( Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 at 379-80 Dixon J.)
51 The plaintiff submits that the evidence is all one way and that in reality the Executive was the "prosecutor" in the proceedings brought against him under the CPA. It initiated the Bill, submitted it to Parliament, accepted the amendment by the Opposition which confined its operation to him, promoted the further passage of the Bill through Parliament until it became an Act, presented the Act to the Governor for Royal Assent and on 9 December 1994 proclaimed it. The plaintiff places particular emphasis on the remarks of McHugh J in Kable at 122 where his Honour said:
"It [the CPA] makes the Supreme Court the instrument of a legislative plan, initiated by the Executive Government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person."
52 The plaintiff submits that once the CPA was proclaimed, the natural and inevitable consequence was that the DPP would commence proceedings against him under it.
53 The plaintiff acknowledges that a claim for malicious prosecution against the Executive formulated in that way is novel and that there is no direct authority supporting it. Nevertheless, he submits that this is a logical development of the tort given the unique and special nature of the CPA with its "ad hominem" focus on himself.
54 He submits that his argument on this issue accords with the analysis of responsible government in NSW in Egan v Willis (1998) HCA 71, (1998) 195 CLR 242 at 448 where the plurality said:
"[36] As Gleeson CJ said in his reasons for judgment in the Court of Appeal:
"At the present time New South Wales has a responsible and representative system of government, with a legislature comprising the Queen, the Legislative Council, and the Legislative Assembly. The Members of both Houses are popularly elected, although the methods of election, and the terms of office of the Members, are different."
However, his Honour went on to point out that many aspects of responsible government, as it presently exists in the State, are not identified in the Constitution Act and depend upon what has come to be fixed by convention. The Chief Justice said:
"The Constitution Act makes no reference to Cabinet. It does not refer to the conventional requirement that Ministers be chosen from amongst the Members of one or other of the Houses of Parliament. It does not reflect the conventional requirement that the Governor may only appoint as Premier a person who commands the confidence of the Legislative Assembly, or that the Ministry must have the confidence of that House. No reference of any kind is made to the party system, which is of such importance at the level of political practice."
…
[38] The contemporary operation of a system of responsible government reflects the significant role of modern political parties, one of which, or a coalition of which, in the ordinary course "controls" the Legislative Chamber or, in a bicameral system, at least the Lower House. Modern political parties did not exist in New South Wales when the bicameral legislature was first established under the 1855 Imperial Act . Indeed, until the end of the last century, no Australian colony had a developed system of political parties." (Gaudron Gummow and Hayne JJ.)
55 I do not accept that an action for malicious prosecution is available against the Executive in the circumstances of this case. There may be scope for such a claim against the DPP, but not against the Executive on the basis relied upon by the plaintiff.
56 The prosecution was brought by the DPP. The DPP is not an organ of the Executive but an independent body set up pursuant to the Director of Public Prosecutions Act 1986. It is fundamental to that Act (s 7, 26 and s2A of Schedule 1) that the DPP be independent of the Executive. There is no evidence of any contact between the Executive and the DPP relating to the bringing of the proceedings against the plaintiff under the CPA.
57 The plaintiff's submission misunderstands the way in which responsible government operates in New South Wales. While it is clear that the Executive normally (but not always) initiates legislation, that legislation has to be passed by the legislature, i.e. the two Houses of Parliament in New South Wales. The functions of the legislature are in theory and in practice separate from those of the Executive. It is the Parliament which passes the legislation and converts a Bill into an Act.
58 Implicit in the plaintiff's submission is the assumption that the legislature (i.e. the two Houses of Parliament) operates as a mere rubber stamp for the Executive. That assumption has not been made out. As happened here, a Bill often undergoes a change in the course of the legislative process. The significant change which occurred in the Legislative Council in this case was the conversion of the CPA from an act which referred to violent offenders generally, to an act which was directed solely towards the preventative detention of the plaintiff. That amendment was not initiated by the Executive but by the Opposition.
59 The function of the Executive is to govern the State of New South Wales. This is done in part by the initiation of legislation. Once that legislation is initiated and placed before the legislature, it is the function of the legislature to consider and if appropriate to pass that legislation. The Executive then takes the appropriate steps to have the resulting legislation proclaimed. It is, however, the legislature ie the Houses of Parliament not the Executive, which decides whether the proposed legislation should go forward.
60 To submit as the plaintiff does that by initiating legislation and then taking the necessary steps to have that legislation obtain Royal Assent and be proclaimed, the Executive Government of the day should be regarded as a prosecutor if in fact that legislation involves the taking of proceedings by the DPP, is to misunderstand the separation of powers doctrine as it operates in the governance of New South Wales.
61 What the plaintiff is really arguing for is a right to sue the Executive in circumstances where legislation has been passed by the New South Wales Parliament but has subsequently been held by the High Court to be invalid. The right being argued for is not a right to sue the Executive in respect of the consequences flowing from such invalidation of legislation, but for the very act of initiating and proclaiming the invalidated legislation. Such a cause of action is unknown to the law of Australia and no compelling reason has been put by the plaintiff as to why such a right of action should exist. Similar arguments were decisively rejected by the High Court in Kruger & Ors v The Commonwealth of Australia (1996-1997) 190 CLR 1. At 147 Gummow J succinctly stated his rejection of the proposition as follows:
"The reasoning in the Australian authorities has not proceeded on the footing that, because a constitutional guarantee operates to impose a restraint upon legislative power (as does s 51(xxxi)) or to confer an immunity upon the individual in respect of certain activity (as does s 117), it follows that the guarantee confers a "right" which must have a remedy in the form of substantive relief upon a personal cause of action. Such a conclusion does not necessarily follow from the premise."
62 While that is sufficient to deal with the plaintiff's claim for malicious prosecution, in deference to the arguments put by both sides and in case my conclusions are incorrect, I propose to deal with the other issues raised.
63 In relation to the second element of the tort of malicious prosecution, the application before Hunter J did not terminate in favour of the plaintiff. An order was made, it was not the subject of any appeal, and it was never set aside. The application before Levine J did ultimately terminate in favour of the plaintiff and accordingly, it is only the application under the CPA before Levine J that can be the subject of the claim.
64 The third element of malicious prosecution to be established is that either the DPP or the Executive Government in initiating or maintaining the proceedings, acted maliciously. It was appreciated by the parties that this was a factual issue to be decided by the jury. The issue before the Court, however, is whether there is any evidence capable of establishing malice to be placed before the jury.
65 In relation to this element the plaintiff does not assert actual ill will or spite on the part of an individual person. He submits that malice is to be inferred or implied from all the circumstances. (Malice in this case must mean that the prosecutor acted for an improper purpose and not for the purpose of carrying the law into effect) (A v New South Wales at [40]).
66 The plaintiff does not suggest nor is there any evidence of malice on the part of the DPP or those bringing the proceedings on his behalf. The plaintiff submits that as against the Executive "institutional malice" is to be inferred from the circumstances in which the CPA was introduced to Parliament and proclaimed and from the provisions of the CPA with their "ad hominem" focus on him.
67 The plaintiff puts his submission as follows:
"The New South Wales Parliament had power to pass a law to imprison the plaintiff but did not do that. The Executive Government instead procured the passing of the Act by Parliament, to do by invalid and sham means that which it had power to do by other means. They obviously did this to obtain a cloak of judicial respectability and avoid the political opprobrium of a direct enactment to imprison the plaintiff."
68 I have difficulty in understanding that submission which is in any event internally inconsistent. The concept of "procured the passing of the Act by Parliament" in the context of a Parliamentary democracy elides a number of concepts. Moreover, there is no evidence before the Court to support the submission.
69 The plaintiff seeks to rely upon various observations made by the High Court in Kable, particularly by Gaudron and McHugh JJ. This, however, is not evidence. The question of malice was not before the High Court and even if it were, the State of NSW was not a party to those proceedings and any evidentiary finding could not bind it.
70 The plaintiff submits that malice encapsulates an extended meaning that would include institutional or organisational contexts from which an improper purpose can be inferred. By this I understand the plaintiff to mean that malice is to be inferred from the contents of the CPA and from the fact that it was introduced into Parliament by the Executive and ultimately placed before the Governor and proclaimed.
71 It is true that in A v NSW the plurality said:
"[41] In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice."
72 I read that passage as indicating that in a public prosecution context evidence of how the particular prosecutorial office operated could be of importance when determining whether malice has been established. The emphasis, however, is on evidence of the system in place and the process whereby the decision to prosecute was made. There is no such evidence in this case.
73 The plaintiff relies upon a particular interpretation of the concept of "institutional malice". The interpretation is novel and no authority was cited to support it. I can find no basis in law for such a key element of the tort of malicious prosecution to be expanded in the fashion for which the plaintiff contends, i.e. that malice has an extended meaning that includes institutional or organisational contexts from which an improper purpose can be inferred. Even if such an approach were open, there is no evidence before me to support such a finding. In particular, there is no evidence from which to infer that the Executive proclaimed the Act because it did not want the political opprobrium of a direct enactment to imprison the plaintiff. Moreover, the Act as proclaimed was significantly different from the Bill proposed by the Executive.
74 There is no evidence before the Court of any actual ill will or malice by any person acting on behalf of the Executive or on the part of the Executive itself as a separate entity. Accordingly, I am not satisfied that there is any evidence which would justify the question of malice, either on the part of the DPP or on the part of the Executive being referred to the jury.
75 The fourth element of malicious prosecution to be established is that the DPP and/or the Executive acted without reasonable and probable cause.
76 The plaintiff submits that in accordance with the observations of Gaudron J in Kable, the CPA set up a regime which required "a guess" to be made by the Court about his future conduct. The plaintiff submits that a "guess" as to future conduct could not constitute reasonable and probable cause.
77 I do not accept the plaintiff's submission in relation to this element of malicious prosecution.
78 To make out that element the plaintiff needs to show that either the DPP or the Executive acted without reasonable and probable cause. Reasonable and probable cause can only be assessed by reference to the provisions of the CPA. As was explained in A v New South Wales, there is a subjective and objective aspect to this element of the tort:
"[58] Secondly, the 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? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful."
79 In relation to the subjective aspect, there is no evidence that either the DPP or the Executive did not subjectively think that there was a case warranting the bringing of an application under the CPA against the plaintiff.
80 In relation to the objective aspect, all the evidence is one way, i.e. to the effect that there was a probability that the plaintiff would commit a serious act of violence following his release from imprisonment. The evidence adduced by the DPP before Hunter and Levine JJ persuaded their Honours to that effect. The same evidence is before me in these proceedings and I agree with their Honours' findings.
81 In that regard at page 17 of his judgment Hunter J said:
"Having regard to the strength and nature of the plaintiff's case as outlined above, I am certain that it is reasonable in all the circumstances that an interim detention order be made."