. Her Honour continued by accepting the evidence of Ms Pfingst and Mr Sturgess that the Record of Conversation was not fabricated or manipulated so as to include matters to inculpate Mr Irving and exclude matters that could exculpate him.⁹⁸

147. Her Honour’s exclusion of paragraph 41 may be accepted. Paragraphs 39 and 40 were different in that they contained reference to research in the field, although the lack of an identification of the research which was referred to in paragraph 39 provided a reason for excluding that sentence. For present purposes, however, the exclusion of paragraphs 39, 40 and 41 matters little, because it was the effect of the balance of the report which mattered. Exclusion of those paragraphs did not detract from whatever effect was to be given to the balance of the report.

148. In discussing the five relevant features, Professor Heydon gave unchallenged evidence that in these laptop notes, there existed features which were “highly unusual”, “extremely unlikely” and “almost never” occurring in a document which is prepared from memory of a conversation. Respectfully, it is not clear from the Reasons whether the trial judge accepted the evidence of this witness which was admitted. It should be assumed that her Honour did so, there being no explanation for the rejection of any of it.

149. This evidence provided a strong reason to scrutinise carefully the evidence of Ms Pfingst and Mr Sturgess, at least as to the laptop notes. Their evidence was not to be accepted simply because, unlike Professor Heydon, they had an actual knowledge of whether the notes had been prepared from a recording.

150. Ultimately, however, her Honour was not bound to give Professor Heydon’s evidence such weight that it required the rejection of the evidence of Ms Pfingst and Mr Sturgess. And the argument for Mr Irving does not seem to go that far, but instead suggests that another judge, giving more weight to Professor Heydon’s report, could reach that conclusion.

The objections to bail

151. As noted earlier,⁹⁹ Mr Irving applied for bail in relation to his Accessory Charge in the Magistrates Court on 20 May 1993. Ms Pfingst prepared the Court brief¹⁰⁰ for that hearing, and another form called Objection to Bail Details. Mr Irving says that there were four inaccuracies in these documents, which together constituted a serious embellishment of the evidence. It is argued that the judge was wrong to dismiss them as insignificant for the assessment of Ms Pfingst’s credibility.

152. The first of the inaccuracies was the statement, in the Objection to Bail Details, that Mr Irving “has 6 Failed to Appears”. That statement was incorrect. Ms Pfingst explained the inaccuracy by saying that she was provided with an incorrect criminal history of Mr Irving. Her evidence was that she would have searched for the name “Terry Irving”, and by reference to his date of birth. She did not search for the name “Terry James Irving”, and the criminal history, which was provided to her by the Information Bureau in Brisbane, was for a person under that name.

153. The other inaccuracies were in the statement of the allegations against Mr Irving which were set out in the Form QP9. The first of them was that after the offender had been followed “by one of the female tellers [Ms Adkins] and a male person [Mr Kerr] … the offender was seen to get into the back door of a grey toyota sedan and it will be alleged that the vehicle beared the registration number 682BUI.” That statement was incorrect, because no witness had seen the offender get into the car. Ms Adkins saw the offender enter the driveway of a block of units before disappearing, and she then saw a small grey car exit the same driveway, but could not see the driver.¹⁰¹ Mr Kerr did not see a man get into the car, but saw the car only as it left the carpark, when he “noticed the male person that I had previously followed lying across the back seat … [face] down.” The trial judge accepted that, “strictly speaking” this was an inaccuracy in the QP9, but said that it was difficult to describe it as an embellishment of the evidence.¹⁰² Her Honour said that “the logical and obvious inference was that the offender entered the offender’s car, and was at the back of the car while it exited the driveway.”¹⁰³ I agree with the trial judge that there was no difference of significance between the true position and that represented in the QP9, from which it could be inferred that Ms Pfingst had deliberately embellished the evidence.

The CJC interviews

158. As discussed earlier, by the authority of a permission granted by a magistrate under s 259 of the Criminal Code, samples were taken of Mr Irving’s hair, blood and saliva.¹⁰⁵ In seeking that permission, Ms Pfingst wrote that the samples were required for comparison with samples of hair found on “Clothing used during the commission of the offence.”¹⁰⁶

159. At Mr Irving’s committal hearing, Ms Pfingst was asked questions about the samples that were taken. The trial judge set out this passage from her evidence at the committal hearing:¹⁰⁷

“And did you get any results from those samples or have you got any results? — No, there was nothing on the clothing after it was examined.

And how do you say that those samples were relevant to the accessory charge? — Well in relation to the shirt, any sweat or hair or anything like that, that would have been found on the hair, would have been useful to compare with the samples.

…

So, are there to be any further examination of those samples taken, at all? — Only if something else comes back on the shoes. Something obvious, but it doesn’t look like it. I’ve only just sent it down for the comparison of the soles.

So, nothing’s come up on the shirt? — No.

Nothing’s come up on the trousers? — No.”

160. By that evidence, Ms Pfingst represented that the clothing was forensically examined, and that the samples taken from Mr Irving were sent for forensic analysis. At this trial, Mr Irving contended that the samples taken from him were never sent for analysis, and nor had the clothing, apart from the shoes. In her evidence at the trial, Ms Pfingst said that she could not recall what had happened to samples taken from Mr Irving, and whether they had been sent for testing.

161. The trial judge rejected Mr Irving’s contention that in this respect, Ms Pfingst had given incorrect and misleading evidence at the committal. Her Honour said that there was no evidence as to whether the samples had been sent for testing, and that because of what she described as the confusing nature of the cross-examination of Ms Pfingst on the subject, it could not be concluded that the clothing was not tested. The judge accepted that there was an insufficient basis to conclude that Ms Pfingst’s evidence at the committal was false.¹⁰⁸ The judge noted the concession by Mr Irving’s counsel that this allegation of false testimony at the committal was relevant only to Ms Pfingst’s credit, and not to the question of whether or not there was an absence of reasonable and probable cause.¹⁰⁹ In any event, her Honour observed, the shirt had been established as Mr Irving’s shirt, so that there was no need for forensic testing to prove that fact.¹¹⁰

162. None of that reasoning is presently challenged. I have included it here to explain the context of the proposed evidence from the CJC inquiry.

163. Mr Irving made a complaint about the investigation of the robbery to the CJC, which was assessed by it in October 1994. As the trial judge noted, the CJC determined that further investigations should be made by the Queensland Police Service in relation to Ms Pfingst’s evidence at the committal and in relation to possible disciplinary action against Ms Pfingst in the event that she returned to duty. It appears that Ms Pfingst did not return to duty, but retired from the Queensland Police Service on medical grounds in May 1995.

164. Part of Mr Irving’s complaint to the CJC was that Ms Pfingst had given misleading evidence at the committal (as he unsuccessfully contended in this case).

165. In this trial, Mr Irving alleged that Ms Pfingst gave false evidence to the CJC. According to a transcript of an interview of Ms Pfingst, which was conducted by Mr Kelly of the CJC, Ms Pfingst then said that she had not sent the body samples for forensic testing, because Ms Birchley had told her that Ms Birchley had checked the samples of hair found on the clothing and that they were “dog hair”. The judge referred to this transcript as the Pfingst Transcript.

The application for a re-trial

175. This is not an appeal against the dismissal of the claim on the Robbery Charge. The jurisdiction which this Court is asked to exercise, by ordering a retrial, is a different one: see Musgrove v McDonald.¹¹⁷

176. The jurisdiction to order a new trial was developed by the common law courts, by which the Court in banc could entertain a motion to set aside a verdict and grant a new trial, pursuant “to the controlling power which the Court exercised over its own proceedings to prevent injustice”.¹¹⁸ On the other hand, an appeal is not a common law proceeding; it is a remedy given by a statute.¹¹⁹

177. This jurisdiction was once exercised only in the context of trials by jury. However, there is no such limitation under the provisions of Chapter 18 of the Uniform Civil Procedure Rules 1999 (Qld), which provide both for appeals and for applications for a new trial.¹²⁰

178. By r 770(1), if it appears to this Court, on the hearing of an appeal, that there ought to be a new trial, the Court may set aside the decision appealed from and order a new trial. However r 770(2) provides:

“(2) Unless the Court of Appeal considers some substantial wrong or miscarriage happened, a new trial may not be granted merely because—

(a)evidence was improperly rejected or admitted; or

(b)if the proceeding was tried with a jury—

(i)the jury was misdirected; or

(ii)the verdict of the jury was not taken on a question that the judge at the trial was not asked to leave to the jury.”

179. In McCann v Parsons,¹²¹ Dixon CJ, Fullagar, Kitto and Taylor JJ said that the grounds upon which a court proceeds in granting the remedy of a new trial “have been settled by practice but … have never become completely stereotyped: they have also possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end.”¹²²

180. Most of the grounds for a new trial involve a miscarriage of justice by reason of matters occurring at the trial, such as a misdirection of a jury, the wrongful admission or rejection of evidence, the refusal of an adjournment or an amendment of a pleading, bias, or the wrongful conduct of the successful party.¹²³

181. In the absence of such an irregularity occurring at a trial, the correctness or otherwise of a jury’s verdict can justify a new trial only in limited circumstances. In Calin v Greater Union Organisation Pty Ltd,¹²⁴ Mason CJ, Deane, Toohey and McHugh JJ said:¹²⁵

“The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.”

(Original emphasis.)

Their Honours continued:¹²⁶

“Authority in this Court and in other jurisdictions supports the appellant's submission. It should be noted that, in Hocking v. Bell, Dixon J drew a distinction between cases, on the one hand, in which the verdict is vitiated by some legal error, such as material misdirection or misreception of evidence, or was perverse in the sense that the jury disregarded the judge's direction and, on the other hand, cases where, on conflicting evidence, a verdict is found which is said to be against the weight of evidence. In the cases last mentioned, as Starke J. noted, “the verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it” (emphasis added). The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that “the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust”.”

(Footnotes omitted.)

182. Although there is now a jurisdiction to order a new trial after a trial by a judge alone, there is no reason for it to be exercised more widely where the complaint is that the trial judge has erred in finding the facts. The unsuccessful party has the remedy of an appeal by way of re-hearing, in which usually a demonstrated error in finding the facts can be corrected with a final outcome. An order for a re-trial will be burdensome upon the successful party, which will be deprived of its judgment obtained after the trial on the merits and will be subjected to the expense, inconvenience and uncertainty of a further trial.¹²⁷ In Orr v Holmes,¹²⁸ Dixon J said:

“If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice.”

183. The argument for Mr Irving advances several suggested errors by the judge in finding the facts. However that argument does not suggest that if those errors are established, the court should conduct a re-hearing from which it would conclude that the Robbery Charge was maliciously prosecuted. Nor does the argument ask this Court to reverse findings of intermediate facts, such as whether the laptop notes were an accurate and comprehensive record, as they purported to be. Instead of asking this Court to conclude, contrary to the judge’s findings, that Ms Pfingst was in relevant respects a credible witness, the argument goes no further than suggesting that on a re-trial, another judge, not making the errors as this judge made, might reach a different conclusion.

184. In my opinion, the suggested errors, even if accepted in full, could not provide the justification for a new trial. In total, they amount to no more than a case that the trial judge made errors in the course of finding the facts, without it being demonstrated that different findings, which were critical to the outcome, ought to have been made. And it is not suggested that this Court could not rehear the case.

185. Two cases in this Court, where a new trial was ordered, may be compared with the present one. In Mitchell v Pacific Dawn Pty Ltd,¹²⁹ the trial judge had not decided a factual question, which was essential to the ultimate issue of whether an agreement was made under duress. McPherson JA there said:

“The simple fact is, however, that the question at issue has not been properly tried or determined, and adequate findings about credibility and the essential facts of the dispute have yet to be made. It is most unfortunate that it should be so; but, because it is now impossible with any degree of confidence to correct the matter on appeal without seeing and hearing the witnesses themselves, the Court is left with no alternative but to allow the appeal and set aside the answer to question 3(b) [such that] [T]here must be a re-trial of [that issue] …”.

In Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd,¹³⁰ the trial judge had dismissed a claim for misleading and deceptive conduct, by deciding an issue of causation without first finding what conduct had been engaged in by the defendants, and whether that conduct was misleading. This Court held that the trial judge thereby failed to consider and reflect upon the entirety of the evidence viewed as a whole, with the result that the question of the defendant’s liability had not been fairly and properly tried or determined, and necessary findings about credibility had not been made. Consequently, a re-trial was ordered.

186. In any case, as I have discussed, the suggested errors by the judge are either not established, or are not errors which suggest that the interests of justice require that there be a new trial. Had the judge reached what I have concluded was the correct decision about the Accessory Charge, the effect would have been disadvantageous to Mr Irving’s case about the Robbery Charge. To the extent that parts of Professor’s Heydon’s report were wrongly excluded, that did not detract from whatever weight should have been given to the balance of her report, and it could provide no reason for a new trial that a trial judge might have given evidence more weight. The suggested inaccuracies in the objection to bail, were either not established or not shown to be of any possible significance to the judge’s reasoning. And the ground which relied upon the CJC interviews fails because the transcripts were correctly excluded.

187. There was no miscarriage of justice as to warrant a new trial.

Conclusion and orders

188. I would order as follows:

Allow the appeal.

Set aside the orders numbered 1 and 3 made on 18 September 2020.

Give judgment for the appellant against the respondents, on the claim for the malicious prosecution of the Accessory Charge, for damages to be assessed.

Remit the proceeding to the Trial Division for that assessment of damages, and for consideration of the order or orders for costs which should be made for the proceeding in the Trial division.

Otherwise dismiss the appellant’s claim against the respondents.

Parties to provide written submissions as to the costs of the proceeding in this Court, not to exceed four pages in length, within 14 days of the delivery of this judgment.

189. MULLINS JA: The appellant’s two claims for damages for malicious prosecution were dismissed after a lengthy trial before the learned trial judge: Irving v Pfingst & Anor [2020] QSC 280 (the reasons).

190. An armed bank robbery took place at the ANZ Bank in Cairns on 19 March 1993. Ms Pfingst who was a detective senior constable with the Queensland Police Service (QPS) was the officer in charge of the investigation and it was the first time she had been the primary investigator of an armed robbery. The bank’s security camera was not operating at the time of the robbery, but the witnesses in the bank were able to say that only one robber entered the bank: see [80] of the reasons. On 18 May 1993 Mr Irving was charged by Ms Pfingst with being an accessory after the fact in relation to the robbery and the charge was framed in terms that one Suthers stole money from the ANZ Bank armed with a sawn-off shotgun and Mr Irving, knowing that Suthers had committed the crime, assisted him in order to enable him to escape punishment. The first malicious prosecution (FMP) claim related to this accessory charge. On 25 May 1993 Mr Irving was charged with the offence of armed robbery and the accessory charge was ultimately withdrawn. The second malicious prosecution (SMP) claim related to the armed robbery charge.

191. Mr Irving was held in custody on the accessory charge between 18 and 25 May 1993 and then held in relation to the armed robbery charge between 25 May 1993 and December 1997. Mr Irving was tried in the District Court at Cairns before a jury. Ms Pfingst did not give evidence at the trial. On 8 December 1993 he was convicted on the armed robbery charge. He was sentenced to imprisonment for seven years and five months which took account of the period of about seven months that he had already spent in custody. His application to adduce on the appeal the videos and transcripts of the photoboard identifications was refused and his appeal to the Court of Appeal was dismissed on 20 April 1994: R v Irving [1994] QCA 188. He eventually applied for special leave which was heard by the High Court in August 1997, when the High Court indicated the desirability that Legal Aid be provided to Mr Irving and that Ms Pfingst should provide an affidavit explaining her absence from the District Court trial. On 8 December 1997, the prosecution conceded that Mr Irving did not get a fair trial and the High Court ordered that Mr Irving be granted special leave, the appeal be heard instanter and the appeal be allowed: Irving v The Queen [1997] HCATrans 405. That resulted in Mr Irving’s release from custody. On 25 January 1999 the Crown entered a nolle prosequi. Mr Irving commenced this proceeding in 1999. It took a long time before the trial was ultimately held in November 2019.

192. Mr Irving’s case against Ms Pfingst was largely circumstantial and relied on inferences to be drawn from facts proved about certain events that Ms Pfingst did not honestly believe there was a proper case for either prosecution and therefore there was an absence of reasonable and probable cause. Mr Irving’s alternative contention was that Ms Pfingst had an insufficient basis for pursuing each of the prosecutions in that a person of ordinary prudence and caution, knowing all the facts that were known to Ms Pfingst, would not have believed objectively that it was an appropriate case for prosecution. In relation to the accessory charge, Mr Irving contended that it was pursued by Ms Pfingst in order to keep him in custody to build a case against him in relation to a charge of robbery. In relation to the armed robbery charge, Mr Irving contended that Ms Pfingst pursued the case against him that was not appropriate, in order to improve her standing with other officers in the Cairns CIB.

“[576] Overall, I found Ms Pfingst to be a calm, careful and considered witness who gave frank evidence, including stating that she did not recall certain matters which could have been favourable to her had she answered otherwise, indicating her honesty. She was quite precise in the evidence that she gave. Notwithstanding the time that has passed, she could recall some matters providing detail that supported the recollection. She did not shy away from taking responsibility in relation to the investigation. At times she was defensive in relation to the CJC investigation, however, that appeared to emanate from moral outrage. She explained that “I was troubled because I didn’t feel like I’d done anything wrong morally or as an investigator and I didn’t see why I – I was shocked to be investigated at all”. In that regard she explained that the CJC turned up without warning. The suggestion that she was being investigated for criminal charges came as a terrible shock to her.

[577] Her recollection has been affected by the passage of time and also the fact that the running sheets she handwrote during the investigation had been largely lost. When she stated that she could not recall details or events given the passage of time I found her answers were candid and she was not seeking to avoid answering questions. Her evidence was also corroborated by documentary evidence which showed her to be diligent in maintaining records, albeit a number have been lost over time such as the video tapes of her interviews.” (footnotes omitted)

194. To the extent the grounds of appeal relate to findings of fact, where the findings of the trial judge may have been affected by the advantage the trial judge had in seeing and hearing the witnesses, this court should therefore respect the advantage of the trial judge: Fox v Percy (2003) 214 CLR 118 at [23]. That does not preclude success for Mr Irving in challenging findings of fact which are shown to be contrary to “incontrovertible facts or uncontested testimony”, “glaringly improbable” or “contrary to compelling inferences”: Queensland v Masson (2020) 94 ALJR 785 at [119].

Grounds of appeal

195. There are nine grounds of appeal that can be summarised as follows:

(1)the findings of the trial judge that Mr Irving failed to establish absence of reasonable and probable cause and malice against Ms Pfingst in respect of the accessory charge were against the evidence and the weight of the evidence;

(2)the trial judge erred in law in finding that Mr Irving had not established an absence of reasonable and probable cause and malice in respect of the FMP;

(3)the findings of the trial judge that Mr Irving failed to establish absence of reasonable and probable cause and malice against Ms Pfingst in respect of the robbery charge were against the evidence and the weight of the evidence, as insufficient weight was given to the evidence of A/Professor Heydon in relation to the laptop notes produced by Ms Pfingst following multiple conversations with Mr Irving on 17 May 1993;

(4)the trial judge erred in law in failing to give adequate weight to the uncontested evidence of A/Professor Heydon;

(5)the trial judge erred in law in excluding the transcript of an interview of Linda Birchley with Kerry Kelly of the Criminal Justice Commission (CJC) dated 29 November 1994 pursuant to s 92 and s 98 of the Evidence Act 1977 (Qld);

(6)the trial judge erred in law in excluding the transcript of an interview between Ms Pfingst, Kerry Kelly, Detective Flanagan and a union representative dated 25 October 1994 pursuant to s 92 of the Evidence Act;

(7)the credibility findings made by the trial judge relating to the evidence of Mr Irving, Ms Pfingst and Mr Sturgess are tainted by the findings in respect of the FMP, the failure to give adequate weight to the evidence of A/Professor Heydon and the failure to admit the evidence referred to in grounds 5 and 6 and the credibility findings should be set aside;

(8)the findings made by the trial judge that Ms Pfingst did not embellish or exaggerate the case against Mr Irving by embellishing the evidence in the objection to bail details, QP9, Criminal Offence Report and the provision of an incorrect criminal history were against the evidence of the weight of the evidence; and;

(9)the trial judge erred in law in ruling paragraphs 39 and 40 of the report of A/Professor Heydon inadmissible as opinion evidence.

196. On the appeal, Mr Irving seeks judgment in his favour for damages to be assessed in respect of the FMP or, alternatively, a retrial of the claim for damages arising from the FMP and seeks a retrial in respect of the claim for damages arising from the SMP.

197. The parties grouped the grounds for the purpose of their submissions. It is convenient to deal with the submissions by grouping the grounds in the same way, but I will deal with them in a slightly different order. Although Mr Irving relies on the grounds in relation to A/Professor Heydon’s report in connection with the SMP, the acceptance by the trial judge that the laptop notes of the conversations on 17 May 1993 were accurate was critical to the trial judge’s consideration of the issues in respect of the FMP. I will therefore deal first with the grounds relating to the report of A/Professor Heydon.

Grounds 3, 4 and 9 – the alleged errors in respect of the Heydon evidence

198. A critical issue at the trial was whether the notes recorded on the laptop by Ms Pfingst and Mr Sturgess of the conversations they had on 17 May 1993 with Mr Irving were accurate. Mr Irving had alleged at the trial that he had been secretly recorded by Ms Pfingst, the tape was never disclosed and the laptop notes were inaccurate and contained false statements. The trial judge analysed (at [126]-[161] of the reasons) the evidence of Mr Irving as to the content of the conversations he had with Ms Pfingst and Mr Sturgess (who was then a detective sergeant in QPS) on 17 May 1993 and the evidence of Ms Pfingst and Mr Sturgess as to those conversations and the preparation of the laptop notes. It is relevant to note, as the trial judge did (at [114], [170] and [198] of the reasons), that 17 May 1993 was Mr Sturgess’ first day at the Cairns CIB after being transferred from Mareeba.

199. It was submitted on behalf of Mr Irving in connection with these grounds of the appeal that the question of whether the laptop notes were the product of a tape recording that had not been disclosed was a discrete component of the broader issue of whether the laptop notes accurately reflected the conversations on 17 May 1993 and that his credit was irrelevant to the issue of whether the laptop notes were the product of an undisclosed tape recording. That submission cannot be accepted. As Mr Irving was a party to each of the conversations, his recollection of the conversations and interactions with Ms Pfingst and Mr Sturgess on 17 May 1993 was relevant to the trial judge’s analysis of whether those notes were an accurate record of the conversations and, incidentally, to the allegation that the conversations had been recorded.

200. The laptop notes record the conversations that Ms Pfingst and Mr Sturgess had with Mr Irving from the time they introduced themselves to Ms Pfingst inside the Commonwealth Bank at Atherton at about 1 pm on 17 May 1993 until Ms Pfingst arrested him some three and one-half hours later on the possession of a dangerous drug and failure to appear warrant immediately before he was taken to the Cairns watchhouse to be charged.

201. Neither Ms Pfingst nor Mr Sturgess had made notes of their conversations with Mr Irving at the time the conversations took place, but after Mr Irving had been charged on 17 May 1993, the evidence of both Ms Pfingst and Mr Sturgess was that Ms Pfingst with Mr Sturgess’ assistance typed the notes of their conversations with Mr Irving on her laptop, and printed out the notes which were transferred the next day into Ms Pfingst’s police notebook and both Ms Pfingst and Mr Sturgess signed them. There were some corrections made in Ms Pfingst’s handwriting to the printed notes, although Ms Pfingst had no independent recollection when she made them.

202. The trial judge found (at [130] of the reasons) that Mr Irving’s evidence in relation to the content of the laptop notes was unreliable. In contrast, the trial judge found (at [155] of the reasons) that, even if Ms Pfingst’s and Mr Sturgess’ recollections were not perfect, the trial judge was satisfied that the laptop notes “reflected their recollection of what they honestly thought [Mr Irving] said and acted accordingly”. The trial judge did not find (at [157] of the reasons) that Ms Pfingst and Mr Sturgess were tape recording the conversations, as had been submitted by Mr Irving. The trial judge also found (at [157] of the reasons) that the detail in the laptop notes was consistent with the fact that the typewritten record was prepared relatively soon after the conversations had occurred on the same day.

“Finally, there was no evidence of a failure to recall a detail, or any lack of clarity in the officer’s recollection of the conversations. Given the findings of prior research into professional investigators’ poor performance in recalling conversations accurately without a recording, this seems implausible.

…

The analysis finds that it is highly unlikely that the notes of these nine conversations could have been produced to this level of detail without the aid of a recording. As noted by Lamb et al, prior research raises ‘serious questions about the ability of interviewers to recall the content and structure of their interviews with the degree of precision needed for forensic purposes.’ Moreover, Stafford, Burggraf and Sharkey’s findings suggests that the notes might represent as little as ten percent of the actual conversations, if they were produced from memory.”

206. In order to evaluate whether the laptop notes were likely to have been written from memory or transcribed from a recording, A/Professor Heydon assessed the laptop notes against five features of language identified in paragraph 24 of the report described as most likely to be omitted or distorted in a written record Each of the features of turn attributions, discourse markers, non-standard words or phrases, meta linguistic notes and non-standard sequence were explained respectively in paragraphs 25 to 29 of the report. A/Professor Heydon set out in paragraph 32 of the report analysis of the occurrences of each of those features in the laptop notes. Paragraphs 33 to 38 of the report reflected A/Professor Heydon’s findings based on the analysis of those five features in the laptop notes.

207. Paragraph 39 contained A/Professor Heydon’s observation about two aspects in the laptop notes that were not present, which A/Professor Heydon thought should be present, if the investigators had been endeavouring to recall conversations accurately without a recording. The trial judge noted in the course of giving the ruling that the matters referred to in paragraph 39 of the report (evidence of a failure to recall a detail or evidence of any lack of clarity in the officer’s recollection of the conversations) were not matters which were derived from the analysis of any of the five features identified in paragraph 24 of the report.

208. Paragraph 40 of the report was A/Professor Heydon’s conclusion in respect of that analysis on the question that had been posed to her whether the laptop notes could have been produced to that level of detail without the aid of a recording.

209. The trial judge applied the orthodox statements of principle as to when a matter is properly a matter for expert opinion, based on the summary by Bond J (as his Honour then was) in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241 at [94] of the criteria set out by Heydon JA in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] and expanded upon in Sanrus at [97]. There is no challenge to this principle.

210. The trial judge considered the report of A/Professor Heydon at [162]-[170] of the reasons. A/Professor Heydon did not give oral evidence and was therefore not cross-examined. The trial judge noted (at [163]) that the report was admitted for A/Professor Heydon’s opinion on the frequency of these five features identified by her that are most likely to be omitted or distorted in a written record which the trial judge summarised (at [164]-[165]). The trial judge noted (at [166]) that neither Ms Pfingst nor Mr Sturgess was cross-examined about these features of the laptop notes and that A/Professor Heydon did not address the fact that Ms Pfingst and Mr Sturgess sat down together to produce the laptop notes. The trial judge also observed (at [166]) that the form of the document with the turn attributions accords with the usual form in which evidence is given in court with which police officers would be familiar and the conversations on 17 May 1993 occurred in the context of the police officers asking questions of Mr Irving rather than a usual conversation.

Grounds 1 and 2 – the alleged errors in respect of the FMP

221. There was no issue that the trial judge had correctly identified (at [9] of the reasons) the elements of the action for damages for malicious prosecution and set out (at [9]-[44] of the reasons) the legal principles applicable to such an action with particular emphasis on the statements of principle in the joint judgment in A v New South Wales (2007) 230 CLR 500 at [55], [58], [60], [61], [77], [80], [82]-[87], [89]-[93] and [118].

222. For each prosecution, the dispute between the parties was whether Ms Pfingst, in initiating and maintaining the criminal proceeding, acted maliciously and whether the prosecution was commenced or maintained without reasonable or probable cause. With respect to the absence of reasonable and probable cause in the FMP, Mr Irving’s case was that Ms Pfingst did not honestly believe in the case that was instituted or maintained (the subjective test) or, alternatively, had no sufficient basis for such an honest belief (the objective test). The reference to the subjective test and the objective test is a short way of synthesising the five conditions that Jordan CJ in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, 469 stated should exist in order that a person may have reasonable and probable cause for prosecuting another for an offence:

“In an action for malicious prosecution the burden of proof is on the plaintiff to prove (inter alia) that the defendant in instituting or maintaining the prosecution acted without reasonable or probable cause and also acted maliciously. In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds.”

223. The guidance given by these conditions was approved by the joint judgment in A’s case (at [66]) on the basis that a plaintiff had to establish the negative proposition that one or more of those conditions did not exist. The joint judgment also observed (at [66]) that the five conditions “should not be understood as completely or exhaustively describing what will constitute reasonable and probable cause”. The five conditions highlight the difference between the matters that may facilitate proof of the subjective test (by negativing one of conditions (1), (2) and (3)) and the matters that may facilitate the proof of the objective test (by negativing one of conditions (4) or (5)).

224. In order to deal with the issue of absence of reasonable and probable cause in the FMP, I will briefly summarise the relevant steps in the investigation by Ms Pfingst and other officers that resulted in the accessory charge and the further steps that were then undertaken until Mr Irving was charged with the robbery.

225. Statements were obtained from the three female bank officers working in the branch when the lone male person robbed them. They were Ms Adkins, Ms Redgen and Ms Oastler. Ms Adkins followed the robber out of the bank after the robbery and was joined by Mr and Mrs Kerr who operated a nearby take away business and who also provided statements. Ms Adkins saw the robber run into the driveway of a set of flats and disappear. The next thing Ms Adkins saw was a small grey car coming out of the driveway and one person driving it. Mr Kerr saw the man (who was of interest to Ms Adkins) run into the driveway of a set of units and then saw a grey coloured sedan registration number 682BUI pull out of the carpark of the units driven by a different man and the man who Mr Kerr had been following was lying face down across the back seat. Mrs Kerr also saw a vehicle come out of the units driven by a man who did not look like the man they had been following. She also noted the registration number of the vehicle. Mrs Kerr saw grey or dark coloured trousers on the rear seat of this vehicle. The police broadcast a description of the robber and the registration number of the grey car.

226. As Mr Irving was the owner of the grey car with the registration number that witnesses connected with the robbery, he was a person to whom the police wished to speak from early on in the investigation. The vehicle was registered to Mr Irving at an address at Yorkeys Knob. Detective Kinbacher attended at the address on the afternoon of the robbery and spoke to the resident, Ms Parker, who advised that she had broken up with Mr Irving some three months previously and had no information regarding his current whereabouts. Information was received from a police officer at Smithfield that he had arrested Mr Irving in the subject vehicle for driving under the influence on 29 January 1993 and that a hearing was pending on 6 April 1993. Advice was obtained from Mr Irving’s solicitor that his last contact with him was at the beginning of March and there was some mention of him living north of the Daintree. There was not much progress in the investigation between 25 March and 12 May 1993.

“He said could he borrow my car for 10 minutes but he was gone for a couple of hours. I was really pissed off with im. When he came back I asked where he had been and he said there was a holdup at the hospital. He said he had been at the hospital seeing his mrs.”

232. When Mr Irving was asked how he knew the police were looking for his car, the notes record that he explained that he heard on the radio that the police were looking for a car used in a holdup and they said his registration number. Mr Irving said he went back to the hotel that night “to get Wayne”, but Wayne did not appear. Mr Irving said that he took the car back to Draper Street and left it there, taking the plates off and putting a tarpaulin over the car, so that the police would not find the car. He put the plates under a piece of cement.

233. Later on 17 May 1993, Ms Pfingst and Detective Gough travelled to Port Douglas where Mr Irving had been residing most recently and collected a multi coloured shirt from a grey bag of clothes owned by Mr Irving that had been obtained by the local police from the room he had stayed in the previous night. The grey bag was left at the Port Douglas police station.

234. At 8 am on 18 May 1993 Operation 3UP was established by the then officer in charge of the Cairns CIB, Detective Sergeant Hartwell, to determine whether the same offenders were involved in the ANZ robbery and the two NAB robberies and particularly whether Mr Irving may have also been involved in the two NAB robberies. There were separate investigators for each of the three robberies and they were kept as separate investigations, but there was a running sheet kept for Operation 3UP. (The primary judge found (at [483] of the reasons) on the basis of the evidence of Mr Hartwell and Mr Kinbacher that the police were merely investigating as part of Operation 3UP whether there was a link between Mr Irving and all three robberies.)

235. At 2.10 pm on 18 May 1993, Ms Redgen attended at Cairns CIB for Ms Pfingst to show her the multi coloured shirt that Ms Pfingst believed belonged to Mr Irving to see whether she recognised it. Ms Redgen stated that was not the shirt the robber was wearing on 19 March 1993.

236. Ms Pfingst accompanied by Detective Gough attended at the watchhouse at 2.50 pm on 18 May 1993 and Ms Pfingst arrested Mr Irving on the accessory charge. Later the same day Ms Pfingst accompanied by Detective Gough returned to the watchhouse and had a further conversation with Mr Irving in relation to his taking part in a line up and providing samples of his body for examination. Mr Irving stated he would have to obtain legal advice.

237. By 3 pm on the same date, computer inquiries had located a Wayne Suthers in Ipswich who was to be pursued by Ipswich CIB.

238. At 5 pm on that date, Ms Adkins attended at Cairns CIB where Ms Pfingst showed her the multi coloured shirt. According to the transcript of Ms Pfingst’s interview with Ms Adkins, Ms Adkins thought the sleeves of the shirt were the same on the shirt worn by the robber, but the cuffs were different and she was unsure about the main body of the shirt. (According to the statement that was prepared for Ms Adkins to sign that was dated 18 May 1993, but signed on 24 May 1993, Ms Adkins stated, however, that the shirt she was shown was the shirt worn by the robber.) Ms Pfingst also showed Ms Adkins on 18 May 1993 the black sandshoes and black trousers recovered from Holloways Beach. According to her statement, Ms Adkins identified the shoes as the shoes worn by the robber, because of the white around the edges of them. She identified the trousers that she was shown as the same colour and style as the robber’s trousers which she had described as dark grey.

“The deft is the subject of a number of other inquiries being conducted by the Cairns CIB. Further charges are pending at a later date.”

244. The Legal Aid lawyer who appeared on behalf of Mr Irving on the bail application disputed the criminal history which the police had for Mr Irving, but bail was refused.

245. At 1.30 pm on 20 May 1993 after the samples had been taken from him Ms Pfingst attended on Mr Irving at the watchhouse and he identified that all clothes in the grey bag (which had been collected from Port Douglas and which extended to the multi coloured shirt) were his.

246. Detective Senior Sergeant Kinbacher who was a senior constable with the Cairns CIB in 1993 was the principal investigator for the 1992 NAB robbery. There were still photographs taken from the NAB’s security footage of the robber in the 1992 robbery. Detective Kinbacher attended with Ms Pfingst on Ms Parker on 20 May 1993 to show her those photographs to see if she could say whether they were or were not of Mr Irving. Ms Parker’s response was equivocal. Ms Parker was also shown the hat, black pants and footwear located at Holloways Beach which she was unable to identify as clothing she had seen Mr Irving wearing. According to Detective Kinbacher, his attendance on Ms Parker on 20 May 1993 was for the purpose of advancing the investigation into the 1992 NAB robbery under the umbrella of Operation 3UP and Ms Pfingst’s attendance was advancing the investigation of the ANZ robbery under the umbrella of Operation 3UP.

247. In her statement dated 23 June 1993, Ms Pfingst recorded that all inquiries to locate Wayne Suthers “proved negative” and her inquiries of the owner at The Big O were also negative.

248. At the time that Mr Irving was charged with the accessory charge, the only concrete evidence to link him in any way with the robbery was the fact that his car was seen by witnesses driving away from units in the vicinity of the bank that was robbed and one of those witnesses identified a man lying on the back seat of the car as the man who had been followed from the bank after the robbery. Mr Irving had given Ms Pfingst and Mr Sturgess an explanation recorded in the laptop notes that on the day of the robbery he had lent his car to one Wayne Suthers who had neither been located nor identified by the police by the time Mr Irving was charged as an accessory. At most, there were two men who had been seen in connection with the robbery, namely the man who entered the bank and robbed it and the second man who drove Mr Irving’s car away. There is no doubt that Mr Irving’s actions in removing the number plates from the car and hiding them and then placing the car under a tarpaulin and not coming forward to speak to the police, when the description of his car was publicly circulated, were objectively suspicious. Mr Irving’s explanation to the police recorded in the laptop notes that after he heard about the robbery on his car radio, when the registration number of his vehicle was announced, he thought it pointed to his doing the robbery and he did not want the police to find his car would not have diminished those suspicions.

“However, the fact that Ms Pfingst considered Mr Irving a person of interest or a suspect does not establish that she held the belief that he was the Robber. Holding a suspicion someone is a principal offender and holding an honest belief based on the evidence that the person is guilty of being an accessory after the fact are not necessarily incompatible.” (footnote omitted)

251. It is theoretically possible for the investigator of an offence to conclude that there is sufficient evidence to justify charging a person as an accessory after the fact to the commission of that offence before further investigation may disclose sufficient evidence to support charging the person with the commission of the offence. The discussion in George v Rockett on the different states of mind of suspicion and belief is apposite to a consideration of whether absence of reasonable and probable cause on the subjective basis has been shown for the purpose of the tort of malicious prosecution that depended on absence of belief by the prosecutor in the guilt of the relevant party. As a matter of law, it was open to the trial judge to conclude (at [268]-[269] of the reasons) that Ms Pfingst’s evidence did not support the conclusion that Ms Pfingst at the stage she charged Mr Irving as an accessory regarded him as more than a suspect for the robbery.

252. The trial judge noted (at [271] of the reasons) that Ms Pfingst accepted that there was no evidence that Mr Suthers was the person who actually robbed the bank, or had a gun, as stated in the accessory charge. Even though Ms Pfingst did not give evidence consistent with this conclusion, the trial judge then concluded (at [271]) that Ms Pfingst’s evidence supported the fact she was relying on Mr Suthers being involved in the robbery such that Mr Suthers would be liable for the offence by reason of s 7 or s 8 of the Code, rather than being the robber who entered the bank with the gun.

253. The critical finding by the trial judge on Ms Pfingst’s belief as to the factual basis on which Mr Irving was liable as an accessory is set out at [272] of the reasons:

“While Mr Suthers is said to be the principal offender in the Accessory Charge, it is apparent from the evidence given by Ms Pfingst that it is likely that she was acting on the basis that Mr Suthers was a party to the Robbery because he had Mr Irving’s car and someone other than the Robber was observed driving the car when it was exiting the driveway after the Robbery. The evidence supported Mr Irving’s car being used as the getaway vehicle, which would make Mr Suthers liable for the principal offence if he was driving the vehicle carrying the Robber. It is apparent from Ms Pfingst’s evidence that she was focused on the fact that Mr Suthers had Mr Irving’s car at the time of the Robbery in identifying him as principal offender, rather than having committed the Robbery itself. That is consistent with the fact that she relied upon Mr Irving’s knowledge the car had been used in the Robbery, and that he had hidden the registration plates and had put a tarp over the car as being the relevant evidence supporting Mr Irving being an accessory after the fact. I accept as correct, the submission of the Defendants that a person can be charged with being accessory after the fact, helping anyone of the principal offenders by the operation of s 7 of the Criminal Code and that the evidence of Ms Pfingst did not exclude, but in fact supported, the submission that she regarded Mr Suthers involvement in the Robbery as based upon the fact that he had Mr Irving’s vehicle, which was used in the getaway. While the wording of the charge referred to Mr Suthers having the shotgun, I find that the most probable explanation is that was an incorrect particular in the wording of the charge. This was Ms Pfingst’s first armed robbery as senior investigating officer.” (footnote omitted)

254. The form in which the accessory charge was framed theoretically would cover another person who actually committed the robbery (using the sawn-off shotgun) being liable under s 7(1)(a) of the Code with Mr Suthers liable under any of paragraphs (b), (c) or (d) of s 7(1) of the Code and that, by hiding the number plates and his car, Mr Irving was assisting Mr Suthers to escape punishment for the robbery. The problem is that theoretical possibility involving a third party apart from Mr Suthers was not reflected in Ms Pfingst’s evidence as to how she came to charge Mr Irving as an accessory. Her evidence in chief was that at the time she charged Mr Irving with being an accessory, she believed that there was sufficient information to warrant charging him and that he was guilty of that offence. Ms Pfingst expanded on her reasoning in cross-examination for the form of the accessory charge that Mr Suthers was “the only person we knew of” (apart from Mr Irving), because he had been nominated as the person who had Mr Irving’s car that was used in the robbery, Mr Irving did not come forward to assist the police, when he said he heard about the robbery, and Ms Pfingst believed Mr Irving had done something to assist Mr Suthers by putting the number plates under the concrete slab.

255. To the extent that the trial judge rationalised (at the conclusion of [272] of the reasons) the wording of the accessory charge as “an incorrect particular” and attributed it to Ms Pfingst’s inexperience in investigating armed robberies, there was no support for that conclusion in the evidence given by Ms Pfingst that Mr Suthers was named in the charge as he was the only person of whom she knew, apart from Mr Irving, in connection with the robbery. It is apparent, though, from Ms Pfingst’s evidence that was accepted by the trial judge that it was open to the trial judge to conclude, as a matter of fact, that Ms Pfingst honestly believed that the actions of Mr Irving in concealing his car and the registration plates after he heard about the robbery and his nomination of Mr Suthers as the borrower of his car at the time the robbery was committed were enough to support an accessory charge against Mr Irving, naming the principal offender as Mr Suthers.

256. The trial judge considered (at [273]-[277] of the reasons) the issue of whether hiding the registration plates (and putting a tarpaulin over his car) was done by Mr Irving to protect himself or to assist Mr Suthers. The trial judge noted (at [273]) that, when it was first put to Ms Pfingst that she had no evidence that Mr Irving had done anything to assist Mr Suthers, she stated that she believed he had. Ms Pfingst also gave evidence to the effect that hiding the number plates and the car was done by Mr Irving to assist himself. The trial judge set out (at [274] of the reasons) the exchange that then occurred in cross-examination of Ms Pfingst:

“To assist Terry Irving?---Because he didn’t want us interviewing him about the armed robbery.

Yes. That’s not assisting Wayne Suthers, is it?---No, it’s assisting himself.

I suggest to you that you charged Mr Irving with being an accessory after the fact when you did not believe that he was guilty of that offence?---Not correct.

And you had no evidence to support that he had committed that offence?---No.

And you did so because you wished to hold him in custody while you further investigated the robbery?---No. We still had to make inquiries to locate Wayne Suthers. And I still say that he did certain acts to protect himself and to blame Wayne Suthers.

Now, it’s certainly the case, isn’t it, that you believed that you had – you didn’t have enough evidence, certainly as at 17 May of 1993, to charge Mr Irving with the robbery?---The actual robbery, no.”

257. The trial judge accepted (at [275] of the reasons) the interpretation of that evidence put forward in submissions at the trial on behalf of Ms Pfingst that “the reference to Mr Irving seeking to assist himself was in regard to him not being interviewed about the Robbery, not regarding Mr Irving hiding the registration plates, which Ms Pfingst had previously identified as being to assist Mr Suthers” and that it was consistent with Ms Pfingst’s suspicion of Mr Irving being the robber which she was still investigating, because she did not have evidence to support the commission of the robbery by him, and consistent with her evidence of her belief that it was appropriate to charge Mr Irving with being an accessory at the time that Ms Pfingst did so.

258. In the absence of the statement made by Mr Irving that the purpose in hiding his car and number plates was to enable Mr Suthers to escape punishment for the robbery, the issue of whether Mr Irving’s actions were done to so assist Mr Suthers depended on an inference being drawn from the relevant facts. Consistent with Ms Pfingst’s evidence, that was the inference that was obviously drawn by her from what Mr Irving had said on 17 May 1993 and the evidence that confirmed his concealment of the car and its number plates that were connected to the robbery. The fact that Mr Irving’s actions may have also been for his personal benefit in avoiding contact with the police about the robbery did not preclude an inference being drawn that his conduct was also for the purpose of assisting Mr Suthers to escape punishment for the offence of robbery: R v Tevendale [1955] VLR 95, 97.

259. The key finding made by the trial judge is then set out (at [278] of the reasons) that the trial judge did not accept that Ms Pfingst had admitted either that:

“(a) At the time she laid the Accessory Charge, she believed that Mr Irving committed the Robbery; or

(b)She believed that Mr Irving had hidden the registration plates in order to assist himself and not Mr Suthers.”

260. The trial judge did not find (at [280] of the reasons) that Ms Pfingst did not honestly believe that Mr Irving had done an act to assist Mr Suthers by removing the registration plates, placing them under concrete and putting a tarpaulin over the car, when he had knowledge that the car had been identified by police as being used in the robbery.

261. It is ironic that in charging Mr Irving as an accessory, Ms Pfingst treated the information provided by Mr Irving as to Mr Suthers’ borrowing his car at the time the robbery was committed as accurate information. The only way to frame the accessory charge was to assert that Mr Suthers was the principal offender, even though Ms Pfingst conceded that when she arrested Mr Irving as an accessory, she had no evidence that Mr Suthers committed the robbery. Ms Pfingst was persuaded by Mr Irving’s objectively suspicious conduct in concealing his car and his number plates (as was Mr Sturgess).

262. The listing of the conditions in Mitchell v Heine of which a plaintiff must negative at least one to prove absence of reasonable and probable cause shows it is possible for a defendant to honestly believe that it is proper to bring a charge on the basis of the information then available to the defendant, even though there may objectively be insufficient grounds for the charge. As Kitto J observed in Trobridge v Hardy (1955) 94 CLR 147, 164, “there is always the possibility that a belief which appears unreasonable may nevertheless be honestly held, either because the person concerned pursues an unreasonable train of thought or because he is forgetful of or inattentive to factors in the situation, the absence of which would make his belief reasonable”. This means there can be a deficiency in the police officer’s reasoning as to why there is a proper case for charging an offender without detracting from the honest belief of the police officer that it is such a proper case. The trial judge’s conclusion about Ms Pfingst’s honest belief rests on the credit findings made by the trial judge in accepting the evidence of Ms Pfingst and Mr Sturgess and rejecting Mr Irving’s evidence where it was relevant to whether Ms Pfingst’s evidence was accepted.

263. The trial judge’s acceptance of Ms Pfingst’s evidence relevant to her honest belief at the time Mr Irving was charged as an accessory was made on the basis of strong findings of credit in her favour. This is therefore not a case where the trial judge’s conclusion that Mr Irving failed to show that Ms Pfingst did not have that honest belief can be characterised as “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy at [29].

264. The fact that there was no evidence that Ms Pfingst engaged in reasoning that the accessory charge could proceed on the basis of Mr Suthers being a party to the robbery rather than the robber himself which was contrary to the explanation attributed by the trial judge (at the conclusion of [271] of the reasons) for the form of the charge did not detract from the acceptance by the trial judge of Ms Pfingst’s evidence as to her honest belief there was a proper case for charging Mr Irving as an accessory. That means he cannot now succeed in challenging the trial judge’s conclusions (at [278]-[280] of the reasons) that Mr Irving failed to prove that Ms Pfingst did not honestly believe there was a proper case for prosecution of Mr Irving on the accessory charge. The objective basis of that element of the tort is a different matter.

“Evidence which tells against the probability that a right motive was the sole or predominant cause of the conduct goes to provide a foundation on which the jury may reason, through the presumption that there must be some explanation of what the defendant did, to the conclusion that he must have been actuated by an inadmissible motive of some kind or other.”

269. The joint judgment in A’s case gives some guidance on whether malice can be proved where the finding is made that the relevant police officer had formed the subjective view that a charge should be brought against the plaintiff. The relevant police officer who was the second respondent in A’s case charged the plaintiff with sexual offences alleged to have been committed against his stepsons C and D. During the committal hearing, C admitted that his evidence-in-chief was false and that he had told lies to help his brother. The plaintiff was discharged in respect of the charges involving both C and D. In the action brought by the plaintiff against the State of New South Wales and the second respondent claiming damages for malicious prosecution, the plaintiff’s solicitor gave evidence of conversations he had with the second respondent. The effect of the conversations was the second respondent conveyed he had felt he was under pressure to charge the plaintiff, because the plaintiff was an employee of the police service, and that if it had been up to him, he would not have charged the plaintiff. The judge who tried the malicious prosecution claim accepted the plaintiff’s solicitor’s evidence and made a finding that the second respondent laid both charges against the plaintiff “not for the purpose of bringing a wrongdoer to justice, but for the improper purpose of succumbing to the pressure from officers of the Child Protection Enforcement Agency to charge the plaintiff because he worked for the Police Service” and that the plaintiff had therefore proved the second respondent acted maliciously. The judge also made findings that the charge concerning D was a proper case to bring to court, but in relation to the charge concerning C, the judge was satisfied the second respondent “did not believe that the plaintiff had committed the offence, or alternatively, that if he did believe, then such belief was not based upon reasonable grounds”. The plaintiff therefore succeeded at trial in the claim of malicious prosecution for the charge concerning C, but not for the charge concerning D.

270. That outcome was ultimately upheld in the High Court. In addressing the first issue identified in [101] of A’s case of whether there was a difficulty presented by the trial judge’s expressing in alternative terms the finding about reasonable and probable cause in respect of the charge concerning C, the observations in the joint judgment in A’s case at [104] are pertinent:

“The absence of an adequate objective basis for the formation of the requisite opinion made it unnecessary to decide whether the second respondent had in fact formed the opinion that the material considered warranted laying a charge in respect of C. Further, the finding about malice, that neither charge was laid for the purpose of bringing a wrongdoer to justice, would be inconsistent with a conclusion that the second respondent had formed the subjective opinion that a charge should be laid in respect of C. But there is no inconsistency in the trial judge concluding, as he did, that either the second respondent did not believe there was a case fit for prosecution or, viewed objectively, the material then available did not warrant forming such an opinion.”

271. Ms Pfingst was candid in her evidence that she had suspicions that Mr Irving may have been the robber, even when she charged Mr Irving with being an accessory. See the findings of the trial judge (at [265]-[268] of the reasons) that Ms Pfingst held those suspicions.

272. It is critical to the trial judge’s conclusion on malice that her Honour accepted (at [295] of the reasons) Ms Pfingst’s denial that she charged Mr Irving as an accessory, so she could further investigate the robbery and found that:

“There is no incompatibility with Mr Irving being charged with the Accessory Charge where there is evidence to lay that charge and continuing to investigate him in relation to his involvement in the Robbery.”

273. A similar statement was made by the trial judge at [268] of the reasons.

274. The matters that were relied on by Mr Irving on the appeal to show that the trial judge erred in concluding that he failed to prove malice were the same matters relied on to challenge the trial judge’s conclusion that Mr Irving had failed to prove absence of reasonable and probable cause on the subjective basis.

275. Consistent with the observation in A’s case at [104] that there would be inconsistency in concluding that the relevant police officer had formed the subjective opinion that a charge should be brought with a finding of malice, the trial judge’s conclusion (at [283] of the reasons) that Mr Irving has failed to prove Ms Pfingst did not honestly believe at the time she laid the accessory charge there was insufficient evidence to do so precluded Mr Irving’s proving malice on the part of Ms Pfingst.

276. Although Mr Irving on this appeal has succeeded in showing error on the part of the trial judge in concluding that Mr Irving had failed to prove there was an absence of reasonable and probable cause in relation to the FMP on the objective test, Mr Irving has failed otherwise in challenging the dismissal of his claim for the FMP of the appeal.

Ground 8 - the alleged errors in relation to the objection to bail

277. There were aspects of the objection to bail documents for the accessory charge relied on by Mr Irving before the trial judge to assert that Ms Pfingst embellished the evidence. The trial judge rejected (at [224]-[233] of the reasons) the so-called embellishments. Mr Irving submits that the trial judge erred in looking at each of these aspects individually and whether there was an explanation for each aspect. Mr Irving submits that the proper approach was to look at the cumulative effect of the embellishments to consider whether there was a course of conduct to embellish the evidence to make the case against Mr Irving appear stronger.

278. The QP9 that was signed by Ms Pfingst as the arresting officer included the allegation that “the offender was followed by one of the female tellers and a male person and the offender was seen to get into the back door of a grey toyota sedan and it will be alleged that the vehicle beared the registration number 682BUI”. The QP9 is a summary of the facts relied on by the police to charge an offender. Neither Ms Adkins from the bank nor Mr Kerr actually saw the robber get into Mr Irving’s vehicle, but they did see him go into a driveway and they saw a grey car (that bore the registration number of Mr Irving’s vehicle) exit the same driveway. Mr Kerr had stated that the male person he had been following was face down lying across the back seat of the grey car and was able to identify the car registration. There was also supporting evidence from Mrs Kerr that she had seen the male person they were following run into a set of units and that a car driven by another man came out of the units. As the trial judge accepted (at [230] of the reasons) it was not strictly correct to assert the offender was seen getting into the back of Mr Irving’s car, but the logical and obvious inference was that the offender was at the back of Mr Irving’s car while it exited the driveway. To the extent it was an embellishment, it was therefore immaterial.

279. The other complaints about the QP9 were based on the 17 May 1993 record of conversations/interview which the trial judge had accepted was accurate and therefore found (at [231] of the reasons) that those admissions taken from the record of interview did not amount to an embellishment or manipulation of the evidence.

280. It was common ground that the criminal history that Ms Pfingst obtained from the QPS Information Bureau for Mr Irving was incorrect, but the trial judge found (at [232] of the reasons) that Ms Pfingst was not aware of the errors in the criminal history and therefore Ms Pfingst’s relying on the criminal history in support of the objection to bail could not be characterised as an embellishment.

281. Before the matters relied on by Mr Irving as embellishments can be accumulated, they have to be found to be embellishments. There was one aspect in relation to the bail hearing that was attributable to Ms Pfingst which was an immaterial embellishment in relation to whether the offender was seen to get into the grey car rather than it being an inference from the evidence of the eyewitnesses that the offender got into the grey car. There were no other errors for which Ms Pfingst was responsible that were found to be embellishments that could be considered in a cumulative way with that embellishment.

Grounds 5 and 6 – whether the CJC transcripts of interview should have been excluded

283. According to the s 259 application made by Ms Pfingst in relation to the accessory charge, the police had taken possession of clothing that related to the robbery that contained samples of hair. At the committal hearing for the robbery charge, the multi coloured long sleeve shirt was tendered as an exhibit, in addition to the trousers found by Mr Jetson. According to Ms Pfingst’s evidence in chief at the committal hearing, the shoes found by Mr Jetson had been sent to the scientific section of QPS and passed onto the University of Queensland for examination together the Dunlop sandshoes taken from Mr Irving on 17 May 1993 and a pair of blue rubber thongs (which Mr Irving was wearing when Ms Pfingst took them from him on 1 June 1993). Ms Pfingst was cross-examined at the committal about the trousers and shoes found by Mr Jetson and responded that they were similar to the trousers and shoes described by witnesses. Ms Pfingst was then cross-examined on whether there were any results from the samples taken from Mr Irving pursuant to s 259 of Code soon after his arrest on the accessory charge and replied “No, there was nothing on the clothing after it was examined”. It was apparent from her next answer at the committal that in relation to clothing, she was referring at least to the multi coloured long sleeve shirt. Ms Pfingst’s answer that there was nothing on the clothing after it was examined formed part of Mr Irving’s complaint to the CJC about Ms Pfingst. Ms Pfingst was interviewed by the CJC in respect of Mr Irving’s complaint.

284. Mr Irving had made two allegations in the statement of claim to the effect that Ms Pfingst gave false evidence to the CJC on 25 October 1994. The first allegation was that Ms Pfingst gave false evidence that she consulted Ms Birchley, a scientific officer with the QPS at Cairns, between 19 and 30 May 1993 and provided Ms Birchley with forensic examples, and based on Ms Birchley’s response, omitted to cause the samples to be further tested for the presence of human hair. The second allegation was that Ms Pfingst gave false evidence that she had a conversation with Ms Birchley, during which Ms Birchley had stated to her that forensic samples were dog hair and that, based upon that response, Ms Pfingst omitted to cause the samples to be further tested for presence of human hair. Mr Irving alleged that Ms Pfingst had not provided the forensic examples to Ms Birchley and that no such conversation between Ms Pfingst and Ms Birchley had taken place. In the defence, the respondents denied the allegations and relied on the evidence given by Ms Pfingst to the CJC on 25 October 1994 that clothing and other samples containing hair were provided to Ms Birchley who looked at them, it was considered unnecessary to have the samples further tested, and that Ms Birchley had said the samples were dog hair.

285. These grounds of appeal relate to the question of whether the trial judge erred in law in excluding from evidence the respective transcripts of interviews by the CJC with Ms Pfingst on 25 October 1994 and Ms Birchley on 29 November 1994. The trial judge dealt with the CJC evidence at [462]-[477] of the reasons.

“For the purposes of this part, a statement contained in a document is made by a person if—

(a)it was written, made, dictated or otherwise produced by the person; or

(b)it was recorded with the person’s knowledge; or

(c)it was recorded in the course of and ancillary to a proceeding; or

(d)it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing.”

290. If the actual recording of Ms Pfingst’s CJC interview had been available, that recording would have been admissible under s 92 of the Evidence Act on the basis the interview was recorded with Ms Pfingst’s knowledge and therefore complied with paragraph (b) of s 92(4) or possibly complied with paragraph (c) of s 92(4) on the basis that it was recorded in the course of a proceeding. (Because the recording was not available, it is not necessary to determine conclusively whether the CJC interview was within the definition of “proceeding” for the purpose of s 92(4).) Despite Mr Irving’s submission otherwise, the relevant parts of the transcript on which Mr Irving was relying could not be said to have been “written, made, dictated or otherwise produced” by Ms Pfingst, pursuant to paragraph (a) of s 92(4), when the trial judge concluded on the basis of Mr Kelly’s evidence that it was not established that the transcript was an accurate reflection of the recording. There was never any adoption by Ms Pfingst in writing that the interview was her statement that would satisfy paragraph (d) of s 92(4). There was therefore no error in the trial judge’s exclusion of the CJC transcript of Ms Pfingst’s interview as s 92(4) of the Evidence Act was not satisfied.

291. When Ms Birchley gave evidence at the trial, she had refreshed her memory by reference to her police notebook and was able to confirm that either Detectives Hartwell or Cooper had delivered the clothing and shoes (brown fluffy shirt/jumper that had dark brown pinstripes, black pants, black sneakers and an Akubra style hat) found on Holloways Beach that was suspected of being involved in the NAB robbery. She was able to extract hair samples from the clothing. There was nothing in her notes to say there was anything unusual about the hair. She did not specifically recall having a conversation with Ms Pfingst about the hair samples. She had no notes in relation to the multi coloured shirt that was tendered at the committal in respect of the robbery charge against Mr Irving. In cross-examination, Ms Birchley accepted she had no independent recollection either way about having a conversation with Ms Pfingst about the hair samples.

292. It is strictly not necessary to consider ground 5 of the appeal, as Ms Birchley’s evidence in the transcript of her CJC interview was relevant only if the transcript of Ms Pfingst’s CJC interview was admitted into evidence. I will nevertheless deal briefly with the exclusion of the transcript of Mr Birchley’s interview with the CJC. Ms Birchley was interviewed by the CJC by telephone on 29 November 1994 and a transcript was made of the interview. Before Ms Birchley was called by Mr Irving to give evidence at the trial, the trial judge ruled that the Birchley transcript was inadmissible under s 92 of the Evidence Act, because the transcript did not tend to establish a relevant fact, and even if it did, the trial judge exercised the discretion under s 98 of the Evidence Act to exclude it on the basis that the interview was so lacking in any probative value that it would be inexpedient in the interests of justice to admit the statement.

Ground 7 – the credibility findings relating to Mr Irving, Ms Pfingst and Mr Sturgess

297. Ground 7 is conditioned on the basis that Mr Irving succeeds on grounds 3 to 6 of the appeal in showing that the trial judge failed to give adequate weight to the evidence of A/Professor Heydon and erroneously excluded the CJC transcripts and that it follows the credibility findings of the trial judge in relation to Mr Irving, Ms Pfingst and Mr Sturgess should be set aside which would have a consequential effect for the claim based on the SMP.

298. In view of the conclusions reached above in respect of grounds 3 to 6, Mr Irving cannot succeed on ground 7 of the appeal.

Orders

299. It follows that the appeal should be dismissed. Neither party sought in their written submissions to make submissions on costs after the appeal was determined. There is no reason that costs should not follow the event. The formal order that should be made is: Appeal dismissed with costs.

Footnotes

1. [2007] HCA 10; (2007) 230 CLR 500 at 514 [58]. ↩

2. (2007) 230 CLR 500 at 525 [71]. ↩

3. (2007) 230 CLR 500 at 528 [80]. ↩

4. (2007) 230 CLR 500 at 531 [91] and 532 [93], cited at [49] of McMurdo JA’s reasons. ↩

5. Trial judge’s reasons at [282] – [285]. ↩

6. Trial judge’s reasons at [286] – [299]. ↩

7. Trial judge’s reasons at [282] – [285]. ↩

8. See Fox v Percy (2003) 214 CLR 118. ↩

9. Transcript 18 November 2019, p 6-89. ↩

10. Trial judge’s reasons at [285]. ↩

11. Trial judge’s reasons at [282]. ↩

12. Trial judge’s reasons at [270]. ↩

13. Transcript 19 November 2019 at p 8-16. ↩

14. Transcript 19 November 2019 at pp 8-16 and 8-17.