(b) An impermissible motive of some kind or other
52 In Brown v Hawkes Lord Esher MR said at 726-7 -
"Now, although it is correct to say that want of reasonable and probable cause for the prosecution is some evidence of malice, it goes before the jury with the other facts of the case which go to establish the existence of malice. In this case the jury have found that the defendant did honestly believe in the full charge that he laid before the magistrates. Under these circumstances, we have to see whether there was any evidence beyond the absence of reasonable and probable cause on which the jury might find that the defendant was malicious in fact. It might be shewn that although the defendant thought the plaintiff was guilty, yet in preferring the charge he was not acting upon that view but from some indirect motive. No such evidence has been pointed out to us, and, indeed, its existence is negatived by the finding of the jury as to the honest belief of the defendant."
53 Bowen LJ referred at 727-8 to the need for evidence from which malice could be inferred where, although there was absence of reasonable and probable cause, the prosecutor "believed honestly that the man was guilty". Kay LJ said at 728 -
"Now, if he honestly believed the charge which he made against the plaintiff, some distinct evidence is required to prove malice, and the only question before us is, what is relied on as evidence of malice. As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper enquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question put to the jury, that the defendant did not take proper care to enquire into the facts of the case, would, without more, determine the action in favour of the plaintiff. That cannot be so, and when I look at the evidence (as I have done with care) to find what evidence there was of sinister motive, I can find none on which the jury could reasonably find that the defendant was actuated by malice."
54 Even if a plaintiff cannot point to a particular impermissible motive, the plaintiff can seek to prove "that the defendant's conduct is not to be explained by the existence of a right motive". These are words of Kitto J in Trobridge v Hardy at 163, and at 163-4 his Honour gave the example -
"An example may be found in the case of evidence which shows that the defendant in an action of malicious prosecution had no reasonable or probable cause. That is a question for the judge, though in order to answer it he must accept any findings of the jury on relevant questions of disputed fact. The jury's findings on such questions may have importance, not only for the judge on the question he has to decide, but for themselves on the question of malice which it is for them to decide. They may find that facts were known to the prosecutor such that a reasonable man who knew them would not believe in the guilt of the accused. That may seem to them to make it improbable that the prosecutor in fact believed in the guilt of the accused, although, as they should recognize, 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. If they think it more probable than not that the prosecutor lacked a belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was."
55 Understanding belief by the prosecutor in the guilt of the accused as, or as including, belief that the accused has a case to answer, the belief will generally preclude a finding that the prosecutor was actuated by an impermissible motive of some kind. The belief will generally sufficiently explain the prosecution, and on ordinary reasoning establishing an impermissible motive will require persuasion of an actual improper motive. The appellant submitted that AW v State of New South Wales [2005] NSWCA 543 at [270] illustrated a finding of improper motive of some kind despite the prosecutor's belief in the accused's guilt, but her reliance on that case was misplaced; an impermissible motive of some kind was inferred because, although the prosecutor may have believed the accused was involved in the criminal conduct, when required to particularise the charges "he must have realised that he did not know". That is, the prosecutor did not have a belief that the accused had a case to answer.
56 Sergeant Byrne gave evidence that he believed that there was a case to answer, and Blanch CJDC accepted him. The appellant rather faintly submitted that the acceptance could be overturned on appeal, saying that it was undermined by Sergeant Byrne's lack of recollection of the details of his investigation and conduct. His Honour was alive to, and found acceptable, the inability to recall, and plainly enough considered that Sergeant Byrne's evidence of his belief was nonetheless genuine and reliable. In my opinion, it was well open to his Honour so to find.
57 The appellant submitted that a number of matters, going beyond an absence of reasonable and probable cause, warranted (at one point she said mandated) the finding that Sergeant Byrne must have acted from an impermissible motive. There was a degree of overlap and repetition, and some of the matters were quite insignificant. I consider that they can be sufficiently summarised as follows -
· according to normal procedure, the appellant should have been interviewed before the summonses were issued, but that was not done;
· the breach report did not assert that the appellant created the false instruments;
· the breach report was incorrect insofar as it said that the appellant had been informed of a possible prosecution;
· the summonses were issued although the original debit vouchers had not been obtained, and this notwithstanding that a possible explanation given for the failure to interview the appellant was that the original debit vouchers were not held;
· the summonses were issued at the time the Freeborn matter was under investigation;
· Senior Constable Byrne did not seek to locate the appellant after the issue of the summonses;
· the summonses were not served although the appellant was living in Ballina until November 2000 and was at the Ballina police station on 17 October 2000;
· there was considerable delay before the prosecution was advanced by the issue of the warrants;
· generally, Sergeant Byrne was unable to explain his conduct in detail.
58 The investigation and the conduct of the prosecutions was not ideal. According to normal procedure, the appellant should have been interviewed; Sergeant Byrne thought he was waiting for the originals of the debit vouchers before interviewing her, and it was fairly questioned why the summonses were issued probably, on the evidence as a whole, without the originals. The breach report was not well written, but there could be no doubt that it was alleged that the appellant created the false instruments (this would no doubt have been apparent from the informations). There was unexplained failure to locate the appellant, and to serve her while she was still in Ballina. There was undesirable delay, although his Honour plainly accepted the reality as expressed by Sergeant Byrne -
"I mean, as I explained to you in my evidence-in-chief, that, without trying to reduce the importance of these proceedings, a $3000 fraud matter where the victim has been compensated by the bank - when you're dealing with sexual assaults, murders, bikie shootings, people committing fraud offences currently, those sorts of things; I mean, on a priority rating, they slip back down the scale. We give them attention when we can. It was a very busy time."
59 Some ineptitude in a prosecution in which the prosecutor believes there is a case to answer, and police resources and procedures such that there is incomplete attention to and undesirable delay in the prosecution, falls short of malice in the tort of malicious prosecution. Once it is accepted that Senior Constable Byrne believed that the appellant had a case to answer, I do not think that the matters on which the appellant relied warrant the inference that he must have been acting for an impermissible motive; certainly, I do not think that it has been shown that the conclusion of Blanch CJDC was in error.