Moore v Moore

Instigation or Initiation of a Prosecution

The question therefore arises as to what the principles are relating to an alleged initiation or instigation by the defendant against the plaintiff of criminal proceedings which are said to found the tort of malicious prosecution. They have been considered in a number of cases.
The most convenient statement of the principles is in Johnston v Australia and New Zealand Banking Group Limited [2006] NSWCA 218. There, Basten JA (with whom Giles JA and Santow JA agreed) stated as follows in paragraphs 36 to 40: "36 That a person who is not legally a party to a prosecution may nevertheless be sued is beyond doubt. In Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 282, Isaacs ACJ stated: "For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge ... . The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position." 37 The availability of the tort in such circumstances followed naturally from its early life which was based upon the fact of a conspiracy between two or more persons to procure the indictment of the plaintiff for treason or felony, so that his life was in danger: Davis v Gell, 35 CLR at 284 (Isaacs ACJ). The fact that two persons were necessary for a conspiracy suggests that more than one person can be 'the real prosecutor' for the purposes of the modern tort of malicious prosecution. Such a conclusion is consistent with the approach of Lopes J in Danby v Beardsley (1880) 43 LT 603 at 604 that a prosecutor for the purposes of the tort is a person "actively instrumental in putting the law in force". In Evans v London Hospital Medical College [1981] 1 WLR 184, the plaintiff was the mother of a five month old son who had died from "sudden infant death syndrome". A post mortem analysis carried out on the infant, by the defendant hospital (the first defendant), through an employed medical officer (the second defendant) resulted in specimens being sent for toxicological analysis, which was carried out by the third and fourth defendants. Their reports were provided to the police and formed the basis for the laying of a murder charge against the plaintiff, on the basis that the child had died from morphine poisoning. A subsequent analysis by a pathologist briefed on behalf of the plaintiff suggested that there had been no morphine in the baby's body at the time of death. Nevertheless, the charge was not retracted, but when the matter came on for hearing at the Central Criminal Court, the prosecution offered no evidence and the plaintiff was acquitted. Proceedings were initially commenced against the defendants in negligence, but an amendment was sought to introduce a cause of action for malicious prosecution against each, because they had "caused the law to be set in motion". Drake J dismissed the application to amend on the basis that all that was alleged was the placing of reports before the police which was not in itself sufficient to constitute the tort. However, there appears to have been no dispute that the several defendants could have been liable for malicious prosecution if it could have been established that each was involved in actively, and maliciously, putting the criminal process in motion. In any event, no argument was presented in the present case to suggest that the multiplicity of defendants was an obstacle to a properly pleaded claim. 38 The modern action thus grew out of one for a kind of abuse of process, namely setting the criminal law in motion inappropriately and thereby causing damage. The criteria by which the involvement of persons not party to the prosecution might find themselves liable to suit, have not been clearly defined. This point was made by Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 at 379: "The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority ... . But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible ... . The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him." 39 I do not read the last sentence as qualifying the propositions which came before: in other words, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself was party to the wrongdoing. The prosecution in that case was made by a Detective Sergeant Lawrence, but apparently on the authority of a senior officer. At p 381-382, Dixon J stated: "It is true that the detective-inspector sanctioned the prosecution. But upon his evidence it was open to the jury to take the view that he did not in the exercise of an independent judgment direct the prosecution, but, upon an account of the matter given to him by Lawrence with the view of obtaining his assent to a course already agreed upon between Lawrence, Clifford and Inch, as Lawrence's superior officer, he authorised him to proceed." 40 It is thus apparent that the nominal informant may have been party to the tort, but not the police officer who authorised the prosecution. As a matter of principle, there is no reason why the nominal prosecutor, or the person authorising the prosecution, should be a joint tortfeasor: nor do the relevant authorities suggest such a limitation. Dixon J may be understood as discussing the facts of the case before him, rather than imposing a novel limitation on the tort. This view is consistent with subsequent authority: see, eg, Mahon v Rahn (No. 2) [2000] 1 WLR 2150 at [255] (Brooke LJ). Otherwise, the statement of principle in Brain sufficiently identifies the relevant criteria."
The principles which emerge from this case appear to be as follows: 1. A person who is not legally a party to a prosecution may nevertheless be sued for the tort; 2. The person in fact instrumental in prosecuting the accused may be the real prosecutor for the tort, 3. The substance and not the legal form in all cases must govern; 4. A prosecutor for the purposes of the tort is the person "actively instrumental in putting the law in force"; 5. Several defendants may be liable for the tort of malicious prosecution, if it can be established that each was involved in actively and maliciously putting the criminal process in motion; 6. The criteria by which the involvement of persons not party to the prosecution might find themselves liable to suit has not been clearly defined; 7. If the discretion of a Prosecutor is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who brought about the prosecution are responsible. That is particularly the case where those who caused the actual Prosecutor to institute proceedings do so by dishonestly prejudicing his or her judgment; 8. It is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual Prosecutor himself was party to the wrongdoing; 9. The nominal informant may be party to the tort, but not the police officer who authorised the prosecution.
The question is whether the police exercised their discretion in the matter, or effectively relied on false or misleading statements from the alleged instigator in the Court. In Johnston, the Court of Appeal relied in particular on the statement by Dixon J in Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 at 379. It is noted in that case that the party who provided the information for the offence was sued, as in Johnston, where the mortgagee of a rural property, and a liquidator and his employed staff member, were sued, not any one within the police.
The principles in Johnston were expressly followed by the Court of Appeal in Sahade v Bischoff [2015] NSWCA 418. The facts in that case involved an alleged assault, somewhat similar to here, of two persons living in valuable premises at Wolseley Road in Point Piper. The statement of principles was given by Gleeson JA, with whom Basten JA and Beech‑Jones J agreed: see at paragraphs 108 to 121, where Johnston and Brain were followed. His Honour also referred to Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255], where Brooke LJ, with whom Mantell and Laws LJJ agreed, stated: "If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information".

Principles Relating to Part 13.4

There has been extensive consideration of the principles applicable to an application under Part 13.4. Mr Glissan of counsel referred me to a number of authorities. It is unnecessary to set out those principles in detail. However, I refer to Comninos v Buckley [2019] NSWSC 968 at paragraphs 77 and following, where Hallen J helpfully sets out the principles.
More recently, Walton J in Fan v South Eastern Sydney Local Health District [2020] NSWSC 1038, a decision dated 10 August 2020, set out a similar statement of principles at paragraphs 43 to 44, referring to his Honour's judgments in earlier cases. It is helpful also to refer to a couple of recent Court of Appeal cases. In AD v Commissioner of the Australian Federal Police [2018] NSWCA 89, President Beazley, with whom Meagher and Gleeson JJA agreed, stated the principles in paragraph 10, although in the context of an appeal. Her Honour referred to Jackamarra v Krakouer (1998) 195 CLR 516 at paragraphs 32 and following, where the principles were stated by Brennan CJ and McHugh J.
Their Honours stated: "Although various expressions have been employed in this context, all of them may be seen as different ways of saying that a court should not exercise its powers of summary determination of a proceeding, except in clear cases".
At paragraph 34, their Honours stated: "We do not think it useful to fasten on one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail, and in that sense it is not "arguable" or "fairly arguable"."
While that was a reference to an appeal, similar principles would apply to a trial at first instance.
In Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, White JA, in his judgment, set out the principles applicable. In paragraphs 48 and following, his Honour referred to the "high hurdles" that an applicant must overcome. There was specific reference to Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [25], where French CJ and Gummow J stated: "Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue".
That principle has been frequently referred to in the authorities, including by Hallen J in Comninos at paragraph 81.
It is important to consider the statements of principle in both Comninos and Fan. Their Honours in both judgments go through a number of appellate authorities which show that there must be a high degree of certainty that the case will fail, there must be a clear case, the case must be doomed or seen as hopeless.
As the High Court stated in the case of Agar v Hyde (2000) 201 CLR 552 at [57], ordinarily a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way after taking advantage of the usual interlocutory processes. Their Honours referred to a need for a high degree of certainty. This was emphasised again by Leeming JA in Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] 94 NSWLR 83 at [30].
Mr Glissan submitted that on all the evidence before the Court, there was that degree of certainty in the outcome of the proceedings. It is said that the plaintiff's evidence in his affidavit, which Mr Glissan read on the application, does not establish clearly that there was dishonesty by the defendant in the steps he took to inform the police of what had occurred. He said that it is difficult to establish the tort of malicious prosecution and there is simply no evidence before the Court which gives any indication of the degree of falsity and deliberate dishonesty which is necessary.
It is said that the plaintiff's affidavit simply does not put forward documents from the defendant showing that, or any other relevant material. It is also submitted that the trial transcript in the criminal trial shows that counsel retained on behalf of the plaintiff did not challenge a number of propositions including that the plaintiff had bitten off the defendant's ear in the course of the altercation. It is said in particular that the evidence given by Chief Inspector Cox at p 61 of the criminal transcript was to the effect that the plaintiff said to him words to the effect: "He mustn't have liked me biting his ear off": T61.6. It is submitted that this was the matter, it should be inferred, which led to the charge. It is said that the plaintiff's case is hopeless, untenable, and it is not in the interests of justice for it to continue, and that the requirements of Part 13.4 have clearly been established.
Mr Rollinson, on behalf of the plaintiff, points to aspects of the pleading, which it is submitted plead the required falsity of the information provided by the defendant, and establish a cause of action on the face of the pleading. It is pointed out that the affidavit of the plaintiff, sworn 24 May 2020, in paragraphs 15 and following, sets out the plaintiff's version of the altercation. Reliance is particularly placed on paragraph 19, which provides as follows: "At one point, his head smashed me in my face and his ear went into my mouth as I was trying to breath. In his thrusting around, he ripped his ear on my teeth. He then grabbed me and threw me into the freezer, and I fell to the floor."
It is said that that is inconsistent with a deliberate biting off of part of the ear, which allegation gave rise to the criminal charge. It is said that the various references relied upon in the criminal transcript do not advance the matter. It is said that they have to be seen in the context of a criminal proceedings.
The plaintiff, as the accused, was not obliged to give evidence. It is submitted that tactical or strategic approaches were taken as to cross-examination, which gave rise to the defence of the claim, and that there was no formal concession that the ear had been deliberately bitten off, or that it had been bitten off at all. It is said that the evidence of Chief Inspector Cox does not take the matter any further, because it has to be seen in the light of the fact it was criminal proceedings. I note that it is not stated by Chief Inspector Cox that the plaintiff's alleged statement, "he mustn't have liked me biting his ear off", was the reason why the charge was brought by Senior Constable Chaffey.
I have carefully considered the submissions, which have been put to me by the various parties, for which I am grateful. I note the caution which must be exercised, which is emphasised by many appeal courts, in relation to dismissing a matter summarily. As Hallen J states in paragraph 86 of Comninos: "… the case advanced by the Plaintiff must be approached on the basis that … the evidence sought to be relied on must be taken at its highest … and that the Court should proceed upon the basis that the Plaintiff would be able to prove the facts to which he averred in the affidavits read on the Notice of Motion". That statement is in the plaintiff's favour.
On his version of the incident, set out in paragraph 19 of his affidavit, it is clear, in my view, that the plaintiff faces a difficult road to establish the tort. Although it is on the balance of probabilities, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, and in s 140 of the Evidence Act 1995 (NSW), must be taken into account in any hearing. It seems that the plaintiff is relying on inferences, which are to be drawn from the statements, which he annexures to his affidavit, and from the transcript in relation to the evidence given at the trial.
Having taken into account all of the matters that the defendant has brought to my attention, and particularly the transcript in the trial, I am not satisfied that this application should succeed. In my view, the case is not a clear one such that the case brought by the plaintiff is hopeless and doomed to fail. In my view, the plaintiff's case is arguable, but will require some inferences to be drawn from established facts.
I repeat the comment of French CJ and Gummow J in Spencer v The Commonwealth at paragraph 25, to which I have earlier quoted. That is not to say that I have formed the view that the plaintiff is unlikely to succeed on the factual issue. However, even if I were of the view that the plaintiff was unlikely to succeed in the underlying case on the evidence before me, that is not sufficient. The plaintiff has put forward an alternative version, and in my view, the conduct of the criminal case does not make the position clear and beyond doubt.
For all of those reasons, I make the following order.
In relation to the Notice of Motion, filed 21 May 2020: 1. The Notice of Motion is dismissed.

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)

Cited By (1)